Volume 243 — Federal Reporter

Iti Error to the District Court of the United States for the Eastern District of Pennsylvania; J. Whitaker Thompson, Judge. Action by the Bluefields Steamship Company, Limited, to the use of Elmer E. Wood, ancillary receiver, against the United Eruit Company. There was a judgment for defendant, and plaintiff brings error.

Dayton, Judge. * Action by Martha Dernberger, administratrix of the estate of Benjamin Demberger, deceased, against the Baltimore & Ohio Railway Company. From a judgment for defendant on a directed verdict (234 Fed. 405), plaintiff brings error.

Campbell, Judge. Suit by Tootie Riley, a minor, by U. C. Stockton, her guardian, and others, against Gabe E- Parker, as Superintendent for the Five Civilized Tribes, successor of Dana PI. Kelsey, as United States Indian Superintendent, Union Agency, and another. From the decree (218 Fed. 391), defendants appeal.

Petition to Revise Order of the District Court of the United States for the Southern District of New York. In the matter of the Midtown Contracting Company, bankrupt. On petition to revise an order (238 Fed. 871) reversing an order of the referee denying a petition of the trustee for a summary order requiring the Board of Education of the City of New York to deliver certain property to him.

Trippet, Judge. _ . Suit to quiet title by the California Land Company against F. F: Doane. From a decree for plaintiff, defendant appeals. This is a suit brought by the appellee to quiet its title to certain lands in Fresno county, Cal., which had, on February 25, 1913, been conveyed to the Los Angeles Trust & Savings Bank by 1-1. N. Coffin, John McMillan, and F. H. Parsons, appellee’s predecessors in interest, under a contract for the sale thereof to appellant.

Sanford, Judge. Action by W. E. Hall, administrator of the estate of Rufus Hood, deceased, against the Cincinnati, New Orleans & Texas Pacific Railway Company. Held: cannot be expected to exercise a constant supervision over the safety of the place where the place is changing from moment to moment as a consequence of their own labor. “In this particular case, however, there may be another element which enters into the question as to the safety of this working place.

<p>In Error to the District Court of the United States for the Southern Division of the Southern District of California; Benjamin E. Bledsoe, Judge.'</p> <p>Chas. A. Elder and others were convicted of an offense, and they bring error.</p>

Adams, Judge. Suit in equity by the Equitable Trust Company of New York, as trustee, against the Wabash Railroad Company. On petition of intervention by the United Metals Selling Company against defendant and Edward B. Pryor and Edward F. Kearney, its receivers. From a decree dismissing its petition, intervener appeals.

<p>1. Salks <3^>89—Modification of Cokteact by New Agbeement.</p> <p>A contract of sale of wheat for delivery during July was subject to a rule of a grain dealers’ association requiring the seller, if unable to complete the contract, within the agreed limit to advise the buyer by mail, telephone, or telegraph, whereupon it should be the duty of the buyer to at once elect either to buy in, or cancel the deficit, or extend the contract to cover such deficit. On July 29th the seller advised the buyer that it would be prevented by a railroad embargo from shipping until August 2d, but would get the wheat out as soon as the railroads would receive it. On August 2d and 3d the buyer wired the seller, requesting that shipments be held up temporarily, and In a second wire that the sale be canceled. The seller in reply ignored or barely acknowledged the request for delay, stating that it had the wheat ready to deliver as soon, as the embargo was raised, and would much prefer to deliver it as soon as possible. In reply to a further request for delay and offer for cancellation, it again ignored, beyond a bare acknowledgment, the request to delay, and at no time in, the correspondence ever did more than simply acknowledge receipt of such request. Held, that there was no acceptance of the offer to delay, so as to create a new contract, replacing the original contract; the fact that the seller did delay being caused by its absolute inability to ship by reason of the embargo, and' not by its compliance with the buyer’s request.</p> <p><S=>For oilier cases see saino topic &■ KEY-NUMBER m all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 251, 252, 259.]</p> <p>2. Sales <@=>89—Option to Modify Contract—Time for Exercise—“At Once.”</p> <p>Within the provisions of such contract authorizing the buyer to elect at once to extend the contract, “at once” did not mean instantaneously, but with reasonable expedition under all the circumstances, and the circumstances in this connection comprehended both those in mind at the time the contract was made and those present at the time the party acted under such provision, and the contract included any conduct of the other party which would influence the action of the one required to act at once.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 251, 252, 259.</p> <p>For other definitions, see Words and Phrases, First and Second Series, At Once.]</p> <p>3. Sales <@=>89—Option to Modify Contract—Time for Exercise.</p> <p>An election by the buyer on August 10th and 11th to extend the contract was in time, where negotiations for cancellation of the contract, in which the seller actively participated, were in progress during the intervening time, and the buyer notified the seller that it extended the contract as soon as the seller demanded instructions as to disposition of the wheat.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 251, 252, 259.]</p> <p>4. Sales <@=>89—Option to Modify Contract—Validity of Extension of Time.</p> <p>An attempted extension of the .contract by the buyer was not ineffective, because it fixed no definite time to which the contract was extended, as the contract itself did not require performance upon a certain day, and any extension was intended to he of similar character, and, moreover, the seller could not be injured by an indefinite extension, as it was at liberty to deliver at any time.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 251, 252, 259.]</p> <p>ti, Sales <@=>418(2)—Nondelivery by Seller—Dama oes.</p> <p>As the extension was seasonably made and was within the terms of the contract, the contract was not broken by the seller until its failure to deliver within the time as extended, and the damages for its breach were to be measured as of that date, with interest from that date.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 1175-1179.]</p> <p>©=>For other cases see same topic & KEY-NUMBER in all Key-Numhered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the District of Nebraska; Joseph W. Woodrough, Judge.</p> <p>In Equity. Suit by Clarence H. Venner, doing business as C. H. Venner & Co., against the City of Omaha. Decree for complainant, and defendant appeals.</p> <p>The appellee brought this action against appellant to obtain a rescission and cancellation of a contract arising out of a bid by him and the acceptance thereof by appellant for certan municipal renewal bonds, and to recover the sum of $5,000 earnest money deposited with the bid. The district court granted the relief prayed for. and appellant appeals. The material facts as shown by the record are substantially as follows:</p> <p>Appellee is a dealer in investment securities in the city of New York. Early in April, 1912, he learned of a proposed bond issue by appellant on receiving front it a circular dated at Omaha, Neb., March 28, 1912, and signed by Ered H. Cosgrove, city comptroller. The circular stated that sealed bids would be received by the city council of the city of Omaha up to 8 o’clock, p. m. of the 16th day of April, 1912, for the bonds described in the circular, viz. 600 bonds, of the denomination of $1,000 each; that bids must be accompanied by a certified check in the sum of $5,000, to be regarded as liquidated damages in case of failure on the part of the successful bidder to carry out his contract; that bids should be subject to bonds having been legally and regularly issued. The circular contained among other information, under the heading “Financial Data,” the following:</p> <p>Bonded debt including these issues.....................$ 6,120,000 00</p> <p>Valuation for assessment purposes, 1912, estimated...... 164,167,720 00</p> <p>Tax rate for all purposes 1912 per one thousand dollars... 12 96</p> <p>Debt limitation 5 per cent, of valuation as above.</p> <p>At the time appellee was considering the above proposal he had in his possession another circular signed by the city treasurer of appellant for the sale of bonds,dated July 15, 1911, which contained among other information, under the heading “Financial Data,” the following:</p> <p>Assessed valuation ................................... $151,331,701 00</p> <p>Tax rate per one thousand dollars...................... 12 58</p> <p>On April 13, 1912, by letter addressed to the city council of appellant, appellee m'ade an offer for all the bonds mentioned in the circular dated March 28, 1912, of 102.513 per cent., plus accrued interest, and accompanied the offer with a certified check for $5,000, payable to appellant in accordance with the requirement of the circular. Appellee relied upon the statements contained in the circular, and made his bid with.reference to a sale of the bonds to savings banks in the states of New York, Massachusetts, New Hampshire, Vermont, and Rhode Island, which banks paid a higher price than that of the general bond market.</p> <p>The law of Vermont conditioned the right of savings banks to purchase municipal bonds upon the fact that' the municipality issuing the bonds did not have an indebtedness exceeding 7 per cent, of the last preceding valuation for the assessment of taxes.</p> <p>The New Hampshire statute provided that the net indebtedness of the municipality issuing the bonds should not exceed 7 per cent, of the last preceding valuation of the property therein for taxation.</p> <p>The Rhode Island statute provided that the net indebtedness of the municipality should not exceed 7 per cent, of the valuation of the taxable property therein for the assessment of taxes.</p> <p>The Massachusetts statute provided that the net indebtedness of the municipality should not exceed 7 per cent, of the valuation of the taxable property therein, to be ascertained by the last preceding valuation of property therein for the assessment of taxes.</p> <p>The New York statute provided that, if the indebtedness of the municipality should exceed' 7 per cent, of the valuation for the purpose of taxation, its bonds and stocks should thereafter and until such indebtedness should be reduced to. 7 per cent, of the valuation for the purposes of taxation, cease to be an authorized investment for the moneys of savings banks.</p> <p>The bid of appellee was accepted by appellant April 17, 1912. On April 18, 1912, appellee was informed for the first time that the bonds of appellant as investments for the savings banks of New York had been decided invalid ,by the attorney general of that state. The attorney general had so decided in December. 1911. Opinions of Attorneys General, New York, 1911, p. 686 Upon receiving this information, appellee wired Cosgrove, city comptroller of appellant: “We are informed that assessed valuation of Omaha is only one-fifth of amount stated in city circulars upon which we relied in making bid. Please wire explanation.” April 19, 1912, appellee received a telegram from. Cosgrove reading as follows: “Assessment made on one-fifth actual valuation.” On same day appellee wired Cosgrove as follows: “Wire us exact amount assessed valuation for this year, also for 1911.” On April 20, 1912, appellee received front Cosgrove a night letter reading as follows: “Exact assessed valuation for 191.1 is $30.376,213; for 1912, $31,779,681. Full valuation or as stated in circular; valuation for assessment purposes is five times above amount. Debt limit based upon full valuation.”</p> <p>On the same day appellee mailed the following letter to Cosgrove, comptroller:</p> <p>“New York, April 20, 1912.</p> <p>“Fred H. Cosgrove, Esq., Comptroller. City of Omaha, Nebraska.</p> <p>¡‘Dear Sir: In reference to the SGOO'.OOO of city of Omaha bonds awarded to ns, we telegraphed you on the 18th instant as follows: [Set out above.] We received your telegram on tbo 19th (dated the 18th), as follows: [Set out above.] As your telegram did not give us the necessary information, we wired you on the 19th as follows: [Set out above.] In answer to this last telegram we have received your telegram as follows: [Set out above.] In your circular dated March 28, 1912, inviting bids for the $600,000 of bonds, you stated, among other things, in reference to the financial condition of the city: ‘Valuation for assessment purposes, 1912 (est’d.), $161,167,720.’</p> <p>“This appearing to be an estimate, we inferred that the assessment rolls for 1912 had not been finally completed, and that the figures given were approximately correct. But to further assure ourselves with respect to the assessed valuation, we consulted our files, and found the circular dated July 15, 1911, signed Frank A. Furay, city treasurer, which invited proposals for $379,-000 city of Omaha street improvement bonds. Among tile other items set forth in said circular was, ‘Assessed valuation, $151,331,701.’</p> <p>“Construing the two circulars, we concluded that the assessed valuation for purposes of taxation for the year 1912 would show an increase of some $13,000,000 over the assessed valuation for 1911. It appears, however, from your telegram received to-day, that the exact assessed valuation for 1911 was only $30,376,213, and that for 1912 the exact, assessed valuation is $31,779,681.</p> <p>“The facts and figures above set forth raise a very interesting question. You are aware, as doubtless your predecessors have been, that the market for Omaha bonds, which has enabled the city to realize high prices for them, has been confined largely to the savings banks of certain Eastern states, which, by the laws affecting them, are permitted to invest their funds in the bonds of certain cities whose net indebtedness does not exceed a certain percentage oí the assessed valuation of property in such cities. In New York state the percentage is 7 per cent., and in the other states 5 per cent.</p> <p>“We bid for these bonds upon the faith of the representations contained in the circulars above referred to, to wit:</p> <p>“ ‘Assessed valuation for 1911.............................. $151,331,701’</p> <p>“ ‘Estimated assessed valuation, 1912....................... 164,167,720’</p> <p>—for the purpose of selling themd to savings banksmi the several states which would be legally allowed to buy them, if either of said statements of assessed valuation for 1911 or 1912 had been correct</p> <p>“You can imagine, therefore, that we are now considerably surprised to learn that the figures given for 1911 and 1912 are five times the amount of the assessed valuation. Under this condition, it is apparent that the bonds of the city of Omaha are no longer a legal investment for the banks in the states of New York, Maine, New Hampshire, Vermont, and Itliodo Island, and we have just learned that the attorney general of the state of New York has so ruled in respect to this state.</p> <p>“It is hardly necessary to call your attention to the fact that, with such a market closed to them, the bonds are not as valuable as they would otherwise be, and that we will he deprived of the market and profit which we had in view when we made our hid.</p> <p>“In our investigation, of this subject of assessed valuation, we have, among other things, been furnished with a statement of the financial statement of the school district of Omaha, as shown by official records of October 26, 1911. Among the items are the following:</p> <p>“‘Actual value of property................................... $163,420,760’</p> <p>‘“Assessed valuation for 1911...............•............... 32,684,152’</p> <p>“Had you prepared your statement in the same form, giving separately the amounts of actual valuation and assessed valuation, we would not have been misled, and a very unpleasant question would not have arisen.</p> <p>“This being Saturday, we have not had the opportunity of taking the matter up with our counsel, but we will do so on Monday, on which day we expect to receive for submission to counsel the transcript of the proceedings authorizing the issue of the bonds.</p> <p>“Yours truly, [Signed] C. IT. Venner & Co.”</p> <p>April 25, 1912, appellee, receiving no reply to his letter of April 20th, wired Cosgrove as follows:</p> <p>“New York, April 25, 1912.</p> <p>“Fred H. Cosgrove, City Comptroller, Omaha, Nebraska:</p> <p>“Under advice of counsel for reasons stated in our letter of twentieth and other material ones, we decline to take the six hundred thousand dollars city of Omaha bonds at our bid and request return of our five thousand dollar cheque. We are willing, however, subject to approval of legality by erar counsel to buy the bonds at a fair price based upon your revised statement of assessed valuation and market conditions arising therefrom. Answer.</p> <p>“C. H. Venner & Co.</p> <p>“Chg. C. H. Venner & Co.”</p> <p>Appellant, acting on the above telegram', resold the bonds at a price more than $5,000 less than the bid of appellee, appropriated the proceeds of the certified check as liquidated damages, -and at all times since has refused to return the same to appellee. The assessed valuation of property within the city of Omaha subject to taxation, as equalized and corrected by the state board of equalization and the county board of the county of Douglas, Neb., was for the year 1911, $31,494,743; for 1912, $32,808,025.</p> <p>Section 12 of the Nebraska revenue law (Kev. Stat. Neb. 1913,’ § 6300) is as follows:</p> <p>“All property in this state not expressly exempt therefrom shall be subject to taxation, and shall be valued at its actual value which shall be entered opposite each item and shall be assessed at twenty per cent, of such actual value. Such assessed value shall be entered in separate column opposite each item, and shall be taken and considered as the taxable value of such property, and the value at which it shall be listed and upon which the levy shall be made. Actual value- as used in this chapter, shall mean its value in the market in the ordinary course of trade.”</p>

<p>In Error to the District Court of the United States for the Western District of Oklahoma; John H. Cotteral, Judge.</p> <p>Action by the United States against the Atchison, Topeka & Santa Fé Railway Company. There was a judgment for the United States, and defendant brings error.</p>

<p>1. Master and Servant <@=>265(3)—Injuries to Servant—Burden or Proor.</p> <p>A widow, suing her husband’s employer to recover damages, on account of bis death, has the burden of showing that the employer was guilty of negligence or breach of duty which was the proximate cause of the injury.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 879, 897.]</p> <p>2. Master and Servant <@=>101, 102(8), 229—Injuries to Servant—Duty or Master—Provision—Duty or Servant—Operation.</p> <p>The duty of the master is one of original construction or provision. The duty of the servant is one of operation. It is the duty of the master to exercise ordinary care to furnish to its servant a reasonably safe place in which to work and to exercise ordinary care to furnish him with reasonably safe appliances with which to work. It is the duty of the servants to exercise ordinary care to guard themselves and their fellow servants against the risk and danger that the reasonably safe place or reasonably safe appliances provided by tbe master may become dangerous by tbe negligent use of them, or the negligent operation of the work by themselves or their.fellow servants. The master is not liable for injuries to a servant caused by his failure or the failure of his fellow servants to discharge this duty. The servant assumes the risk of the negligence of his fellow servants in the performance of their duty of operation of the work and use, the place and appliances provided by the master, including the risk and danger of the negligence of his superior, be be foreman, superintendent, or other, in the discharge of his duty of directing the conduct and operation of the work in hand and the use of and place and appliances provided. In the discharge of that duty the superior servant is the fellow servant of the subordinate servant who is subject to his orders.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 173, 674, 683.]</p> <p>3. Master and Servant <@=>103(1)—Injuries to Servant.</p> <p>A master cannot, by delegation, escape liability for breach of his duty to exercise ordinary care to furnish employes with reasonably safe appliances and a reasonably safe place of work.</p> <p>[Ed. Note.—Eor other cases, see Master and Servant, Cent. Dig. § 175.]</p> <p>4. Master and Servant <@=162—Injuries to Servant—Liability or Master.</p> <p>While a master must exercise ordinary care to furnish his servants with a reasonably safe place of work and reasonably safe appliances, he is not bound to guard his servants against risk and danger resulting from the negligence of fellow servants, or superior fellow servants, such as a foreman or superintendent; the servant assuming such risks.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 327.1</p> <p><@=^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>5. Master and Servant @=»278(3)—Injuries to Servant—Actions—Evidence—Sufficiency.</p> <p>In an action for the death of an employe, evidence helé insufficient to show that the employer was negligent, either in failing to furnish a reasonably safe place of work, or reasonably safe appliances.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 958.]</p> <p><Q^>For other cases see samo topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Appeal.from the District Court of the United States for the Southern Division of the Southern District of California; Benj. F. Bledsoe, Judge. Proceeding by the United States to deport Yee Chung. From an order affirming an order of deportation, the defendant appeals.

<p>1. Adverse Possession <3=103—Conflicting Possession by Adjoining Owners,</p> <p>Where defendant, owning a tract of land known as tract 1931, had possession for over 30 years of a strip which theoretically was a part of tract 1933, adjoining tract 1931 on the south, the claimed constructive possession of the owners of tract 1935 did not create a conflicting possession, defeating defendant’s title, under Shannon’s Code Tenn. § 4456, under which adverse possession under a deed for more than 7 years gives an indefeasible title.</p> <p>[Ed. Note.—For other cases, see Adverse Possession, Cent. Dig. §§ 590-594.]</p> <p>2. Ejectment <3=165—Judgment—Construction—Matters Excluded from DETI VINAT10N.</p> <p>In a combined ejectment suit and bill to remove a cloud, in which it was sought to establish the title to coal underlying the land, plaintiff claimed title to the whole of a tract known as tract 1935. The G. Company, owning tract 1931, adjoining tract 1935 on the north, filed an answer alleging that it was the owner of certain specified tracts, one of which Was described merely as “entry 1931.” The decree found in favor of the G. Company as to four parcels, and then awarded to plaintiff all other land within his boundaries, but then expressly provided that, as to other lands claimed by the G. Company within such boundaries, it was not intended to make any adjudication, whatever. The G. Company was in possession of a strip, on the boundary of the two tracts, which was theoretically a part of tract 1935. Held that, while there was testimony that the exception in the decree as to lands claimed by the G. Company was intended to reach parcels actually claimed, but not described and claimed in the answer, it was not necessary to resort to such testimony 'to exclude the strip on the boundary, as the reference to tract 1931 had no possible pertinence, unless it referred to this strip.</p> <p>ig^jFor other cases see same topic & KEY-NUMBER in ail Key-Numberea Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Ejectment, Cent. Dig. § 547.]</p> <p>3. Ejectment <§=^165—Equitable Ejectment—Decree—Inconsistent Provisions.</p> <p>The inconsistency between the broad terms of the decree in favor of plaintiff and the specific provisions excluding lands claimed by the G. Company did not deprive such specific provisions of full effect, as the inference was that the draftsman of the decree by mistake had made it too inclusive and later corrected it, especially where this inference was confirmed by testimony that by agreement all parcels except four were withdrawn from the case, that in the lower courts plaintiff's made no claim of title to them, that such claim or title was first urged in the Supreme Court by new counsel not familiar with the agreement, that the Supreme Court, in ignorance of the agreement, approved this claim, and that as soon as this came to the attention of the former counsel 'it was corrected by inserting in the decree the provision excepting from its operation the tracts claimed by the G. Company other than those specifically adjudicated.</p> <p>[Ed. Note.—For other cases, see Ejectment, Cent. Dig. § 547.]</p> <p>É=v>For other cases see same topic & KEY-NUMBER in ¿11 Key-Numbered Digests & Indexes</p>

<p>1. Aliens @=32(7)—Proceedings to Deport—Examination of Defendant.</p> <p>A proceeding to deport a Chinese person was of a civil and not oí a criminal character, though it was the purpose of the government to proceed upon the hypothesis that the alien had entered the United States surreptitiously and in violation of Immigration, Act Feb. 20, 1907, c. 1134, § ,36, 34 Stat. 908 (Oomp. St. 1916, § 4285),' forbidding entry into the United States, except at specified places, and also that he was in the United States in violation of the Chinese exclusion laws, and hence there was no valid objection to the government calling the defendant to state the place of Ms birth and explain his presence in, the United States, without calling other witnesses to show that he was unlawfully within the United States or was an alien.</p> <p>2. Aliens @=32(9)—Proceedings to Deport—Denial of Fair Trial.</p> <p>Where, in a proceeding to deport a person of Chinese descent, who> claimed to be a citizen and Introduced substantial evidence in support of this claim, the recommendation of deportation was based in part on statements of immigration inspectors received by the Inspectors conducting the hearing, subsequent to the hearing, and the government never informed defendant that he would be given an opportunity to explain and meet these statements, nor even exhibited to him a photograph, oy reference to which one of the inspectors making such statements identified defendant as a person formerly seen in Mexico, he was denied a fair hearing.</p> <p>{Ed. Note.—For other cases, see Aliens, Cent. Dig. § 94.]</p> <p>3. Constitutional Law @=318—Due Process of Law—Deportation of Aliens.</p> <p>While the decisions of an executive officer, clothed with power to deport aliens, will not bo subjected to technical tests, yet the guaranty of due process forbids deportation without according a full and fair hearing.</p> <p>[Ed. Note.—For other cases, see Constitutional Law, Gent. Dig. § 919.]</p> <p>other cases see samo topic & KEY-NUMBER in all Key-Numbered Digests & Indexes-</p>

Suit, by the Theo. Hamm Brewing Company and others against the Chicago, Rock Island & Pacijfic Railway Company and others, in which the State of Iowa intervened. From a decree granting a permanent injunction, the intervener appeals.

