Volume 245 — Federal Reporter

<p>1. Internal Revenue <§=»9 — Corporations—Income Taxes.</p> <p>Though a corporation and a number of subsidiary corporations all of whose stock (except directors’ shares) it owned were engaged in a common enterprise, where the corporation and each of the subsidiaries attended to its own branch of the enterprise, and each of the subsidiary corporations owned its own assets, carried on its own business, owed its own debts, paid its own taxes and enjoyed its own income, there was no such identity between the main corporation and the subsidiaries as to render a dividend received by the main corporation from the subsidiaries nontaxable under Corporation Excise Act Aug. 5, 3909, c. 6, 36 Stat. 112, and Income Tax Act Oct. 3, 1913, c. 36, 38 Stat. 114.</p> <p>2. Internal Revenue <S^9 — Corporations—Income Taxes.</p> <p>, Where the subsidiary corporations had accumulated earnings, none of which had become capital, but which had been used in carrying on the several enterprises in which the companies were engaged, but which had been sometimes used to aid others of the subsidiary corporations, instead of being used to promote the particular business that had earned them, and the subsidiary corporations declared dividends, which were not paid in cash, but were paid by the main corporation taking over the debtor and creditor accounts existing among the subsidiary corporations, the property received by it was received as a dividend, and was taxable under the Corporation Excise Art of 1909 and the Income Tax Act of October 3, 1913; it being immaterial that one of the stockholders received almost all of the dividend, or that the stockholder in question was itself a corporation, and not an individual.</p>

Dietrich, Judge. Suit by the Twin Falls Salmon River Rand & Water Company, a corporation, and another, against the Vineyard Rand & Stock Company, a corporation. From the decree entered, defendant appeals.

Dietrich, Judge. Suit by the Twin Falls Oakley Land & Water Company, a corporation, and another, against the Vineyard Land & Stock Company, a corporation, and another. From the decree, defendants appeal.

<p>In Error to, and Appeal from, the District Court of the United States for the Southern District of Ohio; John E. Safer, Judge.</p> <p>Ancillary suit by Edward E. Taylor, Jr., as receiver, against Dennis Kelly and others. Sherman T. McPherson and Harley E. Burns appeal from an order entered on motion of the Attorney General of the United States.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Michigan; Arthur J. Tuttle, Judge.</p> <p>In Admiralty. Suit by Henry Moss against the Globe Steamship Company, owner of the steamer Frank C. Ball. Decree for libelant, and respondent appeals.</p>

<p>In Error to the District Court of the United States for the Southern District of Iowa;. Martin J. Wade, Judge.</p> <p>Action at law by the United States against the Minneapolis & St. Tonis Railroad Company. Judgment for the United States, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the Second Division of the Northern District of California; Benj. F. Bledsoe, Judge.</p> <p>Action by C. P. Anderson against the Quicksilver Mining Company, a corporation. There was a judgment for plaintiff, and defendant brings error.</p>

<p>1. Guaranty <§=391 — Payment of Guaranteed Account — Evidence.</p> <p>Evidence held to show that plaintiff did not buy a guaranteed account hut, at the request of one of the guarantors, paid it.</p> <p>2. Guaranty <@=361, 65 — Payment of Guabanteed Account — Effect.</p> <p>A guaranteed account being not bought but paid by plaintiff at request of one of the guarantors, it and the guaranty are thereby satisfied.</p> <p>3. Guaranty <@=361, 65 — Payment of Account — Revival.</p> <p>A guaranteed account, with the guaranty satisfied by payment thereof . by plaintiff at request of one of the guarantors, is not revived by subsequent assignment thereof to him.</p> <p>4. Trial <§=o139(1) — Takino Casio from Jury — Insufficient Evidence.</p> <p>A case is properly taken from the jury and dismissed where the evidence. conceding all the inferences which the jury can justifiably draw from it, is insufficient to warrant a verdict.</p>

M. Bourquin, Judge. Suit by the First Trust & Savings Bank and another, trustees, against the Bitter Root Valley Irrigation Company and Flans B. Knudsen and another. From an order sustaining plaintiffs’ motion to strike a defense (237 Fed. 733), the last-named defendants appeal.

<p>Appeal from the District Court of the United States for the Northern Division of the Eastern District of Washington; Frank H. Rudkin, Judge.</p> <p>Suit by W. H. Reid against the Great Northern Railway Company. From a decree for complainant, defendant appeals.</p> <p>The appellee herein, who was complainant below, was, on and prior to May 10, 1.915, in the employ of the appellant, the Great Northern Railway Company, as a cook on one of its work trains. While the company was moving the car on which appellee was working about the switch, it was derailed, and he was thrown against the sink in the car. The top cover of the stove fell upon Ms right foot, and, withal, he received certain physical injuries. To recover damages for such injuries as he received, he instituted an action against the company. The company by its answer pleaded a release of liability executed by appellee. The release is in language following:</p> <p>“Know all men by these presents, that in consideration of the sum of ton and no/100 dollars to mo in hand paid by the Groat Northern Railway Company, the receipt whereof is hereby acknowledged, have released, acquitted, and discharged, and do by those presents release, acquit, and discharge, said railway company, its successors and assigns, of and from any and all liability, causes of action, costs, charges, claims, or demands, of every name and nature, in any manner arising or growing out of, or to arise or grow out of, personal injuries received by me (W. J. Keid) at or near Geyser, in the state of Montana, on or about the 10th day of May, 1915, while acting as a cook, I met with an accident whereby I sustained personal injuries, or arising, or to arise, out of any and all personal injuries sustained by me at any time or place while in the employ of said railway company prior to the date of these presents. No promise of future employment has been made to me by said railway company as part consideration of this settlement and release, or otherwise.”</p> <p>The back of the release contains an indorsement in appellee’s handwriting, namely:</p> <p>“I have red within Releas before signing and fully understand that the sum of ten dollars is in full settlement of all claim of every kind.</p> <p>“W. ,T. Reid.”</p> <p>In addition, appellee signed a voucher which contained substantially this provision:</p> <p>“For and in consideration of any and all claims, past, present, and prospective, against the Great Northern Railway Company, arising or to grow out of personal injuries received by me at or near Geyser, Montana, on or about May 10, 3915, $10.00.”</p> <p>For the purpase of having the release canceled, this suit was instituted against the company. Among other things, it is alleged, in effect, that appellee suffered the following injuries: A double inguinal hernia, a broken arch of the right foot, a severe wrench of the back, a severe shock to the nervous system, and, as resulting from such injuries, a semi-paralyzed condition of both legs; that on the same day the claim agent of the company took appellee to the office of its physician and surgeon, who, upon a cursory examination of appellee, informed Mm that his injuries were slight, and amounted to nothing more than a nervous shock and a slightly sprained ankle and instep, that he would be entirely recovered in a day or two; and that the claim agent would give him $19, representing two or three days’ work, and would hold open his position for him ; that appellee accepted the $10 from the claim agent, for no other purpose than as pay for Ms time, and signed, the papers in question. It is further alleged that, at the time of signing the papers, appellee was not aware that he had broken the arch of his right i'oot, or had suffered double inguinal hernia, or any oilier injury which might cause any disability to Ms earning power, and that such or any injuries were never taken into consideration by Mm at tbe time of signing tbe documents in question, nor by tbe claim agent of tbe company.</p> <p>Tbe appellee’s testimony is quite brief. He says:</p> <p>“Tbe trucks ran off tbe. rails, and practically masbed tbe biggest part of tbe disbes. Tbe top of tbe stove fell across my foot, and it threw me up bodily against tbe sink, which was near tbe side of tbe car, and it burt me. I got burt on my foot, and I was shaken up completely, my nerves, nervous shock, and I have been sick practically ever since. Worked a little off and on. * * * They took me to tbe doctor’s office in an automobile; examined my foot, bound it up, and told me I was badly shaken up, and said, ‘You will be all right to work to-morrow, if necessary.’ Just examined my foot, that was all. * * * And. after tbe doctor examined me tbe claim agent took me right up to bis office. He asked me to sign some papers. I don’t know what they was. I was too confused. I can’t remember one thing I signed, or anything. Q. State what be said to you. A. Why, be said it was necessary to send these back to St. Paul. That is what be said to me. Q. Did be offer you any money? A. No; be said, ‘You better take $10 for to get some liniment,’ and something like that — $10 to get some liniment to rub on my feet. Q. Did be say anything to you about your working or anything? A. Yes; be did; said I could just stay around town two days and go back to work whenever I wanted to. I have stated everything that tbe doctor told me about my condition then. * * * I believed tbe statements made to me in regard to my condition by the doctor. * * * Q. When did you first know, Mr. Eeid, that you had a double hernia? A. I don’t know now. Tbe next day; I' didn’t know what it was. I discovered something down there where it burt. I bad a very small rupture before on tbe right side, about tbe size of a marble. I bad worn an elastic truss. Q. Had you ever been bothered with it? A. Never; part of tbe time I would leave it in bed— wouldn’t use it. When I went from Geyser to Great Falls, my foot was swollen up, so it burt me, and X cut my shoe- right up there. It swelled up a bit; bandaged it up. I went back to work that same day, because tbe doctor told me there was nothing tbe matter with me.”</p> <p>As to tbe writing, be says be just looked it over; that be could not read very well, and just signed it as it was written, and that it was not read to him. On cross-examination, be testified that be had bad a hernia on tbe right side for three years before.tbe accident, and told bow be came by it. As to the hernia on tbe left side, he said it did not bother him much — it was only a small one.</p> <p>Dr. Downs, who examined appellee on February 26, 1916, states that Eeid was suffering from a right and left inguinal hernia; was in a very nervous condition, and very poorly nourished; bad a slight swelling in the right foot, wbicb be found to be a flatfoot. Tbe hernia on tbe right side was tbe larger one; tbe one on tbe left not so large — about tbe size of a walnut. Tbe arch on Ms foot was flattened out and broken down. This condition generally prevailed as to his left foot.</p> <p>Dr. Longeway, tbe company’s physician, testified that be examined appellee on tbe day of tbe accident; that appellee told him be bad a bruise about tbe shoulder and arm; that be examined Ms foot, and found that it was injured and bruised, and tbe ankle slightly sprained — and continued as follows: “He was walking on it; walked on it to tbe office. I asked him about Ms arm, and be said that didn’t amount to anything. I asked him to take off bis coat, and be said that didn’t amount to anything; bis injuries were not bad and be wouldn’t take off bis coat and let me examine it He said that be would be all right; be was. just bruised about the right arm and shoulder. Consequently be didn’t take off bis coat, and I didn’t examine his arm. He said it didn’t amount to anything and would be all right. I bandaged his foot and told him to stay around two or three days- and let me watch him. ‘No,’ be said, ‘it is all right.’ He wanted to get right back to work, and be left my office, and that wds tbe last I ever saw of him. His right foot then was practically the same as it is now, except it was more swollen around tbe ankle at that time than it is now. He bad a pretty flat foot. * * * He didn’t at that time complain to me about any hernia, or any other injury than these that I have testified to. * * * I didn’t make any statement to him that ho could go right back to work; that his injuries were slight. ® ® * I believed he would be all right in a lew days.”</p> <p>P. B. Foley, the claim agent, testified that, after appellee had been to the doctor’s office, Burton brought him into his office, and then as follows: ‘T asked him, ‘Hid the doctor look you over?’ He said, ‘Yes. sir.’ I said, ‘What did he tell you?’ ‘He said my ankle was sprained a little; said he thought it would ,i>e all right in a little while, and advised me to stay around a few days.’ ‘Well,’ I said, ‘I think you better do that.’ I said, ‘I think you better stay around here a few days and have the doctor attend you.’ Ho says: ‘No; I am anxious to get back to the job. I will be all right; it is a little sprain; I will be all right; I want to get back on the job.’ I says, ‘All right; suit yourself.’ Then I said, ‘Well, what do you want us to do for you?’ He hesitated a little while, and he says: T don’t know. I will only lose this day.’ Then I says, ‘Well, I would like to know what you want us to do for you in settlement, that is in the line of settlement.' He says. ‘Well, how will i?10 do?’ ‘Well,’ I says, ‘if that is what you want,’ I says, ‘it is all right.’ ” The release and oilier papers were then made out and signed. Burton corroborates this statement.</p> <p>Hr. H. P. Marshall, who made a recent examination, found appellee suffering from arteriosclerosis, double inguinal hernia, and double ilatfoot.</p>

Appeals from the District Court of the United States for the Northern District of Illinois. Suit by the United States against the American Press Association and others. From decrees dismissing the petition and auxiliary bill of the American Press Association, certain parties appeal.

Action by Addison Q. Thacher against the City of Port Washington. There was a judgment for plaintiff, and defendant brings error. Action at law to recover damages arising out of express contract. Verdict and judgment for the plaintiff.

Campbell, Judge. O. E. Bandy was convicted of introducing and carrying into the state of Oklahoma intoxicating liquor from without the state, and he brings error.

Suit by the Masses Publishing Company against Thomas G. Patten. From an order granting an injunction pendente lite, defendant appeals. On motion to stay injunction.

Suit by Joseph F. Guffey and others against James A. Smith and others. From the decree, denying complainants relief sought, they appeal.

<p>Bankruptcy <®=»467 — Composition—Review—Finding.</p> <p>An order of the trial court, confirming the referee’s report overruling objections to composition, based on the ground that bankrupt had obtained credit by means of a materially false written statement, will not be disturbed on appeal, where the evidence did not clearly show that the trial court was wrong.</p>

<p>1. Witnesses @=220 — Privileged Communications — Preliminary Questions.</p> <p>Though the letter be privileged, error cannot be predicated on the overruling of objection on that ground to the preliminary question to-defendant whether the signature to the letter shown him was his.</p> <p>2. Post Office @=>49 — Use of Mails — Fraudulent Scheme — Evidence.</p> <p>The indictment for using the mails to promote a fraudulent scheme, charging it to be to solicit from physicians the collection of accounts on percentage, and then to convert all the collections, admission in evidence of defendant’s advertisement to sell a half interest in a business paying more than a certain amount per month, if tending to show, as it may, that he had madp representations in the advertisement which he could make good only by appropriating collections in accordance with the scheme charged, is not reversible error.</p> <p>á. Criminal Law @=901 — Motion to Dismiss — Waiver.</p> <p>Defendant’s motion, at the conclusion of the prosecution’s evidence,, to dismiss, was waived by introduction of evidence on his behalf, and by his failure to move for an instructed verdict at the dose of the evidence.</p> <p>4. Criminal Law <§=31023(18) — Appeal—Review—Denial of New Tbial.</p> <p>The Circuit Court of Appeals cannot review denial of defendant’s motion for new trial.</p> <p>5. Ckiminal Law <S=1054(1>- -Appea r, — Review—Exceptions.</p> <p>Rulings in admitting and refusing to strike evidence cannot be reviewed ; exceptions not having been taken thereto.</p>

Action by José Maria Torres Pastoriza and others against the Plazuela Sugar Company, begun in the district court for Porto Rico, where the complaint was dismissed. On appeal to the Supreme Court for Porto Rico, there was a judgment for plaintiffs, and defendant appeals and brings error.

<p>In Error to the District Court of the United States for the Western District of Missouri; Arba S. -Van Valkenbtirgh, Judge.</p> <p>Action by Harvey H. Shoemaker against the Kansas City, Clinton & Springfield Railway Company. Judgment for plaintiff, and defendant brings error.</p>

Action by Melvin Pfeil, a citizen and resident of the state of Ohio, against Samuel C. Jamison, a citizen and resident of the state of Pennsylvania. There was a judgment for defendant, and plaintiff brings error.

At Law. Action by one Van Choate against the General Electric Company. /On motion by Georgiana C. Van Choate, administratrix, for leave to appear and prosecute the action.

<p>In Equity. Suit by the Intercontinental Rubber Company against the Boston & Maine Railroad. On application for appointment of permanent receiver.</p>

<p>Receivers <@=>90 — Temporary Receivers — Payments eor Preservation op Status Quo.</p> <p>It is the duty of a temporary receiver of a railroad company to preserve the property in statu quo as nearly as practicable, and where the defendant had recognized its obligation under the lease of a leased line to pay interest on notes ^of the lessor, and the failure to pay maturing interest; would raise a serious question of the right of the lessor to forfeit .the lease for such nonpayment, the receiver may properly be instructed to advance the money to the lessor to make such payment, reserving the right to a permanent receiver to disaffirm the lease, and to all parties in interest to litigate any question arising out of it in the further progress of the case.</p>

<p>1. Landlord and Tenant @=>79(2) — Assignment of Lease — Rights of Assignee.</p> <p>Even though an assignment or transfer of a lease by a partnership to one of its members was not a breach of the covenant therein against assignment without the lessor’s consent and gave the lessor no right to avoid the lease, the assignee nevertheless took the lease subject to such covenant.</p> <p>2. Landlord and Tenant @=>76(2) — Assignment of Lease — Breach of Covenants.</p> <p>An adjudication in bankruptcy against a partnership operates as a transfer to the trustee by operation of law of a lease held by one of the partners, within a covenant in the lease authorizing the lessor to avoid the lease and retake possession if tho lessee should become bankrupt, or if the lease should pass by transfer, operation of law, or otherwise from the lessee to any other party without the lessor’s written consent, even though tho partnership alone, and not the members of the firm, was adjudged a* bankrupt.</p> <p>3. Landlord and Tenant @=>104 — Right to Avoid Lease — Transfer by Operation of Law.</p> <p>A lease may be so framed that a transfer by operation of law will avoid it, at the lessor’s option.</p> <p>4. Landlord and Tenant @=>112(1) — Transfer of Lease — Waiver of Ifon-FEITURE.</p> <p>"Where the receiver in bankruptcy of a partnership was in the possession of leased premises from the date of the filing of the petition until possession was taken by the trustee, and the lessor did not assume any position inconsistent with his right to avoid the lease, or do any act which could be construed as waiving such right, but notified tho partnership and the members thereof of his election to avoid the lease, and appeared and filed an answer claiming that the lease had been forfeited, and asked for an order surrendering the premises to him, he did not waive his right to avoid the lease under a provision therein authorizing him to avoid it in . case of a transfer by operation of'law or otherwise, as he could not avail himself of the right accorded him by the lease to retake possession while the premises were in the possession of the receiver.</p>

In Equity. Four suits, one by the Brooklyn Heights Railroad Company, one hy the Brooklyn, Queens County & Suburban Railroad Company, one by the Coney Island & Brooklyn Railroad Company, and the other by the Nassau Electric Railroad Company, all against Oscar S. Straus and others, the Public Service Commission of the Stale of New York for the First District, and others.

