Volume 246 — Federal Reporter

<p>In Error to the' District Court of the United States for the Western District of Missouri; Arba'S. Van Valkenburgh, Judge.</p> <p>Actions by B. B. Spiller against the Atchison, Topeka & Santa Fé Railway Company, against the Chicago & Eastern Illinois Railroad Company, against the Chicago & Alton Railroad Company, against the Missouri Pacific Railway Company, against the St. Louis, Iron Mountain & Southern Railway Company, against the St. Louis & San Francisco Railroad Company, against the Chicago, Rock Island & Pacifie Railway Company, against the Illinois Central Railroad Company, and against the Missouri, Kansas & Texas Railway Company. There were judgments for plaintiff, and defendants bring error; the causes being consolidated and heard by stipulation on the record in the case of the Atchison, Topeka & Santa Fé Railway Company.</p>

<p>1. Post Ohicb &wkey;>14 — Nonmailable Matter.</p> <p>Espionage Act June 15, 1917, c. 30, 40 Stat. 230, tit. 12, § 1, declaring every letter, newspaper, or other publication, matter, or thing in violation of any of the provisions of that act to be nonmailable, and section 2, declaring nonmailable every letter, newspaper, etc., containing any matter advocating or urging treason, insurrection, or forcible resistance to any law of the United States, excludes from the mails any letters or literature in furtherance of any acts prohibited under the other titles of the statute.</p> <p>2. Constitutional Law <&wkey;90 — Post Oppice &wkey;>14 — Nonmailable Matter— Freedom of Speech and op Press.</p> <p>Espionage Act June 15, 1917, tit. 12, §§ 1, 2, declaring certain matter nonmailable, do not violate Const. Amend. 1, declaring that Congress shall make no law abridging the freedom of speech or of the press, as the statute imposes no restraint on the matter prior to publication, and no restraint afterwards except as it restricts circulation through the mails, and while liberty of circulating may be essential to freedom of the press, liberty of circulating through the mails is not essential, so long as transportation in any other way is not forbidden.</p> <p>3. Constitutional Law <&wkey;278(l) — Due Process op Law — Exclusion op Matters prom the Matl.</p> <p>Espionage Act, tit. 12, §§ 1, 2, declaring certain matter nonmailable, do not violate Const. Amend. 5, providing that no person shall be deprived of life, liberty, or property without due process of law, though by the exclusion of complainant’s magazine from the mails its business was practically ruined.</p> <p>4. Constitutional Law <&wkey;70(3) — Judicial Functions — Encroachment on Legislature. •</p> <p>It is the function of the legislative department to enact law, and of the judicial department to construe and apply it; and the courts cannot pass upon the wisdom or justice of statutes, but are simply to ascertain the intent of the lawmakers as expressed therein and to give effect thereto.</p> <p>5. Post Office <&wkey;14 — Nonmailable Matter.</p> <p>The Espionage Act is not intended to repress legitimate criticism of Congress or of the officers of the government, or to prevent any proper discussion looking to the repeal of any legislation which may have been enacted, hut only to prevent the dissemination and distribution through the mails of publications intended to embarrass and defeat the government in the successful prosecution of the war.</p> <p>6. Post Office <&wkey;14 — Exclusion of Matter from Mails — Review by Courts.</p> <p>The Postmaster General is to determine whether a particular publication is nonmailable under the Espionage Act, and in so determining is required to use judgment and discretion; and his decision is conclusive on the courts, unless clearly wrong.</p> <p>7. Post Office <&wkey;14 — Nonmailable Matter.</p> <p>Certain articles and cartoons, published by complainant in its magazine concerning the war, conscription, etc., held to warrant the Postmaster General’s determination that it was nonmailable under the Espionage Act, as calculated and intended to obstruct recruiting or enlistment, in violation of title 1, § S, but not unmailable, as advocating or urging treason, insurrection, or forcible resistance to any law of the United States, in violation of title 12, § 2.</p> <p>8. Post Office <&wkey;14 — Nonmailable Matter.</p> <p>A cartoon published by complainant in its magazine, representing the Liberty Bell in a broken form, whatever its meaning, did not by itself afford any ground for exclusion of the magazine from the mails.</p> <p>9. Post Office i&wkey;14 — Exclusion of Matter from Mails — Injunction—Burden of Proof.</p> <p>Complainant, suing to enjoin the postmaster from excluding its magazine from the mail, pursuant to an order of the Postmaster General holding it nonmailable, had the burden of overcoming the presumption that the Postmaster General’s conclusion was right, or of showing that he had exceeded his power, or exercised it wantonly or maliciously; and this should be done by a preponderance of evidence.</p> <p>10. Post Office <&wkey;14 — Nonmailable Matter.</p> <p>The Espionage Act excludes from the mails any publication, the natural and reasonable effect of which is to encourage resistance to a law of the United States, and the words of which are used in an endeavor to persuade to resistance, though the duty to resist is not mentioned directly, and the interest of the persons addressed in resistance is not directly suggested.</p>

C. Van Fleet, Judge. Action by the United States against A. B. Hammond. Judgment for plaintiff (226 Fed. 849), and defendant brings error.