<p>1. Commerce <©=98—Interstate Commerce Commission- -Findings—Review.</p> <p>A finding of the Interstate Commerce Commission that a through rate from Houston to Chicago was unreasonable, so far as it exceeded the sum of tiie local rales, will not be disturbed, when supported by evidence, though the local rate from Houston to New Orleans, used as a basis of comparison, applied only to shipments destined to points beyond New Orleans to which no through rates were published; no other rate from Houston to New Orleans being shown, and there being no attempt to show any reason for any distinction between Chicago and other points beyond New Orleans.</p> <p>[Ed. Note.—For other cases, see Commerce, Cent. Dig. § 148.1</p> <p>2. Evidence <©=46—Judicial Notice—Orders oe Interstate Commerce Commission.</p> <p>Where, in an action to enforce an order of reparation by the Interstate Commerce Commission, a demurrer was sustained to an answer alleging that the Commission had rescinded such order, and an appeal was taken, the Circuit Court of Appeals may judicially notice subsequent proceedings of the Interstate Commerce Commission, resulting in the reinstatement of such order, though not brought to the attention of the con. t below, especially where they are practically admitted by counsel.</p> <p>[Ed. Note.—For other cases, see Evidence, Gent. Dig. § 68.]</p> <p>8. Appeal and Error <©=170(1)—Review—Matters Not Presented Bet.ow.</p> <p>Such later proceeding of the Interstate Commerce Commission would be passed on by the Circuit Court of Appeals, rather than to subject the parlies to the delay and expense of taking further steps in the court below, especially since the question concerning the setting aside of the order of reparation becomes one of a moot character, in view of the later proceeding, and no attempt was made, and no purpose was expressed, by tlio railroads, either before I he Commission or in the lower court, to offer evidence tending to overcome the prima facie effect of the order of reparation.</p> <p>[Ed. Note.—For other eases, see Appeal and Error, Cent. Dig. § 1085.]</p> <p>4. Commerce <©=88—Interstate Commerce—Orders—Success oe Orders.</p> <p>Where the Interstate Commerce Commission made three reports on an application for reparation, the first of which granted reparation and was rescinded by the second report, and the last report affirmatively showing that it was supplementary to the other reports and designed to give effect to them, and provided for re-entry of the order for reparation, the three reports should be read together.</p> <p>[Ed. Note.-—For other cases, see Commerce, Cent. Dig. §§ 189, 141.]</p> <p>5. Appeal and Error <©=719(9)—Assignments ,op Errors—Allowance op Counsel Fees.</p> <p>The contention that an allowance of counsel fees in a judgment sustaining a demurrer was premature will not be passed on, where error is not assigned to this feature of the judgment.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 8490.]</p> <p>^soFor 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 Division of the Northern District of Ohio; John H. Clarke, Judge.</p> <p>Action by the United States against the Baltimore & Ohio Railroad Company. There was a judgment for the United States, and defendant brings error.</p>

, Judge. Suit by William J. Knupp and others against J. Frank Bell, administrator of Oliver D. Jackson, deceased, and' others, in which Hugh M. Kerr and another counterclaimed. From a decree for defendants, complainants appeal.

Cross-Appeals from the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge. Suit in equity by John S. Alexander and others against the Fidelity Trust Company. From a decree for plaintiffs ([D. C.] 238 Fed. 938), defendant appeals, and plaintiffs also appeal, seeking to increase the amount of the decree.

Bill by Samuel Cleland Davidson and others, suing on behalf of themselves and other stockholders of the American Blower Company similarly situated, against the American Blower Company and others. From a decree for complainants, defendants appeal.

McCall, Judge. In the matter of Nathan Devorkin, bankrupt. From an order sustaining the objection of the Security Bank & Trust Company of Memphis, Tenn., to the bankrupt’s application for discharge, the bankrupt appeals.

Suit in admiralty for collision by the Lansing Steamship Company, Incorporated, owner of the steamship Lansing, against the steam tug Transfer No. 15 and car float N. Y., N. H. & H. R. R. No. 41, the New York, New Haven & Hartford Railroad Company, claimant, with cross-libel against the Lansing, in which the Seaconnet Coal Company intervened.

Brown, Judge. Petition by Charles E. Hansen, doing business as tire Platinide Company, and others, to have the Uniform Seamless Wire-Company adjudicated'a bankrupt, in which Conley & Straight intervened. From a decree dismissing the petition (235 Fed. 616), the petitioning creditors appeal.

<p>1. Patents <@=328—Contributory Infringement—Scaffold.</p> <p>The manufacture and sale of the hoisting device of the Whitney patent, No. 1,114,832, held on the evidence not to constitute contributory infringement of the Henderson patent, No. 959,008, for a scaffold.</p> <p>2. Patents <@=259—Contributory Infringement—Intention.</p> <p>The question in contributory infringement is whether or not the defendant made or sold his machine or improvement with the intent or purpose of aiding another in the unlawful making, selling, or using of a third person’s patented invention, and the burden is on the plaintiff to establish the affirmative of this issue.</p> <p>[Ed.' Note.—For other cases, see Patents, Cent. Dig. §§ 400-402.]</p> <p>3. Patents <@=237—Infringement—“Mechanical Equivalent.”</p> <p>The term “mechanical equivalent,” when applied to the interpretation of a ’ pioneer patent, has a broad' and generous signification, while its meaning is very narrow and limited when it conditions the construction of a patent for slight improvement.</p> <p><@^‘For other cases see same, topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>LEd. Note.—For other cases, see Patents, i Cent. Pig. §§ 374, 375.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Mechanical Equivalent.]</p> <p>4. Patents <g=>165—Construction—Limitation of Claims.</p> <p>Where an inventor has pointed out and claimed in his patent the combination or' improvement he claims as his invention, he disclaims and dedicates to the public any other combination or improvement apparent from his specification and claims, not a mere evasion of his own.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Pig. § 241.]</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Ohio; John H. Clarke, Judge.</p> <p>Suit in equity by the General Electric Company against the Electric Controller & Manufacturing Company. Decree for defendant, and complainant appeals.</p>

<p>Appeal from the District Court of the United States for the Western District of Pennsylvania; Charles P. Orr, Judge.</p> <p>Suit in equity by Frederick Melber against the School District of Pittsburgh and others. Decree for defendants, and complainant appeals.</p>

<p>Appeal from the District Court of the United States for the District of Maryland, at Baltimore; John C. Rose, Judge.</p> <p>Suit in equity by the Crown Cork & Seal Company of Baltimore City against Albert A. Carper. Decree for complainant, and defendant appeals.</p>

<p>Patents <§=328—'Validity—Invention—Caeton and Display Device.</p> <p>The Singer patent, No. 880,410, for a combined carton and display device, claim 1, held void for lack of invention.</p> <p><©5»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Admiralty. Suit by the E. G. Eyons & Raas Company against the Deutsche Dampscliifffahrts-Geselschaft Kosmos, a corporation; and Olson & Mahony, a corporation. On motion by libelant for entry of default.</p>

<p>Bankruptcy <S=>407(5)—Discharge--Higtit to.</p> <p>A bankrupt, who was indebted lo a bank and desired to renew notes) when they fell due, executed more than a year before adjudication a statement in writing as to his financial condition, which was false. The bank permitted Mm to renew obligations as they fell due, and at the time of adjudication the debt was less than at the time when the statement was executed. The bank, relying on the statement, did not apply to the debts due it the balance due the bankrupt on hand at the time the notes fell due, and by reason of its failure the bankrupt’s debt was greater than it would have been, had such balance been applied. Held, that the bankrupt was not entitled to a discharge.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 760, 761.]</p> <p><gr»For other eases see same topic & KEY-NUMBER in all Key-Numfcered Digests & Indexes-</p>

At Eaw. Action by Frey & Son, Incorporated, against the Cudahy Packing Company, a corporation. On objection to the entry of judgment on so much of the verdict as ascertained the damages suffered by plaintiff subsequent to the date of the filing of suit.

In Equity. Bill by the St. Joseph Gas Company against John T. Barker, Attorney General for the State of Missouri, the Public Service Commission of the State of Missouri, William G. Busby and others, members, and others. On application for injunction.

<p>•1. Collision <@=>115—-Vessel in Tow—Tus Master Actins as Pilot.</p> <p>The fact that, the master of a tug, in charge of the towing and docking of a ship, also acts as her pilot, to comply with the statute requiring her to have a pilot on board, and is paid therefor, does not render the ship liable for those operations which are exclusively the actions of the towing agent.</p> <p>[Ed. Note.—For other cases, see Collision, Cent. Dig. §§ 244-247.]</p> <p>2. Admiralty <@=79—Suit for Breach of Charter-—Effect of Joinder o® Tort-Feasors.</p> <p>Where the owner of a chartered boat, injured in collision, in a suit ■against the charterer for breach of charter in failing to return the boat in good condition, also joins the vessel or others alleged to he in fault for the collision, the tort issues between libelant and the third parties were to be first tried; the charterer being liable .only in case the damages cannot be recovered from the tort-feasors. - *</p> <p>[Ed. Note.—For other cases, see Admiralty, Cent. Dig. §§ 592-594.]</p> <p>3. Shipping <@=54—Charter—Liability of Charterer for Injury to Boat in Collision.</p> <p>The charterer of a barge with her master for lighterage service left her temporarily at the end of a pier until she co.uld discharge her load to a vessel in an adjoining slip, which was then filled with other lighters discharging. Three days later, after- the slip had been cleared, so that her master could have her moved around inside, but while she still remained at the end of the pier, she was injured by collision with a vessel entering the next slip. Held, that the charterer could not he charged with negligence in so leaving her, which would render him liable to the owner for her injury.</p> <p>[Ed. Note.—For other cases, see Shipping, Cent. Dig. § 78.]</p> <p>4. Shipping <@=62—Charter of Barge and Master—Liability for Acts of Master.</p> <p>The master of a barge, employed by the owner and who goes with bier when chartered, as between the owner and charterer, represents the owner in certain things, although the charter is a demise.</p> <p>[Ed. Note.—For other cases, see Shipping, Cent. Dig. § 83.]</p> <p><S=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>5. Collision ©=572(2)—Vessel Dying at End of Pier—Mutual Fault.</p> <p>A barge in charge of a master had been for three days lying at the end of a pier, with her bow extending in front of an adjoining slip, contrary to the provisions of section 879 of the Greater New York Charter, which made her liable to damages by a vessel entering the adjoining slip. Her master was notified to move out of the way to allow the entrance of a steamship into the slip, and was also signaled by the tugs in charge of the approaching vessel; but he made no move, and the barge was struck and injured by the entering ship. Held, that the barge was in fault, bnt, on the evidence, that tho tugs were also negligent, an'd liable for half her damages.</p> <p>[Ed. Note.—For other cases, see Collision, Cent. Dig. §§ 241-247.]</p> <p><©E5>For other cases see same topic & KEY-NUMBEK in all Key-Numbered Digests & Indexes</p>

<p>At Law. Action by Sarah A. Wellman against John C. Bethea, administrator.</p>

<p>In Admiralty. Libel by the British & African Steam Navigation Company, Limited, against the proceeds of the cargo of the Appqm. On hearing on exception to- libel.</p>

In Admiralty. Suits by James Shewan & Sons against the dumper Olympia, with the Moran Towing & Transportation Company, impleaded, and by Harriet H. Healey, owner of the dumpers Olympia and Atlanta, against the Moran Towing & Transportation Company, with the Cranford Company, impleaded.

In Bankruptcy. In the matter of David Miller and another, individually and as members of David Miller & Son, and the copartnership of David Miller & Son, alleged bankrupts. On application for award of compensation to a receiver.

<p>1. Maritime Liens <@=>1—Eequisites—Strict Construction cut Law.</p> <p>A maritime lien, as it may operate to the prejudice of general creditors, will not be extended by analogy or inference.</p> <p>[Ed. Note.—For other cases, see Maritime Liens, Cent. Dig. § 1.]</p> <p>2. Maritime Liens <@=>24—Supplies'—“Furnished to Vessel.”</p> <p>A corporation owned and operated a factory where it manufactured fish products and in connection therewith a fishing fleet. For a number of years it had purchased from the various libelants supplies, consisting of coal, provisions, and fishing appliances. These were all shipped and charged to the corporation, were taken to its factory, and there stored for use at the factory and on the vessels as occasion required. While the libelant who furnished fishing appliances knew from their nature that they were probably intended for use on the vessels, and certain of them were in fact used on the vessel on which it 'Claimed a lien, no vessel was designated in the orders therefor. Held, that none of such supplies were furnished “to a vessel,” within the meaning of Act June 23, 1910, c. 373, §, 1, 36 Stat. 604 (Comp. St. 1916, § 7783), and that none of libelants were entitled to a maritime lien thereunder.</p> <p>[Ed. Note.—For other cases, see Maritime Liens, Cent. Dig. § 30. For other definitions, see Words and Phrases, Furnish a Vessel.]</p> <p>3. Maritime Liens <@=>64—Pleading—Laches.</p> <p>Defense of laches, in libel to enforce maritime lien, not raised by the pleadings, cannot be considered.</p> <p>[Ed. Note.—For other cases, see Maritime Liens, Cent. Dig. § 102.]</p> <p>4. Maritime Liens <@=>61—Laches—Who May Plead.</p> <p>Where the proceeds of the sale of a vessel are insufficient to pay the uncontested liens, defense of laches as to one lien can be raised only by one having a lien.</p> <p>[Ed. Note.—For other cases, see Maritime Liens, Cent. Dig. § 99.]</p> <p><£ss>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes.</p>

In Admiralty. Suit by the Navigazione Generate Italiana against Edward M. Timmins and the tugs McCaldin Bros, and Edward G. Murray for collision with the Procida. The libel is for a collision between the Procida, while in tow of three tugs, and certain barges alongside the steamer Winnebago in tbe Erie Basin.

<p>1. Towage <@=12(2)—Stranding of Tow—Liability.</p> <p>The stranding of a loaded coal barge, while being towed up the Taunton river, Mass., b'y a steam lighter employed by respondents, who were consignees of her cargo, and were having the barge taken, up from Eall River, held to have been due to the fact that the lighter was not of sufficient power, and also to faults on the part of both vessels; the lighter being in fault for using too long a line for towing in a narrow and winding channel, and the barge in that her master, when passing around a bend to starboard, starboarded his wheel, and, the lighter being unable to control her, ran the barge into the opposite bank.</p> <p>[Ed. Note.—Eor other cases, see Towage, • Cent. Dig. § 29.]</p> <p>2. Admiralty @=>122—Costs—Recovery of Part Damages.</p> <p>Under the established rule in the First circuit, where libelant alone has sustained damage, and there is no cross-libel or counterclaim, in the absence of peculiar circumstances the libelant is entitled to recover fulL costs, even though he recovers only half damages.</p> <p>[Ed. Note.—For other eases, see Admiralty, Cent. Dig. §§ 797-827.]</p> <p><@ss>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Courts <@=>302—‘Federal Courts—Jurisdiction—Citizenship of Parties.</p> <p>One, contracting with the government to furnish certain machinery for a public improvement, contracted with the W. Company to furnish such machinery. The contract had been performed, but the government was withholding from the final paymeiit about $10,000 of the contract price, because, as alleged, of the failure, neglect, and dereliction of the W. Company. The contractor and his surety brought suit against the United States and the W. Company, alleging that the amount deducted on account of the dereliction of the W. Company was $5,411.83; that the contractor in like manner withheld such payment from the W. Company; that such company refused to recognize the right to make such deduction, and was threatening to sue the contractor and his surety; that, if it had any just claims against them, the contractors had the same claim against the United States; and that it was necessary to have a full accounting between the contractor, the W. Company, and the United States. It prayed that all matters in controversy should be heard, settled, and fixed, and that, if it was adjudicated that the retention of such sum by the government was justified, then that the contractor have judgment against the W. Company for the sum so retained and withheld, and his damages in addition. Held, that the relation between the contractor and the W. Company was an independent relation, to which the United States was a stranger, and, they being citizens of the same state, the court was without jurisdiction, under Judicial Code (Act March 3, 1911, c. 231) § 24, 36 Stat. 1091 (Comp. St. 1916, § 991).</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 843, 986.]</p> <p>2. United States <§=>74—Contractor’s Bonds—Right of Action by Surety.</p> <p>There was a misjoinder of parties plaintiff, as the surety had no cause of action against either defendant.</p> <p>[Ed. Note.—For other cases, see United' States, Cent. Dig. § 57.]</p> <p>3. United States <§=>74—Contracts—Action by Contractor—Parties.</p> <p>There was a misjoinder of parties defendant, as there was no joint liability between defendants.</p> <p>[Ed. Note.—For other cases, see United States, Cent. Dig. § 57.]</p> <p>4. Action <§=>50(5)—Joinder of Causes—Actions on Contract.</p> <p>There was also a misjoinder of causes of action, as plaintiff was asserting a claim against the W. Company for $5,411.83, and one against the United States for the difference between that sum and $10,000.</p> <p>[Ed. Note.—For other cases, see Action, Cent. Dig. § 529.]</p> <p>5. Courts <@=>262(2)—Equity Jurisdiction of Federal Courts—Effect of Remedy at Law.</p> <p>Both asserted claims were legal rights, and, as it did not appear that plaintiff had no plain, adequate, and complete remedy at law, equity had no jurisdiction, under Rev. St. § 723 (Comp. St. 1916, § 1244), providing that suits in equity shall not be sustained in the courts of the United States, where a plain, adequate, and complete remedy may be had at law.</p> <p><§z^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other eases, see Courts, Cent. Dig. §§ 797, 798.]</p> <p>6. Action <@=>22—Nature—Legal . on Equitable Action.</p> <p>Under Act Feb. 24, 1905, c. 778, 33 Stat. 811 (Comp. St. 1916, § 0923), requiring government contractors to give a bond, and authorizing persons supplying the contractor with labor and materials to sue thereon in the name of the United States, and providing that only one action shall be brought, and any creditor may file his claim therein and be made a party thereto, the suit is one in equity.</p> <p>[Ed. Note.—For other cases, see Action, Cent. Dig. §§ 124-139, 143, 145.]</p> <p>^=>Eor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Bill by George M. Forbes against Odell Wilson and another. On motion to dismiss the bill.</p>

In Bankruptcy. In the matter of the bankruptcy of Florence I. Reynolds. Application, on return of order tO' show cause, for an order making permanent, or until the application of the bankrupt for discharge should be determined, an order staying suits and proceedings by the trustee to reach the surplus income, if any, to which the bankrupt might be entitled under a trust created under the last will and testament of Matthew H. Bender, now deceased.

In Bankruptcy. In the matter of the bankruptcy of Florence I. Rejuiolds. Ex parte application by the bankrupt to require her trustee in bankruptcy to accept bankrupt’s bond and withdraw a claim to a fund claimed by both trustee and bankrupt, or consent to payment of such fund to bankrupt.

<p>1. Courts @=»7—Jurisdiction—Transitory Actions.</p> <p>A transitory action follows the person, and may be brought wherever defendant can be found, whether it is an action ex delicto or ex contractu.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 14, 16, 22-31.]</p> <p>2. Corporations <§=?668(5>—-Railroads <§=333(1)—Foreign Corporations— Doing üustnesb—-Service oe Process.</p> <p>A railroad, though having no line of railroad in California, had four o-r five offices where passenger and freight business was solicited, and employed a great many servants, having from 15 to 20- in one of its offices. D. had supervision of one of its ticket offices, in which from 2,000 to 2,500 tickets a year were sold, and had charge-of all employes and superintended their work. Its receipts from business secured in California, largely through the efforts of its employes, amounted to more than $100,000 a year. Hundreds of its freight cars came into California over the rails of other railroads, for which it received a rental from the other railroads. Held, that it was doing business in California, and D. was its managing or business agent, within Code Civ. Proc. Cal. § 411, providing that, in a suit against a foreign corporation doing^ business and having a managing agent within the state, a summons must" be served by delivering a copy to such agent.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. §§ 2520, 2521, 2611.]</p> <p>ocher cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Action by Joseph Sampliner against the Motion Picture Patents Company and others. On motion for a directed verdict. Plaintiff claimed to be the assignee of the .Lake Shore Film & Supply Company, of Cleveland, Ohio, against defendants for triple damages under the Sherman Anti-Trust Act. The defendants set up the defense of champerty, and that issue was tried separately under the provisions of Code N. Y. § 973, before judge and jury.