<p>In Bankruptcy. In the matter of Felix Wiback and others, bankrupts. On applications for a discharge.</p>

In Admiralty. Libel by John B. Breymann and another, doing business as George H. Breymann & Bros., owners of the scow B. B. No. 19, 'against the Argentine steamship Pampa and her engines, boilers, tackle, etc. On order to show cause why the vessel should not be released from custody. The Argentine naval transport Pampa was in collision with mud scow B. B. No. 19 on August 11, 1917, off Scotland Lightship.

In Bankruptcy. In the matter of the bankruptcy of Gottlieb & Co. On review of referee’s order adjudging that the bankrupt’s transfer of book accounts to Adolph M. Rosenberg was void.

<p>In Equity. Bill by Mary C. Albert and others against Alpheus W. Bascom and others. On motion to dismiss.</p>

<p>1. Removal of Causes <§=>.12' — Right to Behove — Actions Between Citizens.</p> <p>An action between citizens of different states cannot be removed to the federal court, under Judicial Code (Act March 3, 1911, c. 231) § 28. 36 Stat. 1094 (Comp. St. 1916, § 1010), unless the court to which removal is sought would have had jurisdiction, under section 51 (section 1033), had the action been instituted therein.</p> <p>2. Removal of Causes <@=106 — Jurisdiction—Waiver.</p> <p>Where an action between citizens of different states is removed to a federal court, which would not have had jurisdiction under Judicial Code, § 51, the objection to the court’s want of jurisdiction is waived, whenever the party objecting to removal appears for any purpose, except to object to the jurisdiction over his person.</p> <p>2. Courts ©=^90(4) — Precedents—Judicial Code.</p> <p>While those sections of the Judiciary Act of 1887 (Act March. 3, 18S7, c. 373, 24 Stat. 552), as amended in 1888 (Act Aug. 13, 18SS, e. 866, 25 Stat. 433), relating to the jurisdiction of federal courts, removal of causes and venue have been to some extent changed in phraseology, the act having been divided into numerous sections by the Judicial Code, the scope of the act was not changed, and decisions under the Judiciary Act have the same effect as if decided under the Judicial Code.</p> <p>4. Removal of Causes ©=o102 — Rioht of Removal — Jurisdiction of Federal Court — “Inhabitant.”</p> <p>Judicial Code, § 24 (Comp. St. 1916, § 991), declares that District Courts shall have original jurisdiction of suits between citizens of different states, and between citizens of a state and foreign states, citizens, or subjects. Section 28 declares any suits of which the District Courts are given jurisdiction by the Code may be removed by the defendant or defendants therein, being nonresidents of the state where instituted. Section 51 declares that no civil suit shall be brought in any District Court against any person by any original process or proceeding in any other district than that whereof he is an inhabitant, but where the jurisdiction is founded only on diversity of citizenship suit may be brought in the district of the residence of either plaintiff or defendant. An alien sued defendant, a foreign corporation, in the courts of a state other than that of its domicile. On petition of defendant the cause was removed to the federal District Court. Held, that, as plaintiff was an alien, he was not an inhabitant of the state in which suit was instituted, for the word “inhabitant,” as used in section 51, is synonymous with “citizen” or “resident,” and in its application to corporations refers to the state in which they were chartered, and hence the motion to remand must be denied, though the District Court cannot, in an action between citizens of different states, entertain jurisdiction under petition to remove, where suit could not originally have been brought therein, for suit in this case might have been brought in District Court to which the action was removed; the restrictions not applying because of plaintiff’s alienage.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Inhabitant.]</p>

At Law. .Action by Anzonetta M. Lloyd against the Royal Union Mutual Life Insurance Company.

<p>Removal of Causes <g=»12 — Right of Removal — Construction of Statute.</p> <p>Where a federal District Court has jurisdiction of a suit by reason of diversity of citizenship and the amount in controversy, and such suit is brought in a state court of a state of which defendant is not a resident, his right to remove the cause into the federal court for that district given by section 28 of Judicial Code (Act March 3, 1911, c. 231, § 28, 36 Stat. 1091 [Comp. St. 1916, § 1010]) is absolute, and cannot be contested by plaintiff on the ground that he could not have brought the suit in that court over defendant’s objection.</p>

<p>In Bankruptcy. In the matter of C. N. Burg, alleged bankrupt.</p>

At Law. Action by the United States- against the Chicago, St. Paul, Minneapolis & Omaha Railway Company to recover from the defendant railway company the penalty provided for an alleged violation of the Twenty-Eight Hour Law, as amended by Act Cong. June 29, 1906, c. 3594, 34 Stat. 607.

In Admiralty. Suits for collision by John D. Lohman, owner of the barge Lohman, and by Charles H. Castle, owner of the steam canal boat Haines, against the steam tug Daniel McAllister.

In Bankruptcy. In the matter of the bankruptcy of Robert Einstein. George D. Chapman, ancillary receiver, having presented his account as receiver, prayed that it be settled and allowed, and his compensation and that of his attorneys fixed and allowed.

<p>In Equity. Suit by the Nulornoline Company against Julius Stromeyer. Trial hearing on bill, answer, and proofs.</p>

<p>At Law. Action by the Cleveland & Western Coal Company, a corporation, against J. H. Hillman & Sons Company, begun in a state court and removed to the federal court. On motion by defendant to discharge attachment.</p>

<p>1. Costs <§=304 — Criminal Prosecution.</p> <p>Costs, to payment of which Rev. St. § 974 (Comp. St. 1916, § 1615), provides defendant shall be subject, when judgment shall be rendered against him in prosecution for a fine or forfeiture, are those of the trial -under indictment, and do not include those of the preliminary examination, which is not part of the prosecution, and which by provision of section 1014 (section 1674) is “at the expense of the United States.”</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Costs.]</p> <p>2. Statutes <§=219 — Construction—Extrinsic Aids — Attorney General’s Opinion.</p> <p>Courts will follow the construction of a statute by the Attorney General only when it was contemporaneous and uniform, and the statute was ambiguous.</p>

<p>1. Bankruptcy <@=»il6 — Reclamation Petitions — Hearing.</p> <p>Where the referee’s certificate separated and distinguished the claims of several creditors, each of whom petitioned to reclaim goods in the possession of the receiver in bankruptcy, on the ground that they did not belong to the bankrupt, the fact that the referee heard the reclamation petitions together was not an abuse of discretion.</p> <p>2. Bankruptcy <©=?140(2) — Conditional Sale — Passage ok Titus.</p> <p>Whether an arrangement whereby possession of goods was transferred, 'from one to another is a conditional sale, a consignment, or a sale on credit, depends less on how it is described by the parties than on the rights and liabilities created by it, and where the seller delivered goods1 to the buyer, authorizing the buyer to dispose of them and retain the purchase price, the fact that the transaction was denominated a consignment, or a conditional sale, does not prevent title passing; ownership being acquired, and the provisions that title should not pass being fraudulent as to the buyer’s creditors.</p> <p>3. Bankruptcy <§=>140(1) — Evidence—Passage of Title.</p> <p>On petition of creditors of a bankrupt to reclaim goods, on the theory that title had not passed, evidence held to show that the sales were sales on credit, and title passed.</p> <p>4. Bankruptcy <§=>116 — Proceedings—Perjury—Inferences.</p> <p>Where a petition for reclamation of goods delivered by petitioner to a bankrupt was of a suspicious character, and supported by testimony which the referee might rightly believe to be perjured, it is proper to draw every adverse inference from the evidence, and resolve all reasonable doubts against the petitioner.</p> <p>5. Bankruptcy <§=>140(2) — Reclamation Petitions — Fraud on Creditors.</p> <p>An agreement between a seller and buyer of goods that title should not pass is unavailing, being fraudulent as to creditors, where not intended to be acted on unless the buyer should get into financial difficulties.</p>

In Bankruptcy. In the matter of the bankruptcy of the Mobile Chair Manufacturing Company. Petition by C. M. Kirk, II. L. McConnell, and H. S. Davies for review of an order of the referee denying the payment of interest and attorney’s fees claimed by petitioner.

<p>Carriers <§=>1S0 — Carriage of Live Stock — Rates—Tariffs.</p> <p>In an action by a railroad company to recover balances due as freight for shipments of cattle, published tariffs held to show that a differential rate from the point of shipment to a central point should be collected; provisions for charging rate from central point in case of shipments routed in a particular way not applying.</p>

In Bankruptcy. In the matter of the bankruptcy of Charles R. Francisco. On order to show cause why further proceedings supplementary to execution on a judgment obtained in the state court prior to the filing of the petition in bankruptcy, including proceedings to punish the bankrupt for alleged contempt, should not be stayed until the question of discharge should be determined.

At Law. Action by Mary T. Murphy against John Clark Mitchell. On application to require plaintiff to make her complaint more definite and certain.

<p>In Bankruptcy. In the matter of the bankruptcy of Louis A. Kaplan. On application for discharge.</p>

<p>1. Bankruptcy @=»252 — Compromise by Trustee — Approval b'y Court.</p> <p>A corporation's schedules in bankruptcy included a steam shovel valued at, $2,500. At a sale ot the bankrupt’s assets, II., the receiver in bankruptcy, withdrew the steam shovel, claiming title thereto. The bankrupt’s officers testified that the steam shovel had been sold to II. six months before the petition was filed; but it did not appear that H. was present at the time of the sale, that any price had been agreed on or delivery made, and the only documentary evidence of the sale consisted of an entry on the bankrupt’s books and a bill for the shovel sent to H. H.’s son was the company’s vice president, and the company was heavily indebted to H. Hold, that the circumstances were such as to throw upon H. the burden of proving his title, and the trustee’s compromise of the claim of the estate against H. for 8500 would not be approved, under Bankruptcy Act July 1, 1898, c. 541, § 27, 30 Stat. 553 (Comp. St. 1910, § 9611), making the trustee’s power to compromise controversies subject to the approval of the court.</p> <p>2. Bankruptcy ©=» 114(1) — Receiver's Personal Claims — Doties.</p> <p>It was the duty of a receiver in bankruptcy, claiming in his own right a steam shovel, included in the scheduled assets, to make a full disclosure of all the circu.msta.nces in connection with his claim, as he could not faithfully represent the interests of the bankrupt estate at the same time that he was asserting Ms individual claim, of ownership of the principal asset of the estate.</p>

M. Bourquin, Judge. Suit by Peter Geddes and others against the Anaconda Copper Mining Company and others. From the decree denying part of the relief sought (222 Fed. 129), complainants appeal.

Suit in equity by the Associated Press against the International News Service. From an order granting a preliminary injunction, both parties appeal. Cross-appeals from order entered in District Court for Southern District of New York granting in part only the preliminary injunction moved for by plaintiff.

<p>Appeal from the District Court of the United States for the Northern District of Mississippi; Henry C. Niles, Judge.</p> <p>Suit by A. G. Wineman & Sons against W. D. Reeves and others. From a decree dismissing the bill, plaintiffs appeal.</p>

<p>1. Courts <@=>259 — Federal Courts — Jurisdiction.</p> <p>The federal court in the exercise of its general equity jurisdiction has power to appoint a receiver on a stockholder’s bill, determine a corporation’s solvency, and distribute its assets, and no state statute can impair or destroy that power.</p> <p>2. Courts <@=>489(1) — Federal Courts — -Jurisdiction.</p> <p>Under Act Pa. June 1, 1911 (P. L. 599), declaring that whenever any domestic insurance company is insolvent, or is found after examination in such condition that its further transaction of business will be hazardous to its policy holders, or to its creditors or to the public, the Insurance Commissioner may through the Attorney General apply for an order directing such corporation to show cause why the Insurance Commissioner should not take possession of its property, conduct its business, and distribute its assets, the state courts have special jurisdiction to determine the solvency of an insurance company and distribute its assets, which jurisdiction is concurrent with that of the federal courts, to appoint a re7 ceiver on a stockholder’s bill, determine such corporation’s solvency, and distribute its assets.</p> <p>3. Courts <@=>t93(i) — Jurisdiction—Concurrent Jurisdiction.--</p> <p>Where two courts have concurrent jurisdiction in the sense that each has the same jurisdiction, such jurisdiction should not be concurrently invoked and exercised, and that court which first obtains jurisdiction has the right to proceed to a final determination without the interference of the other.</p> <p>4. Courts <@=>497 — Jurisdiction—Test.</p> <p>Control over the property in controversy is the test of jurisdiction.</p> <p>5. Courts <s=>500 — Jurisdiction —Concurrent Jurisdiction.</p> <p>Under Act Pa. June 1, 1911 (P. L. 599), providing that whenever any domestic insurance company is insolvent or is found to be in such condition that its further transaction of business will be hazardous to its policy holders, or its creditors, or the public, the Insurance Commissioner may through the Attorney General apply for an order directing such corporation to show cause why the insurance commissioner should not take possession of its property, conduct its business, and distribute its assets. The Insurance Commissioner by the Attorney General filed a suggestion in the state court and obtained a rule directing the insurance company to show cause why the commissioner should not take possession of its property and why the court should not order liquidation of its business and dissolution of the company. Prior to the hearing on the rule to show cause, but after it had been granted, a nonresident stockholder of the corporation filed a bill in the federal court praying dissolution of the corporation and distribution of its assets, and a receiver was appointed by the federal court. The receiver immediately took possession of corporate property in his reach. Held that, though the state court had not possession of the corporation’s property, yet, as such remedy was open to it and was necessary to a determination of the iiroceoding therein instituted, the state court, though it had with the federal court concurrent jurisdiction, first obtained jurisdiction, which could not be ousted by the appointment of a receiver by the federal court; the rule that actual seizure of property is the test of jurisdiction not being applicable in view of the nature of the proceeding in the state court.</p> <p>6. Constitutional Law <®=>129! — Impairment of Obligation of Contracts— Charter Rights.</p> <p>Notwithstanding Const. U. S. art. 1, § 10, inhibiting the states from enacting laws impairing the -obligation of contracts, and Const. Pa. art. 1, § 7, an insurance company has no charter right in remedies prescribed for its*dissolntion, and the state may modify such remedies without violating the constitutional provisions.</p>

<p>1. Partnership <@=>203 — Actions by Firm — Death of Partner — Effect.</p> <p>Under Key. St. § 955 (Comp. St. 1916, § 1592), providing that, when-either party dies before final judgment, the executor or administrator may, if the cause of action survives, prosecute or defend the suit, and section 956 (Comp. St. 1916, § 1593), providing that, if there are two or more plaintiffs or defendants in a suit where the cause of action survives to the surviving plaintiff or against the surviving defendant, the action shall proceed at the suit of the surviving plaintiff against the surviving defendant, where a contract sued on was made with the two plaintiffs as partners, and any interest acquired by one dying before judgment survived to the other, the suit was properly permitted to proceed in the survivor’s name as surviving plaintiff, without the deceased party’s executor or administrator becoming a party.</p> <p>2. Champerty and Maintenance <@=>5(7) — Raising Objections.</p> <p>Where a contract, challenged as contrary to good morals, champertous, and void, is such a contract as a court of equity should not enforce, the 'objections on this ground might he considered by the District Court of its own motion, whether suggested by the parties or not.</p> <p>3. Appeal and Error <@=>173(6) — Review—Questions Not Raised Below.</p> <p>An appellate court may consider such objections of its own motion, whether raised below .or not.</p> <p>4. Courts <@=>405(17) — Circuit Court of Appeals — Assignment of Errors — ■ Necessity.</p> <p>Under the express provisions of rule 11, and of rule 24, par. 4 (150 Fed. xxvii, xxxiii, 79 C. C. A. xxvii, xxxiii) of the Rules for the First Circuit, the court may, at its option, notice plain errors, though not assigned.</p> <p>5. Champerty and Maintenance <@=>5(3) — Agreements with Attorneys.</p> <p>A contract between an attorney and client for contingent compensation for professional services, whereby the attorney is to pay the entire expense of litigation, control its settlement, and be jointly and equally interested with the client in the property involved, when recovered, is so far contrary to the policy of the law that a court of equity will not enforce it.</p> <p>6. Contracts <@=>129(1) — Public Policy — Agreement as to Settlement of Suit.</p> <p>A stipulation in such an agreement by attorneys for a contingent fee, purporting to invalidate any settlement of the attempted litigation by the client, unless made in the attorneys’ presence and with their consent, is against public policy and void.</p> <p>7. Champerty and Maintenance <@=>5(6) — Agreements with Attorneys.</p> <p>A contract between an attorney and client for contingent compensation, whereby the attorney is to pay the entire expense of litigation, control its settlement, and he jointly and equally interested with the client in the property recovered, is obnoxious to the policy of the law of Porto Rico, in view of Civ. Code 1902, § 1362, prohibiting officials of justice from acquiring the property and rights in litigation, and including in this prohibition lawyers with regard to the property and rights which may be the object of the litigation in which they take part.</p> <p>8. Champerty and Maintenance <@=>5(3) — Agreements with Attorneys.</p> <p>A bill founded directly upon such agreement, and seeking to establish alleged rights under it, cannot be maintained in a court of equity, though not brought against the client, tout against a purchaser of her interest in-the property recovered.</p> <p>9. Appeal and Error <@=>1G2(1) — Waiver of Right to Appeal — Acceptance of Benefits.</p> <p>Decrees adjudged that plaintiff owned an undivided interest in a plantation, and was entitled to redeem such interest from defendant upon payment to him of a specified amount, and decreed that plaintiff pay defendant such amount, and that the receipt taken therefor be lodged in the registry of the court. Three days after entry of the decree there was filed an acknowledgment, signed by defendant, that he had received the amount ordered paid. The following day defendant petitioned for reconsideration of the decrees, and after denial of his petition he appealed, so conditioning his appeal bond as to make it operate as a supersedeas. It appeared that he mistakenly supposed himself under the necessity of receiving the money and filing the receipt. Helci, that there was no such unmistakable acquiescence on defendant’s part in the decrees appealed from, or acceptance of benefits thereby, as deprived him of his right to appeal; the receipt not having been understood and intended as such acquiescence, and the court still having the power to restore both parties to their rights by directing proper repayment.</p> <p>10. Judgment <S=>649 — Conclustveness—Nature oe Judgment.</p> <p>In a suit to recover plaintiff’s share of a plantation, which her father, O., was occupying at the time of his death under a lease and obligation of purchase and sale between him and A., the court entered an order reciting that A. desired only payment of whatever might be found due Mm, and to hold a lien until such payment should be made, and ihat so to treat the claim would eliminate considerable controversy, and directed that the property be considered as belonging to O.’s succession, subject to A.’s mortgage for such amount as might be found due by the court; and thereafter paid A. by the receiver then in charge. Held, that it was not apparent how the court, even with the consent of the parties, could thus transform A.’s claim into a conveyance to O.’s heirs with a mortgage back from the heirs, but, in any event, the order embodied only a proposed compromise agreement, never carried out, anil wholly ineffective to change the nature of O.’s interest in the plantation; the court never having determined the amount due under the so-called mortgage, and no steps towards such determination having ever been taken.</p>