Suit by John Angelus against John Sullivan and others, as members of the Docal Board for Division No. 155 of the City of New York, state of New York. From an order' dismissing the bill of complaint, complainant appeals.

<p>1. Appeal and Error @==>850(1) — Review—Scope—“General Finding”- — • “Special Finding.”</p> <p>Under Rev. St. § 649 (Comp. St. 1916, § 1587), providing that, when is* sues of fact are tried to a federal court, the findings may he either general or special and shall have the same effect as a verdict, and section 700 (Comp. St. 1916, § 1668), providing that the rulings of the court in the progress of the trial, if duly excepted to, may be reviewed, and when the finding is special may extend to a determination of the sufficiency of the facts found to support the judgment, findings in an action tried to the court may be either general or special, the former being a complete deter< mination of all matters, and the latter only a determination of the ultimate facts on which the law must be determined, and where the finding is general nothing is open to review but rulings during tidal not included in the finding, though where the finding is special its sufficiency to support the judgment may be reviewed.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, General Finding; Special Finding.]</p> <p>2. Ajppeal and Error @=268(2) — Review—Evidence.</p> <p>In an action tried to the court, the question whether a special finding is supported by any competent evidence may be raised by a request for special findings and an exception to those made, while in case of a general finding the matter can only be raised by a request generally for the aggrieved party and an appropriate exception to the refusal.</p> <p>3. Pleading @=432 — Complaint—Sufficiency.</p> <p>While on demurrer a complaint should be construed most strongly against the pleader, the complaint should, after answer and judgment, receive, if possible, such a construction as to support it.</p> <p>4. Limitation op Actions @=27 — Construction—Oral Contracts.</p> <p>A contract partly written and partly oral falls within the statute of limitations applicable to oral contracts.</p> <p>5. Limitation op Actions @=87(6) — Statute—Accrual op Action.</p> <p>Plaintiff’s right of action for compensation for acting as agent of defendant, a nonresident, within the state of Washington, did not accrue, so as to start running the three-year period of Rem. & Bal. Code Wash. § 168, until the appointment of his successor on whom process could be served, for service of summons will not be sustained, where on a person who is party plaintiff.</p> <p>6. Judgment @=956(1) — Conclusiveness—Burden op Proop.</p> <p>Defendant, having asserted plaintiff’s action was barred by his former recovery, has the burden of proving the contention.</p> <p>7. Appeal and Error @=850(1) — Review'—Scope.</p> <p>Where defendant in an action tried to the court made no request for special findings, a general finding for plaintiff is conclusive as to matters of fact involved.</p> <p>8. Evidence @=543(2) — Experts—Competency.</p> <p>One who had for nearly all his life followed the business of ship’s agent and broker is competent to testify as to the value of one’s services as .ship’s agent.</p> <p>9. Judgment @=954 — Splitting Causes — Evidence.</p> <p>Where defendant contended plaintiff had split his cause of action and was barred because of his former recovery, evidence as to the nature of his causes of action was admissible.</p> <p>10. Appeal and Error <®=>1050(1) — Review—Harmless Error.</p> <p>Tlie erroneous admission of evidence, where harmless, is no ground for reversal.</p>

C. Van Fleet, Judge. Action by Isabelle Garwood against Joseph Scheiber and others. There was judgment for defendants, and plaintiff brings error.

. Eouie Ding and another were convicted of conspiracy to violate Act May 6, 1882, § 11, as amended by Act July 5, 1884, by bringing into the United States aliens not lawfully entitled to enter, and they bring error.

Orr, Judge. In the matter of the bankruptcy of R. B. Drum. The People’s Bank of California filed its proof of a secured debt based on a mortgage, which claim was challenged as a preference by Elliott Frederick, trustee. From an order of the District Court allowing the claim, the trustee appeals and petitions for revision.

Suit by Charles B. Peterson, trustee in bankruptcy of Samuel H. Wasserman, bankrupt, against Bertha Wasserman and others. From a judgment for defendants, plaintiff appeals. Held: with the intention to procure another homestead therewith, for a period not exceeding two years.

