Volume 244 — Federal Reporter

<p>In Error to the District’Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Abram H. Preeman and others were convicted under an indictment charging under Criminal Code, § 37, a conspiracy to violate section 215 and a violation of section 215, and bring error.</p> <p>An indictment of 35 counts was returned against plaintiffs in error (hereinafter called defendants). Demurrers were overruled, and after a long trial a general verdict of guilty was found against all. Motions for new trial and In arrest being denied, .judgments were entered, and the defendants sentenced. Each prosecutes a writ of error; the errors assigned, and the transcript, briefs, and arguments presented, being by stipulation applicable to all the defendants.</p> <p>Counts 25; 20, and 35 charge defendants under section 37, U. S. Criminal Code, with conspiring to violate section 215 of that Code; all the other counts charging in varying language a violation of said section 215. The general purport of the facts appearing from the very voluminous transcript will be set forth as briefly as may be.</p> <p>In the early 80’s a concern known as the Barr & Widen "Commercial” Agency, composed of one Barr and one Widen, established a collection and credit reporting business or agency at St. Louis, Mo., for making local collections for and credit reports on merchants and others of that city. The concern did considerable business and enjoyed a good reputation. In about 1900 they began to do business outside of St. Louis; the solicitation and transaction of the collection business outside of St. Louis being thenceforth carried on under the name of Barr & Widen “Mercantile” Agency. In 1901 Barr died. Shortly before his death defendant Wendler became associated with the concern as general manager of the “Mercantile,” Widen attending to the affairs of the “Commercial,” which under its old name continued to carry on the local business. In 1909 Wendler became a partner of Widen, but the names of the concern remained unchanged. Widen died in November, 1312. From time to time there was developed a plan for soliciting business from outside con-corns all over the United States, through agents instructed and trained to solicit contracts from prospective clients, and to obtain from them payment in advance of sums called “realization charges.”</p> <p>The plan of procedure during the period of time particularly here involved, for interesting the outside clients in the proposition, as appears from testimony of representatives of many of the concerns with whom the Mercantile had dealings, and of solicitors and agents through whom the business was conducted, was substantially as follows: Under the general direction of defendants Wendler and Freeman, at considerable expense persons were sent to various District Courts of the United States, there to examine the bankruptcy records, and tabulate the bankruptcies there shown for a considerable number of years back, listing the various creditors and data which the records disclosed as to the claims. This information was sent to Wendler at St. Louis, or to defendant Freeman at Chicago, his chief assistant. The data thus secured was classified, so that the bankrupt claims shown by the various court records to be owing to a concern of a given city would appear together. In the general office the data concerning the several creditors in á city about to be visited was transcribed upon cards; each card containing the information thus gathered in regard to outstanding bankrupt claims of a given creditor concern of the city. These cards were known as “leads” or “lead cards,” and all the cards for a given city were sent to the agent about to visit the city to afford the agent information which, when used as contemplated, was calculated to arouse or stimulate the interest of the prospective client in the proposed plan.</p> <p>The proposition to join a commercial agency ordinarily striking no responsive chord in the prospect, the agent would casually inquire if the concern had not some time before sustained loss through a certain bankruptcy. Receiving an affirmative reply, the agent would suggest further facts in regard to the loss that the particular lead card showed, and'might inquire as to other bankruptcies in which the lead card had informed him the prospect was interested. The prospect, not suspecting the deliberate manner . whereby the information had been, obtained, nor the purpose of it, would Inquire how the agent knew of these things, and was informed that his concern made a specialty of looking up and collecting desperate claims, particularly from bankrupts, and would then suggest as to one or more of these bankruptcies that they had discovered a responsible silent partner, or that the debtor had concealed a large amount of assets or had in some other suggested manner perpetrated a fraud upon his creditors, and would often say that they had already instituted proceedings for other creditors of the same bankrupt which promised very early success, and would like to include this claim, and in many cases would state that attachment proceedings had been begun, or were about to. be begun on discovered property, and that they had property secured sufficient to pay the .creditors, and that it would be a matter of only a short time, frequently fixed by the agent, before the claims against the bankrupt, which were turned over to them, would be realized fully or in large part. The calculated and the frequent effect of such representations was to induce in the mind of the prospect-a belief that, if the claim was turned over, payment within a short time (often designated) would be certain fo follow.</p> <p>This agent did not proceed so far as to suggest that the prospect should make any payment in advance, but he invariably suggested to the prosp.ect that not only as to the claims referred to, but as to the collection of all old and desperate claims, his concern were specialists, and that, if the prospect would supply him with a list of all his old and desperate claims, he would send in the list to the home office, and obtain from the office a proposition for the collection of such claims, and that, if the prospect did not accept the proposition, no possible liability would be incurred. This appearing to be fair, a list of such old delinquent claims was prepared and given the agent, and was by him mailed to Wendler or Preeman. Thereupon a letter was sent by Wendler to the prospect, advising of receipt of the list handed the solicitor for the purpose of arriving at a basis for charge for the service, and that in due time a special agent will call and submit a contract.</p> <p>In the course of a few weeks another person would call on the prospect, presenting a proposition for making the collections, which was in tjie form of a long contract, mostly in fine print. This man was known as the “contract man” or “closing man”; the solicitor who secured the list being known as the “list man” or solicitor. Through the presentation of the proposed con- ■ tract the prospect was first informed that he was expected to pay the agency in advance a specific sum which was written in the contract. It appears that the sum to be paid was usually arrived at through Mr. Freeman first making an estimate of the amount to be written in the contract as the “minimum recovery,” to he later explained, which was arbitrarily fixed at approximately 20 per cent, of the total of the claims listed, and that the “realization charge” was arbitrarily fixed at 25 per cent, of the “minimum recovery,” so that, in case the prospect had submitted old claims aggregating, say, §20,000, the minimum recovery would be fixed at about §4,000, and the realization charge at about §1,000, which last amount tlie contract man undertook to get the prospect to pay in advance. Of course, the prospect generally demurred to paying anything in advance, particularly the amount asked, which was usually a substantial sum. In the excellent “teamwork” which the evidence revealed, it appears that the contract man was also supplied with “lead cards,” and in most instances he knew generally or specifically the particular sort of story the list man had told the prospect concerning the collectibility of the bankrupt claims. Sucli stories, which never had the remotest foundation in truth, beyond the fact that the bankrupt claims existed, the contract man would reiterate, and in many instances amplify, stating (out of whole cloth) the further progress that had been made in a particular matter, holding out roseate prospect of ■ speedy realization thereon, in which case, through such collection alone, the required advance payment would be largely, if not fully, repaid, or even yield a surplus over the payment, but usually suggesting that, unless the prospect promptly came in, he would lose the benefit of the proceedings which were in progress against ihe particular bankrupt debtor. That the list men and contract men well knew that all these stories of secret partners, concealed assets, fraud, attachment, and other jiroceedings, and all the representations as to the collectibility of the bankrupt claims were wholly false, appears from the fact that, they themselves usually concocted the particular tale to suit the particular case.</p> <p>To enable contract as well as list men to further impress the prospect, each of them was provided with a formidable outfit of letters of recommendation, some purporting to be originals, but most of them photographs or other reproductions, lauding the agency Cor its achievements, and some of them referring to specific instances where collections had been made from debtors who had gone into bankruptcy. Some of the latter were genuine letters, but the evidence shows they were obtained from the creditor, under Ms belief that the agency liad made the collection from the bamcrupt, when in truth the agency, or rather some of the defendants, paid the creditor the claim (generally a small one) for the very purpose of procuring from the creditor the letter, to be used by the agents as a lure to obtain business from others. Tlie uncontradicted evidence of bankrupts showed a number of instances where the bankrupt referred to in the letters did not know of the agency or the defendants, and had made no such payment. Other such letters purported to be on the letter heads of corporations with high-sounding names, but which had no existence, and the letters were pure fictions. Others of such letters were shown to be absolute forgeries. Quite occasionally prospects were referred to St. Louis banks or business houses for the responsibility of the concern, and these knowing nothing of the “Mercantile,” but only of the “Commercial,” which operated wholly in St. Louis, would occasionally make favorable reply, without knowledge of any distinction between the “Commercial” and the “Mercantile.” Indeed. ihe agents were not allowed to operate in St. Louis, and “realization charges” were not solicited there.</p> <p>The “Mercantile” agents were not only prohibited from operating In St. Louis, but were also warned not to solicit business from any former clients of the agency anywhere. So particular were the managers In this regard that the “lead cards” themselves showed on their face whether or not the concerns thereon referred to had ever been clients of the “Mercantile,” and, if so, the positive instructions were to avoid them. Agents were also strictly forbidden from calling on members of an organization known as the Credit Men’s Association, and the lead cards showed who were such; the abbreviations “OC” and “CMA,” often appearing in lead cards and frequently in letters, being well understood by the agents referred to as meaning “old clients” and members of the “Credit Men’s Association,” who were in no event to be solicited — old clients, for manifest reasons, and the others because 'of the activity of the Credit Men’s Association in exposing and warning against the operations of the “Mercantile.”</p> <p>In many instances the representations made were supplemented by the agent’s promise that if within a short period, as promised, varying from a few weeks to a year, sufficient was not' collected and paid over to the client to equal the realization charge, the difference would be returned to him. It was often also represented that the realization charge would be used to pay expenses incurred for costs, attorney’s fees, and the like in the claims in which the represented proceedings were begun or about to be commenced.</p> <p>Influenced by such representations, the victims frequently signed the contract, paying the contract man, usually by check to the agency, sums varying in amount from $50 to $3,000, the aggregate of the realization charges as to which there was evidence offered of such representations to bring about their payment being many thousands of dollars. In many instances the prospect, becoming at once suspicious, undertook, occasionally with success, to stop the payment of his check. To circumvent this as far as possible banking arrangements were made in several of the cities in which business was being solicited, whereby the checks might be cashed at local banks.</p> <p>When considerable time had passed since the payment, and, as was always the case, nothing was heard from the agency, the client would write for information, and would receive a letter explaining the difficulty of collecting old claims, and exhorting the client to be patient. In the first letter, or later, the client would refer to the agent’s promise of speedy results as to particular claims, and thereupon Wendler would write calling attention to the contract, and to the statements therein, as well as in the literature of the agency, that the terms of the written contract may not be.varied by its agents. In this connection it may be stated that in case the prospect called attention of the contract man to that part of the contract which prohibited agents from making any such representations or variation, the contract man would produce his printed card, which described him as “special representative,” and would explain (as per his previous instruction) that he did not come within the class of solicitors as mentioned in the contract, but that he, as “special representative,” had full power to make binding promises, even though the form contract was thereby varied.</p> <p>It appears that in most, if not all, instances when claims were received, they were listed at the St. Louis office, and a form letter demanding payment would be sent out to the debtors named, and this was about all that would be done, except when the client made complaint further form demand letters would be sent out. In practically no case as to which evidence was offered was anything collected on the list of accounts submitted, nor any effort made to collect, beyond sending out the form letters. Indeed, it is apparent from the evidence not only that practically all such listed old accounts were absolutely worthless, but that the agency and the persons acting and dealing in its name had not the slightest reason to believe they were otherwise.</p> <p>Notwithstanding the representations as to the use to be made by the agency of the realization charges, it appears that as fast as received they were divided in the proportion of 35 per cent, to Wendler for the St. Louis office, 65 per cent, to Preeman, who gave the contract man 25 per cent., the list man 10 per cent., retaining the remaining 80 per cent, for his own compensation and to pay the expenses of the Chicago office; and the evidence plainly warrants the inference that it was never intended any substantial portion of the realization charges should be devoted to the expense of collecting the listed claims, nor indeed that there would be any expense beyond that for clerical work, postage, and stationery for sending out the form letters.</p> <p>Defendant Preeman was first employed at the St. Louis office in 1956, and about 1909 came to Chicago and assumed charge of the fieldwork. Under his general direction the men were trained in the agency work, and there are in evidence many letters between Wendler and Preeman and different ones of these agents. The defendants, other than Wendler and Preeman, were list men or contract men, some both at different times. Day and Minehart were the most active in securing the realization charges, Einkplman, Pender, and Stevens were in this respect next in importance. As to Kellers and Worman there were comparatively few instances shown where they were instrumental in securing the realization charges, but nevertheless such instances appear as to each of them. All the agents were duly trained and instructed, and most, i f not ali, participated in instructing and training some of the many others for this work.</p> <p>The evidence offered in defense consisted wholly of the testimony of several employes of the St. Louis office, from which it appears that in that office there was employed a corps of assistants, largely typewriter girls, through whom there was conducted an extensive correspondence with reference to the collection of claims which came to the office: that each claim received had attention, which consisted mainly in sending to the debtor, the form letters; that the agency had formulated a list ol' attorneys in most of the cities of the United States to whom claims were sent for collection, and through whom occasional suits were brought to collect claims; that during the period of time covered by the inquiry the agency had collected for and remitted to clients generally claims of a very considerate aggregate, and that a few of the collections made were from bankrupt debtors, and that the clients themselves had been supplied with and had made use of form letters which the agency had supplied them, with which they had themselves collected a considerable number of claims without charge by or commission to the agency, and that In certain instances the service to clients had proved satisfactory.</p> <p>Sentences were:</p> <p>Wendler and Freeman: Bach three years imprisonment on each of counts 1 to 6, 11 to 10,18, 19, 20, 28, 29, -'12, and 33. to run concurrently, and fine of $1,000 on each of these counts; three years on counts 7 to 10, 17, 21, 24, 27 to 30; 31, and 34, to run concurrently beginning at expiration of sentence on former counts, and fine of $1,000 on each of these counts; two years on each of counts 25, 20, and 35, to run concurrently and to commence at expiration of sentence on counts last mentioned, and fine of $3,000 on each of these three counts — aggregate as to each, imprisonment eight years, and fine, $11,000.</p> <p>Day and Minehart: Each two years on each of counts 25, 26, and 35, to run concurrently, and line of $3,000 on count 25; two years on each of counts 1 to 24 and 27 to 34, to run concurrently beginning at expiration of sentence on previous counts — aggregate as to each, imprisonment four years, fine, $5,000.</p> <p>Miikelman, Pender, and Stevens: Each two years on each of counts 25, 26, and 35, and fine of $2,500 on counts 25; one year on each of counts 1 to 24, and 27 to 31, to run concurrently beginning at expiration of sentence on preceding counts — aggregate as to each, imprisonment three years, fine, $2,500.</p> <p>l-'ellers and Woman wore each sentenced to nine months’ imprisonment in House of Correction on each of counts 1 to 35, to run concurrently.</p> <p>Many errors are assigned; those we deem sufficiently important being stated where they are considered in the opinion, in which also some further facts are given.</p>

<p>1. Courts <&wkey;508(l) — Federal Courts — Injunction Against Proceedings in State Court.</p> <p>In a case in which a federal court first obtains jurisdiction of the subject-matter in controversy, and where it acts in aid of its own jurisdiction, to render its orders or decrees, or the title or disposition under them of the property within that jurisdiction effectual, it may, notwithstanding Rev. St. § 720, now Judicial Code (Act March 3, 1911, c. 231) § 265, 36 Stat. 1162 (Comp. St. 1916, § 1242), enjoin or restrain all proceedings in the state court which would have the effect of defeating or impairing its jurisdiction, or the orders, decrees, or titles it has made or is making in the exercise thereof.</p> <p>2. Courts <&wkey;508(3) — Federal Courts — Injunction Against Proceedings in State Court.</p> <p>In a suit in a federal court by the United States to set aside a patent to an Indian allottee for land on which his heirs had executed separate oil and gas leases, by consent of all parties a receiver was appointed and authorized to enter into a contract with the lessee, by which it was to pay over to the receiver the royalties under the leases and retain as its own the remainder or working share of the oil and gas produced, free from any further claim thereto. Afterward one of the heirs, who was a party to the suit, sold and assigned his interest under his lease, and the assignee brought an action in a state court against the lessee and recovered a judgment for royalties, upon which he obtained an execution and injunction. Held,, that the federal court not only had jurisdiction, but that it was its duty to protect the lessee in its rights under the contract by enjoining the enforcement of such judgment.</p> <p>U. Injunction <&wkey;148(l) — Injunction by Federal Court to Protect Jurisdiction and Decrees — Security.</p> <p>Act Oct. 15, 1914, c. 323, § 18, 38 Stat. 738 (Comp. St. 1916, § 1243b), is inapplicable to, and does not require security upon, the issue by' a federal court of a restraining order or interlocutory order of injunction to prevent the impairment or defeat of the just exercise of its jurisdiction, or to protect and enforce its orders, judgments, or decrees, or titles and rights thereunder.</p> <p>4. Appeal and Error <&wkey;87(3) — Decisions Reviewable — Intervention.</p> <p>In intervention there are two classes of cases, one in which the intervention is not indispensable to the preservation or enforcement of the claim of the petitioner, and there the permission to intervene is discretionary with the court. There is another class, in which the petitioner claims a lien upon or an interest in the specific property in the exclusive jurisdiction and subject to the exclusive disposition of a court, and his lien or interest therein can be established, preserved, or enforced in no other way than by the determination and action of that court. In tills second class of cases, the petitioner has an absolute right to intervene in the proceeding, and permission for him to do so is not discretionary with the court, and its order refusing permission is reviewable by appeal.</p>

Suit by Thomas J. Ryan against Will I. Ohmer. From a decree for complainant, defendant appeals. The complainant is a citizen of the state of New York, residing in the Southern district in said state. The defendant is a citizen of the "state of Ohio.