<p>1. Prostitution <@=»1 — White Slave Act — Applicability.</p> <p>Under White Slave Act June 25, 1910, c. 395, § 3, 36 Stat. 825 (Comp. St. 1916, § 8814), providing that any person who shall induce “any woman or girl to go from one place to another in interstate or foreign commerce * * * for the purpose of prostitution or debauchery or for any other immoral purpose, or with the intent and purpose on the part of such persons that such woman or girl shall engage in the practice of prostitution or debauchery or any other immoral practice,” shall be punished as therein directed, defendant, who induced a woman to travel from California to Mexico to manage a house of prostitution, was guilty; the act not being limited to the personal immorality of the woman induced to travel in interstate commerce.</p> <p>2. Indictment and Information @=»110(3) — White Slave Act — Sufficiency.</p> <p>An indictment in the language of the statute, charging that the defendant unlawfully induced a named woman to travel in interstate commerce from California to Mexico for the purpose of managing a house of prostitution and conducting a place where persons of the opposite sexes meet and have illicit intercourse, is sufficient.</p> <p>3. Courts <@=j374 — Criminal Prosecutions — Indictment—Applicability of State Laws.</p> <p>Indictments in federal courts are not amenable to state laws.</p> <p>4. Prostitution <&=»4 — White Slave Act — Evidence—Sufficiency.</p> <p>In a prosecution under White Slave Act, § 3, evidence held to support a verdict of guilty.</p> <p>5. Criminal Law <®=^1169(5) — Improper Evidence — Harmless Error.</p> <p>In a prosecution for a violation of White Slave Act, § 3, that the court received secondary evidence of the contents of two telegrams, which later had to be stricken out because the government was unable to make the preliminary proofs, was not reversible error, the defendant making no objection to the procedure nor requesting a stronger admonition to the jury, or asking that other means he adopted for his protection, competent proof convincingly pointing to the guilt of defendant.</p> <p>6. Prostitution <3=>4 — White Slave Act — Evidence—Telegram Company Records.</p> <p>To show that defendant induced a woman named to travel from California to Mexico, the records of a telegraph company, showing that defendant had a charge account with it and that a few days before she made; the trip he had sent telegrams addressed to the city whore she then was, showing only the surname of the addressee, which was the same as that of the woman named, were material.</p>

A writ of error to the District Court for the Southern District of New York having been taken out by plaintiff' in error (defendant below), the same having been allowed and citation issued, a motion is made in this court to “fix the amount of the supersedeas bond to be given in this case.” Plaintiff restrained from issuing execution, provided defendant completes its security within 10 days from filing the order.

<p>In Error to the District Court of the United States for the Eastern District of Arkansas; Jacob Trieber, Judge.</p> <p>Action by Ollie Lucas against the Southern Trust Company and another. Judgment for plaintiff, and defendants bring error.</p>

<p>1. Trade-Marks and Trade-Names <§=>59(5) — Imitation or Names — Descriptive Words.</p> <p>The words “cerate,” “capsules,” “suppositories,” “tablets,” “liquid,” “laxative,” and “pencils,” as applied to proprietary medicines, are not subject to exclusive appropriation as trade-names; and hence, where plaintiff sold such medicines as “Viavi Capsules,” “Viavi Suppositories,” etc., defendants’ manufacture and sale of similar medicines as “Vimedia Capsules,” “Vimedia Suppositories,” etc., was not an imitation of plaintiff’s names.</p> <p>2. Trade-Mark and Trade-Names <S=3o9(5) — Imitation—Names of Artigues.</p> <p>Where plaintiff sold a proprietary medicine ns “Viavi Royal,” defendants’ sale of a medical preparation as “Vimedia Sovereign” was not a deceptive imitation; the words “sovereign” and “royal” being distinct in form and suggestion.</p> <p>3. Trade-Marks and Trade-Names <S=70(1) — Unfair Competition — Imitation.</p> <p>It was not unfair competition for a manufacturer and seller of proprietary medicines to use books, charts, circulars, and printed forms having a general resemblance to those of another, in the same business, as to contents, such as anatomical plates, description of diseases and symptoms, and advice to the sick; such material being common in the domain of the proprietary medicine business, and no one having a monopoly of these forms of expression.</p> <p>4. Trade-Marks and Trade-Names @=577 — Unfair Competition — Interference with Business.</p> <p>It was not unfair competition for a manufacturer and seller of proprietary medicines to solicit and offer inducements ami persuasions to the customers and agents of a competitor to become its customers and agents, where no contract relations were threatened.</p> <p>5. Trade-Marks and Trade-Names @=o70(1) — Unfair Competition — Imitation.</p> <p>In the absence of such a monopoly as a patent confers, any person may reproduce the proprietary medicines of another, and sell them under representations that they are the same article, if not sold as such other manufacturer’s goods.</p> <p>6. Trade-Marks and Trade-Names <@=»70(4) — Imitation—Packages and Labels.</p> <p>Neither the use of the same colors nor of the same form of containing vessels, cartons, or labels constitutes unfair competition, when such features are in common use in the trade, especially when they serve purposes of utility, convenience, or attraction.</p> <p>7. Trade-Marks and Trade-Names <@=70(4) — Imitation—Packages and Labels.</p> <p>' Defendant used bottles, boxes, and tins for its proprietary medicines similar to those of plaintiff, and inclosed them in cartons having a general correspondence in form and color, and the labels were of similar sizes and colors and had the same general style of letters. The forms of the containers, however, were such as were naturally suggested by the necessities of the business, and the colors presented no unusual characteristics. Plaintiff’s engraved scrolls and symbols were not copied, and its trade-name, “Viavi,” did not appear on defendants’ articles, while its own trade-name, “Vimedia,” was constantly repeated and printed in type of large size, while defendant’s name and address appeared in conspicuous letters. There was no persuasive testimony that purchasers had been actually deceived. Held that, notwithstanding the resemblances of colors and form, the difference in other respects in the dress of the goods was such that there was no unfair competition.</p> <p>Stone, Circuit Judge, dissenting.</p>

Pollock, Judge. Bill by the Interstate National Bank of Kansas City, Mo., against the Yates Center National Bank of Yates Center, Kan., and Charles D. Hammer, substituted as receiver of the Yates Center National Bank in place of C. A. Korbly. From a judgment dismissing tire bill, plaintiff appeals.

C. Van Fleet, Judge. Suit by Lucio M: Mintzer and another, as executors of William Mintzer, deceased, against the North American Dredging Company of Nevada and another. From an order 242 Fed. 553,-C. C. A.-, granting an injunction, defendants appeal.

<p>Death' <@=>27 — Actions fob Death — Defenses—Former Recovery.</p> <p>Rom. & Bal. Code Wash. § 188, provides that, when death is caused by wrongful act or neglect, the heirs or personal representatives may maintain an action for damages, and that, if deceased leave no widow or issue, his dependent parents, sisters, or-minor brothers resident within the United States may maintain the action. Section 194 provides that no action for personal injury to any person occasioning his death shall abate, nor shall the right of action determine by reason of such death, if he have a wife or child or dependent parents, sisters, or minor brothers, but that the action may be prosecuted or commenced in their favor. Held that, where the plaintiff in an action for injuries died from the injuries before trial, and his widow, as administratrix and in her own right, was substituted as plaintiff and prosecuted the action, to judgment, the judgment did not bar an action by her for damages from the death, as under the Washington decisions she could not have recovered damages for the death in the first action and, though there was but one negligent act, it gave rise to two wrongs, one against the injured man’s estate, and the other against his dependent relatives.</p>

Dooling, Judge. Ng Choy Fong was convicted of violating Act Cong. Feb. 9, 1909, c. 100, as amended by Act Jan. 17, 1914, c. 9, by having concealed and facilitated the transportation and concealment of opium prepared for smoking purposes, and which she knew was imported into the United States contrary to law, and she brings error.

<p>1. Aliens @=>32(12) — Deportation of Chinese — Review of Proceedings.</p> <p>A Chinese person’s application for admission to the United States as a returning Chinese merchant was denied by the Commissioner of Immigration. An appeal to the Secretary of Labor was dismissed, and pending an application for reopening the ease, he escaped from detention. Held, that, on a subsequent proceeding for deportation, the mercantile status of the Chinese person could not he inquired into, having been determined by the judgment of the immigration officials, and not being open to review, unless the proceedings were unfair.</p> <p>2. Aliens @=>31 — Chinese Persons — Proceedings for Deportation.</p> <p>Where a Chinese person, applying for admission to the country as a returning merchant, escaped from detention pending a petition to reopen his case, his application having been denied and admission refused, he may, though by reason of his escape he continued in the country for more than three years, be thereafter deported under Immigration Act Feb. 20, 1907, c. 1134, § 21, 34 Stat. 905 (Comp. St. 1916, § 4270); for though an alien, who has violated no law, except that he is in the country through an irregular entry, cannot after three years’ residence be deported, unless charged with immorality, etc., the order denying such Chinese person’s application for admission stood as a judgment requiring deportation throughout the period of his entire residence.</p> <p>3. Aliens @=23(1) — Deportation of Chinese Persons — Defenses.</p> <p>That a Chinese person sought to be deported was a merchant did not entitle him to remain, where his status as such was acquired subsequent to his entry into the country surreptitiously, by escaping from detention quarters after he had been denied permission to land.</p> <p>4. Aliens @=23(1) — Deportation of Chinese Persons — Defenses.</p> <p>A Chinese person, who resided in the United States for over six years, carrying on the business of a merchant, does not, by reason of his connection with an association of Chinese attached to the Chinese consulate, fall within the exemption of Act May 6, 1882, c. 126, § 13, 22 Stat. 61, as amended by Act July 5, 1884, c. 220, 23 Stat. 118 (Comp. St. 1916, § 4300), declaring that exclusion provisions shall not apply to diplomatic and other officers of the Chinese or other governments traveling upon the business of that government.</p> <p>5. Aliens @=23 (1) — Deportation of Chinese — Attendant of Consul.</p> <p>A Chinese person, who became secretary of an association of Chinese . persons attached to the Chinese consulate, who had no credentials from his government or passport from, the minister at Washington, is not an attendant of a consular officer, within Act Sept. 13, 1888, c. 1015, § 14, 25 Stat. 479 (Comp. St. 1916, § 4314), exempting Chinese diplomatic or consular officers and their attendants from provisions for the deportation of Chinese persons, though such Chinese person did some work for the consul and was a member of an advisory board; the association being benevolent in its nature and composed of Chinese from a particular province.</p>

Dooling, Judge. Petition by Joseph B. Katz for writ of habeas corpus against the Commissioner of Immigration at the Port of San Francisco, Cal. From a judgment denying the writ, petitioner appeals.

<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 by Harry Katz for writ of habeas corpus against Samuel W. Backus, as Commissioner, of Immigration at the port of San Francisco, now succeeded by Edward White, as Commissioner of Immigration at said port. From a judgment discharging petitioner from the judgment and order of the Commissioner directing deportation, the Commissioner appeals.</p>

Morton, Jr., Judge. Libel by John W. Tysell and others against the schooner Georgiana; the Atlantic Maritime Company, claimant. From a decree for the libel-ants, the claimant appeals.

<p>1. Master and Servant <@=»110 — Injuries to Servant — Statute.</p> <p>Under Gen. Code Ohio, § 8951, forbidding common carriers to haul a locomotive not provided with secure grabirons or handholds in the sides and ends thereof, a railroad company is guilty of negligence, where it operated an engine on the pilot of which a turtleback or iron bar had been placed, which rendered it impossible to use the handholds.</p> <p>2. Master and Servant @=283(5), 289(1) — Negligence <@=97 — Injuries to Servant — Contributory Negligence.</p> <p>Gen. Code Ohio, § 9018, declaring that, in actions brought against a railroad company for personal injuries to an employé, the fact that the employs was guilty of contributory negligence shall not bar recovery, when such negligence was slight and that of the employer great, but that damages must be diminished, and that all questions of negligence and contributory negligence shall be for the jury, abolishes the common-law rule of contributory negligence as an absolute bar, and adopts the rule of comparative negligence, making the questions whether the railroad employe’s negligence was slight as compared with that of the company, as well as the comparative degrees of negligence, jury questions.</p> <p>3. Master and Servant @=>293(13) — Injuries to'Servant — Instructions— Propriety.</p> <p>Plaintiff, a railroad section hand, suffered injuries when he attempted to board a moving engine, and in an action for such injuries contended that they resulted from the negligence of the company in placing a heavy iron bar or turtleback on the pilot of the engine, which prevented him using the handholds. The court charged that, if plaintiff was warned before the accident not to attempt to get on trains or engines in motion, then under the circumstances with respect to the speed of the engine and the small space between the engine and the car, where plaintiff stated he attempted to hoard the engine, plaintiff could not recover, though the railroad company was negligent as claimed, because having warned Mm not to hoard moving train, the company was under no duty to make conditions safe for him. Held, that the instruction, which must bo interpreted as relating solely to the railroad company’s negligence, was proper only if the warning to plaintiff amounted to an actual and subsisting prohibition against boarding a moving train, and where the evidence showed that, though section hands, including plaintiff, were warned not to board moving trains, nevertheless their superiors acquiesced in their boarding moving trains, and did not stop trains which, used, to carry such employés to and from their work, the instruction was improper, tending to mislead the jury, for a railroad company cannot prohibit employes from boarding, moving trains and at the same time permit them to do so, and escape responsibility.</p> <p>4. Master and Servant <@=244 (3) — Injuries—Negligence.</p> <p>A railroad employe, who boarded a moving train in violation of mere warnings, is guilty of only contributory negligence, and unless the warnings amounted to a prohibition the company’s negligence in equipping an engine, which contributed to the injury, furnishes basis for recovery.</p>

Campbell, Judge. Suit in equity by Eastman Richard and another, administrators of the estate of Samuel Richard, deceased, against Gabe E. Parker and another. Decree for defendants, and complainants appeal.

<p>1. Limitation of Actions <s=»34( 1) — Statute—Applicability.</p> <p>The South Dakota statute of limitations (Code Civ. Proc. S. D. § 60),-declaring that it includes an action on a liability created by statute, other than a penalty of forfeit lire, applies to an action created by statute, though the liability is in the nature of a specialty.</p> <p>2. Courts <g=>375 — Federal Court — State Limitation Statutes.</p> <p>As the federal statutes, requiring a carrier to collect the full transportation charges provided in the authorized tariffs, contain no period of limitation, local limitation statutes, though varying, will govern the action ; hence, in an action in the federal District Court for South Dakota for the amount of an undercharge, Code Civ. Proc. S. D. § 60, is applicable.</p> <p>3. Courts <§=>375 — Federal Court — State Statute oe Limitations.</p> <p>Statutes of limitation being statutes of repose, an action by a carrier to recover the full charges authorized, brought in federal court under the commerce statute, is governed by local state statutes of limitation; the federal laws prescribing no limitations.</p>

Dyer, Judge. Action by Cecil Dawson and J. W. Settle, copartners as Dawson & Settle, against the Chicago, Burlington & Quincy Railroad Company. There was a judgment for plaintiffs, and defendant brings error.

<p>Petition to Revise Order of the District Court of the United States for the Eastern District of Oklahoma; Ralph E. Campbell, Judge.</p> <p>In the matter of the bankruptcy of C. E. Jones. Petition by the C. B. Norton Jewelry Company to revise an order of the District Court authorizing allowances to K. E. Hinds, trustee in bankruptcy, from the proceeds of the sale by the trustee of property covered by petitioner’s mortgage.</p>

<p>In Error to the District Court of the United States for the Eastern District of Oklahoma; Martin J. Wade, Judge.</p> <p>Action at law by the Continental Gin Company against W. D. Stocker and J. Oscar Howard. Judgment for defendants, and plaintiff brings error.</p>

<p>1. Payment <®=»21 — Acceptance of Check — Effect.</p> <p>Where defendant, which executed an indemnity bond securing to plaintiff payment of three certificates of deposit issued to him by a hank, refused to renew its bond, and plaintiff, seeking to collect the certificates of deposit, received from the hank a draft, the draft cannot he treated as having been accepted in payment, for the accepting of a check or draft in payment of an indebtedness in some other form does not operate as an extinguishment of the indebtedness, unless it appears that such was the intention .of the parties, and plaintiff obviously would not accept a draft in payment of a certificate of deposit, where the surety would not renew its obligation.</p> <p>2. Principal and Surety <@=»121 — -Liability of Surety — Negligence.</p> <p>Where plaintiff, who held certificates of deposit issued by a Washington hank and guaranteed by defendant, on being notified that defendant would not renew its bond, deposited them with his local bank for collection, and such bank transmitted them to a metropolitan Minnesota bank, which bank sent them to the Washington bank for payment, and the Washington bank, after an exchange of telegrams on July 2d, sent the Minnesota bank a draft on a Seattle trust company in payment, which draft, being received by the Minnesota bank on July 6th, was forwarded to Seattle, where it arrived and was presented on July 9th, there was no negligent delay in presenting the draft for payment.</p> <p>8. Principal and Surety <®=el21 — Actions—Negligence.</p> <p>Where defendant executed an indemnity bond securing to plaintiff payment of certificates of deposit issued by a bank, and plaintiff, on being notified that defendant would not renew the bond for another year, deposited for collection the certificates of deposit with a local bank, at his place of- residence, the fact that plaintiff or his agents were guilty of negligence in presenting for payment a draft given by the bank issuing the certificates will not preclude recovery on the bond, where the bank, payment of whose certificates defendant guaranteed, had no intention of paying them, and would at any time have stopped payment on the draft, for the delay, though negligent did not injure defendant.</p>

<p>In Error to the District Court of the United States for the Northern District of Georgia; William T. Newman, Judge.</p> <p>Action by Corker & Smith against A. P. Treadwell. There was a judgment for plaintiff, and defendant brings error.</p>

<p>Patents <@=>328 — Validity and Infringement — Draft Rigging for Railway Cars.</p> <p>The Miner Patent, No. 758,677, the O’Connor patent, No. 829,728; and the Nash patent, No. 858,746, each relating to draft-rigging for railway cars, held not infringed, conceding their validity.</p>

<p>Courts <§=352 — Federal Court — Reference—Power to Refer Without Consent of Parties.</p> <p>There is nothing iu the new equity rules (198 Fed. xix; 115 C. C. A. xix) which deprives a federal court of equity of the discretionary power previously recognized and exorcised to refer a case to a master, without consent of the parties, to hear the evidence in full and report his findings and conclusions on the whole case; but in such case his findings and conclusions are advisory only, and fully reviewable by the court.</p>

In Bankruptcy. In the matter of the bankruptcy of Samuel Helfgott. Objection by Parker, Holmes & Co. to the bankrupt’s discharge. On motion to confirm master’s report, recommending discharge. Motion to confirm a master’s report recommending a discharge in bankruptcy.