<p>1. TRIAL (&wkey;194(19) — INSTRUCTIONS-WEIGHT Off EVIDENCE.</p> <p>In an action against a railroad company for the death of a freight brakeman, whose head it was contended was crushed by an overhanging bridge, it appeared that the train passed under five bridges, and that of these three were of such a height that deceased could not have been struck by their spans. The court then charged that if deceased, who was walking on the top of the train shortly before the accident, could not have reached the place on the train where he was found dead at the time the train reached the fourth bridge, the jury should find that deceased was not hit by such bridge. The court further charged that, having eliminated four of the bridges in case the reasoning was correct, it was a question whether the last bridge, if any, struck deceased, and that the jury should consider whether the fact that his neck was broken was consistent with his having been struck by a bridge. It was further stated by the charge that, unless the jury were able to find that he was struck by a bridge, then there was no evidence of defendant’s negligence. Held,, that the charge was not objectionable as a binding instruction to find that the brakeman was struck and killed by the last bridge.</p> <p>2. Master and Servant <&wkey;293(21) — Injuries to Servant’ — Actions—Instructions.</p> <p>In such case, where it appeared that the middle span of the last or fifth bridge was considerably lower than the two side spans, and because of its blackened condition that fact could not be seen until an observer was very close, an instruction that if the brakeman was struck and killed by such bridge, then the question for determination was whether he was warned by the defendant railroad company of his danger, and that the warning did not have to be in writing, or any formal warning by this or that officer, it being sufficient if he was given all the knowledge that the company could give him, properly submitted the question of warning to the jury.</p> <p>3. Master and Servant <&wkey;286(30) — Injuries to Servant — Warning.</p> <p>In such case, though the railroad company had provided telltales to warn of the lowness of the bridge, it could not as a matter of law he de-dared that such safeguards were in themselves sufficient notice and warning, and the question was properly submitted to the jury.</p>

Deportation proceeding by the United States against Moy Kong Chiu, begun before a commissioner. From an order of deportation, entered by the commissioner, defendant appealed to the District Court, and from a judgment on trial de novo, directing deportation, defendant appeals. This is an appeal from an order of deportation. The appellant, a Chinese person, arrived at the port of San Francisco in June, 1912, then about 18 years of age.

<p>Appeal from the District Court of the United States for the District of Kansas; John C. Pollock, Judge.</p> <p>Habeas corpus by borne Stoneberg and Edward Hack against Thomas W. Morgan, Warden of the United States Penitentiary at Eeavenworth, Kan. Order dismissing petition, and petitioners appeal.</p>

M. Bourquin, Judge. Action by Walter B. Mitchell against the Leland Company, a corporation, and others. From a decree for defendants, plaintiff appeals. This case was tried in the court below as an equitable action.

Action by the United States against Frederick Delano and others, receivers of the Wabash Railroad Company. There was a judgment for defendants, and plaintiff brings error.

Orr, Judge. Deportation proceedings by the United States against Young Ti, alias Yok Ti, alias Lee Yok Ti, ascertained to be Lee Yung Dye, and against Soo Kan, alias Lee Soo Kan. Prom orders of deportation, separately entered after a joint hearing, defendants appeal.

Action by the United States of America against the Snohomish River Boom Company and another. There was a judgment for defendants (234 Fed. 95), and plaintiff brings error.

I. Grubb, Judge. Action by Mrs. Alice Maynord and E. R. Maynord, administrators of the estate of A. B. Maynord, deceased, against the St. Eouis-San Francisco Railway Company. There was a judgment for plaintiffs, and defendant brings error.

<p>Criminal Law <&wkey;1147 — Sentence—Abuse of Discretion.</p> <p>Where accused was convicted of stealing from a post office a rubber stamp, the property of the United States, the act of the presiding judge in sentencing him to three years’ imprisonment, which was maximum imprisonment provided by Penal Code (Act March 4, 1909, c. 321) § 190, 35 Stat. 1124 (Comp. St. 1916, § 10360), cannot be reviewed as an abuse of discretion, on the theory that the punishment was excessive, even though the judge, in assessing the punishment, took into consideration the fact that the theft of the stamp was committed for an ulterior and decidedly criminal purpose, and that accused was guilty of subornation of perjury of the most glaring character.</p>

<p>In Error to the District Court of the United States for the Western District of Texas; Gordon Russell, Judge.</p> <p>Dee F. Coyne was convicted of violating Act June 25, 1910, commonly known as the White Slave Traffic Act, and he brings error.</p>

<p>Bankioiptcy <3=^467 — Review—Findings oí’ Reíebeis.</p> <p>A finding of fact by a referee, when confirmed by the lower court, will not be reversed on appeal, unless plain error is made to appear.</p>

<p>In Error to the District Court of the United States for the District of Indiana.</p> <p>Action by the Cleveland, Cincinnati, Chicago & St. Rouis Railway Company, against the Alexandria Paper Company. There was a judgment for plaintiff, and defendant brings error.</p>