Lewis, Judge. Suit for statutory penalties by the United States against the Missouri Pacific Railway Company. Judgment sustaining demurrers to certain counts and overruling demurrers to other counts (235 Eed, 944), and each parly brings error.

Booth, Judge. Action at law by I. E. Officer and others against the J. L. Owens Company. To review an order entered on motion after judgment, defendant brings error. Suit in equity by the J. E. Owens Company against I. E. Officer and others. From an order entered on motion, complainant appeals. The writ of error and the appeal in those two cases, presenting the same points for decision, have been by counsel and will by the court be treated together.

Dickinson, Judge. Action by James H. Minds, surviving partner of the firm of James H. Minds and William J. Matz, a partnership which lately traded as the Bulah Coal Company, against the Pennsylvania Railroad Company, consolidated with an action by James H. Minds and Julia A. Matz, co-partners trading as the Bulah Coal Company, against the same defendant. There were judgments- for plaintiffs (237 Fed. 267), and defendant brings error.

<p>Appeal from the District Court of the United States for the Eastern District of New York.</p> <p>Suit in equity by Henry L. Bogert and others, executors, against the Southern Pacific Company. Decree for complainants, and defendant appeals.</p>

Tuttle, Judge. Suit by the Equitable Trust Company of New York, trustee, against the Wabash Railroad Company and another, in which William K. Bix-by and another were appointed receivers of such railroad, and in which Frank W. Blair and others, receivers of the Pere Marquette Railroad Company filed an intervening petition against the Wabash receivers. From an order requiring the Wabash receivers to pay the claim of the intervening petitioners, the Wabash receivers appeal.

<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 Jennie Danders, administratrix, against the Erie Railroad Company. There was a judgment for defendant, and plaintiff brings error.</p>

<p>1. Negligence <@=>136(9, 26) — Questions fob Jury — Contributory Negligence.</p> <p>When the facts as to a defendant’s negligence or deceased’s contributory negligence are such that all reasonable men must draw one conclusion from them, then it is the duty of the court to peremptorily instruct the jury to render a verdict accordingly; but when there is a conflict in the testimony, such as to warrant reasonable men in drawing different conclusions, questions of negligence and contributory negligence are primarily for the jury.</p> <p>2. Carriers <@=>320(10),' 347(3) — Injuries to Prospective Passenger — Questions fob Jury.</p> <p>In an action for the death of plaintiff’s husband, plaintiff testified that he alighted from a vehicle and proceeded to a railroad station to take a train, having a ticket in his pocket; that he went towards a planked crossing provided by the railroad company as the only approach, across tracks to that side of the station; that as he neared the crossing he stopped to let a car pass, and, after it had passed, looked around and then walked upon the crossing. Defendant introduced testimony tending to prove that the accident happened 23 minutes before train time, from which it was claimed that he was not going to the station to take a train, but to transact business, and that he was not walking on the crossing, but on the roadbed, from two to four feet from the crossing, or at least had one foot upon the roadbed. It also appeared that a watchman at the crossing gave him no warning, and that a member of the crew on the car nearest him gave no warning until almost at the instant he was struck. Held, that the court properly refused to decide the questions of negligence and contributory negligence as matters of law, as these issues could only be decided after the jury had determined deceased’s relation to the defendant, and questions as to the warning given, if any, and its sufficiency.</p> <p>3. Carriers <@=>280(1) — Railroads <@=>358(1), ■ 359(1) — Degree of Care Required.</p> <p>The duty of a carrier to a trespasser on its tracks is the duty to avoid willful injury; its duty to a stranger or one crossing its tracks upon a legitimate errand to its station, that of ordinary care; and its duty to a passenger, care in a high degree.</p> <p>4. Carriers <@=>247(2) — ^Relation of Passenger and Carrier — Commencement.</p> <p>The relation of carrier and passenger is created by no prescribed course of action, but is evidenced by conduct of the person in furtherance of his bona fide intention to board the carrier’s train, and is complete when by such conduct he reasonably informs the carrier of that intention and brings himself within the carrier’s protection.</p> <p>5. Carriers <@=>280(1) — Injuries to Passenger — Degree of Care Required.</p> <p>When the relation of carrier and passenger is established, either when the passenger has reached the carrier’s premises, or when he has boarded its train, he is entitled to receive from the carrier a high measure of care; ■that is, all the care which the peculiar circumstances of the place and occasion reasonably require, which will be increased and diminished according as the ordinary liability to danger and accident is increased and diminished in the movement and management of trains.</p> <p>6. Carriers <©=>325 — Injuries to Passengers — Contributory Negligence— Care Required.</p> <p>In exacting of a carrier a high measure of care for the protection of its passengers, the law does not withdraw from the passenger all duty to exercise care for his own prated ion, but apportions between them the care which in a given situation should be exercised, and the degree of care required varies with the circumstances.</p>

Consolidated suits in admiralty to enforce maritime liens against the steamship Oceana; the Morse Dry Dock & Repair Company, claimant. Decree for certain of the libelants, and claimant and the Kniffin & Demarest Company appeal.

S. Bean, Judge. Suit by the Menasha Wooden Ware Company against the Southern Oregipn Company and others. The complaint was dismissed on demurrer,, and plaintiff brings error.

<p>In Error to the District Court of the United States for the District of Oregon; R. S. Bean, Judge.</p> <p>Suit by the Menasha Wooden Ware Company against the Southern Oregon Company and others. Judgment for defendants, and plaintiff brings error. Affirmed.</p>

<p>Compromise and Settlement @=319(1) — xInnulling Settlement — Mistake.</p> <p>Where the contract for furnishing and installing boilers for the government made the price to be paid to depend in part on their efficiency, to be demonstrated by tests made by a government representative, an executed settlement cannot bo avoided, and overpayment recovered on the ground of mistake in the test; he having acted in good faith, and the parties having accepted such action in good faith and made it the partial consideration for a settlement of other differences between them.</p>

<p>1. Shipping «&wkey;121(2) — Liability for Loss op Cargo — “Seaworthiness”— Overloading.</p> <p>Under the accepted rule that to constitute “seaworthiness” a vessel must be reasonably lit to carry the cargo which she has undertaken to transport, seaworthiness must be tested by the facts and circumstances of each particular case, and the capacity of the vessel and the tonnage of her cargo may be vital factors.</p> <p>[Ed. Note.' — For other definitions, see Words and Phrases, First and Second Series, Seaworthy.]</p> <p>2. Shipping <&wkey;2<)9(3) — Limitation op Liability- — Seaworthiness—Burden op Proof.</p> <p>In a proceeding for limitation of liability against a claim for loss of cargo, it is incumbent on the shipowner to prove that the vessel was seaworthy at the beginning of the voyage or that due diligence had been used to make tier so, and in that respect there is no distinction between a common carrier and a private carrier.</p> <p>3. Shipping &wkey;>141(4) — Seawoethiness—Exceptions in Bill op Lading.</p> <p>A provision of a bill of lading excepting dangers of navigation cannot be permitted to affect the requirement of seaworthiness under Harter Act Eeb. 13, 1893, c. 105, § 2, 27 Stat. 445 (Comp. St. 1916, § 8030).</p> <p>■ 4. Shipping <&wkey;22 — Repeesentation by Agents — Implied Authoeity.</p> <p>A corporation shipowner is charged with knowledge of the extent of the power usually exercised by its ship manager, and is bound by his acts within such limits, even though such authority had not been given in express terms when he was employed.</p>

Petition to Revise Order of the District Court of the United States for the Eastern District of New York. In tlie matter of the bankruptcy of Jacob Brantman. Schoonmaker Bros. & Brantman, Incorporated, and Jacob Brantman petition to revise an order of tbe District Court. This cause comes here on petition to review an order of the United States District Court for the Eastern District of New York, entered on January 1, 1917.

<p>In Error to the District Court of the United States for the Eastern District of Pennsylvania; J. Whitaker Thompson, Judge.</p> <p>Action at law by Jane T. Hall against the West Jersey & Seashore Railroad Company; Judgment for defendant, and plaintiff brings error.</p>

Suit by John B. Turner against the Board of Trade of the City of Chicago. From an adverse order, plaintiff appeals. Appeal from an order denying application for temporary injunction to restrain the Board of Trade of the City of Chicago from proceeding to examine a charge preferred against appellant, one of its members. The respondent, a corporation organized under and by virtue of an" act of the General Assembly of the state of Illinois approved February 18, 1859 (Priv.

<p>Post Ofbtce <&wkey;49 — Using Mail to Diofbaud — Feaudulent Scheme.</p> <p>Whore defendant opened a piano store, advertised prizes for solution of the simplest puzzle, mailed to each of many and planned to mail to the others of the 32,000 answering “as one of the contestants” in the prize puzzle contest a letter containing check of §125 applicable on “sale price” of $187 of instrument “regularly listed by factory to sell for §250,” and in the nine days of business before arrest sold 119 instruments, a conviction under Pen. Code (Act March 4, 1909, e. 321, 35 Stat. 1130 [Comp. St. 1910, § 103851) § 215, of using the mail to defraud was warranted; the evidence warranting finding that the price was marked up to meet discount, and that those purchasing thought they were getting a real discount, though price was maintained in absence of such a check.</p>

Suit in admiralty by the W. & C. T. Jones Steamship Company against the Barnes-Ames Company. 'Decree for defendant, and libel-ant appeals. This cause comes here on appeal from the United States District Court for the Southern District of New York.

<p>1. Courts <&wkey;308 — Jurisdiction—Proper District — -Diversity of Citizenship.</p> <p>Under Jud. Code (Act March 3, 1911, c. 231, 36 Stat. 1101 [Comp. St. 1916, § 1082]) § 50, providing that, when there are several defendants and one or more are neither inhabitants of nor found within the district, the court may entertain jurisdiction and proceed to the trial between the parties who are properly before it, and section 51 (Comp. St. 1916, § 1033), providing that a civil suit between citizens of different states shall be brought only in the district of the residence of either the plaintiff or the defendant, where jurisdiction depends on diversity of citizenship alone, and there is only one defendant, suit against him must bo brought in either the district of his residence or that of plaintiff, but where there are several defendants, the court has jurisdiction of all if one or more are residents of the district and the others are found there.</p> <p>2. Appeal and Error <&wkey;-173(l) — Matters not Controverted Below — Motion.</p> <p>Where the averment of fact in a motion which the court granted was not controverted below, it cannot be drawn in question here.</p> <p>3. Coukts <&wkey;308 — Jurisdiction—Joint Defendants not Residing in District.</p> <p>Even if a plea in abatement was good as to one of defendants, joint makers of the contract, it could not avail the others in view of Jud. Code, § 50, enabling a plaintiff to sue one or more joint makers in the district of their residence when the others could not be brought in because of their residence in another district.</p> <p>4. Logs and Logging <&wkey;3(15) — Failure to Convey Timber to Corporation —Action.</p> <p>Plaintiff, owning all the stock in a sawmill plant of a corporation, entered into a contract with defendants providing that a charter should be obtained for a company. Defendants were to convey timber to the company, and plaintiff the sawmill plant, and the stock of the corporation was to be issued in the proportion of thirteen-eighteenths to defendants and five-eighteenths to plaintiff. Bold, that plaintiff alone could bring an action for defendants’ breach; the contract being with him, and not with the company.</p> <p>5i Logs and Logging <&wkey;3(15) — Breach op Contract — -Measure op Damages.</p> <p>Plaintiff owned in connection with the mill plant a large body of timber which he intended to saw. After the contract with defendants he sold this timber on the strength of the contract. Defendants knew of the sale before they breached the contract. Bold, that plaintiff was entitled to five-eighteenths of the net increase in the value of the timber which defendants retained and the whole of the loss in the value of his stock in the old corporation, which plaintiff alone had to bear.</p>

<p>Appeal from the District Court of the United States for the District of New Jersey; Thos. G. Haight, Judge.</p> <p>Suit by William D. Salter against Christopher I,. Williams, receiver, and another. From an adverse decree, plaintiff appeals.</p>

<p>1.‘ Adverse Possession &wkey;>KM — Presum phon — Title Out ok Commonwealth.</p> <p>Continuous, open, notorious, visible, peaceable, adverse possession of' land in Virginia for 20 years by plaintiff in ejectment justifies presumption that the commonwealth has parted with title.</p> <p>2. Adverse Possession <&wkey;>3l — Notice to Owner.</p> <p>To prove adverse possession, possession must he such as to charge the owner with notice, actual or presumptive, that the occupant is claiming to hold adversely.</p> <p>3. Adverse Possession <&wkey;>44, 57 — Duration and Continuity — IOvtdence.</p> <p>Possession to give title by adverse possession must be continuous and uninterrupted for the full statutory period; and this must be clearly established.</p> <p>4. Adverse Possession <&wkey;38 — Notice-—Undisclosed Conversation.</p> <p>Undisclosed conversation between one going into possession and one directing him to do so will not warrant inference that the owner was notified that the holding was adverse.</p>

Keller, Judge. Action by the Drovers’ & Mechanics’ National Bank of Baltimore, Md., against tlie First National Bank of Sutton, W. Va., and its receiver. Judgment for plaintiff, and defendants bring error.

Michael Heitler and Dolly Shaffner were convicted of an offense, and they each bring error. Plaintiffs in error, Michael Heitler and Dolly Shaffner, together with Mollie Epstein and Dave Iiosensweig, were indicted for conspiracy to transport liosie Frameovitz, in interstate commerce, for purposes of prostitution, from Chicago, Ill., to Gary, Ind., in violation of the White Slave Traffic Act. All were tried together.

<p>1. Carriers <S=>298(1) — Injury to Passenger — Negligence—Swaying Oars.</p> <p>Swaying or lurching of cars necessarily incident to proper operation of fast passenger trains at curves and heavy grades in the track, necessary because of the nature of the country, whereby a passenger is injured, does not charge the carrier with negligence; but the risk thereof is assumed by the passenger.</p> <p>2. Trial <S=>260(8) — Instructions—Request Covered by Charge — Passenger’s Action.</p> <p>Relative to error in refusal of requested instruction applicable to issue of fact in passenger’s action for injury from fall in fast train, the statements of the general charge to find for defendant unless they believe the injury occurred by reason of negligent operation of the train, and unless they believe it was guilty of some negligence of act or omission, do not cover principle of passenger assuming risk of lurch or jolt which is an unavoidable incident of prudent and skillful operation.</p> <p>3. Carriers <§=^321(1) — Passenger’s Action — Instructions—Uncertain or Misleading Request.</p> <p>A requested instruction in passenger’s action for injury from fall on fast passenger train caused by lurch or jolt on road in rough country with necessary sharp curves and heavy grades that the jury should find for defendant unless they believe from the evidence 'that there was a negligent and extraordinary lurch in substance and purpose is not uncertain or misleading, so as to warrant its rejection for faulty expression.</p>

H. Seward Thomson, Judge. Suit in admiralty for collision by Arthur W. Simmons, master of the tug Columbia and bailee of M. D. C. Scow No. '31, against the Atkins Hughes and the schooner Eanny C. Bowen. Decree against the Bowen alone, and her claimant appeals.

Action by W. R. Dodd, administrator of Joseph Gydosh, deceased, against the Pocahontas Consolidated Collieries Company. Judgment for defendant on a directed verdict, and plaintiff brings error.