Two proceedings in habeas corpus — one, on the relation of Giovanni Troiani against John E. Heyburn, Sheriff of Delaware County, and another; the other, on the relation of Abraham Kilinsky against Edward Swift and others, members of Local Board for Division No. 8, City of Philadelphia. On petitions for allowance of writs.

<p>In Bankruptcy. In the matter of the bankruptcy of Daniel J. Shea. On application for discharge.</p>

<p>3L Street Railroads <§=>112(2) — Negligence—Res Ipsa Roquitur — Fall op Trolley Pole.</p> <p>Tlie doctrine of res ipsa loquitur applies, where the trolley pole of a street car in use falls, striking a pedestrian; such an accident not happening in the ordinary course of events, in the absence of negligence in its construction, inspection, or use.</p> <p>2. Courts <§=>365 — Federal Courts — Following State .Decisions.</p> <p>In the absence of uniform recognized decisions by the state court governing the rights and conduct of persons regarding the matter under consideration, the federal court may regard with equal respect the decisions ol' courts of other states.</p>

In Bankruptcy. In the matter of the Cox-Rackley Company, bankrupt. On petition for review of an order of the referee dismissing a summary proceeding by the trustee.

<p>In Admiralty. Petition of Charles A. Fox,' as owner of the deck scow Adah, for limitation of liability.</p>

<p>In Error to the District Court of the United States for the Northern District of Alabama; Wm. I. Grubb, Judge.</p> <p>Bee A. Whitehead and others were convicted under Pen. Code, § 215, and bring error.</p>

Cushman, Judge. Suit in equity by the Clallam Dumber Company against Clallam County and Clifford D. Babcock, Treasurer, heard with suits by the Clallam Dumber Company against Clallam County and Herbert H. Wood, Treasurer, and by Charles H. Ruddock and Timothy H. McCarthy against Clallam County and Clifford D. Babcock, Treasurer, and against Clallam County and Herbert H. Wood, Treasurer. Decrees for defendants, and complainants appeal.

<p>1. Indians <3^1 — Persons Entitled to Allotments as Indians — Evidence.</p> <p>In a suit to establish plaintiff's right to an allotment of land in the White Earth Indian reservation, evidence held to show that plaintiff was by blood a member of a band of the -Chippewa Indians of Lake Superior.</p> <p>2. Indians <S=1 — Persons Entitled to Rights of Indians — Abandonment.</p> <p>Under Act June 7, 1897, c. 3, 30 Slat. 90 (Comp. St. 1.910, § 4100), providing that all children born of a marriage between a white man and an Indian woman by blood, where such Indian woman is, or was at the time of her death, recognized by the tribe, shall have the same rights and privileges to the property of the tribe to which the mother belonged as any other member of the tribe, where plaintiff’s mother, until her marriage to a white man, was fully recognized as a member of a band of Chippewa Indians, and there was nothing to indicate that she ceased to be so recognized up to the time of her death, plaintiff was entitled to be recognized and treated as a member of such band of Indians, though she did not remain with the tribe on their reservation, especially as an Indian, who has abandoned his tribe and taken up Ms abode among the white race, and recognizes no authority over Mm except that of the United States and the state in which he resides, cannot become a citizen of the United States, in the absence of a statute or treaty, and forfeiture of tribal citizenship by one who cannot acquire any other citizenship should not be found upon light and trifling circumstances.</p>

<p>1. Insurance ©=>618 — Foreign Insurance Company — Action Against— Venue.</p> <p>Under Shannon’s Code Tenn. 1917, § 3292, subsee. 3, providing that a foreign insurance company, as a prerequisite to doing business in the state, shall file with the state insurance commissioner an instrument appointing him its attorney, on whom all lawful process in* any action against it may be served, that the authority shall continue as long as any liability against the company remains outstanding in the state, and that any process issued by any court of record in the state, and served on the commissioner by the proper officer of the county in which the commissioner has his office, shall be deemed a sufficient process on the company, the company, after it has ceased to do business in the state, may, by process served on the commissioner, he sued in a county other than that in which the commissioner has his office.</p> <p>2. Insurance ©=>018 — Foreign Company — Process—Counterpart Summons— Venue.</p> <p>Under Shannon’s Code Tenn. 1917, § 6115, providing that suit in chancery court may be instituted wherever the defendant, or any material defendant, is found, unless otherwise prescribed by law, and section 6116, providing that counterpart summons may be issued to any other county for defendants not to be found in the county in which the suit is properly brought, neither of the defendants need be found in the county in which the suit is brought, if it is authorized by stature against one of the defendants in that county; so action in any county against a foreign insurance company, with service of process on the state insurance commissioner as its attorney, being authorized by section 3292, subsec. 3, suit on bond of a contractor to repair street in K. county, with a foreign insurance company as surety, may be brought in that county, and the contractor served with counterpart summons in another county, after the insurance company has ceased to do business in the state.</p>

<p>1. Judgment <@=v>818(6) — Foreign Judgments — Action on — Inquiry into Jurisdiotion.'</p> <p>In an action to recover upon a judgment rendered by a court of another state, inquiry may be made into the court’s jurisdiction over the person of the defendant: but such inquiry involves all the usual tests for determining such jurisdiction.</p> <p>2. Compromise and Settlement <@=>20(2) — Performance or Breach of Agreement.</p> <p>An action by the receiver of a national bank was settled by a cash payment and the execution of a cognovit note for $3,000, under an agreement that, if defendant failed to make the payments called for, the receiver might forfeit the first payment and prosecute the original suit to final judgment, but that, if both payments were made, he should apply to the court for ratification and approval of the settlement, and, if approved, have the case marked “Sol tied and discontinued,” or, if not approved, refund the money paid. Held that where defendant did not pay the note, it was not a violation of the agreement for the receiver to secure the court’s approval of'the settlement and have judgment entered on the note.</p> <p>3. Judgment @=>817 — Foreign Judgments — Full Faith and Credit — Public Policy.</p> <p>An Ohio court will enforce, and under the full faith and credit da use of the federal Constitution must enforce, a judgment rendiered in Pennsylvania on a cognovit note made and payable in Pennsylvania, though the note contained a provision for an attorney’s fee, and though such fee is included in the .judgment; such'a provision being valid in Pennsylvania, though against public policy in Ohio.</p> <p>4. Bills and Notes <3=113 — Defenses—Laches in Presenting Defense.</p> <p>Defendant was sued in Pennsylvania by the receiver of a national bank; the petition setting out what purported to be a complete copy of the note sued on. Defendant filed pleadings in effect admitting the genuineness of the note. The case was twice tried, and twice passed on by the court on appeal, and defendant testified at each trial without raising any question or claim of forgery. After the case was sent hack for a third trial, it was settled by the execution of a cognovit note, on which judgment was entered nearly a year later. When sued on such judgment in Ohio, defendant for the first time, nearly seven years after the claimed execution of the note, alleged that it was a forgery, claiming that he executed a note of a different date, that a number of other notes were forged; and that he believed that the note sued on was the genuine note. 3eld¡ that this defense was barred by laches; no excuse being given for defendant’s obvious negligence in not discovering the alleged forgery.</p> <p>5. Judgment @=822(3) — Foreign Judcment — Matters Concluded.</p> <p>The judgment rendered upon the cognovit note by a court having jurisdiction was conclusive on the issue of forgery, in view of defendant’s laches.</p> <p>6. Pleading @=214(7) — Admissions by Demurrer — Facts Not Well Pleaded.</p> <p>Fraud in obtaining the judgment: on the cognovit note was not well pleaded, so as to be admitted by demurrer, where there was no allegation that the receiver had the slightest knowledge of the charge of forgery, or that he resorted to any deception or other act inconsistent with fair dealing.</p> <p>7. Abatement and Revival @=41 — Transfer of Judgment Sued on.</p> <p>Under Gen. Code Ohio, § 11261, providing, relative to the abatement of actions, that on any transfer of interest, other than those specified therein, the action may be continued in Ihe name of the original party, or the court may allow the transferee to be substituted, an action on a judgment did not abate because of a sale anc, transfer of the judgment during the pendency of the action.</p> <p>8. Appeal and Error @=1041(3) — Pleading @=236(6) — Amendments—Discretion of Court — Harmless Error.</p> <p>In an action on a judgment on a note given in settlement of an action on a larger note, the refusal to permit an amendment to the answer and cross-petition, to allege that the original note had not been returned to defendant, was at most harmless error, and was within the discretion of the court.</p>

Action by Mary A. Robbins, administratrix of Henry H. Robbins, deceased, against the Pennsylvania Company and another. Judgment for defendant company, and plaintiff brings error.

A. Toumans, Judge. In the matter of the Ozark Land & Lumber Company, bankrupt. From an order allowing the claim of James D. Johnson and others,, bondholders, Perry N. Clark, trustee, appeals.

<p>1. Waters and Water Courses <§=»144 — Naturae Water Courses — Ownership in Water.</p> <p>There is no ownership in water flowing in a natural stream before it is diverted into a ditch, or at least restrained for such diversion by a dam or otherwise.</p> <p>2. Waters and Water Courses <®=>144 — Diversion by Ditch — Ownership of Water Divep.ted.</p> <p>That a complainant, by diverting water from a stream through a ditch, deprived defendant of water which it had a prior right to take from the stream at a point lower down, does not constitute a defense to a suit to enjoin trespass by defendant by opening the ditch and taking water therefrom without permission, or paying therefor.</p> <p>3. Waters and Water Courses @=nl44 — Easement fob Ditch — Rights op Servient Owner.</p> <p>That the owner of a ditch having an easement to cross defendant’s land was diverting into such ditch more water than it had the right to carry therein gave defendant no right as servient owner of the land to tap the ditch and withdraw the excess therefrom for its own use.</p>

<p>Courts <@=»262(2) — Federal Courts — Equity Jurisdiction — Adequate Remedy at Law.</p> <p>A hill to compel a railroad, company to issue a bill of lading requiring it to carry and deliver at a place on the line of another road a single carload of wheat owned by complainant does not state a cause of action within the jurisdiction of a federal court of equity, there being an adequate remedy at law by an action for carnages.</p>

<p>Exceptions, Bill of @=553(3) — Mandamus to Compel Settlement.</p> <p>A trial judge cannot be compelled' by mandamus to sign a bill of exceptions, purporting to contain a summary of the testimony of tbe witnesses in narrative form, unless it contains the substance of all tbe material testimony given on tbe trial, and bis return that it does not do so is conclusive; but be may be required to settle sucb portion of tbe proposed bill, aside from tbe testimony, as correctly sets forth tbe proceedings.</p>

<p>1. Bankruptcy <§=»461 — Time for A:? 'eal from Order — Effect of Rehearing.</p> <p>Where, after an order allowing a claim in bankruptcy, a rehearing is granted, the time for taking an appeal is extended, and runs from the time the order is made final.</p> <p>2. Review of Facts.</p> <p>Facts considered and orders af.fi cined.</p>

Safer, Judge. Suit in equity by the Westinghouse Machine Company and others against the C. & G. Cooper Company. Decree for defendant, and complainants appeal. This is a suit for infringement of patent No. 921,864, for a valve motion for gas motors, issued May 18, 1909, to Gustave Mees, and assigned to appellants (hereafter called plaintiffs). The court below held that the structure made by the appellee (hereafter called defendant) did not infringe, and dismissed the bill.

<p>1. Removal out Causes '§=111 — Jurisdiction of Federal Court — Objections to Jurisdiction.</p> <p>Under Judicial Code (Act March 3,1911, c. 231) § 37, 36 Stat. 1098 (Comp. St. 1910, § 1019), providing that if, in any suit commenced in or removed to a District Court, it shall appear to the District Court at any time that such suit does not really involve a dispute properly within its jurisdiction, it shall proceed no further, the court’s jurisdiction of a cause removed from a state court is always open to challenge.</p> <p>2. Removal oir Causes <®=7<i — Amount Involved — Effect of Counterclaim.</p> <p>Plaintiff may voluntarily and conclusively determine the amount to which his recovery shall be limited, and where his initial pleading, and the only pleading tiled in the state court other than the petition for removal fixed the amount in controversy at $2,950, and there was no inconsistency between the statement of the amount due and the prayer, the cause was not removable, though defendant pleaded a small counterclaim, the amount of which, with the amount sued for, by plaintiff exceeded $3,000.</p> <p>3. Removal of Causes <@=75 — Amount Involved — Waiver of Part of Claim.</p> <p>Though plaintiff’s pleading shows more than $3,000 due him, he may waive the excess of federal jurisdiction, and sue for a less sum, thereby preventing removal.</p> <p>4. Removal of Causes <®=402 — Remand—Doubt as ■to Jurisdiction.</p> <p>It is the duty of a federal court, where doubt exists as to jurisdiction, to remand a cause removed from a state court to such state court.</p> <p>5. Kvidence <3=234 — Admissions by Former Owners of Cause of Action.</p> <p>Wbore, in an action in which plaintiff claimed loss than $3,000, it was asserted that a prior action by plaintiffs assignor on the same subject-matter, in which a larger sum was demanded, showed a fraudulent reduction of the amount of the claim to prevent removal to a federal court, plaintiff was not bound by the statements of his ássignor in the former action.</p>

<p>Philip Fischer was convicted of offenses. On motion for a new trial.</p>

<p>1. Bankruptcy <S=^226 — Claims—Priorities—Evidence.</p> <p>Evidence held sufficient to support referee’s findings as to priority be- ' tween claims against bankrupt’s estate.</p> <p>2. Bankruptcy c§»22(5 — Finding of Referee — Priorities—Review.</p> <p>The report of a referee in bankruptcy proceedings, determining tbe priorities between claimants, must be given weight, where supported by sufficient evidence.</p>

In Admiralty. Libel by Michol Christon and another against the Memphian. On motion of tire clerk of the District Court, praying that he be directed to perform no service for which fee is required until accrued fees have been paid.

<p>In Equity. Suit by Louis H. Orr against Harry M. Allen and others.</p>

In Admiralty. In the matter of the petition of Henry Crew, owner of the steam tug Richard F. Young, for limitation of liability. Also, libel by the owner of the tug John F. Lewis against barge No. 7 for salvage services. Decree in favor of damage claimants, but granting limitation of liability.