<p>Bankruptcy @=>303(2), 341 — Preferences—Adjudication—What Constitutes. ' r</p> <p>A judgment of a referee in bankruptcy, disallowing, on objections by tbe trustee, a claim against tbe bankrupt’s estate, on the ground that tbe claimant bad received a preference, is res judicata on tbe question of preference, and admissible in evidence in a subsequent suit by tbe trustee to recover tbe preference.</p>

<p>In Error to the District Court of the United States for the District of Colorado; Robert E. Rewis, Judge.</p> <p>Action at law by John Angelo against the Mutual Coal Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeals from the District Court of the United States for the Western Division of the Northern District of Ohio; John M. Killits, Judge.</p> <p>Bills by the General Manifold & Printing Company against the Simple Account Sales Book Company. From decrees dismissing the bills, complainant appeals; the causes being consolidated.</p>

In Equity. Bill by the Consolidated Railway Electric Righting & Equipment Company against the United States Right & Heat Corporation, which counterclaimed. Decree construing complainant’s patent claims in issue, and adjudging them not infringed by defendant, and dismissing the counterclaim.

<p>1. Patents <§=^7 — Validity—Method.</p> <p>A patent for a method cannot he sustained, when it appears that the result achieved is due to the operation of a machine; but when the new result comes from certain acts, or a series of steps, irrespective of meclia-nisin or the mechanical assemblage, then the steps taken, or the acts performed, or the mode of treatment, involve patentable invention.</p> <p>2. Patents <S==>175 — Glams—Constbuotion.</p> <p>Where a patentee’s invention for humidifying air was a departure from prior processes, the claims of Ms patent are entitled to a fairly reasonable construction, which will not permit another, by changes of form only, to appropriate the substance of his invention.</p> <p>3. Patents <§=»328 — Invention—Inebingement.</p> <p>The Carrier patent, No. 854,270, for a method of heating and humidifying air, consisting in causing an intimate contact of the air with water heated to a temperature above that of the air and below the boiling point, and automatically regulating the temperature of the water by a thermostatic device, held to show invention and to be infringed.</p> <p>4. Patents ®=>328 — Validity—Anticipation.</p> <p>Carrier patent, No. 854,270, for a method for heating and humidifying air, held not to have been anticipated.</p>

<p>Salvage <s=>30 — Amount—Stranded Vessel.</p> <p>A vessel stranded on a dangerous coast near Ship Shoal Inlet. The life service station sent work to Norfolk, and a powerful wrecking tug started at once to the scene. The ship accepted its aid. After two attempts, several hours apart, the second of which lasted for about a half hour, the tug got the chip clear. The weather was good and the ship in no imminent danger. The ship was worth at least $400,000, and the tug more than $100,000. The tug was exposed to no danger, and not called upon to do much hard work, and no great exercise of skill was called for. Held, that an award of $12,500 would be reasonable.</p>

<p>1. Salvage <@=>30 — Rescue of Vessel Stranded at Sea — Amount of Compensation.</p> <p>Tbe British steamship Kia Ora, on a voyage from Australia to London, while going at lull speed, fast grounded on a coral reef in the Bahamas in February. She was a large vessel, comparatively new, and worth from $1,800,000 to $3,000,000, and her cargo was valued at $2,500,000. In response to her wireless signals for help, libelant’s wrecking steamer Relief, with a crew of 70 men, was sent to her assistance from Kingston, 360 miles distant. The Relief was specially built and equipped at a cost of $450,000, and was maintained at Kingston expressly for such service. She reached the steamship in 2% days, and after 5 days’- work succeeded in freeing her in such condition that she proceeded on her voyage unaided. Cargo of the value of about $-428,000, consisting mostly of frozen meat, which could not be kept after its removal from the storage rooms, was jettisoned. The Relief was the only vessel available which could have rendered the service, which was performed very promptly and efficiently. The steamship was in great danger from gales, which at that season were to be anticipated. Held that, under all the circumstances and in view of the large salved value, libelant was entitled to an award of $100,000.</p> <p>2. Salvage <sj=26 — Compensation—Basis of Award.</p> <p>While a salvage award should not be made entirely on a percentage basis where the values are large, it is proper to take the salved value into consideration in fixing a fair and just compensation.</p> <p>3. Salvage <@=27 — Success of Venture — Compensation.</p> <p>The completeness of success of venture should not militate against libel-ant in fixing award. Respondents should not complain of their own good fortune, or have their benefactor suffer on that account.</p>