<p>Petition for writ of mandamus by Edward R. Mason.</p>

<p>Appeal from the District Court of the United States for the Southern District of-Ohio; Howard C. Hollister, Judge.</p> <p>Suit by the Ford Motor Company against the Union Motor Sales Company and others. From a decree dismissing'bill (225 Fed. 373),. plaintiff appeals.</p>

Suits in equity by the Sundh Electric Company against the Cutler-Hammer Manufacturing Company and against the General Electric Company. From a decree for defendant in the first case, complainant appeals; and from the decree in the second, both parties appeal. Decree in the first suit affirmed, and in the second reversed on defendant’s appeal.

<p>Appeal from the District Court of th© United States for the Northern Division of the Southern District of Illinois.</p> <p>Suit in equity by the Excelsior Steel Furnace Company against the F. Meyer & Bro. Company. Decree for defendant, and complainant appeals.</p>

<p>1. Patents <&wkey;32S — Infringement—Car Coupler.</p> <p>The Brown patent, No. 781,127, for a car coupler, held not infringed.</p> <p>2. Patents <&wkey;328 — Validity and Invention — Car Coupler.</p> <p>The Jackson patent, No. 946,603, for a car coupler, held void for lack of invention in view of the prior art.</p>

<p>Patents &wkey;>328 — 'Validity—Prior Use — Cover for Kadiator.</p> <p>The Hobbs patent, No. 901,610, for an insulating cover for automobile radiator and hood, held void for prior public use by others.</p>

<p>Patents <&wkey;328 — Validity—Winding Cone.</p> <p>The Gess patent, No; 986,379, for a winding cone, is void for lack of patentable invention and anticipation, the alleged improvement shown by inturning the apex end of the cone and smoothing and rounding the same to prevent the cutting or breaking of the yarn or thread being something which would naturally occur to any skilled mechanic familiar with the art, and which had previously been used and described in prior patents.</p>

<p>1. Patents <&wkey;328 — Validity and Infbingement — itilding Matebtal.</p> <p>The Cottom patent, No. 650,824, for an improvement in building mate-ria], was not.anticipated, discloses invention and is valid; also held infringed.</p> <p>2. Patents <&wkey;56 — Anticipation—Possible Duncttons of Pbtob Device.</p> <p>In order to constitute anticipation of a patented invention it is not sufficient that the.device relied upon might with some change be made to accomplish the functions performed by that invention if it were not designed by its maker to accomplish it or actually used for its accomplishment.</p>

<p>Courts <&wkey;>347 — Federal Courts — Practice—Counterclaim.</p> <p>Equity rule 30 (201 Fed. v, 118 C. C. A. v) declares that the answer must set forth any counterclaim arising out of the transaction which is the subject-m'atter of the suit, and may, without cross-bill, set out any set-off or counterclaim against plaintiff which might be the subject of an independent suit in equity, and such set-off or counterclaim sliall have the same effect as a cross-suit. Rule 26 (201 Fed. v, 118 O. O. A. v) declares that the plaintiff may in one bill join as many causes of action cognizable in equity as he may have against the defendant; but, when there are more than one plaintiff, the causes of action joined must be joint. Held that, as it was obviously intended to allow defendants in pleading counterclaims the same latitude allowed plaintiffs in joining causes of action, a defendant may plead a counterclaim cognizable in equity, though it is entirely independent of plaintiffs suit.</p>

<p>1. International Law &wkey;>10 — Suit—Immunity from.</p> <p>Immunity from suit is a privilege which, an independent government may waive by its voluntary appearance in the courts of the United States, and when a foreign government voluntarily becomes party to a suit involving its interest by commencement of an action, it waives such immunity, and cannot complain that its adversary in such litigation seeks to protect itself hy exercising the right to interplead another.</p> <p>2. INTERNATIONAL I;AW <&wkey;>10 — POWERS OF GOVERNMENT-SOVEREIGN CHARACTER.</p> <p>Where a foreign government becomes a party in any trading company, it divests itself of its sovereign character, and takes on that of a private citizen.</p> <p>3. Interpleader <&wkey;8(2) — Right to Interplead — Sovereignty.</p> <p>Code Civ. Proc. N. Y. § 820, provides for the remedy of interpleader for defendants, where there are rightful claims to part or all of the sums due from them. A New York trust company, which held as a banking institution moneys to the credit of a foreign government, was sued by an individual, who sought to impose a trust on such funds. Thereafter the government brought an action to recover the amount to its credit. Held that, under the circumstances, the trust company could implead the individual suitor, for it admitted that it had no benelicial interest in the funds, and there were two rival claimants, between whom it could not be decided without hazard, and the government, hy instituting the action, had waived its immunity from suit.</p>

<p>1. Bankruptcy <&wkey;117(4) — Discharge—Application to Vacate Order.</p> <p>An order discharging a bankrupt will not be? set aside on application of a creditor who filed objections after the expiration of the time allowed, which liad been enlarged for his benefit, and who had taken no evidence, although twice the time prescribed by the rules of court had elapsed when the discharge was granted, on the ground merely that his attorney was ignorant of the rules.</p> <p>2. Bankruptcy <&wkey; 118(1)- — Discharge—Eimct on .Rights ok Trustee.</p> <p>The discharge of a bankrupt does not affect the right of his trustee to recover property fraudulently conveyed.</p>

<p>At Daw. Action by Thomas E. Wing, trustee, against Alexander McCallum, and same against Alexander Sedgwick. On demurrers to declarations.</p>

<p>1, Aliens @=>68 — Naturalization Proceedings.</p> <p>A proceeding for naturalization in judge’s chambers adjoining the courtroom, upon due announcement and notice, sufficiently complied vrifh Naturalization Act June 29, 1908, c. 3592, § 9, 34 Stat. 599 (Oomp. St. 1916, § 4868), requiring final hearing to be had in open court, and section 15 (Comp. St. 1916, § 4370), providing that the United States shall have the right to appear.</p> <p>2. Aliens @=>71% — Naturalization—Qualifications.</p> <p>In a proceeding under Naturalization Act 1906, § 15 (Comp. St._ 1910, § 4374), to cancel a naturalization certificate, respondent’s affidavits held to show that he did not possess the qualifications required by section 4, subd. 4, providing that “it shall be made to appear to the satisfaction of the court admitting an alien to citizenship that immediately preceding the date of this application lie has resided continuously within the United States five years at least and within the state ■* * * where such</p> <p>court is at the time held one year at least.”</p> <p>8. Aliens @=>71% — Naturalization—Qualification of Witnesses.</p> <p>In a proceeding under Naturalization Act 1908, § 15, to cancel a naturalization certificate, respondent’s affidavits held to show that his witnesses did not possess the qualifications prescribed by section 4, suhd. 2, providing that the petition shall be verified by the affidavits of two credible witnesses who are citizens of the United States.</p> <p>4. Aliens @=>62 — Naturalization—Qualifications.</p> <p>Naturalization Act 1906, _§ 4, subd. 2 (Oomp. St. 1916, § 4352), providing that an alien must have resided continuously within the United States five years and within the state at least one year, contemplates actual and substantial residence which must be coincident with intent.</p> <p>5. Aliens @=>88 — Naturalization—Statute—Compliance.</p> <p>In a naturalization proceeding the application and proofs must conform to the clear mandate of the law.</p>

<p>In Equity. Suit by the Harriman National Bank against Lucy C. Huiet and others.</p>

<p>In Equity. Suit by the Navassa Guano Company against Ellen Nixon Cockfield and George Dickson, as executors of the will of S. R. Cockfield, deceased, Reamer L. Cockfield, and the Volunteer State Life Insurance Company.</p>

<p>At Raw. Action by Archibald ÍVL Ostrom against Thomas A. Edison. On motion to remand to state court.</p>

<p>In Equity. Suit by J. M. Dutton against the First National Bank of Waycross and others. On motion for preliminary injunction.</p>

At Law. Action by the Federal Wall Paper Company against Solomon S. Kempner. Motion by defendant to dismiss on the ground it appears on the face of the complaint and other papers submitted on this motion that the court has no jurisdiction of the cause, the real amount in controversy, exclusive of interest and costs, being less than $3,000, and that there is no diversity of citizenship, as plaintiff does not own the alleged cause of action.

<p>1. Bankruptcy <3=5>390(5) — Exemptions- -Static Daw.</p> <p>Bankruptcy Act July 1. 1S9S, c. 5-11, 30 Stat. 514, does not create any personal or homestead exemptions in favor of bankrupt, but by sections 6, 7a(8), 47a(ll), and 70a (Gomp. St. 1016, §§ 9590, 9591, 9031 and 9051), merely preserves to him the full benefit of such exemptions as at the time of the adjudication he is entitled to under the state law.</p> <p>• 2. Homestead <S=5 — Exemption—Construction of Statutes.</p> <p>Gen. Code Ohio, §§ 11730-117-10, conferring a homestead exemption or an allowance in lieu thereof, are to be liberally construed to accomplish their humane purpose.</p> <p>8. Bankruptcy <§=»396(5) — Exemption in Lieu or Homestead — “Owner of IIomisstkad.”</p> <p>The adjudication in bankruptcy transferring all the debtor’s property to the trustee subject to the debtor’s right or claim of ail exemption, he is not thereafter the owner of the homestead, theretofore owned by and still occupied by him, within Gen. Code Ohio, § 11738, providing that the head of a family not the “owner of a homestead” may, in lieu thereof, hold exempt property not exceeding $500 in value.</p> <p>4. Bankruptcy @=3396(5) — Claim of Exemption — Amendment.</p> <p>If bankrupt’s claim of exemption in lieu of homestead be objected to because for $500, instead of for specific property not exceeding that value, as contemplated by Gen. Code Ohio, § 11738, amendment should be allowed.</p>

<p>At Raw. Action by the Standard Silk 'Dyeing Company against the Roessler & Hasslacher Chemical Company. On motion to confirm a referee’s report.</p>

<p>1. Removal or Causes @=>102 — Ground for Remand — Nonresidence oe Part ties.</p> <p>A suit removed from a state court should he remanded on motion of plaintiff where neither party is a resident of the state.</p> <p>2. Removal of Causes @=102 — Grounds for Remand — Want of Jurisdiction.</p> <p>To sustain jurisdiction of a suit on removal in a district of which neither party is a resident under Judicial Code (Act March 3, 1911, c. 231, § 57, 36 Stat. 1102 [Comp.. St. 1916, § 1039]) § 57, on the ground that it is one of a local nature to enforce a claim or lien on property in the district, the bill must be considered as a whole, and if any substantial part of the relief sought could not be afforded in a suit in rem, without personal service on the defendant, a motion to remand must be granted.</p> <p>3. Removal of Causes @=49(3) — Diversity of Citizenship — Separable Controversy.</p> <p>A suit in equity in which it is alleged that the property sought to be recovered, although held in severalty by the defendants, was obtained through a fraudulent conspiracy between them, does not involve a separable controversy, and is not removable by one defendant alone.</p>

<p>At Law. Action by W. M. Duncan, as receiver of the Wheeling &’ Lake Erie Railroad Company, against the United Steel Company. On</p> <p>demurrer to petition.</p>

In Admiralty. Suit for collision by Charles E. McWilliams against the steamer Sif and the tugs Coleraine and Nellie Tracy, Thomas Tracy, claimant, impleaded. Decree for libelants against the Sif.

<p>1. Shipping <@=»54 — Ciiaeteks—Liability foe Injury to Vessel — Guaranty op Depth at Dock.</p> <p>A guaranty in the charter party of a barge of a certain depth of water at the dock where slio was required to discharge extends also to the surrounding water which would naturally be traversed or used by a vessel of her dimensions in discharging there or the use of which in the course of discharging should reasonably have been anticipated.</p> <p>2. Shipping <£=>51 — Charter—Liability for Injury to Vessel.</p> <p>A charter party of a barge to carry a cargo of coal to lie discharged at a certain dock by the charterer guaranteed 12 feet of water at the dock. The barge was too long to be discharged at the wharf in the ordinary manner, and it was necessary to turn her to reach the hatches at one end, and in doing so she stranded and was Injured, although her draft was less than 12 feet. Hold, that the charterer was bound to anticipate the probable necessity of such turning, and that the guaranty of depth applied to the water necessarily used in making the maneuver, and that, being charged through its consignee as its agent with the duty of handling the vessel in discharging, it was liable for the injury, although the master took charge of the movement.</p>

At Law. Action by M. Sergey Friede against the White Company. On motion for judgment on pleadings as to one cause of action alleged. This is a motion under section 547 of the New York Oode of Civil Procedure . for an interlocutory judgment upon the pleadings dismissing- tlie second cause of action contained in the complaint. This cause of action is in substance as follows: Article First. That the plaintiff is a citizen of the state of New York and resides therein.

<p>■ In Equity. Suit by the Mackey Wall Plastef Company against the United States Gypsum Company.</p>

At Law. Petition by Frank J. McKay, on behalf of one Lalime and one Beaulieu, for a writ of habeas corpus. Order entered discharging Lalime and Beaulieu on condition.

At Law. In the matter of the petition of the Beloochistan Rug Weaving Company for a summary investigation into the facts and circumstances of a proposed seizure of certain shipments of washable India rugs. On objection by the government to consideration of petition. Investigation as prayed directed.

<p>1. Neutrality Daws <&wkey;3 — Offenses—Military Expedition.</p> <p>Under TJ. S. Or. Code, § 13 (Act March 4, 1809, c. 321, 85 Stat 1090 [Comp. St. 1910, 10177.1), making it a crime for any one within the territory or jurisdiction of the United States to begin or set on foot, or provide or prepare the moans for, any military expedition or enterprise to be carried on from thence against the territory or dominion of any foreign prince or state, or of any colony or district with whom the United States is at peace, file organization of an expedition of the prohibited character constitutes a violation of the act, and it is unnecessary that the expedition should have actually set out or should consist of any particular number of men.</p> <p>2. Neütr w/ity Laws &wkey;>5 — Offense»—Indictments.</p> <p>Indictments charging that defendants feloniously began preparations for and set on foot a military enteiprise to be carried on from the United states against the territory and dominions of tho British Umpire, a foreign nation with whom the United States was and has been at peace, alleged that Germany was at war wiili Great Britain; that, for the purpose of aiding and assisting in carrying on the military operations of the German forces, it was desirable that in the colonies and territories of Great Britain there should be unrest, revolt, and rebellion; and that, for the purpose of provoking mutiny and unrest in India, defendants made preparations in the United States for the importation into India of arms and munitions, so that natives supplied with such arms and munitions might rise against British rule, and thus necessitate the use of troops in that portion which might otherwise be used against the German empire, etc. Held, that as the statute is violated if the act is one which can fairly be considered as an accompaniment of military operations so intimately connected with them that it forms a natural part of such operations, the indictments charged a violation of TI. S. Cr. Code, § 13, even though the preparations in the United States anticipated a journey to another land by defendants.</p>

<p>3L Trade-Marks and Trade-Names <&wkey;97 — Right to Injunction — Notice.</p> <p>Whore plaintiff, the author of a duly copyrighted play entitled “Happiness,” which had been presented hut withdrawn, notified defendants, the producers of a photo-play, on discovering that they were offering a play under the same name, that they were violating his rights, and defendants, despite the notice and protest, continued to advertise their photo-play under such name, insisting that they wore authorized to use it, an injunction in favor of plaintiff cannot be denied on the ground of unfairness.</p> <p>2. Trade-Marks and Trade-Names <&wkey;13 — Unfair Competition — Title of Play.</p> <p>The title of a drama, though not protected by copyright, may, on the theory of a trade-mark, he protected and the producer of a photo-play enjoined from using it.</p> <p>3. Trade-Marks and Tiiadk-Names &wkey;>21 — Unfair Competition.</p> <p>Plaintiff, a successful dramatic author, wrote a play which he entitled “Happiness.” The play iras duly copyrighted and was presented at a prominent theater, one of the foremost, actresses of her day being in the cast. After some performances, the play was withdrawn, it being intended to subsequently revive its production. Held, that, though the word “Happiness” is in general use, yet, plaintiff being the first in the field, his adoption gave to the word a secondary meaning indicating his play, and ho is entitled to protection of rights thus acquired, and defendants will be enjoined from producing a photo-play under the same name.</p> <p>4. Trade-Marks and Trade-Names ®;-a21 — Unfair Competition — Defenses.</p> <p>In such case, plaintiff’s rights are not affected because of a previous dramatic production under the same name for a charitable purpose, which took placo in a private house.</p> <p>5. Trade-Marks and Trade-Names &wkey;>97 — Title—IItgiit to Injunction.</p> <p>While there can bo no copyright in a title, nevertheless equity will enjoin the use of the title of a well-known publication by a rival work.</p>

<p>1. Judgment <&wkey;648 — Conclusiveness—Kes Judicata.</p> <p>Defendant was indicted for defrauding the United States of customs duties, the indictment charging that defendant knowingly understated the value of imports, and suppressed information. On the merits, the indictment was dismissed. Held, that such judgment of dismissal was conclusive against the right of the United States to recover, in a civil action based on the same statute, the amount of the loss in duty which was claimed resulted from defendant’s fraud, even though the form of action and rights sought to be enforced were different.</p> <p>2. Judgment <&wkey;656 — Conclusiveness—Conclusive Judgment.</p> <p>Judgment on demurrer on the merits is sufficient to furnish basis for principle of res judicata.</p> <p>3. Judgment <&wkey;654 — Dismissal—Conclusiveness.</p> <p>Where an indictment charging that the United States was defrauded out of customs was dismissed, and the government did not appeal, such dismissal was a conclusive adjudication on the merits against the government’s claim.</p> <p>4. Pleadiiíg &wkey;>245(2) — Amendment—Change of Theory.</p> <p>After the expiration of three years, and after an indictment charging the defrauding of the United States was dismissed, a complaint, in a civil action, seeking to recover an alleged loss of customs duties, which was based on defendant’s fraud in suppressing documents v^hich would have disclosed that the foreign invoices undervalued the goods, cannot be amended so as to rely on defendant’s knowledge and the undervaluation as substantive facts, the transactions being in each case the same.</p> <p>5. Judgment <&wkey;918(l) — Conclusivenuss.</p> <p>A complaint seeking recovery of customs duties, which it was asserted the government had lost through defendant’s fraud, will not he dismissed where res judicata was not pleaded as a defense, though -it appeared on motion for dismissal that an indictment charging the crime of defrauding the government out of customs duties had been dismissed, and was thus a conclusive adjudication against recovery.</p>

At Law. Action by the American Steel Company against the American Steel & Wire Company and others. On demurrer. Demurrer overruled as to the first count, and sustained as to the second count.