<p>1. Insurance <§=207(1) — Life Insurance — Policies—Assignment.</p> <p>A provision in a life policy that no assignment should be of any force 'or effect, unless made in writing and recorded by the company in its books, is intended for the protection of the company in making payments of insurance, but. does not affect the force or validity, as against the insured, of any contract between the insured and a third person as to the ultimate receipt and enjoyment of the proceeds of the policy.</p> <p>2. Insurance <§=208 — Life Policies — Pledges.</p> <p>A policy of life insurance may be validly pledged by delivery, either with or without a written transfer.</p> <p>3. Bankruptcy <§=161(1) — Assignments—Validity.</p> <p>A bona fide assignment or pledge of life policies, executed by a bankrupt several years prior to the filing of a petition in bankruptcy, cannot be set aside, though he be adjudicated a bankrupt.</p> <p>4. Insurance <§=211 — Life Policies — Assignment—Effect.</p> <p>Life policies declared that no assignment should be of any force or effect, unless in writing and recorded by the company on its books. Insured, who was indebted to his wife and sister, executed similar instruments, assigning or purporting to assign one policy to his sister and another to his wife. The two instruments were similar, being entitled “Assignment, Conditional upon Death Prior to Maturity of Policy and the Survival of the Assignee,” and reciting that for value received the insured transferred and set over to his sister (or his wife) all his right, title,' and interest in a numbered policy, provided that the policy should become payable by reason of his death prior to the date when the endowment should have matured, and that the assignee should survive the insured. The insured expressly reserved the right to revoke the assignments at any time by filing with the company an instrument of revocation duly executed under his hand and seal. The assignments were filed with the company and recorded on its books, but were not delivered to the assignees. Some time thereafter the insured delivered to his sister the two policies; the sister executing a receipt, reciting the delivery of the two policies as security for his indebtedness to her, and also as trustee for his wife. Held that, though the receipt recited that the sister and the wife were beiieficiaries of the policies, and though the assignments were invalid as against the insurance company, nevertheless, between the insured and his wife and sister, there was a valid pledge of the policies as collateral security.</p> <p>5. Evidence <§=397(3) — Parol Evidence Rule — Admissibility.</p> <p>In such case, as the assignments were intended only to operate in case of the insured’s death before maturity of the policies, and in event that the assignee survived him, parol evidence as to the giving of the pledge was admissible, not being offered to contradict or vary any written contract.</p> <p>6. Bankruptcy <§=250(1) — Proceedings—Duty of Trustee.</p> <p>As Bankr. Act July 1, 1898, e. 541, § 70a, 30 Stat. 565 (Oomp. St. 1916, § 9654), declares that, when any bankrupt shall have any insurance policy, which has a cash surrender value payable to himself, his estate, or personal representatives, he may, within 30 days after the value has been ascertained, pay to the trustee the sums so ascertained, and continue to hold and carry such policy free from the claims of creditors, but otherwise the policy shall jiass to the trustee as assets, it is the duty of the trustee in such case, on delivery of the policies, to receive from the bankrupt or collect from tlie insurance company the surrender value of the policies, which were payable to the bankrupt or his estate; the pledgees being unable to collect the same, but the pledge being valid as between the bankrupt and themselves.</p>

<p>1. Bankruptcy <§=228 — Review op Referee’s Findings.</p> <p>On review of an order of a referee in bankruptcy, Ms findings, not apparently erroneous on the lace of the report, are final, where the evidence is not reported.</p> <p>2. Sales <§=52(7)' — Fraud—Evidence—Intent Not to Pay.</p> <p>While it will usually be inferred that a person, buying goods on credit when he knows he is insolvent, did not expect or intend to pay for them, the intention not to pay is a fact to be established, and the surrounding circumstances may show that the debtor expected and intended to pay for them.</p>

<p>1. Sales <g=>32 — Contract by Correspondence — Meeting of Minds.</p> <p>Correspondence between plaintiff and defendant concerning a sale of sulpliate of ammonia, to be shipped from England to American ports, held to show no contract between the parties, because there had been no meeting of the minds respecting the length of notice to be given, when delivery was desired at certain ports to which there were no regular sailings.</p> <p>2. Sales <?=>23(4) — Offer to Buy and Acceptance.</p> <p>A broker, after negotiations with plaintiff and defendant respecting a sale of sulphate of ammonia to defendant, to be shipped to American ports, sent defendant a “buyer note” for execution, and to be then sent to plaintiff for acceptance; it being contemplated that the acceptance would be evidenced by the execution of a complementary writing in the form of a “seller note” embodying the same terms. The buyer note provided for delivery at “current Atlantic ports,” and stated that the buyer was to declare port of arrival 30 days prior to shipment, except ports to which there were no regular sailings, where buyers were to give 60 days’ notice. Before this buyer note, as executed by defendant, conld have reached plaintiff, tiie broker wrote defendant, stating that plaintiff did not consider Wilmington, N. 0., and Jacksonville, Fla., as current ports, and defendant promptly replied, declining to accept this interpretation of the contract, and stating that they could not permit these two ports to be left out ol' consideration. Defendant’s reply reached the broker, and plaintiff was informed of defendant’s position, before plaintiff’s execution of the seller note. Held, that there was no complete contract, as the minds of the parties never met on the question of deliveries to difficult ports, especially where plaintiff, after the execution of the seller note, continued negotiations respecting deliveries to such ports.</p>

<p>Appeal from the District Court of the United States for the Southern Division of the Southern District of California; Maurice T. Dooling, Judge.</p> <p>Two suits in equity by the United States against the Consolidated Mutual Oil Company and J. M. McDeod. Decrees for complainant, and defendants appeal.</p>

<p>Appeal from the District Court of the United States for the Southern Division of the Southern District of California; Maurice T. Dooling, Judge.</p> <p>Suit in equity by the United States against the North American Oil Consolidated, Walter P. Frick, John F. Carlston, Clarence J. Berry, Dennis Searles, Walter H. Leimert, and Wickham Havens. Decree for complainant, and defendants appeal.</p>

Wolverton, Judge. Action by the Poole-Dean Company, a corporation, against the United States Steel Products Company, a corporation, to. recover damages for breach of contract for the erecting and painting of the steel work for the buildings and dry dock composing the terminal of the Grand Trunk Pacific Railway at Prince Rupert, British Columbia. Judgment for plaintiff. Defendant brings the present writ of error.

Petition for Revision of Proceedings of the District Court of the United States for the District of New Jersey; J. Warren Davis, Judge. , In the matter of the American Beaver Company, bankrupt; Barney Larkey, trustee.

Van Valkenburgh, Judge. In Error to the District Court of the United States for the Western District of Missouri; Arba S. Van Valkenburgh, Judge. Action at law by one Bisbiroulis against the Union Pacific Railroad Company. From a judgment in favor of L. A. Laughlin, petitioner, defendant brings error.

C.'Munger, Judge. In the matter of the Omaha Motor Car Company, bankrupt. From an order allowing the claim of Minnie Moise, as administratrix of! Walter Moise, deceased, conditionally, on objection of D. W. Scheibel, trustee, and the Omaha Auto Top Company, another creditor, claimant appeals.

<p>1. Appeal and Error <@=>1053(2) — Harmless Error — Admission oe Evidence —Cube.</p> <p>On the trial of an action by a husband and wife against a railroad company for an assault, the statement of the husband, in answer to a question as to how soon the wife began to vomit after the affray, that she got very much worse “right after they put us in jail,” did not require a reversal, where the trial judge immediately told the jury to disregard the remark, and repeated such caution in the charge'; it appearing that no other allusion was made to the fact that plaintiffs had been in jail, and there being nothing to show that they were put in jail at the railroad’s instance, and the remark apparently not having been made with any malicious intent.</p> <p>2. Appeal and Error <@=>1058(2) — Harmless Error — Exclusion op Evidence.</p> <p>On the trial of an action for assault, the exclusion of a question asked a witness as to whether she formed any opinion as to whether plaintiff’s shaking spells were real or simulated was harmless, where the witness testified at length concerning what she observed, and her testimony was full of her opinion, expressed or necessarily implied, that plaintiff’s sickness was a sham.</p>

<p>In Error to the District Court of the United States for the District of New Jersey; Thomas G. Haight, Judge.</p> <p>Action by Fannie M. Jackson against the Pennsylvania Railroad Company. Judgment for defendant, and plaintiff brings error.</p>

Whitaker Thompson, Judge. Feigned issue between the Chatham & Phœnix National Bank and Maibelle S. Lovegrove. Judgment for defendant, and the bank brings error.

Witmer, Judge. Action by Clara Collins against Harvey Huffman and others. The suit was dismissed, and plaintiff brings error. On motion to dismiss the writ of error.

<p>In Error to the District Court of the United States for the Western District of Missouri; Arba S. Van Valkenburgh, Judge.</p>

Hollister, Judge. Suit in equity by William Robinson against the Miami Cycle & Manufacturing Company. Decree for complainant, and defendant appeals. July 6, 1908, Robinson, the appellee, was the owner of three patents, and of the inventions covered by six ponding applications for patent, all relating to coaster brakes for bicycles or other more or less analogous features.

<p>In Equity. Suit by the American Steel Foundries and the J. S. Andrews Company against the Bettendorf Axle Company. Heard on cross-bill.</p>

<p>1. Patents <§=>328 — Validity and Infringement — Process of Ore Concentration.</p> <p>Tile Sulman, Picard & Ballot patent, No. 835,120, for a process of ore concentration by air bubble flotation, is valid, and while, as construed by the Supreme Court, and since the disclaimer of claims 9, 10, and 11, it is limited to a process the results of which are obtained by the use of oil “amounting to a fraction of 1 per cent, on the ore,” infringement is not avoided by the use of a larger percentage of oil, where the process is the same, and the excess of oil is either without effect or renders the process less efficient.</p> <p>2. Patents <§=>151 — Disclaimers—Time and Requisites.</p> <p>A disclaimer of claims of a patent, filed 107 days after a decision of the Supreme Court adjudging them invalid, and which conforms to the language of the decision, is timely and sufficient.</p>

<p>Post Oehtoe @=>14 — Nonmailable Newspapers — Violation of Espionase Act.</p> <p>In a suit to enjoin a postmaster from withdrawing mailing privileges, . articles in a newspaper held to violate Espionage Act June 15, 3917, tit. 1, § 3, making it an offense for one, when the United States is at war, to will fully make false statements with intent to interfere with the operation or success of its military or naval forces, or to willfully attempt to cause insubordination, disloyalty, mutiny, or refusal of duty in its military or naval forces, or to willfully obstruct its recruiting or enlistment service, and so, under title 12, § 1, to render the paper unmailable.</p>

<p>1. Corporation's <§=>552 — Appointment of Receiver — When Authorized.</p> <p>A receiver should not be appointed for a corporation, thereby impairing its credit, interfering with its management, and imposing npon the court the onerous duty of corporate management, except in extreme cases.</p> <p>2. Injunction <@=>11 — Grounds—Abandonment of Threatened Action.</p> <p>An injunction in a suit by a stockholder to restrain the corporation from turning over its assets to another corporation will be denied, where the plan of turning over tlie assets to such other corporation has been abandoned, and no action to that end can be taken without due notice to all the stockholders.</p> <p>3. Corporations <§=>189(12) — Misappropriation of Funds — Prima Facie Evidence.</p> <p>Where a corporation with a capital of $5,000,000, and which was enjoying unusual prosperity, was paying only moderate dividends to its stockholders, the payment of large bonuses to its officers was prima facie evidence of a misappropriation of its funds, and prima facie illegal corporate action, though in strict conformity with the formalities required by law.</p> <p>4. Injunction <§=>11 — Grounds—Abandonment of Threatened Action.</p> <p>Ah injunction against the payment of such bonuses would not be denied merely because the president, on behalf of himself and other officers, filed a disclaimer, stating that such payments had not been made, and that they would not hold the company to the obligation to make them, unless acted upon at the end of the fiscal year by those authorized; this not being signed by any officer except the president, and being without consideration, and possibly nothing more than an expression of intention upon the part of the president, not legally binding as a waiver.</p> <p><§zaFor other 'cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by the Chicago Great Western Railroad Company against the Postal Telegraph-Cable Company.</p>

<p>Commerce <§=»38 — Offenses- -Interstate “Transportation” — “Commerce.”</p> <p>The West Virginia intoxicating liquor law (Acts W. Va. 1917, c. 58) declares in section 31 that it shall be unlawful for any person to bring or carry into tbe state during any period of 30 consecutive days, or to carry from one place to another within the state, more than one quart of intoxicating liquors for personal use, and that it shall- be unlawful for any carrier to knowingly carry for a passenger, or knowingly permit a passenger to carry, into the state, more than one quart of intoxicating liquor as personal baggage. Act Cong. March 3, 1917, c. 162, 39 Stat. 1058, 1069, making appropriations for the service of the Post Office Department, declares in section 5, after providing penalties for use of mails in advertising or soliciting orders for liquor in territory where by tbe local laws it is unlawful to so advertise or solicit liquor orders, that whosoever shall order, purchase, or cause intoxicating liquors to be transported in interstate commerce, except for scientific, sacramental, medicinal, and mechanical purposes, into any state or territory, the laws of which state or territory prohibit the manufacture or sale therein of intoxicating liquors, shall be punished, provided that nothing herein shall authorize a shipment of liquor into any state contrary to the laws of such state. Accused carried as personal baggage one quart of intoxicating liquor from Kentucky into the state of West Virginia, which liquor was intended for his own use. Held that, as “commerce” is defined as the exchange of merchandise on a large scale between different places or communities, or, as extended trade or traffic, accused was not guilty of a violation of Act March 3, 1917; his transportation of liquors into the state of West Virginia not amounting to interstate commerce, and the -word “commerce” not being synonymous with “transportation,” even though a transaction of magnitude would be unnecessary to violate the statute.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Commerce; Transportation.]</p>

<p>1. Army and Navy <@=>40 — Offenses—Attempt to Cause Insubordination— Indictment.</p> <p>Under Act June 15, 1917, § 3, providing that whoever, when the United States is at war, shall willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty in the military or naval forces of the United States, shall be punished, an indictment alleging that defendant, in a county specified, willfully attempted to cause insubordination, etc., in the military forces, by urging, counseling, and advising certain men named not to report when ordered to do so by the military authorities for military service, such named persons being persons who bad registered for service in the military forces under Selective Draft Act May 18, 1917, and the rules and regulations promulgated by the President, sufficiently alleged the facts of defendant’s offense, though it did not set forth what defendant said in the way of urging; counseling, and advising such refusal of duty, as an indictment is not required to set out the evidence, but only the ultimate facts.</p> <p>2. Army and Navy <@=>40 — Offenses—“Attempt” to Cause Insubordination —Indictment.</p> <p>The indictment was sufficient, though it did not allege defendant’s intent, as the offense charged was not that of causing insubordination, etc., but that of attempting to cause insubordination, and an attempt includes and involves intent.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Attempt.]</p> <p>3. Criminal Law <@=>304(2) — Judicial Notice — Historical Facts.</p> <p>The date of the drawing under the Selective Draft Act is a historical fact, of which the court takes judicial notice without proof.</p> <p>4. Akmy and Navy <@^40 — Offenses—Attempting to Cause Insubordination — “Military Forces of the United States.”</p> <p>Under Const, art. 1, $ 8, authorizing Congress to make rules for the governing and regulation of the land and naval forces, Act April 22, 1898, c. 187, § 1, 30 Stat. 361 (Comp. St. 1916, § 1714), providing that the national forces consist of all able-bodied male citizens and persons of foreign birth who have declared their intention to become citizens between the ages of 18 and 45, and Act May 18, 1917, designating a class of persons between the ages of 21 and 31 from whom an army should be drawn for active military service, persons who had registered thereunder and had received their serial numbers were a part of the “military forces of the United States,” within Act June 15, 1917, § 3, making it an offense to attempt to cause insubordination, disloyalty, mutiny, or refusal of duty In the military forces of the United States.</p>

<p>Appeals from the District Court of the United States for the Southern Division of the Western District of Michigan, and from the District Court of the United States for the Eastern Division of the Northern District of Ohio; Clarence W. Sessions, Judge.</p> <p>Suits in equity by the O. & W. Thum Company against Albert G. Dickinson and against the' A. K. Ackerman Company. From the decrees, complainant appeals.</p>

<p>1. Public Lands <§=>106(1) — Fobbst Reserve Ltett Land Selections --Gon-CWSIVENESS OF ACTION OF LAND DEPARTMENT.</p> <p>A finding by the Commissioner of the General Land Office, affirming that of the district officers, made after a contested hearing, and not appealed from, that land selected in lieu of land within a forest reserve was not coal land, but was properly subject to the selection made, is conclusive of such fact, and cannot be relitigated by the government after the issuance of patent, oven though the technical issue, as made by the Land Department in the notice which was the basis of the hearing, was erroneously limited to the question of the known character of the land at the time the selection was made.</p> <p>2. Equity ©=>273 — Amendment of Bill — Stating New Case.</p> <p>A complainant cannot be permitted, under the guise of amendment, to make a new bill.</p> <p>Stone, Circuit Judge, dissenting.</p>

<p>1. Appeal and Error <§=5119 — Review—Allowance of Costs in Equity Cases.</p> <p>In equity the matter of imposition of costs is so far within the discretion of the court of first instance that a decree relating to costs alone will not ordinarily be reviewed in an appellate court, but an appeal lies when the decree involves the construction of a positive statute or where the question presented arises upon the taxation of costs by the lower court in carrying out the decree and mandate of the appellate court in a former appeal.</p> <p>2. Costs <@=5189 — Taxable Costs — Copy op Stenographer’s Minutes for Use op Party.</p> <p>A copy of the stenographer’s minutes of a trial furnished to one of the parties is not a copy of a paper necessarily obtained for use on the trial within the meaning of Rev. St. § 983 (Comp. St. 1916, § 1624), and a party who obtains such copy for his own convenience and use on the trial of a suit in equity is not entitled to have the amount paid the stenographer therefor taxed under equity rule) 50 (198 Fed. xxxii, 115 O. O. A. xxxli), which provides tor the taxation only of the fee fixed by the court for the copy used by the court.</p>

Van Valkenburgh, Judge. Suit in equity by Harry Anderson, William C. Michaels, as administrator of John Anderson, deceased, and William C. Michaels, as administrator of Mary Anderson, deceased, against William R. Thomas, as executor of the will of Mary Thomas Piper, deceased, and William R. Thomas individually. Decree for complainants, and defendants appeal.

<p>Internal Revenue <@=»8 — War Revenue Tax — Vested Interests — “Contingent Beneficial Interest.”</p> <p>Under the will of a testator, who died in May, 1902, leaving a fund in the hands of trustees, the income of which was to be paid for 11 years to beneficiaries named, who were then to receive the principal, if living, the interest of such beneficiaries in the fund, beyond that in the income for the trust period of 11 years, was a contingent beneficial interest, which did not become vested prior to July 1, 1902, within the meaning of Act June 27, 1902, c. 1160, § 3, 32 Stat. 406, and under such act any tax paid thereon under War Revenue Act June 13, 189S, c. 448, 30 Stat. 448, § 29, is recoverable.</p>

Campbell, Judge. Suit in equity by the United States against lessees of the State of Oklahoma. The Producers’ Oil Company, intervener, appeals from an order denying a preliminary injunction.