<p>Seamen ©=»21 — Wages—Eoefeiture eor Misconduct.</p> <p>Libelant, who was mate of an American schooner, on a return voyage from Brazil learned that there was a stowaway on hoard. He did not inform the master, and on arrival at a United States port the stowaway, who was an alien, was smuggled on shore by members of the crew at night, for which, on its discovery by the authorities, proceedings were taken against the vessel, causing delay and expense. Libelant was not a party to the landing, and did not know of . it, but took uo measures to prevent it. The master also suspected the presence of a stowaway, hut asked no questions. Libelant was not discharged, nor charged in the log at the time with any offense, as required by Rev. St. § 4597 (Comp. St. 1916, § 8381). Held,, that he was not chargeable with disobedience of orders, or any other offense under Rev. St. § 4596 (Comp. St. 1916, § 8380), which worked a forfeiture of his wages, but that he should be required to pay a part of the expenses caused the vessel.</p>

In Equity. Suit by the Central Trust Company of New York against the Missouri, Kansas & Texas Railway Company and others. On motion by Speyer & Company for leave to file a petition, or to intervene, for the appointment of an additional receiver.

<p>In Admiralty. Libel by George W. Bush & Sons Company, owner of Barge No. 9, against the steam-tug Alex. Y. Hanna and the members of the Levy Court of New Castle County, Delaware.</p>

<p>1. Equity <&wkey;363 — Practice—Motion to Dismiss.</p> <p>A motion to dismiss a bill operates as a demurrer, admitting the aver-ments therein.</p> <p>2. Taxation <&wkey;ll — National Banks — “Capital Stock.”</p> <p>Rev. St. | 5219 (Act June 3, 1864, c. 106, § 41, 13 Stat. Ill, as amended by Act Feb. 10, 1868, c. 7, 15 Stat. 34 [Comp. St. 1916, § 9784]), empowers states to tax shares of stock of national banks by including them in the valuation of the personal property of the owners, subject to the restriction that shares owned by nonresidents shall be fixed in the city or town whore the bank is located. Act Dec. 23, 1913, c. 6, 38 Stat. 251, providing for Federal Reserve Banks, by section 2 (Comp. St. 1916, § 9786), requires national banks to accept its provisions under penalty of forfeiture of franchise, and provides the percentage of subscriptions to the stock of Federal Reserve Banks, while section 7 (section 9791) declares that Federal Reserve Banks, including the capital stock and surplus therein, shall be exempt from taxation. Held that, as the “capital stock” of a corporation differs from the shares of stock and is the property or funds contributed by stockholders as a basis for the business, section 521.9 was not modified by Act Dec. 23, 1913, and-taxes assessed against an Ohio National bank under Gen. Code, Obio, §| 5408, 5410, 5411, 5412, 5672, on account of the bank’s ownership of shares of stock in a Federal Reserve Bank, are collectible, and no exemption can be allowed because the capital stock of the Reserve Bank is exempt.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Capital Stock.]</p>

<p>In Bankruptcy. In the matter of the bankruptcy of Costa G. Najour. Application by the bankrupt for the setting aside of a homestead exemption, to which John Silvey & Co. and other creditors filed objections. Objections overruled by the referee, and the creditors petition to review.</p>

<p>1. Army ahb Navy &wkey;>19 — Enlistment—Minors.</p> <p>National Defense Act June 3, 1916, c. 134, § 27, 39 Stat. 186 (Comp. St. 1916, § 1885a), declaring that no person under the age of 18 years shall be enlisted or mustered into the military service of the United States without the written consent of Ms parents or guardians, provided that such minor has parents or guardians entitled to his custody and control, is intended for the benefit of the parent or guardian, and gives no rights to a minor under 18 years of age, who enlisted without the consent of bis parents or guardian.</p> <p>2. Army and Navy <&wkey;44(3) — Enlistment—Proceedings by Parent and Guardian.</p> <p>A parent or guardian, seeking under National Defense Act June 3, 1916, § 27, declaring that no person under the age of 18 years shall be enlisted into the military service of the United States without the written consent of his parents or guardians, the discharge of a minor son or ward under 18 -who enlisted without such written consent, must act seasonably, and cannot unduly delay, and hence, having made no objection to the enlistment for over a year, is not entitled to secure the minor’s discharge, after he deserted and was arrested to await trial by court-martial for that offense.</p> <p>3. Army and Navy <&wkey;44(3) — Enlistment—Effect.</p> <p>As National Defense Act June 3, 1916, permits the enlistment of minors over 16, a minor 17 years old, who, misstating his age, was enlisted without the consent of his guardian, becomes, despite section 27, forbidding enlistment of minors under 18 without written consent of parents or guardians, a de facto and de jure soldier, subject to military jurisdiction, and cannot, having committed an offense against military law, as desertion, be discharged on the petition of his guardian until expiation of his offense.</p>