At Law. Action by the Perlman Rim Corporation against the Firestone Tire & Rubber Company. On motion by Louis H. Perlman, a witness in the above case, to prevent the use before the grand jury of his property which was offered in evidence as exhibits and impounded in clerk’s custody.

<p>In Equity. Suit by Laura A. Boomer against James H. Rowe.</p>

<p>At Law. Action by the United States against the United States Fidelity-Si Guaranty Company and Thomas D. Harris.</p>

<p>Collision <&wkey;22 — Vessels Moobed in Harbor.</p> <p>Libelant’s canal boat was lying alongside a steam elevator which in turn was moored to the side of a steamship lying inside the concrete pier which forms the boundary of the Atlantic Basin, when a sudden wind squall struck the bow of the steamship, which extended northward beyond the shed on the pier, causing the parting of the forward lines by which she was moored to the pier and swinging her around, causing injury to the canal boat. The wind was the strongest.ever known in New York harbor, having a velocity of 88 miles an hour for five minutes and reaching 125 miles for half a minute. It was seen that a thunderstorm was coming up from the west, but there was nothing to indicate any unusual wind. The steamship was moored to the pier by lines sufficient to hold her in any ordinary or even an extraordinary wind. Bela, that she was not chargeable with want of reasonable care, and that the injury to libelant’s boat must be attributed to inevitable accident for which she was not liable.</p>

In Bankruptcy. In the matter of the bankruptcy of the Griffith Stil-lings Press. On objections to report of referee confirming an offer of composition.

In Admiralty. Suit for collision by the Nantasket Beach Steamship Company against the steamship Yarmouth. On question of costs. Li-belant allowed full costs.

<p>Tn Admiralty. Suit for collision between the Norwegian steamship Bertha and the Greek steamship Athanasios.</p>

<p>In Error to the District Court of the United States for the Eastern District of South Carolina, at Charleston; Henry A. Middleton Smith, Judge.</p> <p>J. G. Taylor and loor Hayes were convicted of an offense, and they bring error.</p>

<p>Appeal from the District Court of the United States for the District of Oregon; Robert S. Bean, Judge.</p> <p>Suit by the lord Motor Company against Benjamin E. Boone, Incorporated, and others. Bill dismissed, and plaintiff appeals. Reversed, with directions.</p>

<p>In Error to the District Court of tbe United States for the District of New Jersey; Thos. G. Haight, judge.</p> <p>Action by Christopher L. Williams, as receiver of the First National Bank of Bayonne, against Mary A. Vreeland. There was a judgment for defendant, and plaintiff brings error.</p>

<p>1. Admiralty <&wkey;46 — Peocess—State Statute.</p> <p>A state statute as to how process may be served on a railroad corporation is not controlling, in a proceeding in personam in admiralty, to which the Conformity Act June 1, 1872, c. 255 (17 Stat. 196), does not apply.</p> <p>2. ADMIRALTY <&wkey;46-PEOCESS — 'SERVICE ON CORPORATION'S SECRETARY.</p> <p>Service of citation on the secretary of a corporation in a proceeding in personam against it in admiralty is good, he being such a head oflicer as secures knowledge thereof to it.</p> <p>3. Appearance <&wkey;21(l) — Actions—Service of Process — Waiver of Objections.</p> <p>The court having jurisdiction of the subject-matter, and the parties being within its territorial jurisdiction, and defendant’s contention on special appearance being that the service of process on its secretary was not good service on it, it waives its rights, in that respect, by answering and going to trial on the merits, after such question is decided against it; especially where it not only asked that the service be quashed, tout sought to procure a dismissal.’</p> <p>4. Shipping <&wkey;84(3) — Injury to Servant — Dangerous Work — Facilities fob Rescue.</p> <p>Devices and facilities reasonably lit and accessible to effect a rescue should be provided where an employe is required to work where he may be subjected to the danger of being thrown into the water.</p> <p>5. Admiralty <&wkey;70 — Pleading and Evidence.</p> <p>Under the informal proceedings in admiralty, unless defendant pleads surprise and procures a continuance, the court may, in action for death of an employe, allow testimony of concurring circumstances indicating negligence, and base a decree thereon, though not particularly or specifically pleaded, especially when they are the dangerous character of the work required to be done if performed by an inexperienced man, as was deceased.</p> <p>6. Admiralty <&wkey;118 — Review—Decision on Facts.</p> <p>Decision of the judge in an admiralty case on questions of fact, there being involved conflicting evidence or the credibility of witnesses examined before him, will be reversed only if manifestly contrary to the evidence.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Virginia, at Richmond; Jeter C. Pritchard, Judge.</p> <p>Suit by Margaret Corwin Radcliffe Gooch against Annie Wayne Suhor and others. Decree for plaintiff, and defendants appeal.</p>

<p>In Error to the District Court of the United States for the Western District of Virginia, at Big Stone Gap; Henry Clay McDowell, Judge.</p> <p>Action by F. U. Johnson, administrator of J. D. Ross, deceased, against the Pocahontas Consolidated Collieries Company, Incorporated. Judgment for plaintiff, and defendant brings error.</p>

Safer, Judge. Mandamus by the United States, on relation of Charles H. A. Palmer, against Charles W. Eapp, United States marshal for the Northern district of Ohio. The writ was denied, and relator brings error.

Suit by Arthur L,. Hobart against the Supreme Council qf the Royal Arcanum. From a decree appointing a receiver, and decrees modifying the original decree, defendant appeals.

Keller, Judge. Action by R. Ogden Halsey and others against Irvin Jarrett and others. There was a judgment for plaintiffs, and defendants bring error. This is an action of ejectment instituted in the District Court of the United States for the Southern District of West Virginia by plaintiffs, R. O. Halsey, and others, against Irvin Jarrett and olhors, defendants, to recover a parcel of land situate in Fayette county, W. Va.

<p>In Error to the 'District Court of the United States for tbe Western District of Virginia, at Roanoke; Henry Clay McDowell, Judge.</p> <p>Suit by S. D. Barrett against the Virginian Railway Company. Judgment for defendant, and plaintiff brings error.</p>

<p>Appeal from the District Court of the United States for the Northern District of New York.</p> <p>Suit by Edwin C. Angle (now Gerardus Smith), as trustee in bankruptcy of the estate of Ed\yard E. Garling, against the Bankers’ Surety Company. From a decree fór plaintiff, defendant appeals.</p>

In Error Do the District Court of the United States for the Northern Division oí the Eastern District of Washington; Prank H. Rudkin, Judge. Suit for penalties by the United States against the Great Northern Railway Company. Judgment for the United States, and defendant brings error,

<p>1. Aliens <S=>32(2) — Deportation of Chinese — Tuns oe Proceedings.</p> <p>Under the provision of Immigration Act Eeb. 20, 1907, c. 1134, § 43, 34 Stat. 911 (Comp. St. 1916, _§ 4289), that the act “shall not be construed to repeal, alter or amend existing laws relating to the immigration or exclusion of Chinese persons,” th,e provisions of sections 20 and 21 (Comp. St..1916, §§ 4269, 4270), reauiring proceedings for deportation to be taken within three years after entry, do not apply to Chinese persons, who may be deported at any time under Exclusion Act May 5, 1892, c. 60, 27 Stat. 25, as amended by Act Nov. 3, 1893, c. 14, 28 Stat. 7 (Comp. St. 1916, §§ 4315-4323).</p> <p>2. Aliens <®=32(8) — Proceedings for Deportation of Chinese — Suffi- ■ ciency of Evidence..</p> <p>A finding by both the commissioner and District Court, which heard the witnesses, against the claim of a person of Chinese descent that he was born in the United States, held not so clearly erroneous as to warrant its reversal; the only witnesses in support of such claim being Chinese persons, and it appearing that defendant, although about 30 years old, could not speak the English language.</p>

<p>1. Navigable Waters <S=>23 — Obstruction or Navigation — Anchorage in-Channel.</p> <p>Whether the anchorage of a vessel in a navigable channel is in violation of Act March 3, 1899, e. 425, § 15, 30 Stat. 1152 (C'omp. St. 1916, £ 9920), which prohibits such anchorage “in such manner, as to prevent or obstruct the passage of other vessels or craft,” depends upon the facts of the particular case. If a vessel anchors at a point where other vessels navigated with care can safely pass her, she does not violate the statute, but if she occupies so much of the channel as to practically impede its navigation-or make the effort to pass her a dangerous maneuver, she unlawfully obstructs it.</p> <p>2. Indemnity <s=»14 — Conclusiveness or Judgment Against Indemnitee.</p> <p>An adjudication that a vessel was in fault for a collision because of the place and manner of her anchorage is conclusive of such fact in a subsequent suit by the vessel against her pilot to charge him with resxion-sibility therefor.</p> <p>3. Indemnity <@=^14 — Conclusiveness of Judgment Against Indemnitee.</p> <p>That a vessel in a suit for collision unsuccessfully contended that she was not in fault does not estop her from alleging such fault in a subsequent suit to charge her pilot with responsibility therefor.</p> <p>4. Admiralty —Jurisdiction—'Suit Against Pilot.</p> <p>A suit by a vessel against her pilot to charge him' with responsibility for her anchorage in an unlawful place is within the admiralty jurisdiction.</p>

Rose, Judge. Suit in admiralty by Sanford & Brooks Company, owner of the tug Alice, against the Navigazione Generate Italiana, owner of the steamship Etna. Decree for libelant, which appeals.

Petition to Review and Revise Order made by the District Court of the United States for the Western District of Wisconsin. In the matter of David Blum, bankrupt. Petition by David Blum and another against Walter L. Houser, trustee in bankruptcy, to review an order of the District Court confirming an order of the referee.

<p>Habeas Corpus <®=>4 — Ground of Relief — Want of Jurisdiction.</p> <p>One convicted may not be released on babeas corpus because tried while an escaped insane patient, this not depriving the court of jurisdiction, so trying him being, at most, error for which appeal is the remedy.</p>

<p>In Error to the District Court of the United States for the Western District of Pennsylvania; 'Charles P. Orr, Judge.</p> <p>John Read Miner was sentenced on plea of guilty, and brings error.</p>

<p>In Error to the District Court of the United States for the Western District of Pennsylvania; Charles P. Orr, Judge.</p> <p>Christian F. Schaeffer was sentenced on plea of guilty, and brings error.</p>

Proceeding in bankruptcy by the Citizens’ Coal & Supply Company against J. H. Custard, trustee of the Bluestone Construction Company, bankrupt, to reclaim property sold by said Company to bankrupt. From a judgment confirming decision of the referee in bankruptcy in favor of the trustee, the seller appeals.

Clarke and John M. Killits, Judges. Bill in equity by the Gabon Iron Works Company and others against the Ohio Corrugated Culvert Company and others. From a decree dismissing the bill, complainant appeals. Complainant below, the Gallon Company, was engaged in manufacturing and selling, throughout the United States, a corrugated steel culvert.

<p>1. Corporations <®=>548(9) — Grant of Licenses under Patents — Knowledge and Intent of Licensee.</p> <p>A judgment creditor of a corporation which was the owner of patents, held, on the evidence, not entitled to the cancellation of certain license contracts made by the company pending the action which resulted in the. judgment as having been made to hinder, delay, and defraud creditors, the action being one at law which left the corporation free to contract, and it appearing that the licensees acted in good faith for their own interest and paid a substantial and reasonable amount under all the circumstances for the rights secured.</p> <p>2. Corporations <§=3523 — Proceedings Supplementary to Execution — Service-Fraudulent Resignation of Officers.</p> <p>Code Civ. Proc. N. T. §§ 2468, 2469, provide that the property of a judgment debtor vests in a receiver appointed in supplementary proceedings from the date of his appointment, and that when it has become so vested it relates back for the benefit of the judgment creditor in case an order requiring, the debtor to appear for examination has been served to the date of such service. In such a proceeding against a nonresident corporation service of an order for examination was made on a resident who had been and was still supposed to be the president and a director of the defendant, and he appeared with counsel without objection. He had previously resigned as president, and his resignation had been accepted. He had also later sent his resignation as director, which was not accepted until afterward. The resignations were part of a fraudulent scheme to prevent the collection of the judgment. The proceedings resulted in the appointment of a receiver. Held, that whatever the effect of the fact that his resignation as director had not at that time been accepted might have as between him and the corporation, the resignation was not effective as against the judgment creditor, and the service on him was a valid service on the corporation, and carried back the receiver’s title to that date to the exclusion of that of a trustee in bankruptcy appointed in voluntary proceedings instituted more than four months thereafter.</p> <p>3. Execution <§=>409 — Supplementary Proceedings — Receivers—Sale of Patents.</p> <p>While a receiver in supplementary proceedings may not, by virtue of his appointment, acquire title to patents so as to enable him to execute a valid assignment to a purchaser, a court of equity has power to order such assignments m'ade by the proper person.</p>

<p>Bankruptcy <3=^260 — Sale of Property by Trustee — Objection by Adverse Claimant.</p> <p>An adverse claimant of property also claimed by a trustee in "bankruptcy lias no standing to object to an order directing the trustee ttf sell bis '•right, title, and interest” in the property.</p>

Suit in equity by the Reece Shoe Machinery Company against the United Shoe Machinery Company. Decree for defendant, and complainant appeals. The following is the opinion of Haight, District Judge, in the court below: This is a suit for infringement of patent No. 818,159, issued to William E. Goodyear on April 17, 1906, and now owned by the plaintiff. Both plaintiff and defendant, as their corporate names indicate, are engaged in the manufacture of shoe machinery.

Suit in equity by the Butterick Publishing Company against the Peerless Pattern Company. Decree for defendant, and complainant appeals. The following is the opinion below, of Veeder, District Judge: This is a suit by the Butterick Publishing Company against the Peerless Pattern Company for infringement of patent No. 632,361, granted to R S. O’Loughlin September 5, 1S99, for an improved pattern for garments.