<p>In Admiralty. Suit by Henry Sorensen against the Alaska Steamship Company.</p>

<p>1. Removal of Causes <S^41—Persons Entitled to Remove-Effect of Gross-Complaint.</p> <p>IVhere the defendant in an action filed a petition and bond to remove it to the federal court, and contemporaneously therewith, or subsequently, but before the removal, filed an answer and cross-ebmplaint, it was not entitled to remove the case under Judicial Code (Act March 3, 1911, c. 231) § 28, 36 Stat. 1094 (Comp. St. 1916, § 1010), authorizing the removal of actions by .defendants, as by filing the cross-complaint it became the plaintiff and invoked the jurisdiction of the state court.</p> <p>[Ed. Note.—For other cases, see Removal of Causes, Cent. Dig. § 88.1</p> <p>2. Removal of Causes <S=»102—Grounds for Remand—Doubt as to Jurisdiction.</p> <p>It is the duty of the federal court to remand a cause removed from a state court, where there is doubt as to whether the case was properly removed.</p> <p>[ 10d. Note.—For other cases, see Removal of Causes, Cent. Dig. §§ 218-220, 224.]</p> <p>(SSssFor other eases seo samo topic. & KEV-NUMIilfiR in all Koy-Numbcrcd Digests & Indexes</p>

At Law. Action by Thomas J. Murray against the Aítna Life Insurance Company, a corporation. On motion for new trial after verdict for plaintiff.

In Bankruptcy. In the matter of the Stucky Trucking & Rigging Company, bankrupt.' On petition to review an order of the referee disallowing the claim of Joseph B. Stucky.

Suit by Alfred W. Church against Horace M. Swetland and others. From a decree dismissing the bill as against certain defendants, complainant appeals. The complainant is a citizen of the state of Connecticut. The defendants Swetland and Ellis are citizens of the state of New York and are residents of the Southern district.

William E. Wallace was convicted of a violation of the Harrison Drug Act, and he brings error. Plaintiff in error was convicted under an indictment charging violation of the so-called Harrison Drug Act passed December 17, 1914, and by its terms effective March 1, 1915.

<p>1. Contracts <§=>117(2, 7)—Restraint oe Trade—Limitation as to Territory.</p> <p>Plaintiff was engaged in a rating and collecting business, in wbicb be solicited retail merchants, etc., as subscribers to a league, secured from such subscribers a list of unpaid accounts, and listed such debtors as did not pay when notified in a credit book or rating directory. In such business he used forms, the result of 17 years or more experience; the forms being changed from time to time. He employed defendant in such business for. 5 years,. under a contract by which defendant agreed to devote all of his time to such business, and during such time to work at no other employment and engage in no other business, except when plaintiff allowed him to withdraw for the purpose of entering a line of business or the employment of any individual, firm, or company not using the plan, forms, or plan and forms of plaintiff in competition thereof. Held that, it being possible to ascertain by evidence in what territory plaintiff did business, and whether another business of the same type would be in competition with him, the contract was limited as to territory, and moreover, in view of the peculiar character of the business, the contract would not be invalid, if unlimited as to territory.</p> <p>2. Equity <@=>65(2)—Grounds eoe Denial op Relief—Unclean Hands.</p> <p>Though debtors who paid were not specially rated, where those who failed to pay were rated in accordance with a key whereby it was shown how many members had reported the debtor, whether the account was disputed or outlawed, whether the debtor was bankrupt, and whether letters to the debtor were returned, there was such a rating as, in the absence of fraud, complied with subscribers’ contracts and prevented the denial of injunctive relief, on the ground that plaintiff did not come into court with clean hands,' in that he had been guilty of false and fraudulent representations because his business was not collecting by rating, or a system of rating, and because there was no rating in connection with the plan.</p> <p>@s»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Action by the American Colortype Company against Kawin & Co., a corporation. Judgment for plaintiff, and defendant brings error. American Colortype Company, herein called plaintiff, a New, Jersey corporation, brought this suit against Kawin & Company, defendant, an Illinois corporation, for failure of the latter to take and pay for certain Christmas and New Year cards ordered by the latter on July 12, 1911, to be delivered as ordered and all to be taken by December 15, 1911.

Suit by Harry A. Schlotzhauer, trustee in bankruptcy of Dane Rob - ertson, a bankrupt, against Alma Maud Robertson and Dane Robertson. From a decree for complainant, defendants appeal. Appeal from decree setting ¿side, as in fraud of creditors of the bankrupt, antenuptial contract between appellants, and a deed made in pursuance of the contract.

<p>Appeal from the District Court of the United States for the Eastern District of Wisconsin; F. A. Geiger, Judge.</p> <p>In the matter of Charles F. Glavin, bankrupt. From a decree in favor of Thomas C. Weston, trustee, the Board of Trade of the City of Chicago appeals.</p> <p>The following is the statement and opinion of Geiger, District Judge, in the lower court:</p> <p>The bankrupt held a membership or seat in the Board of Trade of the City of Chicago. Its value is conceded to be about §4,000. Weston, trustee in bankruptcy, has filed a petition, asserting his succession to Glavin in and to said membership as property or a property right, and asking recognition thereof by tbe Board of Trade. The latter resists, on the ground that such membership or seat does not pass to a bankruptcy trustee. The jurisdiction of the court over the Board of Trade has been conceded, and, as I understand, no exception is taken to the procedure; the parties being desirous of litigating and obtaining an adjudication upon the merits of the question presented. There are no facts in dispute.</p> <p>The respondent, Board of Trade, is a body corporate, by virtue of a special charter granted by the Illinois Legislature in 1859 (Priv. Laws 1859, p. 13), to enable its grantees and their associates and successors to establish and maintain a grain market in Chicago. It is empowered by such charter to admit or expel members in the “manner to he prescribed by the rules, regulations, and by-laws thereof.” Among rules so in fact adopted and in force during the bankrupt’s membership, and at the time of adjudication (it is admitted that at the date of adjudication the bankrupt was a member in good standing), are these:</p> <p>Bule 4, Section 7: “When any member of this association has been duly convicted of failure to comply with the terms of any business obligation, or with the award of any committee of arbitration or committee of appeals, made in conformity with the rules and regulations of this association, ho shall he suspended from all privileges of the Board of Trade of the City of Chicago until all his outstanding obligations to members of said Board of Trade shall have been settled, when he may, upon application to the board of directors, and upon stating under oatb that he has settled all such outstanding obligations, he reinstated. Notice of all applications for reinstatement shall be posted upon a properly designated bulletin in the Exchange Ilall for at least fifteen (15) days prior to the hearing of such application by the board of directors.”</p> <p>“Such reinstatement shall be a bar to any further discipline by the hoard of directors of the said Board of Trade on account of claims against such member maturing prior to his reinstatement.”</p> <p>Rule 10, Section 1: “All applications for membership in the association shall be referred to the committee on membership, who shall hold regular stated meetings for examining such applicants and their sponsors in person, under such rules and regulations as may be made by the board of directors. Any male person of good character and credit, and of legal age, on presenting a written application, indorsed by two members, and stating the name and business avocation of the applicant, after ten days’ notice of such application' shall have been posted on the bulletin of the Exchange, may be admitted to membership upon approval by at least ten (10) affirmative ballot votes of the board of directors: Provided, that three negative ballot votes are not cast against such applicant, and upon the payment of an initiation fee of ten thousand dollars, or on presentation of an unimpaired or unforfeited membership, duly transferred, and by signing an agreement to abide by the rules, regulations, and by-laws of the association and all amendments that may be made thereto.”</p> <p>Section 2: “Every member shall be entitled to receive a certificate of membership, bearing the corporate seal of the association and tfie signatures of the president and secretary; and if the member in whose name said certificate stands has paid all assessments due, and has against him no outstanding, unadjusted or unsettled claims or contracts held by members of the association, and said membership is not in any way impaired or forfeited, it shall, upon the payment of one hundred dollars ($100), be transferable on the books of the association to any person eligible to membership who may be approved by the board of directors, after due notice, by posting, as provided in section 1 of this rule. The membership of a deceased member shall be transferable on the books in like manner, by his legal representative. Prior to the transfer of any membership, application for such transfer shall be posted upon the bulletin of the Exchange for at least ten days, when, if no objection is made, it shall be assumed the member has no outstanding claims against him.”</p> <p>These are the only rules pertinent to the question presented. No rule exists giving to the respondent or its members the right to compel sale or other disposition of memberships, to pay debts of particular members, or reserving to respondent or its members any right of application of a membership against the will of a member, for the benefit of his creditors. Certain members of respondent, creditors of the bankrupt, who held “outstanding, unadjusted, and unsettled claims” (see rule above) against him arising out of Board transactions, and which claims aggregate about $35,000, have filed such claims with respondent, and with the same their objections or protest against the transfer of the bankrupt’s membership. The claims are valid. Each of such creditors, save one, has also filed his claim in these bankruptcy proceedings. They, however, filed these claims, with a reservation of any rights possessed by them as members of the respondent, under the rules above quoted.</p> <p>The Bankruptcy Act (Section 70a) declares that a trustee “shall * * * be vested by operation of law with the title of the bankrupt” as of the date of adjudication, to all (1) property which prior to the filing of the petition he (the bankrupt) could by any means have transferred, or (2) which might have been levied upon and sold under judicial process against him. It may be taken for granted that, upon general principles, as well as upon the construction given by the Illinois courts to its charter, a seat or membership in the respondent' Board of Trade is not property such as is ordinarily subject to levy, or to other compulsory process. But is it property which is the subject, by any means, of transfer by the bankrupt? Now, in arguing a negative answer to this, it is suggested by counsel, among other things, that the constitutional authority to enact bankruptcy laws must be exercised subordinately to the power of states to regulate Intrastate commerce; that it is no part of such legislation “to create property or to * * * declare the limits of property”; that the authority is limited to providing for a distribution of what is otherwise property; again, that “the right to declare what shall, within the statute, be deemed property, and what shall be the qualities and elements constituting that property, as respects any particular subject-matter, is essentially a part of the right to regulate intrastate commerce, and is exclusively the right of the state. Congress may not, under its power to enact a bankruptcy law, or any other of its powers, interfere with this state right to define what shall be property or what shall be the elements of property. * * * Property, when rightly understood, contains the elements of exclusiveness, or exclusion. It consists of several elements—the right to use, the right to sell, etc.”</p> <p>11] These suggestions, it seems to me, are hardly pertinent to the question presented. It may be that Congress, in discharging its constitutional authority, either in passing a bankruptcy law or otherwise, is without power to define “property”—in the broad sense—by declaring what elements must be present to make property. But I conceive that nothing of the kind has been, attempted. Section 70a is .merely a declaration, by way of enumeration or schedule, of the rights, privileges, or thingé which, being possessed or enjoyed by a bankrupt, and being property, shall, as respects their title, devolve, by operation of law, upon a trustee. It deals with property, as such. Instead of attempting to make property ont of things which are not such, it enumerates, as subjects of devolution and administration in bankruptcy, property having certain characteristics, and therefore, being an enumeration of certain classes of property, is on its face a limitation within the larger field of property in general. It does not say that, in addition to a bankrupt’s property, certain other rights, privileges, or things shall bo deemed property, and shall vest in the trustee. Obviously, rights of a bankrupt which, attach to him personally, such as the ordinary rights incident to his life, his liberty, or pursuit of happiness, valuable though they may be, could not be declared to pass to the trustee, because they are neither property nor property rights. Probably they could be declared such by neither national nor state legislative action. Those rights, as well as property and property rights subject to appropriation, exist and are recognized, respectively, under fundamental constitutional tests. Now, it would be strange if the dominant grant to Congress to legislate upon bankruptcy and insolvency, and which, when exercised, supersedes state legislation respecting these matters, should nevertheless be subordinate to the right of each state to determine what is or shall be property, subject to the terms of the Bankruptcy Act. But, as indicated, the case here presents no such broad question that need be considered to answer, first, whether the membership in the respondent Board is property in the ordinary sense upon application of ordinary tests—the very tests suggested by its counsel—nor to answer specifically whether- it is property falling within any of the categories of section 70a.</p> <p>[2] The rules of the Board of Trade, when read in the light of adjudicated cases dealing with section 70a, answer both of these questions; and in my judgment Page v. Edmunds, 187 U. S. 596, 23 Sup. Ct. 200, 47 L. Ed. 318, meets the present situation so fully that extended reference to other adjudications—e. g., Re ATeim’ann (E. 1). Wis., D. O.) 124 Fed. 738; Re Huributt-Hateh Co., 135 Fed. 504, 68 C. C. A. 216 (C. C. A. 2d Ct.); O’Dell v. Boyden, 150 Fed. 731, 80 C. C. A. 397 (C. C. A. 6th Ct.); Re Gregory, 174 Fed. 629, 98 C. C. A. 383, 27 L. R. A. (N. S.) 613 (C. C. A., N. Y.); Re Currie, 185 Fed. 263, 107 C. O. A. 369—is unnecessary. That case presented a contest between a member of the Philadelphia Stock Exchange and his trustee in bankruptcy. The seat or.membership had not been scheduled, but the trustee, after causing it to be appraised, petitioned the referee for an order of sale. The bankrupt opposed, claiming that the membership was not an asset. The rules of that Exchange in respect of election to, maintenance, transfer, forfeiting, suspension, or termination of membership, were much like those before us. They provided for suspension in the event of bankruptcy, for reinstatement upon a discharge from debts; for the sale under certain conditions of a deceased member’s seat for the benefit of any creditor, fellow members, and certain other contingencies affecting such membership. Now, without giving here the detailed contentions respecting a possible exemption of the membership under the Pennsylvania laws, the Supreme Court, in dealing directly with the question whether the membership was property under section 70a, used this language: “We think it could have been transferred within the meaning of the statute. The appellant could have sold his membership, the purchaser taking it subject to election by the Exchange and some other conditions. It had decided value. The appellant paid for it, in 1880, $5,500, and he testified that the last price he had heard paid for a seat was $8,500. One or the other of these sums, or at any rate some sum, was the value of the seat It was property, and substantial property, to the extent of some amount, notwithstanding the contingencies to which it was subject.. In other words, the buyer took the risk of the contingencies; and they seem capable of estimation. The appellant once estimated them, and paid $5,500 for the seat in controversy; another buyer estimated them, and paid $8,500 for a seat. A thing having such vendible value must be regarded as property, and, as it could have been transferred by some means by appellant (one of the conditions expressed in section 70), it passed to and vested in his trustee. Whether it was subject to levy and sale by judicial process we need not consider, except incidentally in discussing the next contention.”</p> <p>Now, in opening discussion of this “contention”—the matter of exemption under the state laws—and -with reference to the force to be accorded to decisions of the Supreme Court of Pennsylvania the court pointedly observes: “If those decisions are interpretations of the state statute, we must yield to their authority. If they are declarations of general law—mere definitions of property—-we may dispute their conclusions, if their reasoning does not persuade.” And, after conceding it to be entirely possible that a membership in a stock exchange may not be property subject to levy or sale upon ordinary fi. fa.—especially where through the attempted seizure and sale, conditions attaching in favor of fellow members were to be cut off—and after asserting that “undoubtedly the seat in the board was to be held and enjoyed subject to its limitations and restrictions,” the court proceeds: “We expressed that limitation in Hyde v. Woods, 94 U. S. 525 [24 L. Ed. 264], but we decided nevertheless that a seat was property, and that if, upon its sale, any balance was left after paying the debts due to the members of the board, that balance could be recovered by the assignee in bankruptcy. This was not denied by the Supreme Court of Pennsylvania, and it may be that the court only intended to-declare the priority of board creditors over general creditors. If so, tne decision expresses no rule with which we need take issue or which is relevant to the pending controversy; nor, indeed, if the case (Paneoast v. Gowen, 93 Pa. 66) may be construed more broadly. The Bankrupt Law of 189S has made its own rule. For the same reason it is not necessary to review the cases cited from other jurisdictions. Whatever is in them favorable to appellant’s contention was based upon the inability that the respective courts found in the law to transfer a title which could be insisted upon and enjoyed against the consent of the association. But that consequence, in our judgment, affects the value *of a seat in a stock board, not its existence as property. The contingencies which may defeat or affect its title, or its enjoyment, will be reflected in its price, and if, notwithstanding them, a seat has a vendible value of from $5,000 to $8,000, it would seem that the law should have some process to reach it for the benefit of creditors: and the Bankrupt Act supplies the process. A trustee of a bankrupt’s estate is the' bankrupt’s assignee, and we only repeat the statute when we say that the trustee is vested with whatever the bankrupt can convey; and 'the statute is something more than another mode of transferring property in invitum. It is a gift of privileges, and expresses the conditions upon which they are conferred.”</p> <p>Recurring to the case before us, the facts are that a membership in the respondent is attainable originally upon the payment of an initiation fee of $10,000 (rule 10, section 1); that it is transferable (rule 10, section 2), and the conditions will be referred to; that it passes to the legal representatives of a deceased member; that the present value of a seat is approximately $4,000 ; and that the herein bankrupt (so it is stated upon argument) offers no objection to assertion of title by the trustee. In my judgment, the pertinency of the suggestions quoted from the Edmunds Case is not open to contention. The question is not whether Weston, the trustee herein, if Glavin’s right and title devolves upon him, will succeed in selling the seat or membership; nor whether the title of Glavin and the right to enjoy the membership, as and to the extent to which he enjoyed them, will .in fact be conferred upon a purchaser from the trustee, hut whether Glavin’s right or title, whatever it be, is reserved to him just because fellow members (creditors) may, if they see lit, protest its transfer by him. Obviously, the latter circumstance, as above stated, while it may operate to prevent a transfer, does not destroy the character of the right as being susceptible or capable of transfer. That provision of rule 10 confers upon such members a right which, if they choose to exercise it, may impede or obstruct the exercise by the member of his right of transfer. But it does not destroy the general right of transfer, nor the clement of transferability. On the contrary, if there were no other evidence that it possesses such common attribute of property, that rule not only recognizes it, but, as I read it, formally imports it into and impresses it upon a membership. The matter must be viewed from the standpoint of the bankrupt, who under the law is obliged to surrender what to him is property. Therefore when, in connection with a valuable right or privilege having ordinary incidents or attributes of property, there are contingencies or conditions, the right none the less exists, though its freedom of exercise, and consequently its value, may thereby he greatly impaired. So, too, the degree of contingencies, the x>robability or certainty of their arising, cannot destroy the character of the right as a property right. The chances are not to he resolved for or against the bankrupt, to the end that he be allowed to retain the property if its value he small or negligible, and the trustee be required to take it if largo. And it may he observed that, while creditors holding claims against the bankrupt which in amount greatly exceed the value of the membership have protested a transfer of the membership, that very protest concedes both salability and the capacity (on the part of some one, excei>t for the protest) to sell. The size of the protesting creditors’ claims cannot alter the status or character of the membership. Suppose, by way of illustration, that creditors, members of respondent, holding only $500 of claims against the bankrupt, protested a transfer; that the trustee had an opportunity to sell to one who was willing to pay the protesting creditors in full and to give the trustee $3,500, or suppose the trustee had an offer of $4j,000, and suggested to the court that he be permitted to accept it on condition that he tender to the protesting creditors their claims in full, to the end that the obstacles otherwise in the path of effecting a transfer be overcome, and that in any event the purchaser assumed all risk of becoming a full-fledged member of respondent; would it not seem idle and absurd to say to the general creditors that, because no property or property right of the bankrupt had come to the trustee, the matter could not be entertained, even where, as in the case before us, the bankrupt is not resisting?</p> <p>We are not concerned whether the trustee gets, or will get, much or little, hut that the bankrupt’s right, title, or privilege evidenced by the membership is property, and as such devolves by operation of law upon the trustee in bankruptcy, seems clear. The petitioner is entitled to an order or decree adjudging: That Glavin’s membership in the respondent Board of Trade is property, and his right, title, and interest therein has passed to and is now held by Weston, trustee in bankruptcy, and that respondent he adjudged to recognize said trustee’s succession thereto.</p>

<p>1. Bankruptcy <S=^407(5)—Denial oe Discharge—Grounds—False Financial Statement.</p> <p>Under Bankruptcy Act July 1,1898, c. 541, § 14b, 30 Stat. 550, as amended by Act June 25, 1910, c. 412, § 6,' 36 Stat. 839, providing for the denial of a discharge, if the bankrupt has obtained money or property on credit upon a materially false statement in writing made by him to any person, where the bankrupt made a financial statement to a mercantile agency in anticipation of general trade inquiries to be made from time to time in the future, and not in response to a particular trade inquiry, and thereafter one subsequently becoming a subscriber to such agency was furnished such statement by the agency, and was induced by its falsity to extend credit at a time when the bankrupt intended the statement to serve such purpose, a discharge was properly denied, as a mercantile agency is the representative of its subscribers, and a statement to the trade generally through the agency is made to it as an agent or representative of those who are then its subscribers, and those who become its subscribers during the period through which the statement is intended to ho used, and is in fact used, in obtaining credit.</p> <p><ga»For other cases see same topic & KEY-NUMBER in all Key-Numbereá Digests & Indexes</p> <p>2. Bankruptcy <@=1<07(5)—Denial op Discharge—Grounds—False Financial Statement.</p> <p>In the absence of any intervening changes in a bankrupt’s financial condition, serving to abbreviate the period during which a financial statement to a mercantile agency is intended'to be used in obtaining credit, the test of whether a false statement given upon one date, and communicated and acted upon on a later date, bars a discharge, is whether the agency was the representative of the prospective creditor when the statement was communicated to and acted upon by him, and whether at that time the statement was still in force, dependent upon whether the sale on credit was the proximate result of such statement, and whether its original falsity was the cause of the extension of credit.</p> <p>@=>For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Bankruptcy @=>293(2)—Voidable Preferences—Jurisdiction of Court.</p> <p>Bankr. Act July 1, 1898, c. 541, § 23b, 30 Stat. 552, as amended by Act Feb. 5, 1903, c. 487, § 8, 32 Stat. 798, and Act June 25, 1910, c. 412, § 7, 36 Stat. 840 (Comp. St. 1916, § 9607), provides that suits by the trustee shall only be brought .in the courts where the bankrupt might have brought them, if proceedings in bankruptcy had not been instituted, unless by consent of the proposed defendant, except suits for the recovery of property under certain sections including section 60b (Comp. St. 1916, § 9644). Section 60b authorizes the trustee to avoid preferences and recover the property or its value, and provides that for the purpose of such recovery any court of bankruptcy and any state court which would have had jurisdiction, if bankruptcy had not ihtervened, shall have concurrent jurisdiction. Uold that, since the amendment of 1910, the bankruptcy court has jurisdiction of a suit to recover a preference, regardless of the amount involved or the citizenship of the parties.</p> <p><gs»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>2. Bankruptcy <S=»1G2—Preferences--Judgments--“Transfer.”</p> <p>Under Bankr. Act July 1, 1898, c. 511, § 3, el. 3, 30 Stat. 516 (Comp. St. 1916, § 9587), defining acts of bankruptcy, sections 60a, 60b, defining preferences and the right to recover them, sections 67c, 67f (Comp. St. 1916, § 0651), providing for the dissolution of liens obtained in legal proceedings, and section 1, cl. 25 (section 9585), defining a “transfer” as including the sale and every other and different mode of disposition of or parting with property or the possession of property absolutely or conditionally as a payment, pledge, mortgage, gift, or security, a creditor who recovers a judgment by consent or in invltum and by execution collects the judgment within four months preceding bankruptcy, and with reasonable cause to believe (hat a preference will result, receives a voidable preference, especially as, since the amendment of 1910, the debtor’s Intent is no longer relevant.</p> <p>[Hd. Note.—For other definitions, see Words and Phrases, First and Second Series, Transfer.]</p> <p>3, Judgment <S=rt7Q7—Conct.usiveness on Persons Not Parties.</p> <p>The discharge of a receiver under a chattel mortgage on the property of a bankrupt, on a motion supported by affidavits tending to show that he was solvent, was not res judicata or binding on creditors or the trustee in a suit to recover a preference obtained a few days after such discharge.</p> <p><§=3For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Petition for Order to the District Court of the United States for the Northern Division of the Southern District of California.