<p>Constitutional Law <&wkey;207(2) — Privileges or Immunities — Statute PECULATING INSURANCE AGENTS.</p> <p>Acts Ky. 1916, c. 19, §,§ 14, 16, which prohibit a licensee to act as agent in the state for any stock fire insurance company doing business therein of any person who is not a bona fide resident of the commonwealth, as applied to agents for foreign companies, in effect impose a condition on such companies for the privilege of doing business in the state, and are within the powers of the state, and not in violation of the federal Constitution, as abridging the privileges or immunities of citizens of the United States or of the several states.</p>

<p>At Law. Action by the United States against the Leon Rheims Company and others. On demurrer of defendant named to complaint.</p>

<p>Petitions by the United States for search warrant to search premises 619 West Iron Street, Butte, Mont., and Rooms 308 and 309, Phoenix Building, of the same city, occupied by one Carl Pohl.</p>

In Admiralty. Suit for collision by H. B. Thompson, master of the steamship Morgan, against the Steamship Ethelstan, with cross-libel; also petition of the Van Steamship Company, owner of the Morgan, for limitation of liability. On motion to dismiss and exceptions to petition. Motion to dismiss denied.

<p>1. Navigable Watebs <®=>20(2) — Bridges—Authority to Construct.</p> <p>Where Congress bas not already legislated to tbe contrary, the power of a state to authorize the construction of bridges over navigable streams wholly within the state, and incidentally to determine what structures will interfere with navigation, is supreme.</p> <p>2. Navigable Waters <@=»20(2) — Bridges—Authority to Construct — Chicago Biver.</p> <p>Congress having in 1890 assumed jurisdiction over the Chicago river for purposes of commerce and navigation under Act March 3, 1899, c. 425, § 9, 30 Stat. 1151 (Comp. St. 1916, § 9971), which provides that bridges may be built over navigable rivers wholly within one state under authority of the Legislature of that state and with the approval of the Chief Engineer and Secretary of War, a bridge built over the Chicago river, under authority obtained in accordance with the laws of the state of Illinois and according to plans approved by the Secretary of War, is a lawful structure.</p>

<p>In Error to the District Court of the United States for the Western District of Missouri; Arba S. Van Valkenburgh, Judge.</p> <p>Action by Elnora Forgy against the McClintic-Marshall Construction Company. Judgment for plaintiff, and defendant brings error.</p>

Rud-kin, Judge. Bill by the United States against the West Side Irrigation Company, filed September 26, 1913. From a decree for the United States (230 Fed. 284), defendant appeals. The appellant is a corporation organized in the year 1889, under the laws of the territory of Washington, to construct and maintain a canal for the purpose of conveying water from the Yakima river and distributing the same for the use and benefit of its stockholders, who are farmers.

Whitaker Thompson, Judge. Suits in admiralty "for collision by Elliott C. Gardner, master of the Schooner Addie M. Lawrence, against the tug Teaser and the barge Powel, the barge. Horace A. Allyn and tug Juno, impleaded, and by the Powel against all thp other vessels. Decree against the Powel and the Teaser, and the latter appeals.

Appeal and Cross-Appeal from the District Court of the United States for the Eastern District of Texas; Gordon Russell, Judge. Suit by Mrs. Grace Schneider and another against A. G. Crump. From the decree which granted complainants only partial relief, defendant appeals, and complainants cross-appeal.

, In the matter of the bankruptcy of R. E. Davis and C. W. Davis, partners trading as Davis & Davis. The J. W. Ould Company filed objections to the bankrupts’ application for a discharge, and from an order granting the application, it appeals.

<p>In Error to the District Court of the United States for the Eastern District of South Carolina, at Florence; Henry A. Middleton Smith, Judge.</p> <p>Action by the Williamson & Brown Land & Dumber Company against the Mullins Lumber Company. There was a judgment for plaintiff, and defendant brings error.</p>