<p>Appeal from the District Court of the United States for the Eastern District of Pennsylvania.</p> <p>Suit in equity by the Snook-Roentgen Manufacturing Company against the Stetson Hospital of Philadelphia. Decree for complainant, and defendant appeals.</p>

<p>Appeal from the District Court of the United States for the District of Oregon; Charles E. Wolverton, Judge.</p> <p>Suit in equity by the Brown-Meyer Company against the Broadway Towel Supply Company and Amos Burg. Decree for complainant, and defendants appeal.</p>

<p>Appeal from the District Court of the United States for the District of Oregon; Charles E. Wolverton, Judge.</p> <p>Suit in equity by the Brown-Meyer Company against the Crystal Laundry Company and Percy G. Allen. Decree for complainant, and defendants appeal.</p>

<p>1. Bankruptcy <@=>165(3) — Preferences—Nature of- Transaction.</p> <p>Where claimant agreed to advance $1,000 to the bankrupt, 1£ the bankrupt would execute a mortgage securing such advance, and also securing loans previously made by the claimant’s wife, aggregating $3,000, but the transaction Was carried out by the claimant’s brother advancing $1,000 on the claimant’s behalf, and claimant, when the mortgage was executed, advancing $1,000, which was then paid to the wife and the brother, nothing was gained by this indirection, and the transaction as respected the question of preference was in legal effect the same as if the mortgages had been made directly to the -wife and claimant.</p> <p>2. Bankruptcy <@=>166(4) — Preferences—Notice of Insolvency — Duty oh Inquiry.</p> <p>A person taking a mortgage from one subsequently becoming a bankrupt to secure loans previously made was bound to draw such inferences as would naturally follow from the facts coming to his attention; and where those facts would ordinarily excite suspicion as to insolvency and cause inquiry, he was bound by such knowledge as a reasonable inquiry would have furnished.</p> <p>3. Bankruptcy <@=»16G(4) — Preferences—Cause to Believe Insolvency.</p> <p>Claimant, who advanced $1,000 to the bankrupt, taking a mortgage on the bankrupt’s fixtures and stock in trade of its retail business, securing such loan and loans of $3,009 previously made by his wife, knew that the debtor’s business had been bad, that it owed a bank substantial sums and had been in pressing need of ready money and had repeatedly borrowed, sometimes in such small amounts as to indicate that it had little or no cash on hand. He was apparently suspicious as to the validity of the transaction, as evidenced by his inquiry of the attorney drawing the mortgage whether a mortgage for cash was good, and the transaction was carried out by having his brother advance $1,000 on his behalf, and by then advancing $4,009 when the mortgage was executed which was then paid to the wife aud the brother. Helé, that he had reasonable cause to believe the bankrupt was insolvent, especially as it is common knowledge that a retail dealer only mortgages his stock in trade and fixtures as a last resort, and that the immediate effect of doing so is to destroy all further credit.</p> <p>4. Bankruptcy <@=>165(3) — Preferences—Payment of Consideration for Transfer.</p> <p>Where a loan to a bankrupt was expressly conditioned upon the giving of a mortgage to secure it and prior loans, and would not have been made without such agreement, and, though five or six days elapsed between the delivery of a check for the amount of the loan and the execution of the mortgage, the check was held during part of this time awaiting the approval of the bankrupt’s directors of the agreement to give the mortgage, and the parties were not in the same city or state, the giving of the mortgage was substantially contemporaneous with the making of the loan and a part of the same transaction, so as to prevent it constituting a preference so far as such loan was concerned, and it was immaterial that the amount of the loan was first advanced by the mortgagee’s brother on the mortgagee’s behalf, and that when the loan was executed the mortgagee made a further advance, which was then paid to the brother.</p> <p>5. Bankruptcy <@=>165(3) — Preferences—Payment of Consideration for Transfer.</p> <p>Where a mortgage was given by one subsequently becoming bankrupt to secure a loan then made and prior loans, the security for the new loan was not invalid by being consolidated with the preferential security for the prior loans.</p>

<p>Army and Navy <S^20 — Selective Draft Act — Persons Exempt — Habeas Corpus.</p> <p>A person who enlisted in the United States army for a term oC seven years in 1914, and subsequently purchased Ms release, and was honorably discharged, was not exempt from draft under Act May 18, 191.7, either under section 4, exempting persons in the military service of the United States, or on the theory that his voluntary discharge within the period for which he enlisted, created an implied agreement that he should not be called, for military service (luring the remainder of the term of his enlistment, as it was for Congress to determine whether such persons should be exempted.</p>

<p>1. Corporations <S=»326-t-Directors — Liability—Statutes.</p> <p>Laws Mont. 1909, c. 149, requiring every stock corporation, except banks, trust companies, and building and loan associations, to file annual reports, and declaring that, if any corporation shall fail to file such report, the directors shall be jointly and severally liable for all debts or judgments of the corporation then existing or which may thereafter be incurred, is valid, and renders directors of a corporation liable for debts where the required report is not filed.</p> <p>2. Limitation of Actions <S=j2(2) — Statute—What Law Governs.</p> <p>Laws Mont. 1909, c. 140. requiring stock corporations to file reports, declares that directors, in event of failure to file such reports, shall be liable for debts or judgments of the corporation. Rev. Codes Mont. §§ 6448, 6448, declare that the statutory period for actions on penalties shall be two years; but section 6471 declares that the periods of limitation prescribed shall not affect actions against directors or stockholders of a corporation to recover a penalty or forfeiture imposed, or to enforce a liability created by law, but that such action shall be brought within three years after discovery by the aggrieved party of the facts upon which the penalty or forfeiture or the liability arose. Held that, while ordinarily the law of the forum as to limitation of actions governs, yet where by statute a right of action is given which did not exist at common law, and the statute giving the right fixes the time within which It may be enforced, the time so fixed becomes a limitation on such right and will control, no matter in what forum the action is brought, and such limitation, though not contained in the statute giving the right of action, controls, provided it is directed to the newly created liability; and hence, in an action brought in the federal District Court for New Jersey to enforce directors’ liability for failure of a corporation to file the required report, the three-year limitation prescribed by section 6471 governs, it being obvious that the limitation of three years was intended to apply to such action.</p> <p>3. Corporations <§=»326 — Directors—Liability—Statute—“Penal.”</p> <p>Laws Mont 1909, c. 140, requiring stock corporations to filo annua] reports, and declaring that directors shall be liable for corporate debts in event of failure, is not a penal statute in tbe international sense, or in the sense in which the word “penal” is used in criminal law, but can be construed as penal only in changing the common-law liability of directors, and hence should not receive the same strict construction as a criminal statute.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Penal; Penal Laws.]</p> <p>4. Judgment <$^>828(1) — Conolusxveness—Collateral Attack.</p> <p>Under Const. XT. S. art. 4, § 1, declaring that full faith and credit shall be given in each state to the public ads, records, and judicial proceedings of every other state, a judgment rendered in Montana against corporation cannot, in an action brought in the federal District Court for New Jersey on such judgment against the corporate directors, be attacked on the theory that it was erroneous, because sounding in tort, when plaintiff had already elected to sue on contract, for that question should have been raised in tile Montana courts, and the judgment cannot thereafter bo collaterally attacked.</p> <p>5. Corporations <3=>348 — Directors’ Liability — Conclusiveness of Judgment Against Corporation.</p> <p>Under Laws Mont. 1909, c. 140, declaring that corporate directors shall be liable for debts and judgments of the corporation, where the required annual report is not filed, directors, in an action to enforce their liability on a judgment against the corporation, cannot question it, on the ground that they did not have their day in court and were not served in tho action in which judgment was rendered, for such judgment is binding on them where the court which rendered the same had jurisdiction of the corporation and tlie subject-matter; the only defenses available being that the persons sued as directors were in fact not directors, that the claim had been discharged, that the defendants had a set-off, or that the judgment was procured by fraud, etc.</p> <p>6. Corporations <§=340(3) — Directors’ Liability — Statute.</p> <p>Under Laws Mont. 1909, c. 140, requiring stock corporations to file annual reports, and declaring that in event of failure directors shall be jointly and severally liable for all debts or judgments of the corporation then existing or that may thereafter be in any wise incurred until report shall be made and filed, directors of a corporation are, where the required report was not filed, liable for judgment in tort rendered against the corporation; the statute not being restricted merely to debts, but specifically including judgments.</p> <p>7. Corporations <§=340(3) — Directors’ Liability — Statute.</p> <p>The directors having 10 days between January 20th and 30th, inclusive, to file “exculpating affidavits,” a judgment entered on January 29th makes them liable under such section, whether the default be regarded as complete on January 20th, in which case the judgment would be “thereafter incurred,” or not complete until January 30th, in which case the judgment would be “then existing.”</p>

In Admiralty. Suit by James E. Brennan against the schooner Ann C. Stuart, to recover for salvage services rendered to the schooner and to her cargo.

<p>1. Criminal Law @=>42 — Immunity from Prosecution — Testifying Before Grand Jury.</p> <p>The constitutional provision that no man shall he forced to give evidence against himself in a criminal proceeding does not extend immunity from prosecution to persons testifying before the grand jury concerning a matter for which they are subsequently indicted, but merely authorizes them to refuse to answer any question tending to incriminate them, and their ignorance of this right does not entitle them to claim immunity from prosecution.</p> <p>2. Conspiracy @=>28 — Conspiracy to Commit Crime — Acts Constituting.</p> <p>A conspiracy to offer forcible resistance to the United States authorities in raising an army by conscription was a conspiracy to resist the existing authority of the United States, though the Selective Draft Act was not passed until after the termination of the conspiracy by the indictment and arrest of defendants, as such authority existed, whether or not it was ever exercised.</p> <p>3. Conspiracy @=>28 — Conspiracy to Commit Crime — Acts Constituting.</p> <p>That the whole scheme was chimerical and utterly impossible of success did not make it any less a conspiracy denounced by statute.</p>

<p>Husband and Wife <@=>149(4) — Separate Property of Wife — Rights of Husband’s Creditors.</p> <p>Where the wife of an insolvent debtor on her own credit extended, to her by reason of her ownership of certain property, engaged in business in a small way, there was no fraudulent concealment of the husband’s property from his creditors by the carrying on of the business in her name, and property accumulated in such business was not subject to the claims of the husband’s creditors, though the husband assisted in the business by purchasing supplies and paying for them by checks on the wife’s account and by other work and labor, and at times sought to create the impression that he was the owner of the business.</p>

<p>Application by William James Hill for a writ of habeas corpus.</p>

Action by F. G. Noyes, as receiver of the Washington-Alaska Bank, a corporation organized under the laws of the state of Washington, against W. H. Parsons and others. There was a judgment for defendants, and plaintiff brings error. Tort action to recover compensatory and exemplary damages, under section 7 of the act of Congress of July 2, 1890 (Sherman Anti-Trust Act), for an unlawful combination and conspiracy in restraint of trade in violation of section 3 of the same act.

Dietrich, Judge. Suit by the Equitable Trust Company of New York as trustee under deeds of trust by the Great Shoshone & Twin Falls Water Power Company against the Great Shoshone & Twin Falls Water Power Company and others, in which the American Waterworks & Electric Company sought to intervene and file an intervening complaint against Guy I. Towle and others. From the decree (228 Fed. 516), and from an order denying leave to intervene, plaintiff and the intervener appeal.

Dietrich, Judge. Suit by Guy I. Towle against the Great Shoshone & Twin Falls Water Power Company in which a number of other parties intervened and in which a receiver for the defendant power company was appointed. From an order (232 Fed. 733) allowing the petition of the Boise Title & Trust Company for allowance of a preferred claim, the American Waterworks & Electric Company and another appeal.

<p>In Error to the District Court of the United States for the Southern Division of the Northern District of California.</p> <p>John Fair New was convicted of an offense, and he brings error.</p>

Trippet, Judge. Action for statutory penalties by the United States against the Southern Pacific Company. Judgment for defendant, and the United States brings error. The United States brought an action against the Southern Pacific Company to recover penalties for violation of the federal Hours of Service Law (34 Stat. 1415). The complaint contained 30 counts, involving the hours of service of five train crews, each with six employes.

<p>Appeal from the District Court of the United States for the Western District of New York.</p> <p>In the matter of George J. Zeis, bankrupt. From the judgment of the District Court, McCarthy Bros. & Ford appeal.</p>

<p>Appeal from the District Court of the United States for the Western District of New York.</p> <p>In the Matter of the Monarch Acetylene Company, bankrupt. From a judgment of the District Court, Beals & Co. appeal.</p>

<p>1. Criminal Law @=>656(1) — Trial—Conduct of Judge.</p> <p>In a prosecution for adultery, remarks by the trial judge to accused’s alleged paramour, who was called as a witness, that no one would hurt her, that she should not cry, and should speak so she could be hoard, did not show prejudice against accused, though the trial judge adrcssed the alleged paramour as little girl, and advised her of her rights against self-incrimination.</p> <p>2. Adultery @=>14 — Evidence—Sufficiency.</p> <p>Evidence held sufficient to sustain a conviction of adultery.</p> <p>3. Adultery @=>8 — Indictment—Variance.</p> <p>Where, in a prosecution for adultery, there was evidence that at the time of the offense accused was married to one other than his alleged paramour, variance between the allegation and evidence, as to the name of accused’s wife, was immaterial.</p>

<p>Patents <3=o328 — Validity and Infringement — Scaffold.</p> <p>The Henderson patent, No. 959.008, for scaffold-supporting means, claims 1 and 3, held valid, and infringed by the use of the scaffold hoist of the Whitney patent, No. 998,270, hut not infringed by the device of the Whitney patent, No. 1,114,832, in which there is no hoisting drum, as in the Henderson device.</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 James Clark, Jr., Electric Company against the United States Electrical Tool Company and the Schneider Sales Company. Decree for defendants, and complainant appeals.</p>

<p>1. Patents <§=328 — Infringement—Electrical Eegulation.</p> <p>The Creveling patent, No. 747,686, lor a system of electrical regulation for use in car lighting, held limited to a constant current regulator, as distinguished from a constant potential regulator, and, as so limited, not infringed.</p> <p>2. Patents <§=243 — Infringement—Combinations.</p> <p>To establish infringement of a patent for a combination of old elements, it is not enough to point out substantially the same elements In combination in defendant’s structure, but it must also be shown that defendant’s system performs substantially the same function in substantially the same way as complainant’s; and where the result is attained by a new combination operating upon different principles,- and constituting a radical departure from complainant’s patent, there is no infringement.</p> <p>3. Patents <§=327 — Infringement Suits — Effect of Decision.</p> <p>In a patent infringement suit, it is the duty of the court, regardless of prior decisions on the question of anticipation, to give force and effect to the evidence in the pending case, and resort to the testimony of other expert witnesses in a prior action is not warranted.</p>

<p>1. Patents <§=>314 — Patentability—-Separate Determination.</p> <p>In a suit for the infringement of two patents which work together in a system in a beneficial way, the validity of each must be determined separately on its own merits, claims, and description compared with what-went before in the same field.</p> <p>2. Patents <@=>34, 45 — Patentability—Evidence of Invention.</p> <p>In doubtful cases, the success of a device or process, either alone or as a part of a system, or the fact that a separate related art has been stimulated by the use of the invention, may be considered in determining novelty or patentability.</p> <p>3. Patents <@=>328 — Patentability—Invention.</p> <p>The Alvey patent, No. 790,766, for a conveyer or device for lowering goods, does not accomplish a new or improved result or an old result from an improved operation, and contains no invention, notwithstanding its use-as part of-a successful system.</p> <p>4. Patents <§=>328 — Patentability—Infringement.</p> <p>The Alvey patent; No. 790,811, for an elevator device for raising goods, held valid and infringed as to the five claims in suit.</p>

<p>1. Aliens <©^61 — Naturalization—Persons Entitled to be Naturalized —Color ob Race.</p> <p>Under Naturalization Act June 29, 1906, c. 3592, § 30, 34 Stat. 606 (Comp. St. 1916, § 4366), providing that all the applicable provisions of the naturalization laws shall apply to and authorize the admission to citizenship of all persons not citizens who owe permanent allegiance to the United States and who may become residents of any state or organized territory with certain modifications, when read in the light of the debates in Congress showing that it was for the declared benefit of the inhabitants of Porto Rico and the Philippine Islands, a native Filipino of the Malay race is entitled to naturalization notwithstanding Rev. St. § 2169 (Comp. St. 1916, § 4358), providing that the provisions of that title respecting naturalization shall apply to free white persons and aliens of African nativity or descent, as section 2169 is to that extent amended by the Act of 1906.</p> <p>2. Aliens i©^>61 — Naturalization—Persons Entitled to be Naturalized— “Persons Who Owe Permanent Allegiance to the United States.”</p> <p>Aliens born outside the Philippine Islands, but residing therein at the date of the treaty of December 10, 1898 (30 Stat. 1751) between the United States and Spain, and who had never been naturalized under the Spanish laws, are not persons owing a permanent allegiance to the United States and entitled to be naturalized under Naturalization Act June 29, 1906, § 30.</p> <p>3. Aliens <©^>68 — Naturalization—Declaration of Intention — “Alien.”</p> <p>A native Filipino bom in the Philippine Islands while under Spanish rule is an “alien.” within Act June 30, 1914, c. 130, 38 Stat. 392, authorizing the naturalization without a previous declaration of intention of aliens who have served an enlistment of not less than four years in the navy and been honorably discharged.</p> <p>[lid. Note. — Dor other definitions, see Words and Phrases, First and Second Series, Alien.)</p>

In Equity. Suit by Samuel Cleland Davidson and others against the American Blower Company and others. Application by William S. Haskell for an order directing the named defendant to pay him reasonable counsel fees, opposed by plaintiffs.

<p>1. Courts <@=3366(10) — State Decisions — Force in Federal Courts.</p> <p>Where a person, imprisoned by the judge of probate for refusing or neglecting to perforin an order, under Comp. Laws Mich. 1915, § 13765, authorizing imprisonment in such ease, applied to the state circuit court for a writ of habeas corpus, which was dismissed, and the Supreme Court denied a writ of certiorari, applied for on the ground that the statute violated the constitutional provision against imprisonment for. debt and was unconstitutional on other grounds, a federal court, to which application was subsequently made for a writ of habeas corpus, cannot consider contentions that the statute is contrary to the state Constitution, as a federal court will not interfere with a decision of the highest state court, determining the validity of a statute under the state Constitution.</p> <p>2. Constitutional Law <@=315 — Courts <@=202(4) — Probate Courts — Due Process of Law.</p> <p>Under Comp. Laws Mich. 1915, § 13765, authorizing the judge of probate to issue warrants for the arrest and imprisonment of any person refusing or neglecting to perform any order, sentence, or decree of such court, until he shall perform such order, sentence, or decree, the issuance of such warrant is a method of enforcing the order of the court, in the nature of a body execution, and not in the nature of a proceeding to punish for contempt, especially iu vievj of the further provision of that section, authorizing the probate court to punish contempts; and hence the warrant may be issued, without a previous order therefor and without notice, without denying due process of law.</p> <p>3. Habeas Corpus <@=45(5) — Grant by Federal Courts — Detention by State Authorities.</p> <p>Where a person, imprisoned by a probate court for refusal or neglect to perform an order of that court, applied to the state circuit court for a writ of habeas corpus, which was dismissed, and a writ of certiorari was refused by the Supreme Court, a federal court would not issue a writ of habeas corpus on the ground that the statute under which he was imprisoned denied due process of law, as there was nothing to take the case out of the general rule that, in the absence of unusual and urgent reasons, federal courts will not interfere by habeas corpus with judgments of state courts from which an appeal can be taken by writ of error to the United States Supreme Court.</p>

Two actions, one at law and the other in equity, by the Audiffren Refrigerating Machine Company against the General Electric Company. On motion by defendant to vacate notices of the taking of depositions de bene esse under section 863 of the Revised Statutes.