Dooling, Judge. Gideon M. Freeman was convicted of an offense, and he brings error.

<p>1. Municipal Corporations <@=>723—Liability fob Maritime Tort—Effect of State Law.</p> <p>A suit in admiralty may be maintained against a municipal corporation for a tort, if a cause of action is stated under the maritime law, although the same acts of its servants would not constitute a cause of action under the local state law.</p> <p>2. Municipal Corporations <@=>853—Liability in Admiralty—Maritime Tool.</p> <p>Libelant’s steamer was tied up for the winter in the Chicago river, when on a very cold night a fireboat owned by the city, in fighting an elevator fire on the bank, located near the steamer, so handled its apparatus that her hold was filled with water and her deck and side coated with ice, causing her to sink. Meld, that the injury was maritime, for which, if due to negligence, the city was liable in admiralty.</p> <p>3. Municipal Corporations <@=>853—Liability for Torts—Negligence of Servants.</p> <p>Evidence that the fireboat unnecessarily remained in its position, with knowledge by its captain that the steamer’s hold was filling and she was listing more and more from the accumulating ice, and that it was moved only because of fear of injury from the sinking steamer, held to sustain a -finding of negligence.</p> <p><@E5>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Suit by the E. G. Staude Manufacturing Company and another against Elie W. Eabombarde and others. Erom the decree dismissing bill without prejudice, but awarding costs to defendants (229 Fed. 1004), plaintiffs appeal.

Suit in admiralty by the Conklin & Foss Company, as owner of the barge Ruth, against the steam tug Clarence D. Blakeslee; the New Haven Trap Rock Company, claimant. Decree for libelant, and claimant appeals. The libel alleged that the boat Ruth had received injuries (listing and los lug her deck cargo) by going adrift while in tow of claimant’s tug Blakeslee.

In the matter of the Superior Jewelry Company, alleged bankrupt. From an order dismissing the petition (239 Fed. 373), Louis Lewitt and others, petitioning creditors, appeal. On March 6, 1916, the firm of Goldberg & Sagman was in bankruptcy. The trustee in charge had physical possession of certain jewelry, found by him Iso far as this record shows) with the assets of said1 firm.

Bankruptcy proceeding against the George C. Bruns Company. From an order allowing the claim of George C. Bruns, Frank M. McKey, trustee, appeals. In June, 1915, petition in bankruptcy was filed against George O. Bruns Company, a corporation. A composition was effected whereby the creditors received in settlement o£ their claims 50 per cent, thereof, as follows: Ten per cent. in. cash; 10 per cent. December 15, 1915; 10 per cent.

<p>Appeal from the District Court of the United States for the Northern District of Ohio; John H. Clarke, Judge.</p> <p>Suit in equity by the Twentieth Century Machinery Company against the Uoew Manufacturing Company. Decree for defendant, and complainant appeals.</p>

<p>Appeal from the District Court of the Unfed States for the Eastern District of Michigan; Arthur J. Tuttle, Judge.</p> <p>Suit in equity by Theodore D. A. Adler and William G. Sullivan against the Jackson Cushion Spring Company. Decree for complainants, and defendant appeals.</p>

<p>1. Patents <C£=p32—Suit fob Infringement—Evidence.</p> <p>The printed date of the filing of the application as shown on the officially printed copy of the patent will be accepted as correct in the absence of objection.</p> <p>2. Patents C=v>283(1)—Suit tor Infringement—Defenses—Anticipation.</p> <p>A patent the application for which antedates that for the patent in suit is a part of the prior art and if anticipatory may be shown in defense of a suit for infringement under subdivision 4, § 492Ü, liev. St. (Comp. St. 1916, § i)46G[4]), as evidence that the patentee “was not the original or first inventor or discoverer” of the thing patented, since the filing of the application was constructively a reduction to practice by the prior applicant and carries with it the presumption that he had at that time made the invention.</p> <p>3. Patents <&n»32S—Invention—Loose-Leaf Binder.</p> <p>The Schade patent, No. 819,461, for a loose-leaf binder, in view of the prior art is void for lack of invention.</p> <p><S^>For other cases see same topic & KEY-NUMBBIt in all Key-Numbered Digests & Indexes</p>

<p>Patents <§=310(1)—Suit fob Infringement—Pleading.</p> <p>In a suit for infringement, complainant cannot be required by a motion for further and better particulars, made under equity rule 20 (198 Fed. xxiv, 115 O. C. A. xxiv), to make a comparison of the elements of the claims'of his patent with the elements of defendants’ structure, which would not be a statement of ultimate facts required by rule 25, but merely the opinion or conclusions of the pleader; but he may be required to specify the claims of the patent relied upon as having been infringed.</p> <p><S=»For Oilier cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Equity. Suit by the Cleveland Engineering Company against the Gabon Dynamic Motor Truck Company. On motion by complainant to require defendant to elect between defenses, and also to strike out counterclaim.

<p>In Equity. Suits by Wolf, Sayer & Heller, Incorporated, against the U. S. Slicing Machine Company and by the U. S. Slicing Machine Company against Wolf, Sayer & Heller, Incorporated.</p>

<p>1. Evidence <§=334(1)—Documentary Evidence—Public Records.</p> <p>The certificate of an assistant registrar under the English Companies Act that a corporation had changed its name in due form by law is not legal evidence of such fact, which can only be shown by a duly authenticated copy of the record itself.</p> <p>2. Patents <§=328—Validity and Infringement—Sharpener for Meat-Slicing Knives.</p> <p>The Stukart patent, No. 1,039,210, for a grinding apparatus for meat-slicing knives, held not infringed.</p> <p>3. Patents <§=235—Infringement—Device Capable of Infringing Use.</p> <p>The rule that a device capable of infringement infringes, although designed to be used in such manner as not to infringe, does not apply, where there is no object in so using it as to infringe, but rather a disadvantage.</p> <p><®=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Admiralty. Suit by Arthur W. Nelson against the gasoline tugboat Arlyn Nelson and the Sanitary Fish Company, with cross-libel by the respondent company. -On exceptions to cross-libel.</p>

In Bankruptcy. In the matter of the bankruptcy of Elias Resnek. On application to vacate and set aside an order appointing a receiver.

Max V. Thierichens was indicted on charges of smuggling and on a charge of violating the Mann Act. Sur motions to quash bills of indictment.

<p>Bankruptcy @=321—Proving Claims—Representation by Attorney—‘‘Creditors.’’.</p> <p>Under Bankr. Act July 1, 1898, c. 511. § 1, subd. 9, 80 Stat. 511 (Comp. St. 1916, § 9585), defining “creditor'’ as including the creditor’s duly authorized agent, attorney, or proxy, unless die context is inconsistent with such construction, and General Order No. 4 (89 Fed. iv, 82 C. C. A. viii) providing that proceedings in bankruptcy may be conducted by the bankrupt, in person, in his own behalf, or by a petitioning or opposing creditor, and that a creditor will only bo allowed to manage before the court his individual interest, and that every party may appear and conduct the proceedings by an attorney, who shall be ail attorney or counselor authorized to practice in the Circuit or District Court, if an attorney in fact may prepare the proof of claim and present it to the referee for allowance, he may do so only for a particular creditor, and may not so represent more than one creditor.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Creditor.] ^5>For other cases see same topic & KEY-NTJMBER in all Key-Numbered Digests 8- indexes</p>

Maurice Sugar and others were indicted for conspiracy to unlawfully and willfully aid and abet and procure persons to violate the Conscription Act. On motion to quash indictment.

The Cudahy Packing Company and others, Sulzberger & Sons Company and others, Morris & Co. and others, and Herbert Barnes, Edward F. Mansfield, and George F. Burgess, copartners, were separately indicted for violation of the Meat Inspection Act, etc. On demurrer to the indictments.

In Equity. Bill by the First Trust Company, as trustee, against the Crooked Creek Railroad & Coal Company, in which the Chicago & Northwestern Railway Company, the Illinois Central Railroad Company, and the Northern Pacific Railway Company separately intervened. Submitted on separate petitions of intervention of the Chicago & Northwestern Railway Company, Illinois Central Railroad Company, and the Northern Pacific Railway Company, interveners.

In Bankruptcy. In the matter of the bankruptcy of the S’eger Bros. Company, a corporation. Petition by the trustee for determination of conflicting claims to the ownership of a lease formerly held by the bankrupt as a tenant.

<p>In Equity. Suit by Jonathan Bourne, Junior, against the Federal Mining & Smelting Company.</p>

<p>In the matter of Ivan Foley. Fx parte application by Mrs. Pearl Foley for a writ of habeas corpus against William A. Colston, Colonel of the First Kentucky Regiment of the National Guard.</p>

In Bankruptcy. In the matter of Robert B. Hull, bankrupt. On petition of Charles Cary, trustee, for review of an order of the referee vacating a prior order respecting the claim of the International Agricultural Corporation.

<p>In Bankruptcy. In the matter of the bankruptcy of Simcox, Incorporated. On claim by the Comptroller of the State of New. York for corporation taxes. On petition to review an order of the referee allowing the claim.</p> <p>Petition to review an order of a referee in bankruptcy allowing the claim of the state of New York for taxes against the bankrupt estate under the following circumstances: The bankrupt was a corporation, and as such liable to taxation under section 182 of the Tax Law of the state of New York. For two years, ending respectively October 31, 1914, and October 31, 1915, the comptroller assessed the corporation $75 a year as a tax upon $100,000 of its corporate stock. This, together with $19.50 penalties, made a total sum due of $169.50, for which amount the state presented its claim to the referee. By section 182 of the Tax Law of New York it is provided that every corporation shall pay to the state treasurer an annual tax upon the basis of its capital stock employed during the preceding year within the state, and by section 183 it is provided that manufacturing corporations shall be exempt to the extent of the capital actually employed in this state in manufacturing or in the sale of the product of such manufacture. The trustee objected to the daim, -and ■ evidence was taken before the referee, on which it appears that the corporation was in fact no more than a form for a dressmaker’s establishment, which was conducted in the city of New York. A part of the business consisted in .making up raw material into women’s clothes, and part consisted in importing from other countries made-up clothes and selling them. No evidence was introduced as to the proportion between the clothes manufactured by the bankrupt and those imported and sold, except in the following testimony: “Q. Can you tell me what percentage of your stock was manufactured by yourselves, and what percentage was obtained from manufacturers? A. 1 could not tell you exactly. Q. Approximately? A. It was more than half of it manufactured by us. Q. Much more than that? A. Yes.” The referee found that the whole tax was properly levied, and allowed the claim in full.</p>

<p>In Error to the District Court of the United States for the Western District of Missouri; Arba S. Van Valkenburgh, Judge.</p> <p>Action by Morris & Co. against the Missouri District Telegraph Company. Judgment for plaintiff, and defendant brings error.</p>

Pollock, Judge. Petition by Jack Collins, on the petition of T. W. Bell, for a writ of habeas corpus against Thomas W. Morgan. From an order denying the writ, petitioner appeals.

<p>1. Courts <@=>273—Federal Courts-—Jurisdiction—Injunction.</p> <p>An Injunction may be granted against subordinates of the Secretary of Agriculture for attempting to enforce Ms unlawful orders, though the Secretary of Agriculture, not being within the district and not appearing, could not have been enjoined.</p> <p>2. Food <@=»1—Congress—Towers of-—Regulation.</p> <p>The enactment of the Oleomargarine Acts (Act Aug. 2, 1886, c. 810, 24 Stat. 209; Act May 9, 1902, c. 784. 32 Stat. 193), under Const, art. 1, § 8, par. 1, declaring that Congress shall have the power to lay and collect taxes, duties, imposts, and excises, does not restrict the power of Congress to regulate commerce with foreign nations and among the several states and with the Indian tribes, conferred’by paragraph 3 of the same section; and hence the Meat Inspection Art June 30, 1906. c. 3913, 31 Stat. 669, ami Pure Food Act (Act June 30, 1900, c. 3915, 34 Stat. 768 [Comp. St. 1916, §§ 8717-8728J), apply to oleomargarine dealers, notwithstanding the prior law.</p> <p>3. Evidence <@=>7—Judicial Notice—Oleomargarine.</p> <p>It is a matter of common knowledge that oleomargarine is a meat food product, and hence Meat Inspection Act June 30, 1906, applies to manufacturers of oleomargarine.</p> <p>®=For other cases see same topic & KB'S-NUMBER In all Key-Numbered. Digests & Indexes</p> <p>4. Food <®=>8—Oleomargarine—Meat Inspection Law—Trade-Name.</p> <p>Meat Inspection Act June 30, 1906,' declares that no meat or meat food products shall be sold or offered for sale by any person, firm, or corporation in interstate or foreign commerce under any false or deceptive name, but established trade name or names which are usual to such products, and which are not false or deceptive, and, which shall be approved by the Secretary of Agriculture, are permitted. Prior to the enactment of the Meat Inspection Act plaintiff, a manufacturer of oleomargarine, adopted the trade-name “Creamo Oleomargarine,” registration of which as a trade-mark was allowed subsequent to the enactment of the law. Thereafter the ^Agricultural Department officially approved the trade-name, and complainant expended large sums in advertising its product as “Creamo Oleomargarine.” Cream was not always used in the manufacture ot complainant’s oleomargarine. Held,, that the trade-name was not deceptive, and the Agricultural Department having approved it, it could not thereafter retract its approval and compel complainant to abandon the trade-name.</p> <p>Amidon, District Judge, dissenting.</p> <p>.©sipFor other cases see same topic & KEY-NUMBEE in all Key-Numbered Digests & Indexes</p>

<p>1. Chattel Mortgages <§=>124—After-Acquired Property—‘“Increase”— “AcCEfiTrONS.”</p> <p>A mortgage on 500 head of cattle, with all increase thereof and accretions thereto, covered, not only the offspring of the mortgaged cattle, but also cattle added to the herd by acquisition; since, while “increase” as used in mortgages ordinarily means that which is added to the original stock by augmentation or growth, produce, profit, interest, progeny, issue, or offspring, the word “accretions” has a broader meaning and is not confined to the results of natural growth, but includes the additions of parts from without, and this was especially true where the mortgagee knew that the mortgagor only had 170 head of cattle, and the loan secured by the mortgage was made to enable him. to buy cattle until he should have 500 head as mentioned in the mortgage (citing Words and Phrases, Increase; see, also, Words and Phrases, First and Second Series, Accretion).</p> <p>2. Chattel Mortgages <§=>18—Validity—After-Acquired Property.</p> <p>A chattel mortgage on cattle, including all cattle added to the mortgagor’s herd bv purchase, was valid under the express provisions of Rev. Laws Okl. 1910, § 3829.</p> <p>3. Chattel Mortgages <§=>157(8)—Eights of Purchasers—Notice—Questions for Jury.</p> <p>In replevin by a chattel mortgagee of cattle against a purchaser from the mortgagor, evidence hold to make questions for the jury as to whether the purchasers, who wore informed that the mortgage covered cattle subsequently purchased by the mortgagor, were not put upon inquiry, and would not have learned of the mortgagee’s lien by investigation.</p> <p>4. Trial <§=>45(1)—Offer of Proof—Defect of Adverse Rotang.</p> <p>In replevin by mortgagees of cattle, described as branded with a crossbar against purchasers from the mortgagor, where the court ruled that the mortgage did not cover cattle purchased after its date, it was not incumbent on the mortgagee to present proof of the branding of the cattle after they were purchased and before they were sold to defendants.</p> <p>5. Chat [-el Mortgages <§=>148—Purchasers frost Mortgagors—Notice.</p> <p>Where such purchasers wore charged with knowledge of the mortgage, and that it covered after-acquired cattle, they were bound also to know that brands need not bo affixed to the cattle immediately after purchase.</p> <p>6. Chattel Mortgager <§-.=355—IJona Fide Purchasers—Notice.</p> <p>Comp. Laws Okl. 1909, § 4422, provided that a mortgage of personal property was void as against creditors and subsequent purchasers, and incumbrancers in good faith for value, unless the original or an authenticated copy was filed as therein required. Rev. Laws Okl. 1910, § 4081, contains a similar provision, except that the words “in good faith” are omitted; but a further provision of such section, relating to mortgages on property in an unorganized county makes such mortgages void against subsequent purchasers or incumbrancers in good faith for value, unless filed. Section 4035 provides that a chattel mortgage shall cease to be valid as against subsequent purchasers or incumbrancers in good fail’ll after the expiration of three years, unless a renewal certificate is filed. 'Held, that the Legislature did not intend to make an [iniiled mortgage invalid as against a purchaser for value; but having notice of the mortgage used the words “purchasers and incumbrancers for value” in the first part of the section in the same sense as the words “purchasers or incumbrancers in good faith for value” in the last part of the section.</p> <p>^—->Fnr other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>7. Statutes @=>181(2), 184, 205, 225—Rules of Construction.</p> <p>To ascertain the intention of the Legislature in the enactment of the statute, the court may look to each part of the statute, to other statutes upon the same or relative subjects, to the old law upon the subjects, to the evils and mischiefs to be remedied, and to the natural or absurd consequences of any particular interpretation.</p> <p>8. Chattel Mortgages @=>173(4)—Rights of Purchasers—Notice—Evidence.</p> <p>In replevin by a chattel mortgagee of cattle against a purchaser from the mortgagor, a certified copy of the mortgage and of the record of its filing should have been admitted on the theory that the jury might find that the purchasers, knowing that a mortgage had been given, should have made inquiry at the county clerk’s office, and would have learned that the mortgage covered after-acquired property.</p> <p>9. Chattel Mortgages @=>172(2)—Replevin Against Mortgagor—Defenses.</p> <p>In replevin by a chattel mortgagee against the mortgagor and purchasers from him, the demurrer to the evidence of the mortgagor was properly sustained, where the property was in possession of the purchasers, as the action of replevin is a possessory one.</p> <p><£s»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Western District of Oklahoma; John H. Cotteral, Judge.</p> <p>Replevin by the Stockyards Doan Company against A. W. Dohman. Judgment for plaintiff, and defendant brings error.</p>

Hamilton, Judge. In the matter of the bankruptcy of E. Del Pilar Hermano & Co. Pe<tition by Yumet & Co., opposed by Isidoro D. 'Delgado, trustee, and. others. From an order reversing an order of the referee, petitioner appeals.

Dooling, Judge. Suit in admiralty by the American Import Company, a corporation, Tillman & Bendel, a corporation, James F. Do Fremery and Henri M. S'uermondt, partners as Jas. De Fremery & Co., and the Appolinaris Company, Limited, against the British steamer Skipton Castle; the Lancashire Shipping Company, Limited, claimant. Decree for libel-ants, and claimant appeals.