<p>1. Specific Performance @=>43 — Right to — Payment.</p> <p>Under Park’s Ann. Civ. Code Ga. § 4634. providing that specific performance of a parol contract as to land will be decreed where there has been full payment alone, accepted by the vendor, or partial payment accompanied by possession, or possession alone, with valuable improvements, complainant, who, having entered into possession of land with his mother-in-law, remained after she left under a parol contract to pur-, chase the land from the owner is, having made valuable improvements and paid all, or nearly all, of the purchase price, entitled to specific performance of the contract.</p> <p>2. Quieting Title @=>10(3) — Action—Recovery.</p> <p>Complainant, having entered into possession of land With his mother-in-law, remained after she departed, under a parol contract that he should purchase the land on installments and, having paid all taxes, and made valuable improvements, as well as paying all the installments of the purchase price, defendant having refused to execute a deed, or even accept tender of the small amount which he claimed was still due, is entitled to have his title quieted as against the claims of the defendant.</p> <p>3. Limitation of Actions @=>60(10) — Running of Statute — Quieting Title.</p> <p>Where complainant remained in possession of land which he had purchased under a parol contract and defendant vendor continued to assert a claim against the land which amounted to a cloud on complainant’s title, limitations did not run against complainant’s suit to quiet title.</p> <p>4. Imitation op Actions <§=»180(6) — Running oe Statute — Institution op Second Action.</p> <p>Complainant, a resident of Arkansas, in 1909 sued for specific performance of a parol contract for the sale of Georgia lands. After verdict for defendant in 1919 complainant was granted a new trial, and in July, 1913, having heretofore instituted in the federal court a suit for specific performance, dismissed his suit in the state court. Defendant in 1998 repudiated the contract, and sued out against complainant a distress warrant on the theory that he was a tenant. Held, that complainant’s suit in the federal court was not barred by limitation though the four-year statute was applicable; Park’s Ann. Civ. Code Ga., § 4381, declaring that, if a plaintiff shall be nonsuited or shall discontinue or dismiss his case and shall recommence within six months, such renewal case shall stand upon the same footing as to limitations with the original case.</p> <p>5. Limitation op Actions <@=130(6) — Running oe Statute — Action in Federal Coubt.</p> <p>Where a resident of foreign state filed in the state court of Georgia a bill seeking specific performance of a contract to convey Georgia lands and then dismissed such suit, having previously filed suit for similar relief in federal court, such suit filed in the federal court must bo deemed a renewal of original suit within Park’s Ann. Civ. Code Ga. § 4381, and will toll limitations, despite the rule that a case, having been removed to the federal court, cannot be renewed in the state court within six months so as to avoid limitations; the complainant having option as to the tribunal in which he would seek relief.</p> <p>6. Judgment <S=>647 — Conclusiveness—Distress Warrant.</p> <p>Where defendant, who complainant asserted sold the land under parol contract, sued out a distress warrant under which crops raised by complainant were levied upon on the theory that complainant was only a tenant, the judgment subjecting such crops to defendant’s claim was not a conclusive adjudication against complainant’s subsequent suit for specific performance, for a distress warrant may be sued out without personal service and judgment bad even without the knowledge of the person whose property has been seized, and hence the judgment in the proceeding on the distress warrant is conclusive only as to the property taken, this being particularly true as there was evidence that the proceeding was for the purpose of preventing a third person from taking complainant’s crop.</p> <p>7. Estoppel <&=»68(1) — Equitable Estoppel — Duress.</p> <p>Where complainant, an ignorant negro, was acting under duress when defendant sued out a distress warrant and subjected crops raised on land sold complainant under a parol contract to an alleged claim for rent, defendant cannot set up, as an estoppel barring specific performance, the proceedings under the distress warrant, to which complainant did not object.</p>

Killits, Judge- Bill by the Union Trust Company and another against Clyde R. Painter, creditor, bondholder, and stockholder of the Rake Erie, Bowling Green & Napoleon Railway Company, to foreclose a mortgage. From a decree of sale and an order confirming the sale, Clyde R. Painter, creditor, bondholder, and stockholder appeals; his application to vacate the same having been denied.

Woodrough, Judge. Suit by John C. Porter against W. M. Coble, begun in the state court and removed to the federal District Court in which the United States intervened. Prom a decree dismissing the petition, plaintiff appeals.

<p>1. Criminal Law @=»1151 — Continuance—Denial—Abuse of Discretion.</p> <p>Discretion of court on motion for a continuance is not subject to review in the appellate court unless it be clearly shown the discretion was abused.</p> <p>2. Post Office <@=j35 — Offense—Fraudulent use of Mails — Agency.</p> <p>Where defendant, having received, from those actively engaged in conducting a fraudulent scheme, drafts and checks obtained from the victims, delivered them to a local bank for collection, and the bank pursuant to its ordinary custom transmitted the same through the mails for collection, defendant, though the bank was an innocent agent, was guilty of violating Penal Code (Act March 4, 1909, c. ,321, 35 Stat. 1130 [Comp. St. 1916, § 10385]) § 215, denouncing the offense of placing or causing to be placed in a post office matter for the purpose of executing a scheme to defraud, as he was chargeable with notice of the ordinary custom of banks in transmitting negotiable paper through mail for collection.</p> <p>3. Criminal Law <@=»763, 764(6) — Instructions—Remarks of Court — Weakness of Evidence.</p> <p>In a prosecution for using the mails to defraud, comment of the trial court on the weakness of the evidence, offered by defendant to show that his connection with drafts and checks obtained by those actively engaged in the scheme was casual and innocent, was not improper, where the court did not refer to defendant’s failure to testify.</p> <p>4. Post Office <®=^35 — Offenses—Elements.</p> <p>Where, others having through fraud obtained checks and drafts, defendant undertook to aid in their collection, and for that purpose deposited them with a bank for collection, and the bank in process of collection transmitted them through the mails, defendant is guilty of a violation of Penal Code, § 215, providing that whoever, having devised any scheme to defraud, shall for the purpose of executing it or attempting to do it cause to be placed any letter in any post office, shall be punished; for, the collection of the checks and drafts being an essential part of the scheme, defendant cannot escape on the theory that he could not have made himself a party to the fraud by subsequently aiding in the collection of such drafts.</p>