<p>1. Pleading <@=>252(2) — Amendment—Operation and Effect.</p> <p>The filing by plaintiffs of amended petitions before defendant answered the original petitions was an abandonment of the original petitions, so that defendant was not required to answer such original petitions.</p> <p>2. Pleading <@=>253 — Amendment—Time to Answer.</p> <p>Under Gen. Code Ohio, § 11860, providing that plaintiff may amend his petition without leave' at any time before the answer is filed, and that notice of such amendment shall be served upon defendant or his attorney, and defendant shall have the same time to answer or demur thereto as to the original petition, the amendment cannot he regarded as made, and defendant’s obligation to answer cannot be regarded as fixed, until notice of the amendment is served upon defendant or his attorney.</p> <p>8. Removal of Causes <s=>79(7) — Time fob Removal — Effect of Amendment.</p> <p>Where, before defendant had answered, plaintiff applied for leave to file an amended petition, instead of amending as of right, under Gen. Code Ohio, § 11360, and instead of procuring an order fixing the time to demur or answer, or serving notice of the amendment on defendants or its attorney, thereby limiting the time to demur or answer, sued out a new summons on the amended petition, fixing a new answer day, defendant was entitled to remove the action to a federal court at any time before such new answer day.</p> <p>4. Removal of Causes <@=»58 — Right to Remove — Altebnative Causes of Action.</p> <p>Where plaintiff stated his right to recover in the alternative, in one count, alleging that defendant was engaged in interstate commerce, and that plaintiff was employed in such commerce at the time the injuries sued for were inflicted, and in the other count alleging the same facts, hut omitting the allegations respecting interstate commerce, the cause was removable to a federal court, since, when plaintiff sets up two separate causes of action, even in the alternative, seeking only one recovery, one of which causes of action is removable and the other not, the defendant may remove the entire case.</p>

<p>1. Internal Revenue <@=>9' — Corporate Excise Tax — Deductions from Income — “Betterments Amounting to an Improvement.”</p> <p>Under Tariff Act Aug. 5, 1909, e. 6, § 38, 36 Stat. 11, imposing a tax on the net income of corporations and authorizing the deduction from the gross income of all ordinary and necessary expenses actually paid out of income in the maintenance and operation of the corporation’s business and properties the cost of additions and betterments amounting to an improvement of a railroad company’s property and adding to its value, such as expenditures for new sidings and spur tracks, or extensions thereto, new stations at places where there had been no stations, etc., and the cost of replacing rails, bridges, culverts and stations with better and more expensive ones in excess of the cost-of renewal with like kind and quality could not he deducted.</p> <p>[Ed. Note. — For other delinitions, see Words and Phrases, First and Second Series, Betterment.]</p> <p>2. Internal Revenue <S=?4 — Executive Interpretation.</p> <p>A rule promulgated by the Treasury Department for the guidance of revenue collectors, though entitled to consideration, has not great weight in determining the proper construction of a revenue law.</p> <p>3. Internal Revenue @=>9 — Corporate Excise Tax — Deouctions from Income — “Operating Expenses.”</p> <p>The “operating expenses” of a railroad, which may he deducted from the gross income in ascertaining the net income subject to the corporate excise tax, means the expense for labor and materials which go into the actual operating of the road and property.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Operating Expenses.]</p> <p>4. Internal Revenue <g=»9 — Corporate Excise Tax — Deductions from Income — “Maintenance.”</p> <p>The “maintenance” of the property and business of a railway company, the cost of which is to be deducted from the gross income in ascertaining the net Income subject to the excise tax, means the upkeep or preserving of the condition of the property to be operated, and does not mean additions to the equipment or property, or improvements of the former condition of the railroad.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Maintenance.]</p>

<p>1. Army and Navy <§==>20 — Compulsory Service and Drafts — Review of Proceedings by Courts.</p> <p>Selective Draft Act May 18, 1917, § 4, providing for the creation and establishment of boards to determine all questions of exemption, and all questions of, or all claims for, excluding or discharging individuals or classes of individuals from the draft, creates independent tribunals for carrying out the provisions of the act, without giving any right to the civil courts to exercise supervisory power over their decisions, or to correct any errors that they may commit.</p> <p>2. Army and Navy <@=>20 — Compulsory Service and Drafts — Exemptions.</p> <p>Under Selective Draft Act, § 2, providing that the draft shall be based upon liability to military service of all male citizens or male persons, not alien enemies, who have declared their intention to become citizens, between certain ages; section 4, providing for the exclusion or discharge of certain specified classes of persons, and creating boards to determine all questions of exemption; and section 5, providing for the registration of all male persons between the ages of 21 and 30, and declaring that all persons registered shall he subject to draft, unless exempted or excused as provided in that act — though aliens who have not applied for citizenship are not liable to military duty, yet they are not automatically exempted, but must claim exemption in order to be excused.</p> <p>3. Army and Navy <@=>20 — Compulsory Service and Drafts — Right to Hearing.</p> <p>Proceedings on an alien’s claim for exemption under the Selective Draft Act are analogous to proceedings before a board of immigration, and the applicants have an unquestionable right to a fair hearing.</p> <p>4. Habeas Corpus <@=>16 — Detention by Military Authorities — Compulsory Service and Drafts.</p> <p>While the action of a local or district board in passing on a claim for exemption under the Selective Draft Act cannot be reviewed as of right by a writ of habeas corpus, such remedy will not be denied, where the board has abused its power or exercised it arbitrarily.</p>

<p>Petition by Carl A. Blacldngton, for a writ of habeas corpus.</p>

<p>In Bankruptcy. In the matter of I. H. Maaget, bankrupt. On application for a discharge.</p>

In Bankruptcy. In the matter of the bankruptcy of William Kern-er. The bankrupt offered composition. On objections by Greff & Co., the master reported against the composition offered. On motion to confirm the report. Motion to confirm a master’s report against a composition in bankruptcy. The master found, and it is not denied, that the bankrupt made a written statement of his financial condition upon which he obtained goods.

In Bankruptcy. In the matter of Louis Bash and others, individually and trading as M. H. Bash Sons, bankrupts. On petition by the Colonial Trust Company for review of an order of a special referee.

<p>At Law. Action by William M. Collins against the Erie Railroad Company. On demurrer to the complaint.</p>

<p>Application by Antone Duus for admission to citizenship.</p>

In Admiralty. libel by Eugene Higgins against the yacht Eros,, claimed by Julien H. Evrard. From the refusal of the clerk to tax the marshal’s poundage on entry of decree, libelant appeals.

Trip-pet, Judge: Action by the Occidental Construction Company against the United States of America. There was a judgment for part only of the relief sought, and plaintiff brings error. The plaintiff in error brought an action against the United States under the provisions of the act of March 3, 1887, known as the Tucker Act (24 Stat. 505).

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

<p>In Error to the District Court of the United States for the Southern Division of the Western District of Washington; Edward E. Cushman, Judge.</p> <p>Action by Pacific County, a municipal corporation, and another, against the Maryland Casualty Company, a corporation of the state of Maryland. There was a judgment for plaintiff, and defendant brings error.</p>

<p>1. Intoxicating Liquors £=>223(3) — Illicit Distilling — Issues, Pbooi?, and Variance.</p> <p>In a prosecution for illicit distilling, the gravamen of the offense being the unauthorized distillation of alcoholic spirits, an instruction authorizing conviction if accused distilled rum, brandy, or whisky was not erroneous, though the indictment charged only distillation of whisky, for the specification might be disregarded as surplusage.</p> <p>2. Criminal Law £=>1172(6) — Appeal—Harmless Error — Instructions.</p> <p>Where the evidence showed only illicit distillation of whisky, an instruction authorizing conviction on proof of distillation of rum, brandy, or whisky, was harmless though the indictment specified only whisky.'</p> <p>3. Intoxicating Liquors <3=167 — Illicit Distilling — Persons Liable— Owner of Land.</p> <p>In a prosecution for illicit distilling, an instruction that, if defendant allowed the use of his land for the still under agreement giving him control thereof or an interest therein, he was equally responsible with the party in control and operation, was not open to objection, as the charge warranted proof that defendant was engaged with others in illicit distilling.</p> <p>4. Criminal Law £=>1169(2) — Appeal—Harmless Error — Admission op Evidence.</p> <p>Where the sheriff testified to finding the still on defendant’s land, the admission of testimony by the depuiy collector that the sheriff telegraphed him to come, that he had got defendant’s still, while erroneous, was harmless.</p> <p>5. Witnesses <@=>405(2) — Impeachment—Collateral Questions.</p> <p>Where, for impeachment, the prosecution questioned defendant as to a wholly collateral charge against him, the prosecution is bound by his answer that prosecution of such charge had been quashed, and the judgment roll is not admissible despite altercations between counsel.</p> <p>6. Chiminal Haw <@=>1169(11) — Appeal—Harmless Bkror.</p> <p>In a prosecution for illicit distilling, where defendant took the stand, and in response to cross-examination by the prosecution admitted he had been indicted for adultery, but stated the prosecution h'ad been quashed, the court admitted the judgment roll in the adultery case on account of a sharp altercation between counsel and by instructions authorized the jury to consider it. It was claimed that the judgment contradicted defendant’s statement that prosecution had been quashed and showed a discreditable state of affairs in his household. Held, that the erroneous admission of the judgment roll was prejudicial error.</p>

<p>1. Appeal and Error <§^>954(1) — Review—Questions Presented.</p> <p>An appeal, alter defendant’s application to rehear motion for preliminary injunction was denied, presents for review only the propriety of the preliminary injunction complained of.</p> <p>2. Contracts <S^ld7(3) — Construction—Rules.</p> <p>In ascertaining the intention of the parties, the contract as a whole should be considered.</p> <p>3. Injunction <§=p186(2) — Subjects oe Protection.</p> <p>Defendant, a distiller with a large quantity of whisky in bond, entered into a contract whereby plaintiff, after buying certain whisky, was given the option of buying whisky made in subsequent years. One clause of the contract provided that defendant should bottle whiskies for plaintiff at fixed prices, and another clause provided that the contract should become void on plaintiff’s failure to exercise in due season any annual option provided for, and that if, at termination, there should remain in bond any whiskies previously purchased, defendant should bottle the same according to agreement. A supplemental contract allowed plaintiff to do his own bottling, and a later agreement provided that, on its termination, defendant should bottle whiskies still in bond and sold by plaintiff to his customers. Held that, on termination of the contract by plaintiff’s failure to exercise the option provided, plaintiff was, in view of the whole contract, and the fact that bonded whisky could only be bottled in defendant’s bottling house appurtenant to the distillery where the whisky was bonded, entitled under the evidence now produced to a preliminary injunction, preventing defendant from' excluding plaintiff from use of the bottling house.</p> <p>4. Appeal and Error <@=>954(1) — Preliminary Injunction — Discretion.</p> <p>An order granting a preliminary injunction should be affirmed, where the granting of the injunction was not an abuse of discretion, and there was a fair case for its exercise.</p>

<p>Appeal from the District Court of the United States for the District of Montana; Geo. M. Bourquin, Judge.</p> <p>Suit by the Pacific Coast Pipe Company against the Conrad City Water Company and others. Prom a judgment dismissing the bill (237 Fed. 673), plaintiff appeals.</p>

<p>In Error to the District Court of the United States for the District of Oregon; R. S. Bean, Judge.</p> <p>Action by the Ford Motor Company against E. A. Farrington and L. A. Houck, copartners doing business as the Pacific Transfer Company, and others, who counterclaimed. There was a judgment for defendants, and plaintiff brings error.</p>

Call, Judge. Dibel by the Henry Nanninga Company and others against the Quernmore, claimed by the Steamship Queensmore, Limited, and another. From the decree, the claimant and its surety appeal and the libelants also assign cross-errors.

<p>1. Railroads 3=376(8) — Injuries on Tracks — 'Liability.</p> <p>Under tbe Tennessee Precautions Act (Shannon’s Code 1896, § 1574, subsec. 4), a railroad company is liable for the death of one run down on its tracks, where tbe engineer did not look ahead or blow the whistle, though, had he looked, the engineer could have seen deceased 150 feet away, and could have blown the whistle, so deceased could have stepped out of danger.</p> <p>2. Costs 3=260(4) — Frivolous Appeal — Penalty.</p> <p>Where the only excuse offered to defeat an action for the death of one run down by defendant’s traiu was obviously insufficient, a penalty of 5 -per cent, is properly imposed under rule 26, clause 2 (202 Fed. xvii, 118 C. O. A. xvii), upon affirmance of the judgment on error.</p>

<p>Mandamus <@=>58 — Judicial Proceedings — Enforcement of Mandate of Appellate Court.</p> <p>A petition held to state no ground for a writ of mandamus to compel a District Judge to comply with the mandate of the Circuit Court of Appeals.</p>

<p>Patents <g=»259 — ‘•Contributory Infringement.”</p> <p>The publication in a magazine oí a cut of a garage, with a general description from which a skilled mechanic* might build a structure which would infringe a patent, did not constitute contributory infringement, in the absence of proof that any one had made or intended to make such use of the article, since, for one to be chargeable with contributory infringement, there must be a direct infringement, existing or threatened.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Contributory Infringement.]</p>

<p>In Equity. Suit by the Metallic Rubber Tire Company against the Hartford Rubber Works Company. On exceptions to master’s report on accounting.</p>

<p>Habeas Corpus. Application by the United States, on the relation of Joseph Koopowitz, alias Jacob Koopowitz, for a writ against John P. Finley, Colonel Infantry, D. O. L., in Charge Militia Affairs, Headquarters Eastern Department, United States Army.</p>

At Law. Clinton H. Pierce and others were indicted for conspiracy under Criminal Code (Act March 4, 1909, c. 321), § 37, 35 Stat. 1096 (Comp. St. 1913, § 10201), and also violations of the so-called Espionage Act, §§ 3 and 4. On demurrer.

<p>At Law. Clinton H. Pierce and others were indicted for conspiracy and violation of the Espionage Act, § 3, and they move for a bill of particulars as to counts i and 2 of an indictment for conspiracy and violation of section 3 of the so,-called Espionage Act.</p>

<p>At Law. Action by Mary J. Ivins against Joseph P. Jacob and another, trading as Jacob Bros. On motion of defendants for a new trial.</p>

<p>1. Corporations <@=>326 — Directors’ Liability — Statutory Provisions— Liberal or Strict Construction.</p> <p>Act Pa. April 29, 1874 (P. L. 73), making corporate directors individually liable for debts where they have declared a dividend while the company was insolvent, is both penal and remedial, and is to be so construed as to make it effective where it applies, hut not to extend its application beyond the cases set forth.</p> <p>2. Corporations <@=>334 — Liability of Directors — Wrongful Payment of Dividend — “Insolvent.”</p> <p>Under Act Pa. April 29, 1874, directors of a corporation, who vote a dividend to themselves, knowing that the moneys thus paid out are needed to meet the demands of those with whom the company has contractual relations, are individually responsible to creditors, especially if the dividend is declared by the directors for the purpose of benefiting themselves, to the loss of creditors; a corporation whose finances are in this condition being insolvent within the meaning of the statute.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Insolvent.]</p> <p>3. Corporations <§=>340(2) — Liability of Directors — Debts Included.</p> <p>Act Pa. April 29, 1874, imposing liability on corporate directors, declaring a dividend when the company is insolvent, tor all debts of the company then existing and for all thereafter contracted, includes an executory contractual obligation of the corporation on which there is no existing debt when the dividend is declared.</p> <p>4. Corporations <§=>360(1) — Liability of Directors — Actions to Enforce — ■ Pleading.</p> <p>In a suit by a creditor of a corporation against its directors, a bill of complaint, alleging that defendants, knowing that a large sum of money would soon become payable to plaintiff: under its contracts with the corporation and that the corporation was in consequence insolvent, diverted a large part of the assets to themselves and other stockholders by declaring a dividend of 500 per cent, and then applying for a receivership, as a result of which the creditors got nothing, sufficiently showed that the corporation was insolvent.</p> <p>5. Corporations <§=>334 — Liability of Directors — Wrongful Payment of Dividend.</p> <p>Under Act Pa. April 29, 1874, the existence of an outstanding executory contract will not of Itself halt the payment of dividends by the corporation, though insolvency results from executory contracts existing when the dividend is declared.</p> <p>6. Courts <§=>343 — Federal Courts — Equity Bules — Parties.</p> <p>Under the equity rules, a corporate creditor, suing directors to enforce their statutory liability under Act Pa. April 29, 1874, may sue on behalf of all other creditors having the same cause of complaint, and by the bill tender them an opportunity to become parties.</p>

<p>At Law. Action by the Guaranty Trust Company of New York against the Mexican Petroleum Company, Limited. On motion by plaintiff for judgment on the pleadings.</p>

, In Bankruptcy. In the matter of the bankruptcy of M. & H. Gordon. On motion to confirm report of special master recommending that proposed composition be confirmed, to which Liberman & Co., a creditor, objected.