<p>1. Courts <&wkey;347 — Federal Court — Pleading-Joinder of Causes of Action.</p> <p>Under Equity Rule 26 (201 Fed. v, 118 O. C. A. v), it is no objection to a bill that it joins several causes of action if all are cognizable in equity and are between the same parties.</p> <p>2. Patents <&wkey;147 — Reissue—'Validity.</p> <p>A claim allowed under the original application and for which a patent issued, if valid, loses nothing in validity because reineorporated in a reissue.</p> <p>3. Patents <&wkey;328 — Validity and Infringement — Motorcycle Clutch.</p> <p>The Ellett patents, No. 982,042 and No. 1,018,890, each for a motorcycle clutch, held valid as covering new and patentable combinations, but not infringed.</p> <p>4. Patents <&wkey;328 — Validity—Prior Public Use.</p> <p>The Ellett patent, No. 1,071,992, for a motorcycle clutch, held void on tthe ground that the invention was perfected and the device in public use for more than two years prior to the date of application.</p>

<p>1. Patents <&wkey;66 — Anticipation—Prior Patent Issued on Latee Application.</p> <p>A patent is not available as an anticipation of another patent upon the device of which it is expressly claimed to be an improvement, and which, although of later issue, was first applied for.</p> <p>2. Woeds and Pheases- — “Engage.”</p> <p>“Engage,” as used in a patent claim, does not necessarily mean “gear or mesh with.” Two plates can only engage by putting them in some bearing contact with each other, but an engagement may exist between two surfaces without the plurality of engagements going to make up a gear or mesh.</p> <p>3. Patents <&wkey;328 — Validity and Infringement — Cornee Lock foe Bedsteads.</p> <p>The Wolf patent, No. 1,120,638, for a corner lock for bedsteads, held valid, and claims 2 and 3 infringed. Claims 1, 11, and 12 held not Infringed.</p> <p>4. Patents <&wkey;328 — Validity and Infringement — Cornee Lock foe Bed- , steads.</p> <p>The Wolf & Governale patent, No. 1,143,796, for a corner lock for bedsteads, held valid, but not infringed.</p>

<p>In Equity. Suit by the TEolian Company against the Cunningham Piano Company. On motion for preliminary injunction.</p>

In Admiralty. Suit for collision by the owner of the barge Davidson against the steamer Gaston, with the tug Anna impleaded. Decree for libelant against the Gaston alone.

In Bankruptcy. In the matter of the Charles Wacker Company. On review of an order of the referee ruling that a provision of the bankrupt’s contracts with claimants was so uncertain and lacking in mutuality that the contract was unenforceable and void.

<p>Seamen <&wkey;24 — Wages—Right to Part Payment at Intermediate Port.</p> <p>Seamen’s Act March 4, 1915, c. 153, § 4, 38 Stat. 1165 (Comp. St. 1916, § 8322), providing that every seaman shall be entitled to receive on demand one-half the wages he shall have then earned at every port where the vessel shall load or deliver cargo before the voyage is ended, Is not. to be construed to entitle a seaman, to receive at intermediate ports any more than together with prior payments, will equal one-half the wages then earned.</p>

In Equity. Suit by the Equitable Trust Company of New York, as trustee, against the- Western Pacific Railway Company, and same against the Denver & Rio Grande Railway Company and the Western Pacific Railway Company. This cause comes up upon final hearing on a dependent bill in equity, ancillary to a bill of foreclosure which was itself ancillary to an original bill in foreclosure depending upon diverse citizenship.

<p>1. Trade-Marks and Trade-Names <&wkey;ll — Unfair Competition — Imitation.</p> <p>Plaintiff manufactured a shredded wheat biscuit of a peculiar size, form, color, and appearance, which had become well known to the public. It owned patents covering an article of food consisting of threads or filaments of wheat or similar grain having the outer nutrition bran and gluten of the entire berry visibly mixed with the interior starchy portion thereof, and also a process patent covering the method of preparing the grain or berry. A design patent covered the form and configuration of the biscuit; the specification stating that the design consisted .in a biscuit presenting a fibrous interstiüal appearance, with interlacing threads or filaments, and that the genera] form of the biscuit shown in the drawings was as stated therein. Hold, that these patents did not take the case out of the law of unfair competition, so as to give defendant the right, upon the expiration of the monopoly, of using the size, shape, and color of plaintiff’s product, with its identifying name and dress.</p> <p>2. Trade-Marks and Trade-Names <&wkey;79 — Injunction—Purposes.</p> <p>The purpose to be effected by an injunction in cases of unfair competition is not primarily to protect tbe purchaser, but to secure to the manufacturer the profit to be derived from the sales of his goods to all those desiring and intending to purchase them: it being the liability to injury and an actual infringement which the remedy may be invoked to prevent.</p> <p>3. Trade-Mabks and Trade-Names <&wkey;70(l) — Unfair Competition — Imitation.</p> <p>Where plaintiff was manufacturing a shredded wheat biscuit of peculiar size, form, and appearance, which had become well known to the public, and defendants were selling a similar biscuit in cartons bearing a pictorial representation of a shredded wheat biscuit, which was an exact copy of plaintiff’s biscuit, so that one was apt to be mistaken for tlio other, though on comparison of the two cartons substantial differences would be found and careful buyers might not be deceived, defendants would be enjoined from the use of such pictorial representation on their carton.</p> <p>4. Trade-Marks and Trade-Names <&wkey;69 — Unfair Competition — Good Faith as Defense.</p> <p>Defendants’ good faith in using a pictorial representation of plaintiffs shredded wheat biscuit on the carton containing its biscuits is immaterial.</p> <p>5. Trade-Marks and Trade-Names <&wkey;70(3) — Unfair Competition — Imitating Names of Articles.</p> <p>Where the names “Shredded Wheal” and “Shredded Whole Wheat,” though in a way abstract in character and descriptive, had become associated with plaintiff’s goods in particular, and had come to mean its goods alone, the court will enjoin defendant from using such words in connection with the sale of a similar biscuit, unless they marked their packages and product, so as to c-learly and unmistakably specify that it was their own product, and not that of plaintiff.</p> <p>6. Trade-Marks and Trade-Names <&wkey;93(l) — Unfair Competition — Presumptions.</p> <p>The natural presumption is that one adopting a name for its product, which has become associated in the public mind with a product of another, expects to derive benefit from the name, and to secure buyers from among those" who have bought and used the product of such other, and it may be justly assumed that they intend to mislead, and that their acts are likely to accomplish this intent.</p> <p>7. Trade-Marks and Trade-Names <&wkey;70(l) — Unfair Competition-Imitation.</p> <p>Where plaintiff manufactured a shredded wheat biscuit of a peculiar form, shape, size, and color, and defendants’ product was copied therefrom in its entirety, the court will enjoin defendant from manufacturing or selling whole wheat biscuit in the form, shape, size, and color of plaintiff’s biscuit, or any imitation thereof, without marking on each biscuit words clearly and unmistakably specifying its origin.</p> <p>8. Trade-Marks and Trade-Names <&wkey;75 — Unfair Competition — Deception of Public.</p> <p>The vital question in cases of unfair competition is not whether dealers are liable to be deceived in buying from the manufacturer or wholesaler, but whether the user is liable to be misled in buying from the retailer.</p> <p>9. Trade-Marks and Trade-Names <&wkey;98 — Unfair Competition — Right to Accounting.</p> <p>Where, in a suit for unfair competition, it appears that defendants’ sales were small and its profits negligible, and that the profits and damages together would be too small to justify the expense of taking an account, no accounting will be ordered.</p>

Minnie Davidson was indicted for sending a nonmailable letter through the mails, and for depositing in the post office an envelope the outside of which contained nonmailable matter.

In Equity. Suit by the Masses Publishing Company against T. G. Patten, Postmaster of the City of New York. On motion for preliminary injunction. Motion granted.

In Admiralty. Suit by the Gans Steamship Company against Wilhelm Wilhelmsen and a Norwegian corporation, as owners of the steamship Themis, Nova Scotia Steel & Coal Company, limited, and Barber & Co., Incorporated, impleaded.

<p>1. Insurance <&wkey;665(6) — Weight and Sufficiency of Evidence — Cause of Death.</p> <p>In au action on a life insurance policy defended on the ground that insured committed suicide, verdict for plaintiff held supported by the evidence.</p> <p>2. Insurance <&wkey;646(7) — Presumptions—Cause of Death.</p> <p>Primarily the presumption is against self-destruction, and it is one of the strongest presumptions with which courts have to deal, and, while it will not prevail against clear and definite proof, suicide will never be inferred if the circumstances are consistent with any other reasonable theory.</p> <p>3. Insurance <&wkey;646(6) — Presumptions—Cause of Death.</p> <p>There is a presumption against murder or the intentional taking of the life of another as well as against suicide, and if the evidence be such as to warrant'the inference either of suicide, murder, or accident, in an action on an insurance policy, the presumption must always be in favor of accident.</p> <p>4. Insurance <&wkey;668(12) — Questions for Jury — Cause of Death.</p> <p>If the circumstances surrounding the death of an insured person are consistent with either murder or suicide, the question must be left to the jury to determine as between the two conflicting causes.</p> <p>6. Insurance <&wkey;665(6) — Questions for Jury — Cause of Death.</p> <p>The absence of motive by an insured person for committing suicide, while not conclusive, is a consideration which enters strongly into the sum of the evidence in determining the cause of death.</p>

<p>At Law. Action by A. L- Hartman against the Toyo Kisen Kaisha Steamship Company.</p>

<p>1. Public Lands <&wkey;120 — Avoidance of Patent — Fraud.</p> <p>It being as essential to purchase of public land as timber land that it be unoccupied and unclaimed and free from improvements by others as that it be more valuable for its timber than for its mineral deposits, all of which the statute requires to be stated and shown, fraudulent statements as to the former in the application and before the Land Office are ground for avoidance of the patent, even though the land be more valuable for its timber than its mineral deposits.</p> <p>2. Public Lands <&wkey;120 — Avoiding Patent — Fbatjd—Evidence.</p> <p>Evidence in suit to avoid patent for public land under application to purchase as timber land held to show fraud in procurement.</p> <p>3. Public Lands <&wkey;>120 — Avoidance or Patent — General Relief.</p> <p>Under the prayer of the bill for general relief in a suit to avoid for fraud a patent for public lands, defendant having passed the land to a bona fide purchaser, money damages may be decreed.</p> <p>4. Public Lands <&wkey;>120 — Avoidance of Patent — Damages.</p> <p>Defendant in a suit to avoid a patent to public lands obtained by fraud having passed title to a bona fide purchaser, recovery may be had of him of the amount he sold it for; Act March 2, 1896, c. 39, 29 Stat. 42, 43 (Comp. St. 1916, §§ 4901-4903), providing for recovery only of the amount for which it was sold by the government where title has passed to a bona fide purchaser, applying only to case of a patent issuing erroneously, but without fraud.</p>

<p>1. Shipping <@=>42 — Hiking of Barge — 'Warranty of Seaworthiness.</p> <p>Where respondent, as owner, on request of a third party, furnished a barge for the carrier of merchandise for libelant at a stated hire per day, there was the same implied warranty of seaworthiness as though the parties had dealt with each other directly.</p> <p>2. Shipping <@=>121(1) — Unseaworthiness—Assumption of Risk by Shipper.</p> <p>The existence of an implied warranty of seaworthiness does not necessarily exclude the application of the doctrine of assumption of risk of unseaworthiness by a shipper, and in such case, where the unseaworthiness and the grave danger of loss of cargo are palpable and known to him, if ho allows tlio loading to proceed and the cargo to he taken hy the vessel in her unfit condition, he assumes the risk of loss through such unseaworthiness.</p> <p>S. Shipping <@=121(1) — Unseawobthiness—Injury to Vessel in Dock.</p> <p>Respondent furnished a barge to carry merchandise for libelant from its dock to a steamship. On arrival at the dock, the master was told by libelant’s representative that there was plenty of water for it to lie safely ; but during the loading one corner -settled upon an obstruction on the bottom, by which the barge was strained and commenced to leak to such extent as to be clearly unsea worthy before the loading was completed, and on being towed to the steamship sank before it could bo unloaded. Held, that libelant not only assumed the risk to the cargo, but was liable for the damage caused hy the sinking.</p>

<p>1. Bankruptcy <§=>76(1) — Claims—Liability as Indorsee.</p> <p>Presentment for payment, dishonor, and notice fix the liability of the indorser of a note, and the payee may then proceed at his option against that of the maker or indorser; hence the payee may, in such case, file an involuntary petition in bankruptcy against the indorser based upon his claim arising on the note.</p> <p>2. Bankruptcy <§=>92 — Petition—Claims.</p> <p>The claim of a petitioner in bankruptcy against the alleged bankrupt, based on the bankrupt’s indorsement of a note, will not be stricken from the petition, because of the pendency in the state court of a suit between the petitioner and indorsers in relation to the note.</p> <p>3. Bankruptcy <3=>76(3) — 'General Assignment — Consent.</p> <p>A creditor who assents to the debtor’s general assignment for the benefit of creditors cannot thereafter urge such assignment as an act of bankruptcy, but a creditor’s knowledge and assent to the execution of an assignment does not. where a subsequent assignment was necessary to give it effect as a general assignment, prevent the creditor from urging that the last assignment was an act of bankruptcy.</p> <p>4. Bankruptcy <S=>81(3) — Petition—Sufficiency.</p> <p>The sufficiency of a petition in involuntary bankruptcy, in respect to the description of the petitioner’s claim, must be tested by the rules which would govern a declaration or a bill in equity, in an action or suit to enforce such claims.</p> <p>5. Bankruptcy <§=>77 — Jurisdiction—Provable Claims.</p> <p>The existence of provable claims to the requisite amount is essential to the bankruptcy court’s jurisdiction.</p> <p>6. Bankruptcy <§=>81(3) — ~Petition—Claims.</p> <p>The existence of debts or claims to the requisite amount being jurisdictional, the existence of such debts or claims should be alleged with sufficient definiteness for the court to find from the petition in bankruptcy the jurisdictional fact.</p> <p>7. Bankruptcy ©=81(3) — Petition—Sufficiency.</p> <p>In view of the Florida decisions that bills of particulars, attached to pleadings and not made a part of such pleadings by apt words, cannot be reached by demurrer, notes and accounts attached to a petition in bankruptcy, filed in the District Court for Florida, do not become a part thereof, so that upon attack of the petition by motion to dismiss, they cannot bo considered.</p> <p>8. Bankruptcy <@=>92 — Petition—Dismissal.</p> <p>A petition in bankruptcy, to which were attached exhibits which might readily have been made a part of the petition, defective because of such failure, will not be dismissed without opportunity to amend.</p> <p>9. Bankruptcy <s=»92 — Petition—Exhibits.</p> <p>Accounts attached to a petition in bankruptcy cannot be reached by a. motion to dismiss in the nature of a demurrer, unless they were made part of the petition by proper reference.</p> <p>10. Bankruptcy <®==>92 — Claims—Dismissal.</p> <p>Where petition in bankruptcy alleged that petitioners rendered services to bankrupt, the fact that accounts attached to the petition as exhibits showed that the services were rendered to the bankrupt and others furnishes no ground for motion to strike such claims.</p> <p>11. Perpetuities <§==>6(11) — Rule Against — Conveyance in Trust.</p> <p>An agreement or declaration of trust, whereby trustees acknowledged that they held the property for the benefit of the grantor’s mortgage creditors, his individual creditors, and for the holders of certificates of shares in an unincorporated association, provided for issuance of certificates to the grantor and others, and for the declaration of dividends, etc., and authorized the trustees to borrow money and dispose of any or all of the trust property. The agreement provided that the trust should continue for 27 years. Meld, that conveyances and assignments made to give effect to the trust did not violate the rule against perpetuities forbidding property to be-withdrawn from sale for a period longer than • a life or lives in being, and 21 years thereafter; the rule being directed against the withdrawal of land from sale, and the trust agreement not withdrawing such property from sale.</p> <p>12. Bankruptcy <@=576(3) — Assignments—Amendments of Assignments.</p> <p>Where creditors failed to attack, as a general assignment, the original conveyance and assignment within four months thereafter, the fact that the grantor subsequently executed a second instrument," which shortened the period of the trust, and in some respects enlarged the trustees’ powers, will not warrant the creditor in urging that the second instrument constituted an act of bankruptcy; it being a mere amendment of the first.</p>

At Raw. Action by'James C. Birdsall and others against the Delaware & Hudson Company. On rule to show cause why a fi. fa. should not issue to enforce collection of judgment.

<p>In Equity. Bill by the Peninsular Naval Stores Company, a corporation, against J. I. Tomlinson and W. N. Fender.</p>

At Raw. Action by C. S Brady against the J. B. McCrary Company. On motion by defendant for leave to amend petition for removal and by plaintiff to remand to state court.

At Raw. Action by James F. Sullivan against the Atlantic Coast Line Railroad Company, a corporation. On demurrer to the declaration and motion to compel plaintiff to separate causes of action in three counts of the declaration.