Dietrich, Judge. Suit by the Westinghouse Electric & Manufacturing Company against the Idaho Railway, Light & Power Company and others, in which John A. Roebling’s Sons Company of California and another intervened. From a decreé denying their claims for preference, the interveners appeal.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in admiralty by the Patagonia Steamship Company, Limited, against the Cans Steamship Une. Decree for libelant, and respondent appeals.</p>

<p>Seamen <S=>11—Injury in Service—Measure oe Recovery.</p> <p>The rights of a seam'an, injured in the service of the ship, are the same, by virtue of the inherent nature of his contract, whether he sues in a court of admiralty or of common law, and his recovery is limited to his wages to the end_of the voyage and the expense of his maintenance and cure, regardless of’the question of negligence or contributory negligence ; and this rule is not changed by Seamen’s Act March 4, 1915, c. 153, § 20, 38 Stat. 1185 (Comp. St. 1916, § 8337a), providing that "in any suit to recover damages for any injury sustained on board vessel or in its service seamen having command shall not he held to be fellow servants with those under their authority.”</p> <p><gs£>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Western District of Wisconsin.</p> <p>Action by Harry W. Huttig against the John Paul Lumber Company. Judgment for defendant, and plaintiff brings error.</p> <p>Huttig's declaration was based on the following contract:</p> <p>“Chicago, August 8, 1912.</p> <p>“0. W. Huttig, Muscatine, Iowa.</p> <p>“Dear Sir: Referring to all of the holdings of the John Paul Lumber Co. in the La Fayette. Taylor, Madison, Jefferson, Wakulla counties in the state of Florida, with the exceptions of the ninety thousand acre tract contained in townships 6 south, R. 12 east; 7 south, 12 east; 8 south, 12 east; 9 south, 12 E.: 6 south, 13 M.; 7 so-uth, 13 E.; 8 south, 13 E.; 9 south, 13 10.—ail in La Fayette county, Florida, comprising with the above exception about (231,000 acres) two hundred and thirty-four thousand acres, we hereby authorize you to sell all of the above named 231,000 acres for $2,560,000, for which in case of sale we agree to pay you a commission of 5 per cent.; and we further agree to pay you a commission of 5 per cent, on the consummation of a sale of any part thereof; and wo further agree to pay you a commission of 5 per cent, on any sale you may make thereof that is consummated, whatever the purchase price may he. We will allow you sixty days from date to get parties interested and to examine property and a reasonable timo thereafter to examine timber and abstracts.</p> <p>“Yours truly, John Paul Lumber Company.</p> <p>“By R. W. Paul, V. Ft.”</p> <p>At the conclusion of all the evidence the court directed a verdict for defendant. This is assigned as error.</p>

Dooling, Judge. Petition by Woo Hoo, on behalf of Woo Dan, for a writ of habeas corpus against Edward White, as Commissioner of Immigration at the Port of San Francisco. From a judgment sustaining a demurrer to the petition, petitioner appeals.

<p>Appeal from the District Court of the United States for the District of Kansas; John C. Pollock, Judge.</p> <p>On petition for rehearing.</p>

District Court of the United States for the First Division of the Northern District of California; Maurice T. Dooling, Judge. Application by Wong Quen Luck for a writ of habeas corpus against Edward White, Commissioner of Immigration at the Port of San Francisco. From an order issuing the writ, and discharging the petitioner,- respondent appeals.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in admiralty by Robert Ropner, John Henry Ropner, and William Ropner against the Inter-American Steamship Company. Decree for respondent, and libelants appeal.</p>

Application by Tsuie Sh.ee and another for a writ of habeas corpus against Samuel W. Backus. From a judgment denying the writ, petitioners appeal.

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Action by Richard Revering against the Paova Oil Company and others. There was a judgment for defendants, the complaint being dismissed at close of plaintiff’s evidence, and he brings error.</p>

Action by Edward Patey against Caleb S. Spencer, as treasurer, etc. There was a judgment for plaintiff, and defendant brings error. This ease comes here on writ of error to review a judgment entered upon the verdict of a jury in favor of the plaintiff, Edward Patey, in the sum of $2,100 for injuries sustained by him by reason of the alleged negligence of the defendant. The parties will be hereafter designated as they appeared in the court below, as plaintiff and defendant.

<p>Appeal from the District Court of the United States for the First Division of the Northern District of California.</p> <p>Petition by Dhanna Singh against the United States of America for a writ of habeas corpus. Writ denied, and petitioner appeals.</p>

Petition by Gujar Singh and Inder Singh for a writ of habeas, corpus. Demurrer by the United States being sustained and writ denied, petitioners appeal.

Suit in equity by the Marconi Wireless Telegraph Company of America against the De Forest Radio Telephone & Telegraph Company. Decree for complainant, and dismissing counterclaim, and defendant appeals. The plaintiff (hereinafter called Marconi) brought this action against defendant (hereinafter called De Forest) alleging infringement of claims 3 and 37 of patent dated Nor ember 7, 1905, issued on application of John Ambrose Fleming, filed April 19, 190» (No. 803,684).

<p>Appeal from the District Court of the United States for the Southern Division of the Southern District of Illinois.</p> <p>Suit in equity by the Lourie Manufacturing Company against Robert Eizzell. Decree for complainant, and defendant appeals.</p>

<p>1. Patents <@=313—Suit for Infringement—Dismissal on Motion.</p> <p>The court has power to dismiss si bill for infringement on motion, on the ground that the patent is void for- lack of invention shown on its face: hut such power should only be exercised where the matter is free from doubt, and wheie invalidity so clearly appears that no testimony can change its legal aspect.</p> <p>2. Patents <@=328—Validity—Scaffold.</p> <p>The Foster patent,, No. 763,274, for a scaffold, is void on its face for lack of invention, in view of the prior a,rt.</p> <p>other cases see same topic & KBY-NUMCMR in all Key-Numbered Digests & Indexes</p>

Orr, J udge. Suit in equity by the New .York Scaffolding Company against the Liebel-Binney Construction Company. Decree for defendant, and complainant appeals. Affirmed. The following is the opinion of ORR, District Judge: This is an ordinary patent suit in which United States patent No. 959,008, for “scaffold-supporting means,” issued May 24-, 1910, to E. II. Henderson is involved.

Suit in equity by the United Shoe Machinery Company against the Champion Shoe Machinery Company and another. Decree for complainant, and defendant named appeals.

<p>1. Patents <@=328—Validity and Infringement—Shock Absorber.</p> <p>The Thompson patent, No. 1,072,791, for a shock-absorber for automobiles, while narrow, was not anticipated and is valid; also held infringed.</p> <p>2. Patents <@=129—Suits for Infringement—Defenses—Estoppel.</p> <p>A condition of a sales agency contract, binding the agent to recognize and respect all rights under the patent, is extinguished by the termination of the contract, and in a subsequent suit the agent may contest the validity of the patent.</p> <p>3. Courts <S=290'—Suit for Infringement—Jurisdiction—Unfair Competition.</p> <p>Where, in an infringement suit, the patent is held valid and infringed, a claim for unfair competition arising out of the infringement may be considered in the accounting of profits and damages, although the parties are citizens of the same state.</p> <p>.©=jFor other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Cross-Appeals from the District Court of the United States for the Western District of New York.</p> <p>Suit in equity by the R. E. Dietz Company against the Burr & Stark-weather Company. Erom the decree, both parties appeal.</p> <p>The bill alleged infringement of design patent to McArthur, 42,488, and of two mechanical patents, viz. that to Bergener, No. 962,114 (claim 1), and to Erb, No. 962,135 (first and only claim). The claims in suit are as follows: Bergener: “1. A tubular lantern having tubes which are each composed of two substantially half-round half-tubes, stamped' of sheet metal and secured together by seams on the inner and outer sides of the tubes, and each half-tube being formed between said seams with a hollow longitudinal rib thrown out on the half-round surface of the half-tube, substantially as set forth.”</p> <p>Erb: “A tubular lantern having tubes composed of stamped half-tubes of sheet metal which, extend in a continuous piece from end to end and are provided between their ends at intervals with hollow transverse stiffening beads, said half-tubes being joined on opposite sides by overlapped seams, substantially as set forth.”</p> <p>The trial court dismissed the bill as to the design patent and sustained both of the mechanical patents. Both parties appealed.</p>

Suit- in equity by the Hemming Manufacturing Company against the Cutler-Hammer Manufacturing Company. Decree for defendant, and complainant appeals. This is an appeal from a decree dismissing for want of equity appellant’s bill for alleged infringement of the Muller patent .869,321, October 29, 1997, for insulating material and method of manufacturing the same.

<p>Appeal from the District Court of the United States for the Western District of New York.</p> <p>Suit in equity by the Bijur Motor Lighting Company against the Eclipse Machine Company and Vincent Bendix. Decree for defendants on original bill and for defendant Bendix on counterclaim, and complainant appeals.</p> <p>Tile plaintiff (hereinafter called "Bijur Company”) owns the patent described in the document below given, covering an invention of Joseph Bijur, Its president. The bill alleged in usual form infringement by the defendants, who, admitting in substance that they were using Bijur’s invention, asserted a right so to do as licensees, and (by counterclaim) demanded that plaintiff he required specifically to perform the contract under which they justified and denied (as a conclusion of law) the infringement asserted.</p> <p>This alleged contract, which sufficiently defines the relation of parties contended for by defendants, is as follows:</p> <p>“Memorandum of Agreement Beached July 9, 1914, Between Bijur Motor Lighting Company and Vincent Bendix.</p> <p>“First. Mr. Bendix is to receive a license under the Bijur patent, No. 1,095,-696, for the life of the patent, and for the manufacture, use and sale of starters involving a screw shaft.</p> <p>“Second. This license is to be exclusive as against all parties save Bijur Motor Lighting Company.</p> <p>“Third. This agreement is to be binding upon the heirs and successors of both parties, and upon the assignees of the whole business of each party, and is to convey to Mi-. Bendix the right to sublieemse the Eclipse Machine Company , its heirs, successors and assigns of its business.</p> <p>“Fourth. Mr. Bendix is to pay a royalty of five hundred dollars (¥500) a year.</p> <p>“Fifth. Mr. Bendix is to grant the Bijur Motor Lighting Company an exclusive license under each of his foreign patents or applications on starting apparatus for the life of the prospective foreign patents or applications.</p> <p>"Sixth. The foreign rights under the Bendix foreign patents are in no way to interfere with the rights of export and use in foreign countries of all apparatus built in accordance with the license to Mr. Bendix under the Bijur patent in this country.</p> <p>“Seventh. The rights of Mr. Bendix under this agreement and those of his licensee shall extend to the manufacture in Ganada, as well as its-use and sale.</p> <p>“Eighth. Mr. Bendix agrees, without further consideration, either to secure a certain United States application now pending in the Patent Office and alleged to interfere with the Bijur patent, and guarantee that it he conducted and handled throughout in a maimer satisfactory to the Bijur Motor Lighting Company, or, failing in this, that lie will, at ids own expense, vigorously prosecuto the parties owning or controlling such application, or the resultant patent, to his full ability, under any rights which he may possess.</p> <p>“Ninth. Mr. Bendix and the Eclipse Machine Company agree to mark the goods licensed under this agreement, ‘Licensed Under Patent No. 1,095,696,’ or equivalent words.</p> <p>“Tenth. As against infringers of the Bijur patent, building screw shaft starting apparatus, Mr. Bendix is to bear the expense of legal proceedings, and as against other infringers of said patent, Bijur Motor lighting (jiompany is to bear the expense of legal proceedings.</p> <p>“Eleventh. Mr. Bendix is to furnish the wording of the broadest claim which has been allowed in his German application, and warrant that it has been allowed, and also the effective filing date of the German case.</p> <p>“Twelfth. Mr. Bendix agrees that the licensee (the Eclipse Machine Company) will, in consideration of the granting of this license by the Bijur Motor lighting Company, give an additional discount of five per cent. (5%t) off from the best price named to any other motor and lighting company, and that he will also obtain the best of deliveries and prompt sendee.</p> <p>“In witness whereof, we have hereunto set our hand and affixed our seals this 9th day of July, 1934, the Bijur Motor Lighting Company by its proper officer thereunto duly authorized. Bijur Motor Lighting Company,</p> <p>“By Walter C. Allen. [L. S.] “Vincent Bendix. [L. S.j”</p> <p>The foregoing is typewritten, except signatures of Allen and Bendix, which are admittedly genuine.</p> <p>Plaintiff replied, in effect, that this paper was never intended to be a contract; was nothing but a tentative scheme for a business arrangement, of which the fruition was to depend on Bendix proving a scope and value in his German patent which it was never shown to possess; and that the appearance of contractual finality exhibited by the document in question resulted from fraud on the part of Bendix.</p> <p>The District Judge, after a trial in which all the actors were examined in open court, held that defendant’s position was justified by the evidence, dismissed the bill on the ground that Bendix was, and had been since the date of agreement, entitled to a formal license, with authority to sublicense the Eclipse Company, and on the counterclaim decreed that such license be given within 60 days. Plaintiff took this appeal.</p> <p>Bijur is an inventor, with considerable experience in management and exploitation of patents. He entirely controlled the Bijur Company, not so much by stock ownership as by his personality and the fact that the company existed largely, if not wholly, in the hope of profiting by his inventions. He had several times made contracts for and in the name of his company, without consulting his board of directors. Allen is a relative of Bijur’s, a stockholder in the Bijur Company, and an employs, with wide but not very accurately defined duties.</p> <p>While the application for Bijur’s patent was in the office, Bendix filed an application of his own, covering matter sufficiently close to Bijur to give rise to an interference if demanded. Nevertheless “by inadvertence,” as the examiner stated, Bijur’s patent issued without notice to Bendix, or knowledge thereof on the part of the latter. Thereupon the commissioner advised both parties of the facts, and suggested steps still open to Bendix if Tie wished to contest. .Pending his application Bendix had agreed to license Eclipse Company under his expected patent. Dunn is president of that corporation, and he, as financier for Bendix, preferred some settlement with Bijur to litigation in Patent Office or court.</p> <p>Bijur had no patent in Germany; Bendix had applied for one, and Bijur hoped that Bendix’s German rights would “dominate” the device of one Bush-more, which was already offered in the German market. There was also a pending American application for an apparently similar or allied contrivance by one Kemy; this is the matter referred to in article S of the above agreement.</p> <p>In this situation of affairs, Allen, Bijur, and Bendix at various times talked over what each party had to offer toward a union of forces, to the profit of all and avoidance of litigation and competition.</p> <p>On July 9, 1914, Bijur and Allen, Bendix, and Dunn met at the office of Bijur’s patent counsel, no other lawyer being present. Several hours were spent in discussion, and a stenographer was present who noted in shorthand what was dictated to her as the result of talk. At the end, there existed in shorthand the agreement above set forth, except the signatures and attestation clause. The latter was added by the stenographer from some form book or the like. Dunn and Bijur left without seeing the result of the stenographer’s labors, and on departure Bijur specifically authorized Allen to “sign for” the Bijur Company. Bendix and Allen did sign in duplicate in the presence of Bijur’s counsel, and each departed, with an original document.</p> <p>Subsequent study of Bendix’s German application did not satisfy Bijur and his counsel that its probable claims were wide enough to suit them, and on August ith counsel notified Bendix’s attorneys in writing that the document, above set forth was not a contract, and that “all negotiations were closed.” Subsequently Bendix bought up the Remy invention, though the plaintiff on August 5th notified the vendors that Bendix had no contract or agreement as to the Bijur patent.</p> <p>Defendants then proceeded to act upon their asserted rights, and this suit resulted.</p>

<p>1. Specific Performance <@=>105(3)—'Defenses—Laches.</p> <p>Two firms, engaged in costly litigation with each other over their respective rights under patents on paint removers, and their members, entered into a compromise agreement, whereby the C. Co. was to be organized and take title to all of the patents and permit each firm to manufacture and sell under all patents. The individual members of the firms agreed to assign to the corporation all improvements or inventions then or thereafter made by them relating to paint removers; to execute an agreement .in its favor that they would, without further consideration, disclose and assign to it all inventions already made, or thereafter .made, and to furnish further documents necessary to effectuate the objects indicated. One of the parties having severed his connection with the corporation and the firm of which he was a member in 1911, organized a new company, which manufactured a paint remover under a patent obtained on his application. On having his attention called to the agreement to assign inventions to the C. Co., he replied that the formula was not his own, and by every means sought to keep the C. Co. from learning who devised his new remover, and whether he or the company owned the patents. The facts, however, were brought out in an infringement suit in 1915 or 1916, and soon after the grant of an injunction in that suit the C. Co. sued to compel an assignment of the patent. Held, that the suit was not barred by laches, the defendants not having been lulled into security, and not having changed their position in reliance on plaintiff’s inaction.</p> <p>2. Contracts <®=68—Patents <§=>183—Agreements to Assign Inventions— —Requisites and Validity.</p> <p>The agreement for the assignment of all improvements or inventions thereafter made did not lack formality or consideration.</p> <p>3. Patents <§=>183—Agreements to Assign Future Inventions—Validity.</p> <p>The agreement to assign future improvements or inventions was not invalid, as constituting a mortgage upon the future operation of man’s brain, though not limited as to time, as the intent was to safeguard a particular business.</p> <p>4. Patents <§=>183—Agreements to Assign Future Inventions—Annulment.</p> <p>The agreement was not annulled by the action of the corporation in paying a salary or retainer to one of the parties for supervising chemical experiments looking to new or improved remover devices, as none of the parties was bound to invent or attempt to invent anything, and, even if the corporation did discharge such party from the contract, another of the parties could not complain, but remained bound.</p> <p>5. Specific Performance <§=>108—Relief Awarded—Injunction.</p> <p>In a suit to compel the assignment of the patents to the C. Co., an injunction restraining defendants from any future use of the patents or inventions was in proper form, as the individual defendant and the company which took with notice were contractually excluded from any use of the patents or inventions.</p> <p>6. Courts <§=>407(5)—Circuit Court of Appeals—Scope of Review.</p> <p>Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1134 [Comp. St. 1916, § 1121]) § 129, provides that, where an injunction shall be granted, continued, refused, or dissolved by an interlocutory order or decree, an appeal may be taken from such interlocutory order or decree to' the Circuit Court of Appeals, notwithstanding an appeal upon final decree might be taken directly to the Supreme Court. Held, that, on an appeal from an interlocutory decree, in a suit to compel an assignment of patents, granting an injunction and directing an accounting, the propriety of the injunction was the only matter reviewable, and the court could not determine whether it was proper to grant an accounting as against a trustee ex maleficio.</p> <p>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 Iowa; Martin J. Wade, Judge.</p> <p>Suit in equity by Charles A. Besser against the Merrilat Culvert Core Company. Decree for defendant, and complainant appeals.</p>

<p>Appeal from the District Court of the United States for the Western District of New York.</p> <p>Suit in equity by the Miller Pasteurizing Machine Company against Paul J. Rich. From an order (216 Fed. 192) granting an injunction, defendant appeals.</p> <p>This is an appeal by the defendant from an order granting an injunction restraining the defendant from infringing claim 2 of patent No. 921,837. The order suspended the issuing of the injunction until after the decision of this court.</p>

<p>In Equity. Suit by tile Walter S. Newhall Company against the Baltimore & Ohio Railroad Company. On final hearing.</p>

<p>In Equity. Suit by William J. Koenig against Israel Morris, doing business as tire Dandy Novelty Company.</p>

<p>1. War <®^>10(2)—Amen Enemies—-Right to Maintain Suit.</p> <p>An alien enemy resident in his own country is under disability during the war to institute and maintain a suit in this country, but this disability does not attach to alien enemies resident in this country.</p> <p>2. War ®=^>10(2)—Suit for Infringement of Patent—Effect of War.</p> <p>A cause of action for infringement of a patent is indivisible, and where complainants in an infringement suit were partners and subjects of the German government, some residing in this country and some in Germany, on the declaration of a state of war between the two countries, the court, will not dismiss the suit without prejudice as to the nonresident complainants, nor will it dismiss it entirely, but will stay it during the continuance of the war.</p> <p><§£»For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by the Babcock Lumber & Land Company against J. W. Ferguson and another.</p>

<p>Courts <8=»347—Federal Courts—Plead two—Set-Off and Counterclaim.</p> <p>The purpose of the provision of equity rule [¶] (201 Fed. v, 118 C. O. A. v) permitting a defendant in his answer to “set out any set-off or counterclaim against the plaintiff which might be the subject of an independent. suit in equity against him” is to simplify pleading only, and not to create a new equity practice, and it does not authorize the setting-out of any cause of action cognizable in equity, regardless of whether or not it. is a proper subject of set-off or counterclaim.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Bankruptcy. In the matter of the bankruptcy óf H. & L. Jarmulowsky. Ex parte petitions by Benjamin Bortz and Attie Bros., opposed by the receiver.</p> <p>This cause comes up upon petitions by depositors of two private bankers hitherto doing business in the city of New York, under the following circumstances: The petitioners opened accounts with the private bankers some time before May 10, 1917, on the opening of which they received passbooks which contained as part of the conditions under which the account should be kept, the following language: “Deposits of currency or coin may bo drawn against after deposit, but deposits of checks shall not be drawn against until collected.” On the 10th of May the depositors deposited certain checks :n their account with the private bankers and received immediate credit in their passbooks for the same. The checks were in each case drawn by persons other than depositors, and were made payable, some in the city of New York, and some without. Nothing appeared on the deposit to indicate whether or not the depositor was to have the right immediately to draw upon the checks, and that question is to be determined upon the bare facts as stated. On May 11, 1917, the bank examiner of the state of New York took possession of the assets, of the private bankers, who never opened their doors after May 10th. The checks so deposited on the 10th were not collected until the 11th or later, and the petitioners now claim that the bankers received them as trustees, and for collection only, and that they are entitled to the proceeds of the collection in the hands of the receiver.</p> <p>The respondent, who is the receiver, appointed after the state superiniendent of banks took possession, files an affidavit alleging that the rule contained in ihe passbooks was expressly waived by one of the petitioners, Attic Bros., and that it was customary for the bankrupts to allow their regular business customers to withdraw money against uncollected checks. The petitioners likewise allege that the bank was insolvent, and known to the private bankers to be insolvent, on May 10th, when the checks were received.</p>

In Bankruptcy. In the matter of the bankruptcy of Michael Aarons. Application of J. W. Sullivan & Co., a corporation, to participate in funds deposited for composition, notwithstanding petitioner’s failure to prove its claim within one year from adjudication.