<p>In Equity. Suit by the William Wrigley, Jr., Company against A. Colker.</p>

<p>In Admiralty. Libel by the Steamship Company Sark against the South Atlantic Steamship Company.</p>

<p>In Admiralty. Libel by William A. Castle, Leon Gottheil, and Frank C. Overton, copartners doing business as Castle, Gottheil & Overton, against the Swedish America Mexico Line, Limited.</p>

<p>Sales <§=71(3) — Contracts—Construction—“Cargo.”</p> <p>Defendant executed a contract reciting sale to plaintiff of 25,000 to 80,000 bags of Cuban sugar, to be shipped per steamer or steamers to be named as soon as possible. The contract provided that insurance should be covered by buyer, including risk of lighters at ports of loading and discharge, and for payment to seller in six days from the date of delivery of shipping documents to buyers for net amount of invoice. Plaintiff objecting that the contract did not contain all the items agreed upon, defendant’s broker wrote a letter stating that, in reference to the contract, the understanding at the time of the sale of the cargo was that the drafts to be drawn against the cargo were to be made payable in Philadelphia, plaintiff’s place of business, and that, should there be any demurrage, the same should be settled for on the basis of net registered tonnage. Plaintiff returned the contract, with a letter stating that the contract for the sale of from 25,000 to 30,000 bags of sugar had been accepted. Before any ship had been chartered, the actual furnisher of the sugar chartered a vessel, loading it with 32,000 bags of sugar. The price of the sugar having appreciated between the date of the contract and the arrival of the vessel at plaintiff’s place of business, plaintiff claimed the whole of the shipment, on the theory that the word “cargo,” used In reference to the contract by defendant’s broker, embraced the whole shipment. Held that, while the word “cargo” is primarily the load of the ship, it may carry a varying meaning, and in view of the contract, and the provisions for shipment on several ships, plaintiff was not, defendant seller having the option of delivering 25,000 to 30,000 bags of sugar, entitled to more than 25,000 bags; this being particularly true, as defendant could not have required plaintiff to accept any sugar m excess of 30,000 bags.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Cargo.]</p>

<p>1. Carriers <§=>30 — Car Demurrage — Applicable Tariot.</p> <p>A local tariff of demurrage charges applies after it has gone into effect, by notice for the required time, to all cars, including those accepted for transportation before tbe tariff was issued and filed with tbe Interstate Commerce Commission; tbe optional allowance of storage at destination being wholly disconnected with the service of transportation.</p> <p>2. Commerce <©=>89 — Interstate Commerce — Demurrage Charges — Complaint to Commissioner.</p> <p>The interstate Commerce Commission, and not the court, is the tribu- • nal to which complaint should be made of any unreasonableness in a local tariff of demurrage charges filed with it.</p> <p>3. Carriers <@=»100(1) — Car Demurrage — Notice oe Arrival.</p> <p>In the absence of anything in a tariff of demurrage charges, or the statute under which it is issued requiring the carrier to give notice of arrival of cars, absence of such notice does not affect time when demurrage charges commence, notwithstanding notices are usually given on the day of arrival, as matter of courtesy or custom.</p> <p>Smith, J., dissenting.</p>

<p>Aiieks <S=»58 — Okebnsks Against Immigration Daw — Conteact Laboeers.</p> <p>Under Immigration Act Fob. 20, 1907, c. 1134, §§ 4-6, 34 Stat. 900 (Comp. St. 1916, §§ 4248, 4250, 4251), making it a misdemeanor to assist or encourage the immigration of any alien by promise of employment through a foreign advertisement, etc., the offense is complete, although an alien, seeking to enter the United States in consequence of such a promise, is denied entry.</p> <p>Hook, Circuit Judge, dissenting.</p>

Action by Maude Norris, administratrix of the estate of Herbert Norris, deceased, against the Illinois Central Railroad Company. There was a judgment for plaintiff, and defendant brings error. Action for damages arising out of the death of Herbert Norris. Verdict and judgment for defendant in error, herein called the plaintiff.

<p>Appeal and Error <§»266(2) — Necessity oir Exception — Decree on Auditor’s Report.</p> <p>Where, after exceptions to the first report of the auditor making distribution of funds realized by a receiver appointed in a creditors’ suit were sustained, appellants filed no exceptions to the auditor’s amended report and schedule, either before him or when the schedule was filed in court, and a final decree directing distribution according to such schedule was entered, an appeal from such decree, taken after distribution and on the same day an order discharging the receiver was entered, presents nothing for review.</p>

<p>In Error to the District Court of the United States for the Middle District of Pennsylvania; Chas. B. Witmer, Judge.</p> <p>Action by Antonio Adamo and wife against the Fell Brewing Company. From a judgment for plaintiffs, defendant brings error.</p>

<p>1. Patents <©=321 — Infringement—Pro Forma Decrees — Practice.</p> <p>Pro forma interlocutory decrees by the trial court are not favored.</p> <p>2. Patents <©=324(5) — Infringement—Review—Dismissal.</p> <p>In a suit for infringement of patent, defendant, after argument and submission of an appeal from an interlocutory decree for complainant, set up the recent discovery of a Belgian patent as important, as bearing on the validity and scope of one of the patents in suit, and asked that it be permitted in some method to bring the patent into the record before decision. It appeared that defendant was not guilty of laches in discovering the patent, and that it was of such superficial resemblance to one in suit that, if it were excluded and the decree below affirmed, further litigation would be probable. Held, that there was no available procedure, unless the parties stipulate otherwise, to bring the patent into the case, except to dismiss the appeal without prejudice and remand the case, with directions that it be reopened for additional proofs.</p> <p>3. Patents <@=324(6) — 'Infringement—Dismissal of Appeal. »</p> <p>In such case, directions that the suit be reopened for additional proofs, and that, in the light of the original record and such proofs, it again be heard and decided, is not beyond the power of the Circuit Court of Appeals.</p>

<p>1. Patents <S=314 — Dismissal by Plaintive.</p> <p>While a plaintiff cannot dismiss Ms bill, so as to deprive a defendant of rights established during the progress of the trial, plaintiff, in a suit for infringement of a patent, may, after the introduction of evidence and before submission, withdraw his charge of infringement as to one claim of the patent and proceed as to another.</p> <p>2. Patents <S=»167(1) — Claims—Drawings.</p> <p>Drawings attached to a patent may be used to explain any obscurity in the specifications, and to show the form and position of the parts.</p> <p>8. Patents <g=»59 — Pbior Aet — Evidence.</p> <p>Though foreign patents were not issued more than two years before plaintiff’s application, so as to constitute a bar under Rev. St. § 4880 (Oomp. St. 1916, § 9430), yet, where the date of their issuance antedated that of plaintiff’s invention, such patents were properly cited to show anticipation or prior state of the art.</p> <p>4. Patents <3=>32S — Infringement—Anticipation.</p> <p>Barber patent, No. 781,802, for improvements in valves and valve gear for explosive engines, h&ld anticipated and limited by tlie prior state of tlie art, and, as limited, not to be infringed by defendant’s device.</p>

In Equity. Suit by William Barber against the Otis Motor Sales Company. Application for a request to the Circuit Court of Appeals to recall its mandate, and for a rehearing.

In Equity. Suit by John M. Landon, receiver of the Kansas Natural Gas Company, against Public Utilities Commission of Kansas and others. On final hearing for injunction against the Missouri defendants.

<p>1. Army and Navy <@=>20 — Conscription for Foreign Service — “Militia.’*</p> <p>Congress under tbe power given by Const, art. 1, § 8, to declare war, raise armies, and do all things necessary and proper for execution of that power, can by conscription organize the militia of the United States, as defined by National Defense Act June 3, 1916, §i 57 (Comp. St. 1916, § 3041), for foreign warfare, and as incident thereto provide for enforced' registration of those liable to the service, as done by Selective Draft Act May 18, 1917, § 5; the power given by such section of the Constitution to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions, with the implied inhibition against calling it out for any other purpose, relating to the organized state militia as such.</p> <p>[Ed. Note. — For other definitions, see Words- and Phrases, First and Second Series, Militia.]</p> <p>2. Army and Navy <@=>20 — Constitutional Daw <@=>84 — Religious Liberty —Selective Draft Law — “Law Respecting an Establishment of Religion or Prohibiting the Free Exercise Thereof.”</p> <p>Selective Draft Act May 18, 1917, § 4, exempting ministers and students in recognized theological schools, is not a “law respecting an establishment of religion, or prohibiting the free exercise thereof,” within the meaning of Const. Amend. 1.</p> <p>3. Statutes <3=>64(1) — Effect of Partial Invalidity.</p> <p>Were provision of Selective Draft Act May 18, 1917, § 4, exempting clergy and. divinity students unconstitutional, it, while falling, would not affect the rest of the act, which is clearly separable therefrom.</p> <p>4. Army and Navy <®=»20 — Constitutional Law <3=362 — Delegating Legislative Power — Establishing “Courts” — Selective Dram Hoards.</p> <p>Const, art. 3, § 1, vesting the judicial power in the Supreme Court and such inferior courts as Congress may establish, is not contravened by Selective Draft Act May 18, 1917, § 4, authorizing the President to create and establish boards, to determine, subject to review by him, questions of exemption; they, though clothed with discretionary and quasi judicial powers, being essentially part and parcel of the executive machinery of the government.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Court.]</p> <p>5. Statutes <3=364(1) — Effect of Partial Invalidity.</p> <p>Were Selective Draft Act May 18, 1917, § 4, in so far as providing that certain officers and classes of persons, though exempt from selective draft, shall not be exempt from.service in any capacity that the President shall declare to be noncombatant, to be held to contemplate involuntary servitude, in contravention of Const. Amend. 13, it would merely fall, and, being separable, not affect any other provision of the act.</p> <p>6. Army and Navy <3==20 — Constitutional Law <3=»62 — Delegating Legislative Power — Raising Army.</p> <p>Selective Draft Act May 18, 1917, § 1, providing that the President be and hereby is “authorized” to raise, organize, officer, and equip all or such number of the increments of the regular army provided for by National Defense Act June 3, 1916, as he may deem necessary to raise all organizations of the regular army to the maximum enlisted strength authorized by law, to draft and organize and officer any or all members of the National Guard and of the National Guard Reserves, and to raise by draft as therein provided, and organize, officer, and equip an additional force of 500,000, or suc-h part or parts thereof as he may at any time deem necessary, considered with the preceding words, “In view of the existing emergency, whieh demands the raising of troops in addition to those now available,” and with section 2, providing that the enlisted men required to raise and maintain the organization of the regular army and to complete and maintain the organizations embodying the members of the National Guard drafted into the service of the United States, at the maximum legal strength as by this act provided, shall be raised by voluntary enlistment, or, if and whenever the President decides that they cannot effectually be so raised or maintained, then by selective draft, and with Joint Resolution April 6, 1917, declaring a state of war between the United States and the Imperial German Government, and that the President is authorized and “directed” to “employ the entire naval and military forces of the United States and the resources of the government to carry on war against the Imperial German Government,” does not delegate to the President the power, vested in Congress, to raise an army; it not attempting to give him an uncontrolled option to take or omit to take steps for the organization and equipment of the miliary forces of the United States as contemplated by Congress, but merely committing to him the execution of the general scheme of Congress, with necessarily large discretionary powers.</p>

<p>1. Army and Navy <§=20 — Draft Boards — Jurisdiction.</p> <p>Special tribunals, such as local and district boards created by Selective Draft Act May 18, 1917, are quasi judicial bodies of inferior and limited jurisdiction, and have authority to hear and determine only such matters as the law directs.</p> <p>2. Judgment <§=477 — Quasi Judicial Tribunals — Validity—Collateral Attack.</p> <p>Decisions of quasi judicial tribunals of limited jurisdiction, if unaffected by fraud or mistake, are conclusive, whenever collaterally questioned, where the tribunal has proceeded according to law and has not exceeded its jurisdiction, but are void, if in excess of jurisdiction, or contrary to law.</p> <p>3. Appeal and Error <§=31 — Quasi Judicial Tribunals.</p> <p>Any person aggrieved by the proceedings of a quasi judicial administrative body may appeal to the civil courts.</p> <p>4. Judgment <§=496 — Quasi Judicial Tribunal — Collateral Attack — Jurisdiction — -Presumption.</p> <p>A judgment of an inferior quasi judicial tribunal of limited jurisdiction, when questioned in a civil court, cannot be upheld, unless the jurisdiction of the tribunal affirmatively appears; there being no presumptions in favor of the judgment.</p> <p>5. Judgment <§=496 — Collateral Attack — Pleading and Proving Jurisdiction.</p> <p>For a judgment of an inferior tribunal with quasi judicial powers to be upheld, its jurisdiction in the matter must not only be pleaded, but proven.</p> <p>6. Habeas Corpus <§=23 — Issuance—Bight to Issue Writ.</p> <p>Where the facts are not in dispute, hut only a question of law is involved, in an attack on the judgment of a quasi judicial tribunal with inferior jurisdiction committing petitioner, a writ of habeas corpus may issue in the beginning, without delay-to determine how the tribunal will act.</p> <p>7. Army and Navy <§=20 — Selective Draft Daw — Aliens.</p> <p>Selective Draft Act, requiring registration of men for military service, though requiring aliens who have not declared their intention to become a citizen to register, exempts them from military service. Provision is made in the act for exemption of registrants, on filing claims for exemption within seven days after notice mailed to appear before the local boards for physical examination. The act also provides that, if any person fails to appear for physical examination, he shall be recorded as physically qualified, but if he later appears the board may examine him. Pamphlet 1917, form 19, p. 18, issued by the War Department, forbids local boards from calling' or listing for military service aliens who have not declared their intention to become citizens. Reid, that such an alien, though he did not, within seven days after the mailing of notice to appear for physical examination, claim his exemption, must, whenever his alienage is established, be granted his exemption, which is of a different nature than the exemptions given others for dependent families, etc., and he cannot, having claimed his exemption and shown his alienage, be lawfully certified into military service.</p> <p>8. Army and Navy @=>20 — Selective Draft Law — Authority of District Board — Aliens.</p> <p>After certifying relator to the local board for military service, a district board appointed under the Selective Draft Act is without jurisdiction to reject, on the ground that his alienage was not established, relator’s claim for exemption as an alien who had not declared his intention of becoming a citizen.</p> <p>9. Habeas Corpus @=>16 — Issuance of Writ — Restraint by Military Authority.</p> <p>Where the certification of relator into military service was improper under the Selective Draft Act, relator being entitled to exemption as a nondeclarant alien, he is, having been arrested as a deserter and held for trial by court-martial, entitled to habeas corpus to secure his release.</p> <p>10. Habeas Corpus @=>34 — Issuance of Writ.</p> <p>A writ of habeas corpus, directed to an army officer to secure the discharge of a nondeclarant alien who had been wrongfully certified into military service under the Selective Draft Act, cannot be denied on the theory that the army officer in obeying the writ would expose himself to punishment for violation of the orders of his superiors, for the officer’s remedy is not by resistance to the writ of habeas corpus, but by appeal, and it cannot be assumed that his superiors, his orders being general, would direct him to disobey a mandate of the court having jurisdiction.</p>

<p>Salvage <®=»31 — Aid to Ship on Fire at Sea — Compensation.</p> <p>The steamship Antilla, laden with sugar and having another steamer in tow, was on a voyage from the West Indies to New York when, at a point 126 miles south of Cape Henry, a fire started in her cargo. In answer to her wireless call for help, a revenue cntter went to her assistance, and also requested libelant, who was master of a tug to follow, which he did with the owner’s consent, meeting the vessels 18 miles from the capes. The cutter had subdued the fire to some extent, and with the help of the tug the Antilla was finally towed to Norfolk and beached. During that time the fire twice broke out again, but was finally extinguished by the tug with assistance. In all, the tug spent three days and nights in active, laborious service rendering prompt and efficient aid at some risk. The Antilla and cargo were worth over $1,000,000, and the saved value was $585,000. The tug was new, worth $50,000, earning $125 per day, and especially equipped for fighting fire. She was ready to start -with an ocean tow when called for the service. Held, that she was entitled to a salvage award of $9,000.</p>

Iyouis Galleanni and others were indicted under Criminal Code, § 37, for a conspiracy to violate Selective Draft Act May 18, 1917, by inducing persons subject to registration not to register. On demurrer.

<p>In Equity. Suit by the Beatty Oil & Gas Company against Alex Blanton, S. J. Blanton, Harry Daniel, and others. On motion by plaintiff for preliminary injunction.</p>

<p>Appeal from the District Court of the United States for the Territory of Hawaii.</p>

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

<p>Petition to Revise in the District Court of the United States for the Middle District of Tennessee; Edward T. Sanford, Judge.</p>

<p>Appeal from the District Court of the United States for the District of Nebraska.</p>

<p>Appeal from the District Court of the United States for the District of Kansas.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Kentucky; Andrew M. J. Cochran, Judge.</p>

<p>Appeal from the District Court of the United States for the Western District of Oklahoma.</p>

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

<p>In Error to the District Court of the United Slates for the Western District of Arkansas.</p>

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

<p>Appeal from the District Court of the United States for the Territory of Hawaii.</p>

<p>Appeal from the District Court of the United States for the Western District of Oklahoma.</p>

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

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

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

<p>In Error to the District Court of the United States for 'the Eastern District of Michigan; Arthur J. Tuttle, Judge.</p>

<p>Appeal from the District Court of the United States for the District of Minnesota.</p>

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

<p>Appeal from the District Court of the United States for the Territory of Hawaii.</p>

<p>Appeal from the District Court of the United Slates for the Southern District of Iowa.</p>

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

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

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

<p>Appeal from the District Court of the United States for the District of Oregon.</p>

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

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

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

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

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

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

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

<p>In Error to the District Court of the United States for the Eastern District of Michigan; Arthur J. Tuttle, Judge.</p>

<p>Appeal from the District Court of the United Slates for the Territory of Hawaii.</p>

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

<p>Appeal from the District Court of the United States for the Territory of Hawaii.</p>

<p>Appeal from the District Court of the United States for the Territory of Hawaii.</p>

<p>Appeal from the District Court of the United States for the District of Kansas.</p>

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

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

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois. Suit by the Luminous Unit Company against R. Williamson & Co. From a decree for complainant (241 Fed. 265), defendant appeals.</p>

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

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

<p>In Error to the District; Court of the United States for the District of North Dakota.</p>

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

<p>Appeal from the District Court of the United States for tho Eastern District of Missouri.</p>

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

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

<p>In Error to the District Court of tho United States for the District of North Dakota.</p>

<p>Appeal from the District Court of the United States for the Western District of Oklahoma.</p>

<p>In Error to the District Court of the United States for the Eastern District of Tennessee; Edward T. Sanford, Judge.</p>

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

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

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

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

<p>Appeal from tho District Court of the United States for the District of Kansas.</p>

<p>Appeal from the District Court of the United States for the District of Minnesota.</p>

<p>Appeal from the District Court of the United States for the District of Minnesota.</p>

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

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

<p>Appeal from tho District Court of the United States for the Eastern District of Missouri.</p>

<p>In Error to the District Court of the United States for the Western District of Tennessee; John E. McCall, Judge.</p>