At Law. _ Action by the United States against the Grand Rapids & _ _ Indiana Railway. The following stipulation of facts was agreed to: (1) That the defendant is, and was during all the times mentioned in said causes of action, a common carrier engaged in interstate commerce by railroad, in the state of Michigan.

In Bankruptcy. In the matter of C. Edward Snell, bankrupt. On application for extension of time to file application for discharge. This is an application by the bankrupt for an order extending the time in which to file his application for a discharge, more than 18 months from the date of adjudication having expired, but the application for such extension being made within 19 months of the adjudication. ■

<p>In Equity. Suit by Simon Borg & Co. and others against New Orleans City Railroad Company and others.</p>

At Raw. Action by William F. Hiiiman. against Thomas F. Barrett. On motion by defendant to amend removal petition so as to allege the diverse citizenship of the parties to the action.

<p> (Syllabus by the Court.) </p> <p>1. Army AND Navy &wkey;>22 — Enlistment—Expiration.</p> <p>Under the provisions of (be National Defense Act June 3, 1916, c. .134. 39 Stilt. 166, upon the expiration of his enlistment an enlisted man is noi automatically furloughed to the reserve.</p> <p>2. Army and Navy &wkey;>22 — Enlisted Man — Acts of Captain.</p> <p>No act or acts done bj a company captain, or no act or acts of the company captain and the enlisted man, without the approval of the Wiir Department, can operate as a discharge of the enlisted man, or as a furlough to the reserve.</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>3. Army and Navy <&wkey;24 — “FuiiLoinur.”</p> <p>“Furlough,” as a noun, means “(1) Leave of absence; esp., leave given to a soldier or, sometimes, a government official or employe, to be absent from the. service for a certain time; also, the document granting the leave of absence. In the United States army furloughs are given only to enlisted men, officers being given leaves of absence. In the United States navy furlough is an extended leave of absence, or a suspension from duty by ail executive order, on hall; loave-of-absence pay, given only to an officer. (2) A permit or passport.” As a transitive verb, it means “to grant a furlough to; broadly, to allow leave of absence to.”</p>

In Bankruptcy. In the matter of the bankruptcy of G. Franklin Stringer, individually and as sole surviving partner of Stringer & Company. Application by creditors to require the trustee to pay a dividend declared.

<p>1. Admiralty <&wkey;21 — Jurisdiction—Actions for Injuries Causing Death-Law Governing.</p> <p>Tile law of a state giving a right of action for wrongful death may be enforced in admiralty, but in such case, where the death occurred on the high seas, the law of the state of the owner’s .residence governs, and not that of the charterer, although it was the employer of the deceased, and the vessel was temporarily registered there, unless there was deception as to the ownership.</p> <p>2. Master .and Servant <&wkey;S8S — Workman’s Compensation — New Jersey Statute.</p> <p>The Workmen’s Compensation Act of New Jersey of 1911 (P. L. p. 134), by section 2, provides a method of compensation to dependents in case of the death of an employs, which, if accepted, shall be. exclusive of any other, and which shall be presumed to have been adopted in every contract of hiring, in the absence of an express agreement or notice by one party to the other to the contrary. It further provides that “compensation under this schedule shall not apply to alien dependents not residents of the United States,” and repeals all inconsistent laws. Held, that the right of recovery for the death of an alien seam'an, where no mention of the subject was made in the contract of employment, and no notice given, was governed by said section 2, to the exclusion oí the Death Act of 1818 (P. L. p. 151), and that where the wife and children of the deceased were nonresident aliens there could be no recovery.</p>

<p>In Bankruptcy. In the matter of Goyette & Bavigne, bankrupts. Review of order of referee disallowing certain claims.</p>

Clarence P. Bowers was convicted of'violating Pen. Code 1910, § 215, by using the mails in connection with a scheme to defraud, and he brings error. In an indictment containing three counts, Olarence P. Bowers and others were charged with a violation of section 215 of the Penal Code of 1910. Bowers was convicted under the second count, and asks review under writ of error. The indictment was filed January 10, 1913.

<p>1. Raileoads <&wkey;54 — Right to Change Location of Road.</p> <p>Where a railroad has been constructed and operated for 40 years, it could not be changed to a location several miles from the original location, for a distance of 20 miles, without legislative authority.</p> <p>2. Courts <&wkey;>366(7) — Decisions of State Courts — Force in Federal Courts.</p> <p>Const. Ala. 1901, § 246, provides that no railroad in existence at the time of the ratification of such Constitution shall have the benefit of any future legislation, other than in execution of a trust, except on the condition of complete acceptance of all the provisions of that article. Held, that the holding of the Supreme Court of Alabama that no written acceptance of the Constitution is necessary is binding on a federal court.</p> <p>3. Railroads <&wkey;54 — Right to Change Location of Road.</p> <p>Where a Kentucky railroad corporation complied with Const. Ala., § 232, imposing conditions on foreign corporations doing business in the state, and for many years transacted business in Alabama, and availed itself of the benefits of the general statutes of that state, it accepted the provisions of the Constitution of 1901 as required by section 246, so as to entitle it-to the right given to railroad corporations to relocate their line of railroad by Act Ala. Feb. 18, 1903 (Laws 1903, p. 131), asi amended by Act. Aug. 20, 1909 (Laws 1909, p. 62).</p> <p>4. Railroads <&wkey;33(l) — Foreign Corporations — Domestication.</p> <p>Acts Tenn. Dec. 4, 1851 (Laws 1851-52, c. 23), giving a Kentucky railroad corporation authority to construct a railroad between certain points in Tennessee, and to exert some of its corporate powers, and recognizing ' the railroad as a Kentucky corporation, did not make it a corporation of both Kentucky and Tennessee.</p> <p>5. Railroads <&wkey;5A — Right to Change Location of Road.</p> <p>Where the charter of a Kentucky railroad corporation, though not in express terms,, authorizing it to relocate its line of road, contained no prohibition against such relocation, the company could relocate its line of road in Alabama, providing the laws of Alabama permitted it to do so, as the change in location is peculiarly a subject of local control, especially as the Kentucky statutes authorize railroad companies to relocate their roads.</p> <p>6. Railroads <&wkey;&l — Right to Change Location op Road.</p> <p>Where the original termini of a railroad were Decatur and Montgomery, a change in such road for about 20 miles, to a new location several miles distant, was not in violation of Act Ala. Feb. 18, 1903, as amended by Aug. 20, 1909, authorizing railroad companies to relocate their line, but providing that they shall not change the termini or make an entire departure from the original line between such termini, as the statute refers to the original termini of the road, and not to points on the line between which there is a relocation of the track.</p> <p>7. Railroads <&wkey;54^-ItiGHT to Change Location op Road.</p> <p>Though some of the land upon which a railroad was constructed was granted by the United States to the state for the benefit of such road, the permission of Congress was not necessary in order to lawfully relocate the line of road, this being a matter for state legislation.</p> <p>8. Railroads <&wkey;72(S) — Contracts as to Location op Road — Perform an cm or DSEA.01I.</p> <p>Where deeds to a railroad right of way recited that the building, erecting, and running of the railroad on and along the land was a part of the consideration, the building of the road on such land and its maintenance for 40 years was a compliance with the contract, and its removal to a new location after more than 40 years was not a breach of the contract.</p> <p>9. Railroads <&wkey;72(3) — Contracts as to Location of Road — Construction.</p> <p>Where a railroad company conveyed to plaintiff land in the immediate vicinity of its road, which he devoted to the cultivation, and growth of commercial peach and tipple orchards, a recital in the deed that valuable improvements to be put on the land conveyed were a part of the consideration, did not amount to a contract on the part of the railroad to forever maintain and operate its line of road in its then condition, though the change in location of the road greatly damaged plaintiff’s fruit business.</p> <p>10. Railroads <&wkey;54 — Change op Location — Injury to Members op Public.</p> <p>A change in the location of a railroad, under legislative authority, gives a member of the public no common-law right to damages, any injury sustained by him being damnum absque injuria. -</p> <p>11. Eminent Domain &wkey;>2(X) — Acts Constituting Exercise op Power op Eminent Domain.</p> <p>A railroad company, by changing the location of its road did not take, injure, or destroy property in the vicinity of the old location, within Const. Ala. 1901, § 235, providing that municipal and other corporations, invested with the privilege of taking property for public use, shall make just compensation for the property taken, injured, or destroyed by the construction or enlargement of their works, highways, or improvements.</p> <p>12. Pleading <&wkey;339 — Plea in Abatement — Withdraw ai>-Discretion.</p> <p>It was within the trial court’s discretion to allow defendant to withdraw its plea in abatement and file an answer, especially where, on plaintiff’s own theory, a plea in abatement was an unauthorized pleading.</p> <p>13. Appeal and Error <@=>1070(1) — 'Trial <&wkey;>323 — Harmless Error — Verdict.</p> <p>A verdict signed by one juror, by direction of the court, was sufficient, and plaintiff was not prejudiced because the jurors wore not all required to sign or permitted to select their own foreman to sign it for them.</p>

Appeals from the District Court of the United States for the Southern District of New York. Suit in admiralty for collision by Smith Shipping Company, Incorporated, owner of the schooner Augusta W. Snow, against the steamship Robert M. Thompson, American Transportation Company, claimant, with cross-libel. Decree for libelant, and claimant appeals.

<p>Appeal from the District Court oí the United States for the District of Oregon; Robert S. .Bean, Judge.</p> <p>Suits in equity by V. A. Paine, as trustee of the Kake Trading & Packing Company, a corporation, against the Sanborn-Cutting Company, a corporation, and others. Prom a decree for plaintiff, as trustee, against the Sanborn-Cutting Company, the latter appeals.</p>

McCall, Judge. Action by Mollie Quirk against the 'Bank of Commerce & Trust Company, executor of the estate of Patrick Kallaher, deceased. There was a judgment for defendant on demurrer to the declaration, and plaintiff brings error.

<p>Appeal from the District Court of the United States for the Southern Division of the Southern District of California; Oscar A. Trippet, Judge.</p> <p>Suit by the United Real Estate & Trust Company, a corporation, against Rucien A. Blochman and others. From the decree entered, plaintiff appeals.</p>

Bean, Judge. Criminal prosecution by the United States against H. H. Riddell. Judgment of conviction, and defendant brings error.

Cushman, Judge. Action at law by the American Surety Company of New York, a corporation, against Peter Sandberg and Mathilda Sandberg, his wife. To review a judgment (225 Eed. 150) dismissing the action as to Mathilda Sandberg, plaintiff brings error.

Dooling, Judge. Suit in admiralty by Martin H. A. F.lvers and Frederick A. E. Zimmer, owners of the ship Schwarzenbek, against W. R. Grace §z Co., a corporation. Decree for respondent on exceptions to libel, and libelants appeal. Libelants are engaged in business in the city of Hamburg, Germany, as copartners under the firm name and style of Knohr & Burchard, Nil., and are the owners of the steel ship Schwarzenbek.

Dyer, Judge. In the matter of the Hargadine-McKittrick Dry Goods Company, voluntary petitioner in bankruptcy. Christian J. Zeitinger and others appeal from an order of adjudication and an order denying their right to intervene.

<p>In Error to the District Court of the United States for the District of New HampshireEdgar Aldrich, Judge.</p> <p>Action at law by Emiel Pernod against the International Cotton Mills. Judgment for plaintiff, and defendant brings error.</p>

<p>Aliens <8=71 Now. vol. 7 Key-No. Series — Naturalization—Cancellation of Certificate — Grounds.</p> <p>Act June 29, 1906, c. 3592, § 4, 34 Stat. 596 (Comp. St. 1916, § 4352), provides that the petition for naturalization shall be verified by the affidavits of at least two credible witnesses, who shall state in their affidavits, that they have personally known the applicant to be a resident of the United States for at least five years continuously, and that they have personal knowledge that he is of good moral character and qualified to be admitted as a citizen. Section 5 (Comp. St. 1916, § 4353) provides that the clerk shall, if requested, issue a subpoena for the witnesses named by the applicant, but that, in ease such witnesses cannot be produced upon the final hearing, other witnesses m'ay he summoned. JleliJi that, where one of the witnesses verifying a petition of naturalization testified on the hearing that he had not known the applicant for five years, the substitution in his place of another witness, whose affidavit was not attached to the petition at the time of its filing, was such a departure from the law as caused the certificate of naturalization to be illegally procured and subject to cancellation.</p>

<p>In Error to the District Court of the United States for the District of Oregon; Charles E. Wolverion, Judge.</p> <p>Action hy the Pacific Machinery Company against E. T. Meyer. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the District of Montana; Geo. M. Bourquin, Judge.</p> <p>Action by David Clement against the Chicago, Milwaukee & St. Paul Railway Company and others. Judgment for plaintiff, and defendants bring error.</p> <p>The defendant in error was plaintiff in the court below in this action, there brought against the present plaintiffs in error as defendants, to recover for the loss of his son’s earnings from the time that he was run over and killed l>y an engine of the Chicago, Milwaukee & Puget Sound Railway Company to the time he would otherwise have attained his majority. The jury awarded the plaintiff: damages in the sum of $2,500, which amount the trial court ruled, on motion made for a new trial, was exeosssive to the extent of .111,000. The excess was remitted by the plaintiff under permission granted ir. an order of the court, and judgment was entered for the plaintiff for $1,500 and costs.</p>

<p>In Error to the 'District Court of the United States for the District of Nebraska; F. A. Youmans, Judge.</p> <p>Criminal, prosecution by the United States against Thomas H. Matters. Judgment of conviction, and defendant brings error.</p>

<p>Appeal from the District Court of the United States for the First Division of the Northern District of California; Maurice T. Dooling, Judge. _</p> <p>_ Petition for habeas corpus by Tom Yuen against Edward White, as Commissioner of Immigration at the Port of San Erancisco. From an order for petitioner’s discharge, the Commissioner of Immigration appeals.</p>

<p>1. Aliens <&wkey;32(2) — Deportation—Jurisdiction of Executive Department.</p> <p>A Chinese alien who secured admission into the United States in violation of any of the provisions of Immigration Act Feb. 20, 1907, c. 1134, 34 • Stat. 898, may be deported on an order of the Commissioner of Labor under section 20 of that act (Comp. St. 1916, § 4269), at any time within three years.</p> <p>2. Aliens <&wkey;32(8) — Proceedings fob Deportation — Fairness of Hearing.</p> <p>Proceedings for deportation of a Chinese person held not unfair, and an order of deportation held sustained by the evidence.</p>

Rose, Judge. Suits in admiralty for collision by C. W. Visser, master and claimant'of the steamship Samarinda, and the Kingdom of the Netherlands, against the steamer Brandon, the New England Coal & Coke Company, claimant, with cross-libel against the Samarinda. Decree for respondent and cross-libelant, and libelants appeal.

Dooling, Judge. Habeas corpus by Quan You, otherwise known as Low June, against Edw'ard White, Commissioner of Immigration at the port of San Francisco. .From an order dismissing the petition, petitioner appeals.

<p>1. Aliess &wkey;32(il) — Hearing on Application bob Entry — Uehearings.</p> <p>On application of a Chinese alien for entry, the commissioner has jurisdiction to order rehearings until the facts are sufficiently developed to afford a basis for his judgment.</p> <p>2. Aliens <&wkey;82(12) — Deportation of Chinese — Denial of Admission— Fairness of Hearing.</p> <p>An order denying admission to this country of a Chinese alien held to have been made after a fair hearing and to be sustained by the evidence.</p>

<p>Public Lands <&wkey;120 — Suit fob Cancellation of Patent — Proof of Fraud.</p> <p>A finding of the trial court on conflicting evidence, on the trial of a suit for the cancellation of a homestead patent, that the evidence did not support the allegations of fraud, aflirmed.</p>

Appeals from the District Court of the United States for the District of Delaware; Edward G. Bradford, Judge. Suit in equity by the Minerals Separation, Limited, against the Miami Copper Company. Decree in part for each party, and both appeal.

Suit in equity by tiie Frank P. Smith Metal Window Hardware Company against John W. Yates. From an order and decree adjudging defendant in contempt for violating a decree granting an injunction against manufacture and sale of sash pivots for windows, defendant appeals. He also seeks to review the District Judge’s action in deny- ing a rehearing of the motion to punish for contempt.

Suit in equity by the O. K. Tool Holder Company against J. H. Williams & Co. Decree for defendants, and complainant appeals. On appeal from a final decree dismissing the bill which alleged the infringement by the defendant of letters patent No. 802,206, granted October 17, 1905, to Charles W. Grant, assigned to the complainant. The complainant appeals from that part of the decree which dismisses the bill for noninfringement.