<p>Courts <@=»321—Federal Courts—Jurisdiction—Suits Between Citizens- and Aliens—Assignees.</p> <p>Under Judicial Code (Act Blareh 3, 1911, c. 231) § 24, par. 1, 36 Stat. 1091 (Comp. St. 1916, § 991), providing that no District Court shall have-cognizance of any suit upon any chose in action, in favor of any assignee', unless such suit might, have been prosecuted in such court to recover upon such chose in action, if no assignment had been made, where aliens assigned a claim against a Canadian corporation for breach of contract to-a citizen of New York, a suit by bis administrators was within the jurisdiction of the District Court, as the court would have had jurisdiction of a suit by the alien’s administrators, if citizens, and the imputed incapacity of the assignee could not have a greater effect than the original incapacity of the assignor.</p> <p><§^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes-</p>

<p>1, Bankruptcy ©=3303(3)—Preferences—IOyidenon—Sufficiency.</p> <p>In a suit by a trustee in bankruptcy to recover a sum of money paid by the bankrupt to defendant, evidence hold, insufficient to show that defendant and the bankrupt conspired to defraud other creditors of the bankrupt.</p> <p>2. Bankruptcy ©=>166(1)—Preferences—Knowledge of Parties.</p> <p>In determining whether defendant, which received an assignment of accounts due a bankrupt, had knowledge that such assignment would effect a preference, the standard of conduct is an external standard, and takes no account of the personal equation of witnesses produced as experts.</p> <p>other cases see same topic & KEY-NUMBER in all Koy-Nuinbered Digests & Indexes</p> <p>3. Bankruptcy <@=>303(3)—Preferences—Evidence—Sufficiency.</p> <p>In a suit by a trustee to recover from defendant on account of a transfer by the bankrupt which was preferential in fact, evidence held to show that defendant’s officers had reasonable cause to believe that a preference would result from the assignment demanded and received from the bankrupt.</p> <p>4. Bankruptcy <@=>160—Insolvency—1Test.</p> <p>Unlike the common law, one is not insolvent under the Bankruptcy Act when the fair value of his possessions exceeds the amount of his debts, though he may not be able to discharge them when due in lawful money.</p> <p>5. Bankruptcy <@=>303(3)—Preferences—Insolvency.</p> <p>In a suit by a trustee to set aside an alleged preferential transfer by the bankrupt, evidence held to establish the bankrupt’s insolvency at the date of the transfer.</p> <p>6. Bankruptcy <@=>303(1)—Insolvency—Burden of Proof.</p> <p>A trustee in bankruptcy, suing to set aside an alleged preferential transfer by the bankrupt, has the burden of establishing the bankrupt’s insolvency at the date of the transfer.</p> <p>7. Bankruptcy <@=>303(1)—Action-—-Insolvency—Presumption.</p> <p>Extreme insolvency, in the bankruptcy sense of the word “'insolvency,” at the time of the filing the petition in bankruptcy, raises a rebuttable presumption of insolvency during the preceding four months, sufficient, in the absence of any evidence that the bankrupt situation during these months changed for the worse, to sustain the burden resting on the trustee to show insolvency at the time of the making of the transfer alleged to be preferential.</p> <p>8. Bankruptcy <@=>159—Preferences—What Constitute.</p> <p>Where a bankrupt who was insolvent assigned accounts receivable to defendant, who was charged with knowledge that it was receiving a preference, such transfer, as it in fact preferred defendant and was made within four months of bankruptcy, is subject to attack as a preference.</p> <p>9. Bankruptcy <@=>185—Transfers Subject to Attack—State Statute.</p> <p>In view of Bankruptcy Act July 1,1898, c. 541, § 70e, 30 Stat. 565 (Comp. St. 1916, § 9654), declaring that the trustee may avoid any transfer by the bankrupt of his property which any creditor of such bankrupt might have avoided, the trustee in bankruptcy of a New York corporation may recover property transferred by the corporation where the transfer was subject to attack under New York Stock Corporation Eaw (Consol. Eaws, c. 59) § 66, declaring that no conveyance, assignment, or transfer of any property of a corporation which has refused to pay any of its notes or other obligations when due, or any payment made, judgment suffered, lien created, or security -given by it when insolvent, or its insolvency is imminent, with intent to give a preference, shall be valid; for the broad language of the section in the Bankruptcy Act shows that the trustee in his attack on preferences was not restricted to those declared to be invalid by the act itself.</p> <p>10. Corporations <§=>537—Transfers—“Insolvency.”</p> <p>Under the New York statute, “insolvency” is a general inability to answer in the due course of business the liabilities existing and capable of being enforced.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Insolvency.]</p> <p>11. Corporations <@=>544(5)—Insolvency—Preferences—Validity.</p> <p>A transfer by an insolvent New York corporation, which effected a preference, cannot be sustained under the New York statute, though the creditor receiving the preference had no knowledge or notice of the corporation’s insolvency.</p> <p>@=3l''or other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>12. Corporations @=>544(6)—•Insolvency—Preferences—Validity.</p> <p>Under New York Stock Corporation Law, § 66, declaring invalid transfers by an insolvent corporation intended to effect a preference, the assignment of accounts to defendant cannot be sustained on the ground that defendant became a creditor of the corporation only through the fraud of the insolvent corporation’s officers.</p> <p>13. Ban kruptcy @=>303(3)—Cokpobations—Preferences-—Evidence—Suffi-ciency.</p> <p>Where a conveyance by a New York corporation was attacked on the ground that it effected a preference, evidence held to show that it was the intention of the corporate officers to effect a preference.</p> <p>14. Constitutional Law @=>162—Corporations @=>540—Due Process of Law—Insolvency Laws.</p> <p>Though no state may impair the obligation of a contract, New York Stock Corporation Law, § 66, declaring preferential transfers by insolvent corporations to be invalid, is not open to attack in its application to a nonresident creditor, debts furnishing the basis for the transfer not being questioned.</p> <p>15. Corporations @=>540—Transfers—What Law Governs.</p> <p>A New York corporation, which subsequently became a bankrupt, sold accounts receivable to- defendant, a foreign corporation having its office in Maryland. The contract required the New York company to tender such accounts at defendant’s Maryland office, from whence the purchase price was transmitted to the New York company. Officers of the New York company converted moneys received on some of the accounts sold, and at a meeting of the officers of the defendant and the New York company, had at its home office, it was agreed by such company to assign to defendant a sufficient number of accounts to make good the money converted. At that time the New York company was insolvent. Held, that the assignment, which was subject to attack under Stock Corporation Law, | 66, took place in New York, the New York company there making the agreement, though the accounts were transmitted to defendant at Maryland, and hence the assignment could not be sustained on the ground that the section was applicable only by giving it an extraterritorial effect.</p> <p>16. Corporations @=>542(1)—Insolvency—■Preferences—Contracts.</p> <p>In such case, the fact that the contract between defendant and the New York company, after providing for the retention of a large percentage of the purchase price of the accounts in defendant’s hands until the assigned accounts were paid, declared that no payments oí any such remainder should be made so long as any accounts purchased were affected by any breach or violation of any warranty, but such remainder might be held and applied to the payment of any such accounts, cannot take the transfer, which was preferential, out of the province of the statute, on the theory that, when defendant once got the accounts into its hands, it was entitled to reimburse itself for moneys previously converted by the New York company.</p> <p>17. Bankruptcy @=>163—ITraud of' Bankrupt—Trusts.</p> <p>Where a bankrupt, which assigned accounts to defendant, converted payments received on such accounts, but defendant could not trace such conversions into other unassigned accounts, it cannot, on the theory of the trust, sustain a subsequent assignment of other accounts which worked a preference.</p> <p><gzu»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Trusts @=>371(1)—Constructive Trust—Bill.</p> <p>A bill by the trustee in bankruptcy of a mining company, which alleged that defendants acquired title to mining property for the purchase of which the mining company held a contract, that by rneir fraud and conspiracy defendants prevented the company from carrying out its contract, and prayed an accounting of secret profits, etc., and that defendants be required to hold the property in trust for the trustee, but made no offer to reimburse ■ defendants for the amounts they expended in acquiring the property, and did not allege any demand on defendants for a conveyance, cannot be treated solely as a bill for the establishment of a constructive trust.</p> <p>2. Mines and Minerals @=>54(2)—Mining Property—Value.</p> <p>Where a mining claim was bought under a contract providing for payment of the purchase price in installments, and giving the purchaser an option to abandon his contract, with no other effect than a forfeiture of payments already made, the price fixed in the contract is a most uncertain indication of the cash value of the property, for payments were optional, and might be contingent upon success.</p> <p>3. Corporations @=>183—Secret Profits.</p> <p>A mining company entered into a contract to purchase a mining claim, payments to be made in installments ;• the company, which was allowed to go into possession, being given the option to abandon the contract on forfeiture of payments already made. It being difficult to consummate the purchase, as the claim had not proven productive, stockholders of the company, who had made considerable advances, bought in the title of such claims, concealing the fact of their purchase from the company. Payments were continued, but before they had amounted to a sum equal to the price paid by such stockholders, the company defaulted. Held, that the company was not injured by the stockholders’ secrecy, their reason for keeping their purchase a secret being to prevent requests for extensions, and hence there could be no recovery against the stockholders on account of alleged secret profits.</p> <p>4. Trusts @=>102(1)—Constructive Trusts—Creation.</p> <p>In such case, where the stockholders, being anxious to make a profit and to save the amounts they had advanced to the corporation did nothing to prevent it from consummating its agreement, no constructive trust can be established on the ground that the interests they purchased were hostile to the interest ol’ the company, where such stockholders offered to continue to make advances to the company on. condition that other stockholders made similar advances, and the corporation, which was represented by its fiscal agent and other officers, indicated no intention of acquiring title to the claims in the same manner as the. stockholders.</p> <p><§=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>R Trusts <3=3102(1)—Constructive Trusts—Fiduciary Relation.</p> <p>While brea ell of a fiduciary relation raises a constructive trust, the existence of a fiduciary relation is a condition precedent to the raising of such trust; hence the fact that stockholders and officers of a corporation, after it had contracted to purchase mining claims, paymenls to be made in installments, acquired title from the vendors, will raise no constructive trust, on the theory of a breach of fiduciary relations.</p> <p>G. Equity <@=3888—Bills—Fraud.</p> <p>Where a bill of the trustee of a bankrupt mining company, charging actual fraud on the part of defendants, alleged a conspiracy to wreck the company, etc., such bill must be dismissed, where the fraud was not established ; the general rule being that, where fraud is charged and is denied, the party making the charge will be confined to that issue.</p> <p>'1. Conspiracy <§=»19—Evidence—Sufficiency.</p> <p>In a suit against stockholders and officers of a mining company, based on the theory that they had conspired to wreck the company and prevent it from consummating a contract to purchase mining claims, payments, on which were to bo made in installments, evidence held insufficient to establish in any way plaintiff’s contentions.</p> <p>8. Conspiracy <3=^1—What Constitutes.</p> <p>That stockholders and officers of a mining company, who had acquired title to mines which the company was attempting to purchase under a contract providing for payment on installments, entered into a reorganization plan with creditors at a time when the company was about to become bankrupt, does not establish conspiracy to ruin the company.</p> <p><@s»For other cases »ee same topic & KEY-NUMBEIt in all Key-Numbered Digests & indexes</p>

<p>1. Habeas Corpus tS^ol—Proceedings—Parties.</p> <p>While an application for a writ of habeas corpus ntay be made by one person on behalf of another, an application in this form entitles tbe petitioner- to such relief only as might be given if the application were made by the person detained in his own name.</p> <p>2. Habeas Corpus <@=^10—Jurisdiction op Courts—Detention by Military Authorities.</p> <p>If a military tribunal has jurisdiction to try a person charged with an offense against military law, the civil courts cannot interfere by writ of habeas corpus.</p> <p><S=^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>3. Army and Navy <8=44(2)—Military Counts—Persons Subject to Jurisdiction.</p> <p>An enlisted man, occupying and enjoying that status, with all its burdens and obligations, may be detained by the military authorities and tried by a court-martial for any offense against military law.</p> <p>4. Army and Navy <®=44(2, 3)—Military Co urts—Persons Subject to Jurisdiction.</p> <p>One who enlisted in the National Guard, was accepted, took the preseribed oath, and later took the federal enlistment oath, as prescribed by National Defense Act June 3, 1910, c. 134, § 70, 39 Stat. 201 (Comix St. 1910, § 30-44Í), and received pay and clothing over a long period from the state and nation, is a soldier, subject to the jurisdiction of a military tribunal for any offense committed against military law, though he was under 21 when he enlisted, and enlisted without the written consent of his parent or guardian, and though he was an alien, who had not made the declaration of Ms intention to become a citizen, and though he had a mother dependent upon him for support.</p> <p>5. Army and Navy <8=19—Enlistment of Minors—Validity.</p> <p>A minor’s enlistment, without the written consent of 'his parent or guardian, when such consent is required, is not void, nor is it voidable by him, though he may be released from the service by a timely application .of his parent or guardian, having a superior right to his custody or control.</p> <p>8. Army and Navy <8=19—Enlistment ov Minors—Validity.</p> <p>Where a minor enlists, without the written consent of his parent or guardian, an application by the parent or guardian for his release must be made with reasonable diligence after acquiring knowledge of the enlistment, and before an offense lias been committed by the minor, a.nd after an offense has been committed, and especially after he has been placed under arrest and charges have been preferred against him, it is too late for the parent or guardian to oust the jurisdiction of the military authorities by an application for a writ of habeas corpus.</p> <p>7. Army and Navy «¡=19—Enlistment of Minors—Validity.</p> <p>Where a minor had no parent or guardian living in the United States when he enlisted, the subsequent arrival of his mother in the United States could not have any retroactive effect upon, the prior enlistment.</p> <p>8. Army and Navy <8=19—Enlistment of Minors—Validity.</p> <p>As National Defense Act June 3, 1916, permits the enlisting of a minor over the age of 18 without the written consent of his parent or guardian, where one over 18 and under 21, who had enlisted prior to the passage of that act, subsequently took the federal enlistment oath prescribed by section 70 thereof, the defects in his original enlistment were immaterial, and any right of the parent or guardian to reclaim his custody or control was extinguished.</p> <p>9. Army and Navy <8=19—Enlistment of Minors—Validity.</p> <p>The parent or guardian of an enlisted minor may waive the statutory requirement Cor his written consent, and does waive it by acquiescing with knowledge in the minor’s continuance in the service, thus permitting him to draw the pay and emoluments of a soldier.</p> <p>10. Army and Navy <8=18—Enlistment—Validity.</p> <p>An alien, offering to enlist and accepted as a soldier, cannot avoid his contract of enlistment, and thereby escape liability for service or to punishment, especially as Gomp. St. 1916, § 1888, providing that no person who is not a citizen, or who 1ms not made a legal declaration of his intention to become a citizen, shall be enlisted for a first enlistment, is limited to enlistments in time of peace.</p> <p>11. Army and Navy <®=18—Enlistment—Validity.</p> <p>There is nothing in the treaty between the United States and the government of Austro-Hungary invalidating an enlistment by a native of Austria.</p> <p><i=For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>12. Army and Navy <3=44(2)—Calling Militia into Service of the United States.</p> <p>National Defense Act, § 58 (Comp. St. 1916, § 3044), provides that the ' National Guard shall consist of the regularly enlisted militia, etc. Section 70 provides that enlisted men. in the National Guard, whose enlistment contracts contain an obligation to defend the Constitution of the United States and obey the orders of the President, shall be recognized as m'embers thereof, and that others shall not be so recognized until they have signed the enlistment contract and taken the oath therein provided. Section 111 (Comp. St. 1916, § 3045) and Selective Draft Daw May 18, 1917, authorize the President to draft all members of the National Guard into the military service of the United States. Held, that an order of the President, calling a company and regiment of the National Guard into the federal service, made a m'ember of such company and regiment, whose original enlistment contract contained the obligation prescribed by section 70, and who, when previously called into the federal service, had taken the additional oath prescribed by that section, a soldier of the United States army, subject to military trial or punishment, though he had not consented .to be mustered into' the military forces of the United States under such order.</p> <p>13. Army and Navy <@=>20—Galling Militia into Service of the United States.</p> <p>Under Const, art. 1, § 8, authorizing Congress to organize and equip armies, and to provide for the common defense, and National Defense Act June 3, 1916, and Selective Draft Daw May 18, 1917, the President has authority to draft compulsorily into the services of the United States all officers and enlisted men of the National Guard, and Congress had authority to confer such power; compulsory service being in uo way violative of the Constitution.</p> <p>14. Army and Navy <@=>18—Enlistment—Validity.</p> <p>That an enlisted soldier has a mother, of whom he is the only support, does not make void his contract of enlistment.</p> <p>15. Constitutional Law <@=>7<L-Judicial Functions—Encroachments on Executive.</p> <p>■ Under Selective Draft Law May 18, 1917, § 4, authorizing the President to exclude or discharge at his discretion those having persons dependent upon them1 for support, rendering their exclusion or discharge advisable, dependency is not a matter of which the courts can take judicial cognizance.</p> <p><S=>For other cases see same topic & KEY-NUMBER in all Key-Numfjered Digests & Indexes</p>

<p>In Admiralty. Suit by the Ollinger & Bruce Dry Docks Company against the tug Gulfport. On motion to set aside decree for libelant.</p>

<p>1. Adverse Possession <§^>80(0)—Permissive Possession—Railroad Right of Way.</p> <p>Where a telegraph company’s occupancy of a railroad right of way for its telegraph line was permissive at all times, and in no sense adverse or under a claim of right, or at least was without any notice of such claim1 to the railroad company, no prescriptive right was acquired.</p> <p>2. Teleubauiis and Telephones <8~»20(4)—Actions by Companies—Pleading.</p> <p>Xn a suit by a telegraph company against a railroad company, on whoso right of way it maintained its lines to restrain the railroad company from interfering with the maintenance of its lines, in which it was held that its right of occupancy was measured by its contract with the railroad company, and ended when the contract was terminated in accordance with its terms, an amendment to the bill, setting out copies of papers fully pleaded by description and a statement of their contents in the bill as originally filed, held, not to have strengthened complainant’s case.</p> <p><gss>For other cases see same topic & KEY--NUMBKR in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by the Western Union Telegraph Company agairist the Louisville & Nashville Railroad Company. On motion to dismiss an amendment to the bill.</p>

<p>In Equity. Suit by the Western Union Telegraph Company against the Nashville, Chattanooga & St. Rouis Railway. On motion to dismiss.</p>

<p>1. Contempt <@=>60(3)—Proceedings to Punish—Sufficiency of Evidence.</p> <p>In a proceeding to punish attorneys for defendants in a criminal case for contempt, evidence held to show that one of the attorneys intentionally and knowingly visited and conversed with one of the jurors, bought a drink for him, and drank with him, and that he visited and conversed with another juror, and promised such juror introductions to legislators, requested by the juror to promote a proposed.hill, and that the other attorney on numerous occasions intentionally and knowingly visited and conversed with the same juror.</p> <p>2. Contempt <@=>1<L—Misconduct Affecting Jury.</p> <p>Such conduct of the attorneys constituted misbehavior obstructing the administration of justice, requiring that they be fined.</p> <p>3. Contempt <@=>14—Misconduct Affecting Jury.</p> <p>While mere chance meetings, passing salutations, or brief conversation on indifferent topics between jurors and counsel, cannot always be avoided, and are not in themselves condemned, lengthy visits and conversations, apart from others, whether or not about the case, drinks, and other hospitality, entertainment, hopes aroused, and favors directly or indirectly granted or promised, are misbehavior obstructing the administration of justice.</p> <p>4. Contempt <@=*14—Misconbuct Affecting Jury.</p> <p>Where attorneys intentionally visited with jurors, conversed with them, made promises, or aroused hopes, and drank with one of them, they were guilty of the intent necessary to make their conduct contempt, though they did not intend to influence the jurors.</p> <p>5. Contempt. <@=314—Misconduct Affecting Jury.</p> <p>Counsel, who are embarrassed by the advances of a juror during the trial of a case, to relieve themselves of liability for contempt, should bring the matter to the court’s attention, instead of encouraging such advances.</p> <p>(§=s>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes.</p>

<p>1. Removal of Causes <§=>112—Proceedings for Removal—Setting Aside Summons.</p> <p>Defects in the service of summons in an action removed from a state court may be taken advantage of by motion to set aside the service after the removal.</p> <p>2. Courts <§=>344—Federal Courts—Service of Process.</p> <p>Service in an action at law on a foreign corporation in conformity to a state statute is good in the federal courts, unless the notice thus provided does not amount to due process of law.</p> <p>3. Corporations <§=>642(6)—Foreign Corporations—Doing Business—Isolated Transactions.</p> <p>An isolated on single sale of goods in a state by a foreign corporation, or even, occasional repetitions of such sales, is not doing business within such state.</p> <p>4. Commerce <§=>40(1)—Foreign Corporations—Interstate Commerce—What Constitutes—“Doing Business in State.”</p> <p>A foreign corporation, which contracted to sell and install three turbine pumps for the waterworks department of a city, was not engaged, in interstate commerce, but was “doing business within the state,” while setting up and installing such pumps on the foundations constructed therefor, making the necessary connections, and seeing that they performed the functions for which they were purchased, though the time necessary to complete the contract was short, and the amount of business done not very great.</p> <p>[Ed. Note.'—For other definitions, see Words and Phrases, First and Second Series, Doing Business.]</p> <p>5. Corporations <§=>668(5)—Foreign Corporations—Service of Process— “Managing Agent.”</p> <p>A person sent from the corporation’s plant to install such pumps, with authority to hire whatever help was needed in setting up, Installing, and connecting them, was its “managing agent,” upon whom due process might properly be served, under Gen. Code Ohio, § 11290, providing that, when the defendant is a foreign corporation having a managing agent in the state a service may be upon such agent.</p> <p>[Ed.-Note.—For other definitions, see Words and Phrases, First and Second Series, Managing Agent.]</p> <p><§=^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Commerce <§=>27(5)-—-Interstate Commeroe—Employers’ Liability.</p> <p>An employé of an interstate railway company, engaged in operating a pumping station furnishing water indiscriminately and contemporaneously to locomotives engaged in interstate and intrastate commerce, is within the federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [Comp. St. 1916, §§ 8657-8665]), as the test is whether the employé at the time of the accident was engaged in interstate transportation, or in work so closely related thereto as to be practically a part thereof.</p> <p>£=aFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Bankruptcy. In the matter of the bankruptcy of D. W. Radcliffe. Proceeding to review referee’s order denying the bankrupt’s claim of exemption.

<p>In Admiralty. Suit by T. M. Duche & Sons, Limited, against the schooner John Twohy.</p>

In Admiralty. Suit by the Chesley Tug & Barge Company and the Corsby Towboat Company against the scow H. & S. No. 3, the Harper Barge & Lighterage Company, claimant, and C. A. Bailey, with N. M. Nelson intervening libelant.

<p>S. H. Cowell and others were indicted for offenses. On demurrer to the indictment.</p>

<p>1. Bailment <S^21—Sending Goods on Consignment—-Rights oe Thtrd Persons.</p> <p>Where goods are sent to a dealer under a consignment, if title is to be reserved in the consignor, the goods should he so marked or identified, or of such a character as not to deceive innocent parlies dealing with the consignee upon the slrenglh of his having such goods as a part of his ordinary stock.</p> <p>2. Bankruptcy <©=*> 140(3)—Rights as to Property Sent Bankrupt on Consignment.</p> <p>Where goods are sent a dealer on consignment, and title is reserved, goods which can be identified, and as to which passing of title has not oceuired, remain the property of the consignor as between him and the consignee, and the creditors and trustee in bankruptcy of the consignee have no better title than the consignee.</p> <p>3. Bankruptcy <®^140(3)-—Rights as to Property Sent Bankrupt on Consignment.</p> <p>Where a bankrupt was furnished by defendants, a wholesale firm, consisting of his brother and brothers-in-law, with goods on consignment, to be sold at not less than the invoice price and accounted for weekly, but the goods were billed as if purchased, and not marked so as to indicate to the public that they belonged to defendants, and to defendants’ knowledge the bankrupt handled the goods as if purchased from any jobber, and did not comply with the contract as to accounting for the proceeds, defendants helé not entitled to goods retaken by them shortly before bankruptcy as against the trustee, because the facts showed fraud in the original contract, and because defendants had so acted as to estop themselves from claiming the goods, and because such a breach in the contract as to indicate that the consignee was not carrying out the contract of agency had been condoned.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>4. Bankruptcy <S=>287(3)—Suits by Trustee—Form.</p> <p>Bankr. Act July 1, 1898, c. 541, § 2, subd. 7, 30 Stat. 545, as amended by Act June 25, 1910, c. 412, § 2, 36 Stat. 838 (Comp. St. 1916, § 95S6), provides that courts of bankruptcy shall have jurisdiction to cause the estates of bankrupts to be collected, reduced to money, and distributed, and to determine controversies in relation thereto. Section 23b, as amended by Act June 25, 1910, c. 412, § 7, 36 Stat. 840) (Comp. St., 1916, § 9607), provides that suits by the trustee shall only be brought or prosecuted in the courts where the bankrupt might have brought or prosecuted them, except suits for the recovery of property under certain sections. Held that, where a trustee filed a complaint in the form of a bill in equity to have a consignment agreement under which the defendant furnished the bankrupt goods held fraudulent and void, and to declare the defendants trustees for goods returned to them shortly before bankruptcy, and to have defendants directed to deliver the goods or their value to the trustee, an objection to the form of the suit could pot he sustained, though it was not necessary to set aside the consignment agreement, and an action at law to recover a preferential payment was the real purpose of the action, since, the action amounted to no more than the exercise of the equitable jurisdiction given the bankruptcy court to recover assets of the estate, especially in view of Act March 3, 1915, c. 90, 38 Stat. 956 (Comp. St. 1916, §§ 125-la-1251c), providing that, when a suit at law should have been brought in equity or a suit in equity at law, the court shall order any necessary amendment, and that any party shall have the right at any stage of the action to amend so as to obviate the- objection that the suit was not brought on the right side of the court.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

At Law. John S. D’Arcy and others were indicted for conspiracy to commit offenses against the United States defined by the Harrison Act of December 17, 1914. On demurrers to indictment.

At Law. Robert Baker and Sam Baker were indicted for conspiracy to commit an offense against the United States. On demurrer to the indictment.

At Daw. Robert Baker and Sam Baker were indicted for conspiracy to commit an offense against the United States. On demurrer to the indictment.

In Equity. Application by the State of Washington on the relation of the City of Seattle, for a writ of mandate directed against the Puget Sound Traction, Eight & Power Company. On motion to remand.

In Bankruptcy. In the matter of the American Paper Company. On review of an order of the referee disallowing a set-off, based upon claims in the hands of third persons discharged by a composition settlement.

In Bankruptcy. In the matter of the bankruptcy of J. Herbert Weidhorn. The trustee filed with the referee a bill of complaint against one Leo Weidhorn. On proceedings to review the referee’s order.

<p>At Law. Action by the United States against the River Spinning Company to recover penalties for violation of the Contract Labor Law.. On demurrer to the declaration.</p>

<p>At Haw. Ah Hung, alias Harry Wing, was charged with crime, and defendant made objections to the jurisdiction.</p>

<p>At Law. Action by James Ferrior against S. F. De Frese. On demurrer to the declaration.</p>

In Admiralty. Suit by C. J. Clark and others against the British schooner Coquitlam City; Frank Forsythe, claimant, and the Puget Sound Tugboat Company intervener. On exceptions to report of commissioner.

<p>Bankruptcy <©=>426(2)—Discharge—Debts Not Affected—“Willful Injury.”</p> <p>The intentional conversion of money of another, deposited as security for the performance of a contract, is a “willful injury” to the property of such other, within the meaning of Bankr. Act July 1, 1898, e. 541, § 17a (2), 30 Stat. 550, as amended by Act Feb. 5, 1903, c. 487, § 5, 32 Stat. 798 (Comp. St. 1916, § 9601), and a claim therefor is not released by a discharge in bankruptcy.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Willful.]</p> <p><g^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>At Law. Action by the United States against the Charlotte Harbor & Northern Railway Company. On demurrers to defendant’s pleas.</p>

<p>Ootjkts <3=?350—Redebat, Ootjhts—Taking Depositions—Time.</p> <p>Rev. St. § 863 (Comp. St. 1916, § 1172), declares that the testimony of witnesses may bo taken in any civil cause pending in a District or Circuit Court by deposition, when the witness lives at a greater distance from the place of trial than 100 miles or is bound, on a voyage to sea, etc. Section 862 (Comp. St. 1916, 1 1170) declares that the mode of proof in couses of equity and admiralty shall be according to rules now or hereafter prescribed by the Supremo Court; while section 917 (Comp. Si. 1916, § 1513) declares that the Supreme Court shall have power to prescribe from time to time, and in any manner not inconsistent with any law of the United States, the inodes of framing and filing proceedings and pleadings, and of taking and obtaining evidence. Eq'uity role No. 47 (198 Red. xxxi, 115 C. O. A. xxxi) declares that the court, upon application of either party, may permit the deposition of named witnesses to he used, and that the depositions of plaintiff, unless otherwise ordered, shall be taken within 60 days from the time the cause is at issue, and those of defendant within 30 days from the expiration of the time for the filing of plaintiff’s depositions ; while rule 56 (198 Red. xxxiv, 115 O. C. A. xxxiv) declares that after the time has elapsed for taking and filing depositions the case shall be placed on the trial calendar, and thereafter no further testimony by deposition shall he taken, except lor some sta'ong reasons shown by affidavits. IfcM that, after the time for taking and filing depositions under rule 47 had elapsed, and after the case had been placed on the trial calendar, plaintiff could not take depositions of witnesses living more than 1ÜÍ) miles from place of trial, on notice to defendant, without application to the court for an order to do so, based on some strong reason shown by affidavit, for the rules do not curtail the statutory rights, but merely prescribe the procedure.</p> <p>Cn^Tor other cases see same topic & KEY-NUAlJiER in all Key-Numbered Digests & Ind<ix©s</p>

<p>Payment <§»26—Application of Proceeds of Collateral Security.</p> <p>A bank held the bankrupt’s note for $14,800, with which bonds in the same amount secured by a mortgage on real estate were deposited as collateral security, under an agreement that they were to be held as security for the payment of the note and any other indebtedness. The bank also held the bankrupt’s note for $2,000. Shortly before bankruptcy, it sold the collateral bonds at1 public sale, and purchased them itself for $8,140, and In bankruptcy it sought to prove the balance of the debt of $14,800, in addition to the note of $2,000. The mortgaged property was sold, and from the proceeds the bank, as owner of the bonds, received the full am'ount of $14,800. Hold, that there was no deficiency oil the note for $14,800 provable in bankruptcy, as the note and the bonds represented the same debt, and the note was merged in the higher security, which had been paid.</p> <p><gz^For other cases see same topic & K13Y-NIIMBER in all Key-Numbered Digests & Indexes</p>

<p>In Admiralty. Suit by Frank Gulden and others against Hijos de Jose Taya S. en C.</p>

<p>X Bankruptcy @=»410—Discharge—Time op Filing Petition.</p> <p>The bankrupt’s attorney first offered for filing a petition for discharge after the expiration of the year but within the six months period referred to in the Bankruptcy Act .Tuly 1, 1898, c. 541, § 14, 80 Stat. 550 (Comp. St. 1916, § 9598). The clerk of the court informed the bankrupt’s attorney that it was unnecessary for the petition to set forth the reasons relied on as excusing the failure to present the petition within the year, or do anything except file the usual petition for discharge after the year and within the six months, with the statement that the petitioner was unavoidably prevented from filing a petition within one year. The clerk also informed the bankrupt’s attorney that it was unnecessary at that time to present to the court evidence showing that the delay in filing the. petition was unavoidable, and that that question would he heard in connection with the petition for discharge. The clerk’s statements were in accordance with the oral instructions of the late judge of the district. Held that, regardless of the jw’opriety of the practice, the bankrupt sb-ould'not be penalized, and the petition for discharge will be treated as if presented to- the court at the time it was first tendered to the clerk.</p> <p><5uroFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>2. Bankruptcy <§=>410—Discharge—Bight to.</p> <p>Under Bankr. Act, § 14, declaring that any person may after the expiration of one month and within the next twelve months file a petition for a discharge, and if it shall be made to appear to the judge that the bankrupt was unavoidably prevented from filing it within such time it may be filed within but not after the expiration of the six months, a discharge will not be denied because the bankrupt’s counsel, through an honest mistake as to the law, supposed that the petition, for discharge could not be filed until equity proceedings in the state court in which charges were made against the bankrupt that would have been sufficient if established to defeat the discharge had been terminated, and for that reason did not attempt to file the petition for discharge until after the conclusion of those proceedings and until after the expiration of more than one year after adjudication, for the statute is not limited to cases absolutely beyond the bankrupt’s control.</p> <p>'irnr- Other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Bankruptcy. In the matter of the Amsdell-Kirschner Brewing Company, bankrupt. On application by Lona E. Crounse and another to file an amended claim after the expiration of one year, and after review of an order of the referee disallowing and expunging their claim, and affirming the action of such referee.

<p>1. Post Office <§=»33—Letters Threatening President—For Whom Intended.</p> <p>Under the rule that words of a statute judicially defined before their use therein will be construed as used in the light of that decision, unless the context shows them1 to have been used in some other sense, to constitute the offense denounced by Act Feb. 14, 1917, c. 64, depositing for conveyance in the mail a letter containing “any threat” to take the life of or to inflict bodily harm on the President, it must be intended that the letter he communicated to the President, the person against whom the threat is made, and thereby influence his action, which intention! is negatived in the case of a letter addressed to a third person, stating, if the German people “can pay §20,000 for W. (the President) wholesale fires, or soldier poisoning answer Yes”; and further stating, “I have an invention that will destroy an entire fleet, * * * burn cities and poison thousands.”</p> <p>2. Words and Phrases—“Threat.”</p> <p>A “threat” is any menace of such a nature and extent as to unsettle the mind of the person on whom it operates, and. to take away from his ac-ts that free and voluntary action which alone constitutes consent</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Threat.]</p> <p>(§=^>For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Bankruptcy. In the matter of the bankruptcy of Maidelle De Lewandowski. On application for discharge.</p>

At I,aw. Action by Altie Best and another against the Great Northern Railway Company, a corporation, and another, begun in the state court, and removed to the federal court.

<p>Bankruptcy <§=»345—Claims—Priorities—Rent.</p> <p>Where a bankrupt’s landlord had a distress warrant issued and levied, and a person representing four or five of the largest creditors of the bankrupt, but not all of the creditors, went into control of the business, the landlord was entitled to a lien or right of priority against goods levied on and not sold, and accounts which could be identified as covering articles levied on, but had no such right as against the general fund, because of the commingling of assets in the store. ></p> <p>«gssoFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Bankruptcy. In the matter of the bankruptcy of Miss M. E. Hawkins and Miss Tucile Hawkins. Petition by the trustee for leave to sell real estate free from all liens, and attacking the debts and liens of certain creditors, with petition to review order of referee in favor of trustee. In September, 1916, Miss M. E. Hawkins and Miss Eucile Hawkins were officers and managers of the Hawkins-King Millinery Company, owning $10,000-of the capital stock of said corporation.

<p>Aliens <®=»6S—Naturalization—Time fob Pboceeding.</p> <p>Act June 29, 1906, c. 3592, 34 Stat. 596, requiring application for admission to full citizenship to be¡ made within seven years after the declaration of intention, applies to one who filed his declaration of intention before the act took effect.</p> <p><©3^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>At Law. Action by the United States against the Boston & Maine Railroad.</p>

<p>Bankruptcy <@=>347—Preferred Claims—Claims ov Assignee.</p> <p>A claim for the necessary expouse for an appraisal of the property of a bankrupt, which prior to bankruptcy was transferred to> a common-law assignee, is entitled to be preferred, though iiresented by the appraiser directly against the bankrupt estate; for such appraisal was for the benefit, not only of the assignee, but of the bankrupt estate, establishing the amount and value of the property.</p>

<p>1. Seamen <@=11—Who are Seamen—Wireless Telegraph Operator.</p> <p>Libelant was a wireless telegraph operator who went on board respondent vessel pursuant to a contract between ber owners and the Marconi Wireless Telegraph Company, by which he was required to sign the ship’s articles, was classed as an officer, and messed with them. It was further provided that, should the vessel render salvage services through the use of the wireless apparatus, tile Marconi Company was to have a share of the money earned. Libelant signed the articles at a stated wage of 25 cents per month, which was not collected. He was in fact hired and paid by the Marconi Company, which supplied him and the apparatus for a stated sum per month. Libelant also operated the launch when in port through a private arrangement with the captain and for which he was paid. He became sick and was discharged and taken to a hospital. Hold, that he was a member of the crew, and, as a seamen who fell ill in the service of the ship, was entitled to maintenance and cure at the expense of tlie vessel.</p> <p><@=»For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indeves</p> <p>2. Seamen <®=11—“Cbew”—Who Constitute Ceew of Ship.</p> <p>By the “crew” of a vessel, those persons are naturally and primarily meant who are on board her aiding in her navigation without reference to the nature of the arrangement under which they are on board.</p> <p>. [Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Crew.]</p> <p>3. Seamen <©=11—Who aee Seamen.</p> <p>A man who serves a ship in her navigation as the result of a contractual engagement of any kind is a member of the crew and entitled to the privileges of a seaman.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Seamen.}</p> <p>(©=5>For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Appeals from the District Court of the United States for the Southern District of New York.

Rose, Judge. Suit in admiralty by Mattie Krcszewski, administratrix of .Karmier Krcszewski. deceased, against the British steamship Student and the Terminal Shipping Company. Decree against the Student, and Rich,ard Watson, master and claimant, and the Charente Steamship Company, Limited, owner, appeal.

<p>1. Territories <s=»18—Indian Territory—Adoption of Arkansas Statutes.</p> <p>Hy Act May 2, 1890. c. 182, § 31, 2(i Stat. 91. extending certain of the statutes contained in Mansf. Ark. Dig. over the Indian Territory, Congress adopted the construction placed upon such statutes by previous decisions of the Supreme Court of Arkansas, but not by subsequent decisions. nor the decisions of that court construing and applying the common law.</p> <p>2. Mortgages @=»188—Construction and Effect—Daw of Indian Territory.</p> <p>The legal effect of a mortgage executed in 1900 on land in Indian Territory is to be determined by the common law, there being no provision on (he subject in tlie Arkansas statutes extended by Congress over the territory: and under the common law 1 he mortgage is not a complete alienation of the title, but, except as against the mortgagee, the mortgagor, while in possession and where there has been no foreclosure, remains the real owner of r.ke land.</p> <p>3. Indians <s=a16(4)—Validity of Lease—Effect of Invalid Provision— Di viability.</p> <p>Act June 7, 1897, c. 3, 30 Stat. 72. authorized allottees of land within the limits of the Quapaw Agency, Indian Territory, to lease tlieir land “for a term not exceeding * * * ten years for mining or business purposes.” An allottee subject to such act executed an oil and mining lease for ten years, with a further provision that, should oil or other mineral o*5 value be found in paying quantities, the privilege oi' operating should continue so long as such substances could be produced in paying quantities, “on such terms and conditions as parties hereto have agreed upon after the expiration of this lease.” Hold, that the lease was divisible, and that the invalidity of the provision for an extension did not affect its validity for the ten-year term which was within the statute.</p> <p>4. Contracts <®=s>137(1)—Severable Contracts—Effect of Invalid Provision.</p> <p>When a part of a divisible grant or contract is ultra vires or illegal, but not malum in se, and the remainder is lawful, the latter may be sustained and enforced, unless it appears from a consideration of the whole grant or contract that it would not have been made without the part which is ultra vires or illegal.</p> <p>rp—.Fny other cases see same topic & K3Y-NUMBEK in all Key-Numbered Digests & Indexes</p> <p>5. Mines and Minerals @=>58—Mining Lease—Validity.</p> <p>In a suit by the holders of a mining lease to quiet title as against adverse claimants, it appeared that the lease was for the term of ten years, “for the purpose of prospecting, mining, drilling, boring, or digging for oil, gas, asphaltum, lead, zinc, coal, and copper. * * * ” It also gave the lessee the right to use the surface for railroad tracks, pipe lines, or buildings. The bill alleged that the lessee and his assigns had been in possession since the execution of the lease, and had drilled test holes and sunk a shaft thereon, and improved the same for mining purposes. Held, that such lease was not subject to the rules governing strictly oil and gas leases, and that it was not invalid on its face by a clause providing that the lessee should pay five cents per acre yearly in case of delay in beginning operations, “in lieu of said work, so long as they or their assigns desire to operate or hold the same,” but that the question whether such clause was unfair or inequitable was one to be determined on final hearing.</p> <p><@=s>3?or other cases see same topic & KEY-NUMBEK in all Key-Numbered Digests & Indexes</p>

Hollister, Judge. Suit by Frances H. Williamson against Justus Collins and others. From the decree the plaintiff and the defendants Nannie H. Wright, D. Gregory^ Wright, M. U. Sternberger, Jr., Daniel J. Herbert, the Commercial Bank of Jackson, S. E. Sternberger, and Elizabeth M. Dickinson appeal.