<p>In Equity. Suit by Louis De F. Munger against the Perlman Rim Corporation. On final hearing.</p>

<p>1. Patents <©^117 — Suit foe Infringement — Title to Support.</p> <p>The issuance of a patent to one named as assignee of the applicant is prima facie evidence of title in such assignee.</p> <p>2. Patents <®=^328 — Invention—Process of Basting Shoes.</p> <p>The Davis patent, No. 749,267, for improvement in the art of lasting boot or shoe uppers, the .object of the described process being to form a box toe is void, as not distinctly disclosing anything novel and pal entablo over the process as previously practiced.</p> <p>3. Patents ©»328 — Validity and Infringement — Box Toes for Shoes.</p> <p>The Butterfield patents, No. 1,070,406, for a method of making stiffened foreparts of boot and shoe uppers, and No. 1,124,694, for a box toe, the product of such process which by using a stiffening composition in the fibrous toe blanks that may be softened sufficiently for lasting merely by the application of a degree of heat not injurious to leather, were not anticipated and diselose a meritorious invention, which effects a saving in time and cost of manufacture over old processes; also held infringed.</p> <p>4. Patents <S=>27(1) — Anticipation'—Patents in Nonanalogotjs Arts.</p> <p>«That a patentee has taken an idea from a prior inventor does not necessarily negative invention, where he has adapted it to perform a different function in a nonanalogous art.</p>

<p>In Equity. Suit by the J. E. Baker Company against the Kennedy Refractories Company and others. On final hearing.</p>

In Equity. Suit by John F. Wagner against the Mt. Carmel Iron Works for infringement of letters patent No. 977,087, for a jig for coal washers, granted to Henry W. Falkner, Franklin Schultz, and John F. Wagner on November 29, 1910.

<p>In Equity. Suit by Erank E. Mix! against the National Envelope Company. Hearing on bill, answer, and proofs.</p>

<p>In Equity. Suit by the General Electric Company against the Independent I,amp & Wire Company.</p>

<p>1. Bankruptcy <&wkey;140(l) — Property oe Bankrupt — Reservation oe Title —Constructive Notice.</p> <p>Tlie petitioner, owner of hotel property, contracted to sell to B., who assigned the contract to a corporation, which later contracted with the F. company to install an ice-making plant and machinery on the premises. By the contract the F. company was to retain title until the machinery was paid for, the machinery to remain personal property. Both of the contracts were duly recorded. Pursuant to the contract of purchase and assignment, petitioner conveyed all of the property, real and personal, to the corporation, and received a purchase-money mortgage. Later the corporation was adjudged a bankrupt and a trustee appointed. The trustee quitclaimed to the petitioner, and later ordered petitioner to-pay to the F. company the purchase money or deliver to it the machinery, etc. Gen. St. Fla. 1906, § 2516, provides that the reservation of title under-a written contract recorded is valid against purchasers or creditors. Held, that the fact that the petitioner recognized the assignment to the bankrupt and made a deed pursuant to the contract did not give it actual or constructive knowledge of the reservation of title by the F. company.</p> <p>2. Bankruptcy &wkey;>140(l) — Reservation oe Title — Constructive Notice.</p> <p>The recording of the contract prior to the conveyance to petitioner and the acceptance of the mortgage to secure the purchase money was constructive notice of the reservation of title and binding on petitioner.</p> <p>3. Notice <&wkey;5 — Constructive Notice — Recording oe Instruments.</p> <p>The recording of an instrument not entitled to record is not constructive notice of its contents.</p> <p>4. Fixtures &wkey;>22 — ^Reservation oe Title — Contract—-Validity.</p> <p>A contract, reserving title in fixtures placed on land, is valid and binding as between the parties and any one dealing with the realty with knowledge thereof.</p>

<p>At Law. Action by William F. MacGlashan and Harry S. Lewis, doing business under the firm name of Northern Paper Company, against Samuel M. Langston. On motion to amend plaintiffs’ complaint, by asserting additional cause of action of the same nature, kind, and quality as that alleged in the original complaint, and growing out of the same transaction.</p>

In Admiralty. _ Two suits — one by Paul Neilsen and others against the Rhine, the other by John Hardy and others against the Windrush.

<p>1. Seamest <&wkey;>23 — Wages—Right to Part Payment — Advances.</p> <p>Wages earned, to half of which Seamen’s Act March. 4, 1915, e. 153, § 4, 38 Stat. 1165 (Comp. St. 1916, § 8322), declares a seaman entitled on arriving at a port before end of voyage, are unaffected by advances before wages are earned, which the act declares unlawful, and provides shall not affect liability for full payment of wages after they are earned.</p> <p>2. Seamen &wkey;>24 — Wages-—Part Ijayment at Intermediate Ports.</p> <p>Under Seamen’s Act March 4, 1915, c. 153, § 4, declaring a seaman entitled on demand to receive half of the wages he shall have eárnod at every port where the vessel, after voyage shall have commenced, shall load or deliver cargo before the voyage is ended, provided that such a demand shall not be made before the endi of, nor oftener than once in five days, he, when entitled to make a demand, is entitled to payment of enough, and only enough, taken with what had already been paid, to make up half of what he had earned up to that time.</p> <p>3. Seamen <§=»24 — Wages—Payment at Intermediate Port — Time or Demand.</p> <p>Under such section the demand need not be postponed till five days after arrival at a port, but merely must be not less than five days after the last preceding demand.</p>

<p>In Equity. Suit by, M. S. Jennings and others against Zadock Smith and others. On application to take testimony.</p>

In Equity. Suit by Emile K. Boisot, trustee, against the Amarillo Street Railway Company, in which the city of Amarillo intervened. The plaintiff trustee, alleging himself to be the holder of $125,000 first mortgage bonds of the defendant company, asked the appointment of a receiver. The company filed answer admitting the facts alleged, and with its consent a receiver was appointed.

In Bankruptcy. In the matter of John M. Cross, bankrupt.' Claim of the City National Bank of Syracuse, as pledgee, for proceeds of goods, allowed.

In Equity. Actions by John A. S. Brown and Frank E. Schermer-horn, as trustee for Clara Schermerhorn, under the last will and testa-meqt of Thomas Cunningham, deceased, against Austin B. Fletcher, as testamentary trustee of Conrad Morris Braker, under the last will and testament of Conrad Braker, Jr., deceased, and Conrad Morris Braker.

At Law. Consolidated actions by David S. Hagler and others against the Security Mutual Life Insurance Company. On motions to quash the service of summons.

In Bankruptcy. In the matter of Del T. Sutton, bankrupt. Petition for the review of an order of the referee in bankruptcy granting the petition of Fred W. Haines for the reclamation of five motors claimed by the trustee to belong to the bankrupt estate.

<p>In Equity. Suit of interpleader by the Penn Mutual Fife Insurance Company against Winifred Henderson and others. On motion to dismiss bill.</p>

<p>1. Trade-Marks and Trade-Names <&wkey;98 — Unfair Competition — Recovery of Profits— Showing of Lost Sales.</p> <p>A showing of lost profits in a trade-mark or unfair competition case is not the foundation of plaintiff’s right of recovery, and in an unfair competition case plaintiff was entitled to recover profits though it did not show any lost sales.</p> <p>2. Trade-Marks and Trade-Names <&wkey;93(l) — Unlawful Competition — Presumption.</p> <p>There was a prima facie presumption that the sales of all dust cloths by defendants bearing wrapper, packing, etc., infringing on the wrapping and packing of plaintiff’s goods, and so constituting unfair competition, were due to the wrapping, packing, etc., and any contrary evidence should have been produced by defendants.</p> <p>3. Trade-Marks and Trade-Names &wkey;>98 — Unlawful Competition — Disal-lowance of Cost Items to Defendant.</p> <p>In a suit for unlawful competition by selling dustless dusters in wrapper, packing, etc., resembling those on plaintiff’s, the master properly disallowed all cost items of the defendant which manufactured the infringing goods, such defendant stating in its affidavit that it was unable to state the exact profits on any one branch of goods manufactured, since damages in unfair competition suits include all sales made of the goods sold in the simulated trade-mark or package in violation of the original proprietor’s rights, so that the question as to the exact profits of any one branch of the goods manufactured is immaterial, especially where it could not be ascertained with any reasonable certainty how much was due to the trade-mark and how much to the intrinsic value of the commodity.</p> <p>4. Trade-Marks and Trade-Names <&wkey;98 — Unfair Competition — Prima Fa-cie Account.</p> <p>In a suit for unfair competition by selling dustless dusters packed so as to simulate plaintiff’s, defendant’s account and affidavit, presented before the master under Court Rule 63 (198 Fed. xxxvii, 115 O. C. A. xxxvii;, showing first, the amount of sales, second, that some profits were made and third, that defendant’s treasurer could not more than estimate the amount, made a prima facie account for plaintiff, casting the burden of proof on defendant.</p>

In Bankruptcy. In the matter of the D. & E. Dress Company, Incorporated, alleged bankrupt. On motion to remove an assignee for the benefit of creditors and to appoint a receiver in the bankruptcy proceeding.

In Bankruptcy. In the matter of the distribution of the consideration upon a confirmation of compositions in bankruptcy in the cases of Joseph N. Newbold, D. H. Horsley, and the Woman’s Shop, involuntary bankrupts.

<p>At Law. Action by E. E. Eubanks against the Southern Railway Company. On demurrer to third amended plea.</p>

<p>1. Health ©=>11 — Regulations by Boabds of Health — Review by Courts.</p> <p>Regulations made by a state board of health under legislative authority may be reviewed hy the courts only upon the question of their reasonableness, and if a responsible, honest, and presumably reasonable body of professional opinion is found on the side of the regulation, it must be upheld.</p> <p>2. Constitutional Law ©=>117 — Health ©=>21 — Obligation of Contracts —Police Powers of States.</p> <p>A regulation promulgated by a state board of health, composed of physicians from different localities in the state, prohibiting “fairs, Chautau-quas, street carnivals or circuses” until further notice, when based on the professional opinion of the members of the board that such gatherings are likely to cause the spread of infantile paralysis, is a reasonable regulation within the police powers of the state, and not invalid as in violation of the constitutional provision against impairment of the obligation of contracts, although its effect may be to prevent the performance of contracts.</p> <p>3. Constitutional Law ©=G3(2) — Legislative Powers — Delegation to Local Authorities.</p> <p>Laws 1917, Vt., c. 194, authorizing local health officers to “forbid and prevent the assembling of people in any place where the state board of health deems that the public health and safety so demand,” held not unconstitutional as a delegation of lawmaking powers.</p>

<p>1. Bankruptcy <@=>326 — Set-On?—Claim of Accommodation Indorser of Bankrupt’s Note.</p> <p>The trustee in bankruptcy, having paid the note of the bankrupt, cannot set off the amount thereof against the claim of an accommodation maker or indorser of the note.</p> <p>2. Subrogation <s=>2 — Applicability—Accommodation Indorsee.</p> <p>The doctrine of subrogation cannot be invoked to render the accommodation maker or indorser of a note liable to the person who was primarily obligated.</p>

Bean, Judge. Suit in equity by Mrs. Glenn D. Hart and Glenn D. Hart against the W. C. Harding Rand Company, Walter Adair, J. T. Eppcrly, James P. Burns, R. S. Green, and I,. B. Wallace. Decree for complainants against the corporation defendant, from which it appeals, and for the individual defendants, from which complainants appeal.

<p>Appeal from lire District Court of the United States for the District of Kansas; John C. Pollock, Judge.</p> <p>Suit in equity by Caroline Bauer and others against John Q. Myers and others. Decree for defendants, and complainants appeal.</p>

<p>1. Homestead <&wkey;118(5) — Conveyance—Validity.</p> <p>Under Gen. St. Minn. 1913, § 6961, declaring that if the owner he married no mortgage of a homestead except for purchase money unpaid thereon, nor any sale or other alienation thereof will be valid without the signature of both husband and wife, a conveyance by a husband or wife without the spouse joining is void as to the homestead though it may be valid as to other property included therein.</p> <p>2. Descent and Distribution <&wkey;52(2) — Surviving Wife — Rights of.</p> <p>V?h.ere iand mortgaged by a husband alone was sold on judicial sale before his death, his widow will not, under Gen. St. Minn. 1913, § 7238, relating to descent and distribution, take any interest therein.</p> <p>3. Evidence <&wkey;451, 452 — Pakol Evidence Rule.</p> <p>Parol evidense is admissible to explain a latent ambiguity in a deed, though not to explain a patent ambiguity, for that would practically abolish the sanctity of deeds.</p> <p>4. Evidence <&wkey;462 — Parol Evidence Rule — Admissibility.</p> <p>A firm of contractors suffered considerable loss on a contract, the performance of which was guaranteed by plaintiff surety company. Thereafter one of the partners and his wife executed a trust deed in favor of plaintiff surety, reciting that the property should be held in trust for the purpose of securing the surety against any'and all liability of every kind that may arise by reason of any bond or indemnity of any kind or nature which the surety may hereafter execute indemnifying or securing, or in any manner obligating it to pay as surety or otherwise any sum of money on account of any contract of the contracting. Arm. The partner's wife had declined to sign a deed of trust upon the family domicile for any past indebtedness, but she executed the above deed of trust which was prepared by the surety. After execution of the deed of trust, the trustee gave indemnifying bonds to firm creditors who were induced to accept firm notes payable in one year for the claims arising under the contract. Held, that the deed of trust was ambiguous, and pa-' rol evidence was admissible to show its scope as to the wife.</p> <p>5. Homestead &wkey;115(l) — Deeds op Trust — Construction. "</p> <p>In such case, as the trust deed should be most strongly construed against the trustee, it having been prepared by it, and as its agent knew of the wife’s refusal to sign a deed which should subject her homestead, to claims for past indebtedness, the homestead is not, despite the execution of new bonds which covered the past indebtedness, and the surety’s satisfaction of claims arising on such bonds, subject to foreclosure under the deed of trust</p> <p>8. Mortgages <&wkey;ll4 — Deeds of Trust — Construction.</p> <p>In such case, as the husband and partner consented to subjecting his homestead to past indebtedness, and as he could validly incumber other portions of his real property without the consent of the wife, such deed of trust is valid as to property other than the homestead, the husband having after the execution of the trust deed consented to the trustee’s construction by executing notes for tlio past indebtedness to secure payment of which the trustee executed new bonds, this being particularly true as the lands were located in Minnesota, and Gen. St. Minn. 1918, § 7907, declaring that any judgment of the federal District Oourt shall become a lien on such lands of the judgment debtor as are located in the county where it is docketed and lands in any other county when duly docketed with the clerk of the district court in the county in which they are located, made the judgment against the husband a lien on such lands.</p> <p>7. Subrogation <&wkey;7(l) — Surety—Eight to.</p> <p>A surety paying an obligation of the principal is entitled to be sub-rogated to the rights of creditors.</p> <p>Hook, Circuit Judge, and Amidon, District Judge, dissenting in part.</p>

F. Clemons, Judge. Action by S. M. Kanakanui, William R. Castle, and William R. Castle, as trustee for S. M. Kanakanui, against the United States. Judgment for the United States, and plaintiffs bring error.