<p>1. Courts <3=324—Federal Courts—Objection to Jurisdiction—Ancillary Proceedings.</p> <p>Whether an action was properly removed from a state to a federal court on the ground of diversity of citizenship cannot be determined in an ancillary suit to restrain further proceedings in the state court, as a court’s jurisdiction of the principal suit cannot be questioned in an ancillary proceeding or suit.</p> <p>2. Courts <3=264(1)—Federal Courts—Jurisdiction—Ancillary Suits.</p> <p>Neither the citizenship of the parties nor any other factor that would ordinarily determine jurisdiction has any bearing on the right of the court to entertain jurisdiction of a suit ancillary to a pending suit:</p> <p>3. Removal of Causes <@=97-—Enjoining Proceedings in State Court.</p> <p>The statute forbidding federal courts to enjoin proceedings in state courts, except as authorized by laws relating to bankruptcy proceedings, has no application to cases where it is necessary for a United States court to protect its own jurisdiction by injunction; and if a cause is properly removed from the state to a federal court, the federal court may, when necessary, enjoin the party against whom the cause has been removed from any further steps in the state court.</p> <p>other cases see same topic & KEY -NUMBISK in all Key-Numbered Digests & Indexes</p> <p>4. Removal oe Causes <@=>97—Enjoining Proceedings in State Court.</p> <p>The defendants in an action in a state court filed a petition for removal to the federal' court, and filed a certified copy of the record in the federal court, and o.n the same day filed a bill for an, injunction enjoining the plaintiff in the original action from proceeding in the state court. The plaintiff in the original action filed an answer denying the right to remove, and admitted that, if the state court decided that the cause was not removable, it intended to proceed in that court. Subsequently, and before the decree in the ancillary suit, the state court granted the motion to remove. Held that, as plaintiff’s intention to- proceed in the state court was conditioned solely upon the contingency that such court should deny the motion to remove, the injunction was properly denied without prejudice, as in equity the decree is to he shaped as the rights of the parties exist at the time of the decree.</p> <p><§^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Admiralty <S=H18—Appeal—Review.</p> <p>Findings of fact and law made by a commissioner in admiralty, concurred in by the District Judge, will be accepted as correct by the appellate court unless clearly wrong.</p> <p>2. Towage <®=j11(7)—Injury to Tow—Negligence oe Tugs.</p> <p>A newly launched steamer without machinery or rudder and standing very high in the water was taken by two tugs from the builder’s dock on a river to the harbor a mile distant to be turned around and brought back. When near the harbor, the wind increased to 25 or 30 miles an hour, striking the steamer broadside, and after entering the harbor she was blown against a breakwater and injured and was again injured by striking a pier when re-entering the river. Held that, the steamer being helpless and wholly under control of the tugs, the happening of the injuries under all the circumstances existing raised a presumption of negligence and cast upon them the burden of proving its absence; that the evidence did not sustain such burden, but showed that the tugs were negligent in proceeding down thfe river at such speed that the movement could not be stopped in time to prevent the collision; and also- that one of the tugs at the stern of the steamer failed to co-operate with the other to turn the steamer to head into the wind.</p> <p>other cases see same topic & KEY-NUMBJ5R in all Key-Numbered Digests & Indexes</p> <p>3. Towage <@=»15(2)—Injury to Tow—Inevitable Accident.</p> <p>The burden of showing inevitable accident in such case as the cause of the injuries to the steamer rested on respondent.</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 Minnesota; Page Morris, Judge.</p> <p>Suit by the United States against W. J. Morrow, as County Auditor of Becker County, Minnesota, and others. From a decree in favor of the government, defendants appeal.</p>

<p>Collision <s=»1<17—Fog—1Tow Lying at End of Pieb—Fault of Tug.</p> <p>It is the duty of a tug, having charge of a flotilla of barges, lying off the end of a pier in a bay, on hearing the fog signals of an approaching vessel, to give warning in some manner of the presence of her tow, and her failure to do so renders her liable for a collision with one of her barges.</p> <p><g^For other eases see same topic & KEY-NUM.BJ3H in all Key-Numbered Digests & Indexes</p>

Suit in equity by the Eelt & Tarrant Manufacturing Company against the Burroughs Adding Machine Company. Decree for complainant, and defendant appeals. Infringement suit on four patents issued to Dorr E. Eelt on calculating machines. The patents are numbered 762,520, 762,521, 767,107, and 960,528, dated, respectively, June 14, 1904, June 14, 1904, August 29, 1904, and June 7, 1910. A reargument was directed by the court, and argument had June 9, 10, and 15, 1916.

<p>Appeal from the District Court of the United States for the District of New Jersey; John Rellstab, Judge.</p> <p>Suit in equity by Samuel Robert, trading as the A. R. T. Manufacturing Company, and Harold A. Dodge, against George Krementz trading as Krementz & Co. Decree for defendant, and complainants appeal.</p>

Action at law by the Pressed Steel Car Company against the Chicago & Alton Railway Company and the Chicago & Alton Railroad Company. Trial to court, and judgment for plaintiff, and defendants bring error.

Suit in equity by Gustav C. Genuert and others against Burke & James, Incorporated. Decree for defendant, and complainants appeal. The defendant is a corporation organized and existing under the laws of.the state of Illinois. The suit is brought to restrain the alleged infringement of letters patent No. 676,545 and for an accounting and damages. The court below held the patent was not valid and dismissed the bill.

' Appeal from the District Court of the United States for the Western District of Michigan; Clarence W. Sessions, Judge. Suit in equity by the Kalamázoo Loose-Leaf Binder Company against the Proudfit Loose-Leaf Company and William S. Proudfit, Jr. From an order made on accounting, complainant appeals.

Orr, Judge. Suit in equity by Niels A. Christensen and another against the Westinghouse Traction Brake Company. Decree of dismissal on motion of complainants, and defendant petitions for writ of certiorari.

Suit in equity by Elmer E. Morgan, trustee. Deere & Mansur Company, D. M. Sechler Implement Company, Clarence H. Dooley and Harry L. Dooley, against the Moline Plow Company. Decree for complainants, and defendant appeals. From a decree sustaining patent No. 682,178 to Harry L. Dooley, granted September 10, 1901, and enjoining further infringement, appellant appeals. Defense, noniufringement.

Suit in equity by Otto Kaufmann, receiver for the Block Light Company of Ohio, against the Aurora Mantle & Lamp Company. Decree for complainant, and defendant appeals. From a decree sustaining two patents, No. 940,639, issued November 16, 1909, and No. 975,769, issued November 15, 1910, and enjoining further infringement, appellant appeals. The defenses are invalidity and noninfringement. The two patents cover an incandescent gas mantle and the process of making it.

<p>In Equity. Suit by the Southern Textile Machinery Company against the Fay Stocking Company.</p>

<p>1. Patents <§=>310(2,10)—Suit for Infringement—Pleading—Amendment.</p> <p>A bill for infringement of a patent which does not allege that the patent was issued in the name of the United States under the seal of the Patent Office or that it was signed by the Commissioner, nor annex a copy of the patent or make profert thereof, is defective, but is amendable under equity rule 19 (198 Fed. xxiii, 115 C. C. A. xxiii).</p> <p>2. Patents @=>312(1)—Suit for Infringement—Sufficiency of Bill.</p> <p>Where a bill for infringement alleges that the patent was issued to another than the applicant as assignee, it will be presumed that an assignment sufficient to pass title was before the Patent Office.</p> <p>3. Patents @=>310(1)—Suit for Infringement—Sufficiency of Bill.</p> <p>An allegation in a bill for infringement that a person named was “within the meaning of the statutes of the United States then in force the inventor” of the patented process, while informal, is equivalent to an allegation that he was the original and first inventor or discoverer’.</p> <p>4. Patents @=>310(1)—Suits for Infringement—Allegation of Title.</p> <p>An allegation in a bill for infringement that the patent was prior to the-filing of the bill “by various mesne assignments duly assigned to” complainant, but without specifying such assignments, is insufficient to show title in complainant, hut may be amended.</p> <p>5. Patents @=>310(1)—Suits for Infringement—Essential Allegations of Bill.</p> <p>Equity rule 25 (198 Fed. xxv, 115 C. C. A. xxv), providing that a bill shall contain a short and simple statement of the ultimate facts, does not change the previously settled requirement that a hill for infringement must contain distinct allegations of compliance with Rev. St. §§ 4S86,. 4887, as amended by Act March 3, 1S97, c. 391, §§ 1, 3, 29 Stat. 692 (Comp. St. 1916, §§ 9430, 9431), although the facts should be shortly and simply stated.</p> <p><§^>For Other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Admiralty <s=s>51—Death of Defendant—Substitution of Party—Opening Default.</p> <p>The attorneys for the individual defendant, in an action in admiralty against a ship and its owner, having allowed default without bringing to the court’s attention the death of such defendant, and so keeping open the time for applying for further opportunity to answer, and having let the term of court and the period fixed by admiralty rule 40 for moving to open default decree expire, before asking the court to give deceased’s representatives opportunity to contest the action in his place, and the defense which they offer not showing that deceased was not the proper1 person to defend, or that Ms attorneys were not bound to avoid default, and default having been allowed against the ship, the motion will be denied.</p> <p>For other cases see same topic «fe KBY-NÍJMBKR in all Key-Numbered Digests <fe Indexes</p>

<p>In Admiralty. Suit by the Port of Seattle against the gasboat Sea Foam; Leonard Barnhill and Arthur Gaaseland, interveners. On exceptions by intervener Gaaseland to report of commissioner.</p>

<p>Bankruptcy <@=>293(1)—Trustees—Plenary Action.</p> <p>Trustees in bankruptcy may resort to a plenary action in the District Court to protect their right to the possession of personal property belonging to the bankrupt.</p>

<p>At Law. Action by Chester Gould against the Suburban Gas & Electric Light Company.</p>

<p>In Equity. Suit by Gertrude R. Moore, individually and as ancillary administratrix of the estate of Henry G. Moore, deceased, and Eliza C. Schott, against the Norristown Trust Company.</p>

<p>In Admiralty. Suit by Joseph Vanier, Jr., against Clinton T. Swett.</p>

<p>1. Torts <3=30—Organization of Labor.</p> <p>The right to employ labor and the right to be employed is inherent, and an organization of laborers, intended merely to regulate their own conduct with respect to legitimate competition, is legal.</p> <p>2. Courts ©=326—Federal Courts—Jurisdiction.</p> <p>When diversity of citizenship appears, and the 'property lights of a street railroad company, which were very valuable, were involved, in a suit to obtain protection from striking employes, the fedeial court has jurisdiction.</p> <p>3. Injunction ©=137(2)—Temporary Injunctions—Strikes.</p> <p>A str.eet railroad company filed a complaint in the federal court praying an injunction restraining numerous defendants and all persons combining or confederating with them from interfering with its employes in the operation of its street cars. The complaint showed that the property rights of the company were involved, and an ex parte petition for a temporary injunction alleged that defendants and other strikers prevented the operation of the company’s cars, but failed to show that the picketing done by the strikers and others was unlawful. Affidavits filed in support of the application showed that mobs of strikers and their sympathizers prevented the operation of street cars, and that the police protection was insufficient, but did not in any way show that defendants were the leaders of any organization which resorted to violence to prevent the operation of the company’s cars, field, that in such case the company’s remedy was to apply for police protection to the proper executive, and an injunction, whereby the company’s property would be protected bv federal marshals, should bo denied.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Courts <®=262(2)—Federal Courts—Equity Jurisdiction—Remedy at Daw.</p> <p>Rev. St. § 967 (Comp. St. 1816, § 1608j, próvidos that judgments of the Circuit or District Courts shall cease to be liens on real estate in the same maimer and at like periods as judgments of the state courts. The United States recovered judgment against a debtor, and after the time when state court judgments would have ceased to he liens it brought a suit to sell, for the satisfaction of such judgments, lands which had descended to the debtor’s heirs and been sold to a third party in a partition suit. Held that, the Circuit Court of Appeals having decided that section 967 does not apply to judgments in favor of the United States, the suit could not be maintained, as the government had a complete and adequate remedy by the issuance of fi. fa. or execution, and the heirs and the purchaser could be brought in upon a mere motion or citation to show cause.</p> <p><$=s>For other cases see same topic & KEY-NUAIBIilR in all Key-Numbered Digests & Indexes</p>

In Bankruptcy. In the matter of Star Spring Bed Company, bankrupt. On review of the master's findings, denying the claim of the Security Bank of New York for a return of the sum of $879.42, the proceeds of a check drawn on said bank to the order of the said bankrupt company and paid to the receiver.

<p>In Admiralty. Suit by the American Sugar Refining Company against 1lie schooner Governor Powers.</p>

In Bankruptcy. In the matter of the bankruptcy of Joseph Greenbaum. Petition by bankrupt to review an order of the referee denying the bankrupt’s petition to fequire the official stenographer of the referee’s court to furnish the bankrupt a copy of the transcript of testimony of witnesses taken on a general examination of witnesses before the referee, together with a petition for substitution of referees.

<p>1. Shipping <§=>177—Charter Parties—Duty op uharterer.</p> <p>While the charterer of a vessel, even in the absence of an express agreement to unload with reasonable dispatch, impliedly agrees that the freight shall be unloaded-without unreasonable delay and in conformity to the custom and usage of the port, yet, where the charter party or bill of lading or contract of affreightment makes no specific allowance for demur-rage, or for any number of lay days for unloading, and specifies no definite time of discharge, the question whether the vessel was unloaded without unreasonable delay depends on the surrounding circumstances.</p> <p>2. Shipping <§=>177—Carriers—Risks.</p> <p>The owners of a vessel, who suffered great loss from delay in unloading a cargo of wheat shipped at nearly the close of the navigation season, must be deemed to have assumed the risks incident to transportation ¿it that season, when there was an emergency demand for wheat and the port of destination was overcrowded.</p> <p><@=For other eases see same topic & KEY-NUMBER in ail Key-Numbered Digests & Indexes</p> <p>3. Shipping <§=>184—Charterers—Ditty of.</p> <p>Where a vessel was chartered for the transportation of wheat, and the charter party fixed no time for unloading and provided no lay days, the owner of the vessel cannot, by libeling the wheat, recover damages occasioned by delay in unloading the vessel on the theory that tile charterer' had a right of action over against a railroad company whose negligence in furnishing cars caused the delay.</p> <p>4. Shipping <$=>371—Unloading of Vessels—Custom.</p> <p>Whore a bill of lading specified delivery at a certain elevator at port of destination, delivery will ordinarily be made at such port in turn; vessels arriving ahead having precedence.</p> <p>5. Shipping <&=3S4—Charterer—Negligence.</p> <p>On a libel against a cargo on the ground of negligent delay of the charterer in unloading the vessel, evidence hold insufficient to establish such negligent delay.</p> <p><®s»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Bankruptcy <8=143(12)—Property Passing to Trustee—-Statute.</p> <p>Under Bankr. Act July 1, 1808, c. 51J, § 70a, par. 5, 30 Stat. 565 (Comp. St 3!>16, § .9054), declaring that: property o£ a bankrupt which prior to the filing of the petition he could by any means have transferred, or which might have been levied on and sold under judicial process against him, shall pass to the trustee, but that when any bankrupt shall have any insurance policy which has a cash surrender value payable to himself or his estate, or personal representatives, he may, within 30 days after the cash surrender value has been ascertained and stated by the company issuing the same, pay or secure to the trustee the sum stated and continue to carry the policy free from1 the claims of creditors, an insurance policy though obtained by the bankrupt will not pass to his creditors unless it has a cash surrender value payable to the bankrupt, his estate, or personal represen! ative, and so a life policy issued on apr plication of a bankrupt in favor of his wife, which reserved in the bankrupt no power to change the beneficiary, and declared that the cash surrender value should be paid only upon execution and delivery to the insurer of a satisfactory release of all interests and claims to the avails, wall not pass to the trustee.</p> <p>2. Bankruptcy <3=39S(3)—Exemptions—Insurance Policy.</p> <p>Bankr. Act July 1, 1898, c. 541, § 6, 30 Stat. 548 (Comp. St. 1916, § 9590), declares that it does not affect exemptions in favor of a bankrupt prescribed by the state laws in force at the time of the filing of the petition in tile state wherein the bankrupt was domiciled. A voluntary bankrupt domiciled in Ohio had previous to bankruptcy applied for a life policy naming his wife as beneficiary, which reserved to him the right to change the beneficiary and declared that, upon default in payment of any premium after two full premiums had been paid, the policy might be surrendered with the written assent of the person to whom it was made payable. Gen. Code Ohio, §§ 0393, 9394, declare that any person may effect insurance on his life for any definite period of time, or for the term of his natural life for the sole benefit of his widow and children or either and that the net amount of such insurance shall bo payable to the widow or children for their own use exempt from all claims of creditors of such deceased person. Held, that such policy was exempt though a subsequent section of the Ohio Oode authorized recovery of premiums paid in fraud of creditors.</p> <p>For other eases seo same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Eminent Domain @=3169—Construction ob Acquisition of Lighting Plant—Preliminary Proceedings—Ordinance.</p> <p>Under Rem. & Bal. Code Wash. § 8006, which provides that, when a city desires to acquire a lighting plant, the council shall by ordinance “specify and adopt the system or plan proposed and declare the estimated cost thereof as near as may he,” and submit the proposition to the voters at an election, as construed by the Supreme Court of the state, the proposition submitted to the voters must not only specify and adopt a system, but must place a limit on the expenditure to be made, and also provide the means for its payment, and unless a valid ordinance has been submitted and adopted the city cannot maintain proceedings for the condemnation of property. .</p> <p>2. Eminent Domain @=345—Lighting Plant—Condemnation of Profebty in Another City.</p> <p>Under the laws 'of Washington a city cannot acquire by condemnation a lighting system in another- city, nor the franchise granted therefor by the latter city.</p> <p><§s=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Bankruptcy. In the matter of the bankruptcy of Dooner & Smith. Petition by the Liberty Trust Company to require Nicholas Bindseil, trustee in bankruptcy, to apply, in liquidation of its mortgage, rents collected between adjudication and sale of the mortgaged property under foreclosure proceedings was denied. On proceedings to review order of referee.

<p>In the matter of Mott Emigh and Martin J. Straub, individually and as copartners of the firm of Emigh & Straub, bankrupts.</p> <p>This is a review of the rulings of Hon. Edwin A. King both as special master appointed to examine the alleged bankrupts and witnesses prior to the appointment and qualification of the trustee and as referee in bankruptcy at the first meeting of creditors duly called and held subsequent to the appointment of the trustee, at which meeting one George A. Straub was duly subpoenaed and in attendance as a witness in behalf of the trustee in bankruptcy, and by which rulings the referee held that the trustee was entitled to a private examination of the witness, the examination being under section 21a of the Bankruptcy Act; that the witness was not entitled to have counsel present in his own behalf during his examination, it appearing that he had presented a claim against the estate in bankruptcy amounting to some $7,000 which had been objected to, but which was not then in controversy; that the bankrupts were not entitled to be present at and during such examination, either in person or by counsel; and that the general public was not entitled to be present at such examination.</p> <p>It is assumed it was not proposed to examine into or inquire as to the merits of the claim of George D. Straub, the witness, as there is nothing in-the record certified to this court indicating such purpose.</p>

<p>Henry C. Wilcox and others were indicted for conspiracy. On demurrers to the indictment.</p>

<p>Patrick Welch and another were indicted for conspiracy. On demurrers to the indictment.</p>

<p>Petitions for habeas corpus, one by John Story, the other by Albert Jones, against H. W. Perkins, Deputy United States Marshal, and another.</p>

<p>In Bankruptcy. In the matter of the C. W. Bartleson Company, alleged bankrupt. On motion to vacate orders of reference.</p>

<p>1. Bankruptcy ©=342%—Claims—Review of Referee’s Rulings.</p> <p>On review of an order of the referee allowing a claim in part, error cannot be predicated on the sustaining of objections to questions, where the referee was not at the time informed concerning the evidence which it was proposed to elicit.</p> <p>2. Bankruptcy ©=342%—Claims—Review of 'Referee’s Rulings.</p> <p>On review of an order of the referee allowing a claim, the referee’s findings, sustained by evidence, will be upheld.</p> <p>3. Bankruptcy ©=326—Claims—Set-Off and Counterclaim.</p> <p>The liability of a creditor of a bankrupt corporation on an unpaid stock subscription is not a debt or liability which may be set off against the claim of the creditor, under Bankr. Act July 1, 1898, c. 541, § 68, 30 Stat. 565 (Comp; St. 1916, § 9652), providing that, in cases of mutual debts or mutual credits between the estate of a bankrupt and a creditor, the account shall be stated and one debt set off against the other, as the stock subscription liability is a trust fund, and must be collected and distributed pro rata to all creditors, even though there is only one delinquent stockholder.</p> <p>4. Corporations ©=351—Liability of Directors—Dorm of Remedy.</p> <p>Under Civ. Code Cal. § 309, providing that the directors of corporations must not create debts beyond the subscribed capital stock, and that for a violation thereof the directors under whose administration it may have happened are in their individual capacity jointly and severally liable to the corporation and its creditors to the full amount of the debt contracted, the liability of a director can only be enforced by a bill in equity, wherein all the facts and parties are brought before the court.</p> <p>5. Bankruptcy ©=326—Claims—Set-Off and Counterclaim.</p> <p>Where the creditor of a bankrupt corporation was liable as director, under Civ. Code Cal. § 309, such liability was a trust fund for the benefit of all creditors ratably, and could not be set off against the creditor’s claim.</p> <p>6. Bankruptcy ©=288(1)—Collection of Assets—Dorm of Remedy.</p> <p>The liability of a creditor of a bankrupt corporation on his unpaid stock subscription and as director, under Civ. Code Cal. § 309, should be determined by a plenary action, in which all existing equities may be properly regarded. .</p> <p>7. Estoppel ©=68(4)—Defenses Inconsistent with Previous Claim or Position.</p> <p>A creditor of a bankrupt corporation, contending that his liability as a director in the corporation must be established in a plenary action, will be estopped from claiming that it should have been adjudicated upon the allowance of his claim.</p> <p><£c=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>8. Bankruptcy <®=»360—Dividends—Withholding Payment.</p> <p>Where a creditor of a bankrupt corporation is liable on an unpaid stock subscription and as director in the corporation, the dividends on Ms claim will not bo paid, pending an adjustment of Ms liability.</p> <p><gsaFor other cases see same topic & KBY-NÜMBEK in all Key-Numbered Digests & Indexes</p>

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

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

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

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

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

<p>On application to modify mandate.</p>