<p>1. Courts <&wkey;266 — Federal Courts — Issuance os Process — Territorial Limitations.</p> <p>A contempt proceeding originated in a petition brought by the complainants in an equity suit, alleging a violation by the defendants of an injunction granted in such suit and asking that defendants be ordered to appear and show cause why they should not be attached and punished for contempt for such violation. Such an order to show cause was issued and served, and answers filed, and thereafter a notice, signed by plaintiff’s solicitors, was addressed to those for defendants, stating that the petition and answer in the contempt proceedings pending in ‘‘said cause” would he called up for hearing, and that the depositions of certain defendants would be read and one of the defendants examined. An order was entered, reciting the various proceedings, finding that certain of the defendants had violated the injunction, and ordering that an attachment issue for their arrest. All of such orders and papers were entitled and numbered in the equity suit. Meld, that the proceeding was civil in Its nature, and, under Judicial Code (Act March 3, 1911, c. 231) § 51, 36 Stat. 1101 (Comp. St. 1916, § 1033), providing that, except as otherwise provided, no person shall be arrested in one district for trial in another in any civil action, the District Court for the Eastern District of Wisconsin had no authority to issue its writ to the marshal for the district of Massachusetts for the arrest of certain defendants and their removal to Wisconsin.</p> <p>2. Courts &wkey;>266 — Federal Courts — Issuance os Process — Territorial Limitations.</p> <p>Judicial Code, § 262 (Comp. St. 1916, § 1239), authorizing the District Courts to issue all writs not specifically provided for by statute which may be necessary for the exercise of their respective jurisdictions and agreeable to the usages and principles of law, did not authorize the Wisconsin court to issue its writ for the arrest oE defendants in Massachusetts and their removal to Wisconsin, oven though the proceeding was a criminal one, as that section does not authorize the issuance of process to run beyond the limits of the court’s territorial jurisdiction, but, merely designates the form or character of writs which the court may issue within such territory.</p>

<p>In Error to the District Court of the United States for the Northern District of Ohio; John H. Clarke, Judge.</p> <p>Action by Frank B.. Davis and another against the Carnegie Steel Company. Judgment for defendant, and plaintiffs bring error.</p>

<p>1. Frauds, Statute of <&wkey;44(l) — Contracts—Performance Within a Year.</p> <p>Plaintiff, a corporation engaged in the business of marine insurance brokerage, in 1911, placed the insurance on defendant’s vessels covering their voyage from the Great Hakes to the seacoast, and also covering their operation on the coast. Plaintiff was personally liable for the premium on only some of the policies; defendant being directly liable to the insurers for other premiums. In November, 1911, premiums for that year not having been paid, plaintiff and defendant, after various negotiations, agreed that plaintiff should have defendant’s marine insurance business for the nest two years, subject to defendant’s approval of the rates at which the insurance should be written, and that plaintiff should forbear immediate suit for premiums paid by it, and should pay the underwriters, on defendant’s account, the 'balance of the 1911 premiums. The agreement also provided that defendant should have an extension of credit until July, 1912, or thereabouts; payments being made at such times and in such amounts as defendants reasonably could, the whole indebtedness to be discharged by July, 1912. Held, that, as the number of defendant’s vessels might vary from time to time, and as plaintiff was to have the business of insuring such vessels subject to approval of rates, the contract was not one to be performed within a year.</p> <p>2. Frauds, Statute of c&wkey;H8 — Memoranda—Sufficiency.</p> <p>Where the only memoranda.of the terms of the contract were contained in letters, which did not set .forth the terms of the contract as to the extension of credit and did not provide for payment by the plaintiff of the premiums on policies, where defendant was directly liable, the memoranda were not sufficient to take the case out of the New York statute of frauds, declaring that every agreement, promise, or undertaking not to be performed in one year from the making thereof is void, unless it or some note or memorandum be in writing and subscribed' by the party to be charged, or by his agent.</p>

Dooling, Judge. Habeas corpus by Chin Ah Yoke, alias Jane "Doe, against Edward White, Commissioner of Immigration for the port of San Francisco. From an order dismissing the petition, petitioner appeals.

Action by the United States against the Indiana Harbor Belt Railway Company for violation of the Hours of Service Act. There was a judgment for the United States, and defendant brings error.

<p>In Error to the District Court of the United States for the Southern Division of the Southern District of Illinois.</p> <p>Action by the United States against the Chicago & Alton Railroad Company. Judgment for the United States, and defendant brings error.</p>

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Suit in equity by the T. D. Smith Company, the Jaeger Machine Company, and the Waterloo Cement Machinery Corporation against Edward Foster. Decree for complainants, and defendant appeals.</p> <p>By the decree of the District Court appellant is enjoined from continuing the infringement of claims 5, 16, 17, 18, 28, 30, 31, and 32 of patent No. 803,721, issued on November 7, 1905, to appellee the T. B. Smith Company, as as-signee of the applicant, Thomas L. Smith, for a machine to mix concrete. The other appellees are joint, exclusive licensees of the Smith Company. Appellant is the owner and user of a single machine, which was manufactured and sold to him by the Cement Tile Machinery Corporation of Waterloo, Iowa, which is defending this suit.</p> <p>Figures X and 3 of the drawings are as follows:</p> <p>[[Image here]]</p> <p>[[Image here]]</p> <p>Smith’s specific description of the form which is stated in the- patent to be the preferred form discloses a polyhedric mixing receptacle and a tiltable supporting frame which is in a plane at right angles to the receptacle’s axis of revolution. To the specific details of this preferred form many claims were addressed, of which claim 24 may be taken as illustrative:</p> <p>“In a mixing machine, the combination of a polyhedric mixing receptacle, a tiltable frame supporting said receptacle, means for tilting said frame to any position in the entire circle of its revolution, a gear attached to the periphery of said receptacle, said gear having supporting surfaces and guiding surfaces whereby said receptacle is completely centered and guided, and means for applying the power to said gear in any position of said receptacle and tilt-able frame.”</p> <p>But the specification pointed out that the form of the mixing receptacle was not of the essence of the general inventive concept, and stated that a recepta cl o of any desired shape might be employed. Likewise, with respect to the preferred form of frame which entirely surrounds the revolving receptacle and supports it by means of rolls 17 fitting into the U-shaped annulus “¿'¿, the specification stated that the invention in its general aspect might be enjoyed by the use of a tiltable frame of “any desired form adapted for supporting the mixing receptacle,”</p> <p>None of the claims counted on in this suit is limited to the specific form of receptacle or tiltable frame or of the annulus on the receptacle.</p> <p>Claim 5: “In a mixing machine, the combination of a receptacle provided with means for charging and discharging the same, a ring or annulus around the receptacle and provided with teeth forming an annular rack, a tiltable frame in which the receptacle is revolubly supported, said frame provided with xn'ojecting trunnions mounted rotatably in suitable bearings, one of said trunnions being tubular, a shaft extending through the tubular trunnion and provided on its inner end with a gear-wheel engaging the annular rack bar of the ring or annulus, and means for rotating said shaft.”</p> <p>Claim 16: “In a mixing machine, the combination oí a mixing receptacle having one clear and unobstructed opening for feed and discharge, concentric, or substantially so, with the axis of revolution, a tiltable frame in which the receptacle is revolubly supported, means for tilting the frame to any po"-i-fion in the entire circle of its revolution, whereby the receptacle may be filled from any point above it and discharged either from the right-hand side, or the left-hand side of the machine.”</p> <p>Claim 17: “In a mixing machine, the combination of a mixing receptacle, means for imparting to said receptacle a continuous rotation, a tillable frame revolubly suporting such receptacle, moans for tilting said frame to any position in the entire circle of its revolution, and means for holding said frame in any position.”</p> <p>Claim 18: “In a mixing machine, the combination of a mixing receptacle, a tiltable frame revolubly supporting said mixing receptacle, means for tilting said frame to any position in the entire circle of its revolution, and means for continually revolving said receptacle while in any tilted position, or while moving from one position to another.”</p> <p>Claim 28: “In a mixing machine, the combination of a mixing receptacle having one clear and unobstructed opening for feed and discharge, concentric or substantially so, with the axis of revolution, a tiltable frame supporting said receptacle, means for tilting said frame either to the right, or to the left of the loading point, a gear on said mixing receptacle, and means for applying power to said gear in any position of said frame and receptacle.”</p> <p>Claim 30: “In a mixing machine, the combination of a mixing receptacle having one clear and unobstructed opening Cor feed and discharge concentric or substantially so, with the axis of revolution, a tiltable frame supporting said receptacle, means for tilting said frame either to the right or to the left of the loading point, a gear disposed ai’ound'the middle of said receptacle, and means for applying power to said gear in any position of said receptacle and tiltable frame.”</p> <p>Claim 31: “In a mixing machine, the combination of a mixing receptacle having one clear and unobstructed opening for feed and discharge concentric, or substantially so, with the axis of revolution, a tiltable frame supporting said receptacle, means for tilting said frame either to the right or to the left of the loading point, a gear on the largest diameter of said receptacle, and means for applying power to said gear in any position of said frame and receptacle.”</p> <p>Claim 32: “In a mixing machine, the combination of a mixing receptacle having one clear and unobstructed opening for feed and discharge concentric, or substantially so, with the axis of revolution, a tiltable frame supporting said receptacle, means for tilting said, frame either to the right or to the left of the loading point, a circular tool hod rack disposed around the middle of said receptacle, a bevel pinion engaging said toothed rack and journaled in the tilting axis, and means for connecting said pinion with, the source of power.”</p> <p>The commercial machines of the respective parties are substantially alike. We subjoin a cut of the Waterloo mixer:</p> <p>[[Image here]]</p>

<p>In Equity. Suit by Jean A. Re Roy and Chester R. Baird against the Nicholas Power Company. On final hearing.</p>

<p>In Bankruptcy. In the matter of the involuntary petition against J. W. Lavery & Son, alleged bankrupts. On objections to the report of the referee finding that the alleged bankrupts were not insolvent.</p>

<p>1. Statutes <&wkey;225% — Presumptions to Aid Construction.</p> <p>Congress must he presumed to have enacted the proviso of Indian Appropriation Act March 2, 1917, c. 140, 39 Stat. 969, 970, for the forfeiture of vehicles used in introducing intoxicants into the Indian country, whether used by the owner thereof or other persons, with knowledge of the construction placed by the courts upon Rev. St. § 2140 (Comp. St. 1916, § 4141), as not authorizing the forfeiture of anything but the interest of the guilty person in such vehicles.</p> <p>2. IndiaKS <&wkey;3S — Introducing Liquor into Indian Country — Eorfeiture or Veiuci.es.</p> <p>In the light of the construction placed by the courts upon Rev. St. § 2140, the proviso of Indian Appropriation Act March 2, 1917, authorizes the forfeiture of automobiles and other vehicles used in the introduction of liquor into Indian country, whether the one so using them was the owner or his agent or servant, or some person who, having secured possession of the vehicle from the owner, was using it in this unlawful purpose without the owner’s knowledge or consent; and hence, where a mortgagee of an automobile permitted the mortgagor to retain possession, his interest as mortgagee did not prevent the forfeiture of the automobile, because used by the mortgagor in introducing such liquor into Indian country.</p> <p>3. Indians i&wkey;35 — Introducing- Liquor into Indian Country — Statutory Provisions.</p> <p>Act March 1, 1895, c. 145, 28 Stat. 693, 697, prohibiting the Introduction of liquor into Indian Territory, is still in force, so far as it relates to shipments from points outside the state of Oklahoma into any portion thereof formerly constituting Indian Territory.</p> <p>4. Indians &wkey;>35 — Introducing Liquor into Indian Country -Statutory Provisions.</p> <p>The proviso of Indian Appropriation Act March 2, 1917, authorizing the forfeiture of automobiles or other vehicles used in introducing intoxicants into Indian territory, or where such introduction is prohibited by treaty or federal statute, whether used by the owner or other person, was within the power of Congress to enact.</p> <p>5. Indians <&wkey;35 — Introducing Liquor into Indian Country — .Searches.</p> <p>The proviso of Indian Appropriation Act March 2, 1917, does not enlarge the right of officers to search for intoxicating liquors without warrant In other than Indian country.</p>

Application by George F. Montgomery for a writ of habeas corpus to obtain his release from detention under a Governor’s extradition warrant.

<p>1. Habeas Corpus <&wkey;13 — Grounds or Remedy — Detention on Extradition Warrant.</p> <p>A person held on an executive warrant for extradition to another state may test the legality of his detention under article 4. § 2, of the federal Constitution by habeas corpus proceedings in a federal court.</p> <p>2. Habeas Corpus <&wkey;30(2) — Evidence—Extradition Proceedings.</p> <p>If any one count in an indictment charges a crime under the laws of the state, it is sufficient to sustain extradition proceedings against the accused, when attacked in a habeas corpus proceeding.</p> <p>3. Habeas Corpus <&wkey;92(2) — Scope oe Inquiry — Extradition Proceedings.</p> <p>In habeas corpus proceedings for the discharge of a prisoner held on an extradition warrant, the technical sufficiency of the indictment on which the warrant was issued is not open to question, but is a matter to be determined by the courts of the demanding state.</p> <p>4. Conspiracy <&wkey;23 — Definition.</p> <p>Conspiracy exists where two or more persons combine and agree together to do an unlawful act, or to do a lawful act by the use of unlawful means.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, Eirst and Second Series, Conspiracy.]</p>

<p>At Raw. Action by Rouise Martin against the Matson Navigation Company, Miles R. Clarke, and Charles W. Snyder. On demurrers to complaint. Demurrer of defendant Snyder sustained.</p>

<p>1. Corporations <@=3486 — Mortgages—Contract with Bondholders of Subsidiary Corporation.</p> <p>, A canal company, organized and controlled by a railroad company, issued mortgage bonds upon wliich tbe railroad company indorsed an agreement to purchase such interest coupons as should not be paid at maturity by the canal company. The mortgage provided that from its net income the canal company should first set aside $20,000 annually, if the income amounted, to so much, as a sinking fund for the payment of the principal of the .debt, to be invested in the bonds or other good securities. In a foreclosure suit it was adjudged that the unpaid coupons, including those purchased and held by the railroad company, were entitled to priority of payment over the principal,of the bonds from the proceeds of the mortgaged property. In a subsequent suit by bondholders it was found that net income which by the terms of the mortgage should have been paid into the sinking fund had been diverted to the payment of coupons, relieving the railroad company to that extent from its agreement to purchase the same, and the railroad company was required to restore such sums. Held, that such restored fund was applicable, first, to the principal of the bonds for whose payment it was created.</p> <p>2. CORPORATIONS <@=3486 — MORTGAGES—SINKING FUND — DISTRIBUTION.</p> <p>’ As the sinking fund was created for the benefit of the bondholders as a class, all bonds, including those held by the railroad company, were entitled to share in the restored fund. '</p> <p>3. Corporations <@=3486 — Mortgages—Suit to Recover Sinking Fund — Expense of Recovery. .</p> <p>The suit having been brought by one bondholder, for the benefit of all who might come in and share in the expense, to compel a restoration of the money diverted from the sinking fund, the railroad company, although the defendant from whom the fund was recovered, could only come in as a distributee on payment of its share of the expense of recovery.</p> <p>4. Corporations <@=3482(9) — Representative Suit by Bondholders — Counsel Fees.</p> <p>The allowance by the master of a fee to complainant’s counsel, based on the entire amount which the decree required the railroad company to restore to the sinking fund, held excessive, where about one-fifth of the bonds were owned by the railroad company, and hence were not really in controversy.</p>

<p>1. CORPORATIONS <@=>817(1) — DISSOLUTION-EFFECT.</p> <p>The dissolution of a corporation is equivalent to the death of a natural person.</p> <p>2. Monopolies <@=28 — Injuries—Action.</p> <p>An action under Sherman Anti-Trust Act July 2, 1890, e. 647, § 7, 26 Stat. 210 (U. S. Conip. St. 1916, § 8829), for treble damages for injuries to person or property by reason of unlawful monopoly, is one for a personal wrong, and sounds in tort.</p> <p>3. Courts <@=>389 — Following State Laws — Abatement and Revival.</p> <p>Local state statutes in respect to abatement and survival of actions have no application to an action depending solely upon a statute of the United States.</p> <p>4. Courts <@=>339 — Survival or Action — Common Law.</p> <p>Where there is no federal statute, either preventing or permitting the survival of an action depending solely on a federal law, the rules of common law, which include .judicial opinions, even the most modem, on points not regulated by statute, must be looked to, to determine whether the action survives.</p> <p>5. Abatement and Revival <@=>57 — Survival—Common Law.</p> <p>An action for treble damages, brought under Sherman Anti-Trust Act, § 7, based on combinations in restraint of trade, survives the death of the'person or ■ dissolution of a corporation injured, being an action for injuries to property, which might have been assigned; the modern rule being in favor of assignmeht of actions, and tort actions for injuries to property which were assignable surviving.</p> <p>6. Abatement and Revival <S=»73 — Corporations—Revival op Action— Parties.</p> <p>Where, on dissolution of a corporation, the state court appointed a trustee, who was in all respects the equivalent of an assignee, such trustee may be substituted as plaintiff in an action previously instituted by the corporation to recover treble damages under Sherman Anti-Trust Act, § 7, for injuries occasioned by a violation of the act.</p>

At Raw. Proceeding by the State of Washington, on the relation of the City of Tacoma, a municipal corporation, for a writ of mandamus against the Tacoma Railway & Power Company, in which J. F. Fitch and others intervened. On petition of defendant, the cause was removed from the state court, where it was instituted, to the federal court. On motion to remand.

<p>J. R. Reynolds was indicted, and demurs to the indictment.</p>