<p>1. Trusts &wkey;>103(4) — Constructive Trusts — Attorneys.</p> <p>Defendants, attorneys at law, to whom an incorporated collection agency sent for collection an account, reduced the same to judgment. Practically the sole asset of the judgment debtor was a statutory right of redemption from foreclosure sale of his half interest in mining property which was subject to a mortgage of $30,000. Three months of the debt- or’s period of redemption had expired when the judgment was obtained, and, while the holders of several judgment liens were successively entitled within short periods to redeem in case the right was not exercised by the debtor, it would require payment of nearly $45,000 for the holders of the judgment to redeem. Less than a month after rendition of the judgment defendants purchased it from their clients, receiving an assignment, and two weeks later they wrote the collection agency from which they received the claim a letter, which, taken in connection, with the prior correspondence, sufficiently informed their clients of the facts in the case. At this time defendants offered to reassign the judgment upon a refund of the amount paid, plus their fees. Held, that as complainants, the clients, declined, through the collection agency defendants’ offer, they cannot, defendants having redeemed the property and thus acquired title by use of the judgment, hold defendants as trustees on the theory that they misrepresented the value and collectibility of the judgment, for defendants acquired title only through a series of errors by third persons.</p> <p>2. Trusts <&wkey;103(4) — Constructive Trusts — Information.</p> <p>Where the proposal and information contained in defendants’ letter offering to reassign the judgment was communicated to complainants, the judgment creditors, a trpst could not be predicated on the theory that the collection agency was no longer complainants’ representative; the judgment having been previously assigned, and that information to it was not information to complainants.</p>

<p>Patents <&wkey;>328 — Validity—Infringe went.</p> <p>Patent No. 1,016,214, for a knit collar piece to bo sewn into the collar band of coats, and which, when fastened, took the form of a truncated cone, fitting the neck snugly at the top, which was made by a tuck stitch, the tension of the yam being changed during process of knitting, Mid to show invention, but to be limited to that particular stitch, and not to be infringed by defendant’s collar, knit on a different machine, in which several different stitches were used.</p>

<p>1. Patents &wkey;>328 — Validity—Anticipation.</p> <p>Colin and Weiner patent, No. 1,121,581, for an improved process for cutting and fitting wearing apparel, consisting of cutting and working and seaming together two pieces of striped or patterned cloth, keeping the stripes or patterns in parallelism with the seam line so that they will "follow longitudinally the curves of the body to be fitted, held invalid for want of novelty.</p> <p>2. Patents <&wkey;7 — Validity—Novelty—“Patentability.”</p> <p>The patent law does not require that an article itself produced by a process should be new, since “patentability” exists in a new process for producing an old result.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, Patentability.]</p> <p>3. Patents &wkey;>7 — “Invention”—What Constitutes.</p> <p>It is not invention for a patentee to merely carry forward an old process, describing it in new terms and adapted equivalent modes under conditions recognized as possible within the knowledge of any mechanic.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Invention.]</p> <p>4. Patents <&wkey;49 — Validity—Utility.</p> <p>Where demand for clothing made according to complainant’s patented process resulted from extensive advertising, such demand does not show utility or invention.</p>

In Equity. Bill by the North American Company against the St. Louis & San Francisco Railroad Company, on which receivers were appointed. Petition of J. L. Coy for intervention, praying the payment of the amount of his judgment against the defendant railroad company._ On exceptions to the report of the special master.

<p>In the matter of the petition of Phil Calloway for writ of habeas corpus.</p>

<p>1. MORTGAGES <&wkey;126 — DESCRIPTION-—PROPERTY INCLUDED.</p> <p>Where the written application for a loan signed by defendant showed that a part of the property which he agreed to mortgage was his homestead, which he occupied and on which was located his residence, etc., the mortgage, which did not describe the quarter section on which was located defendants’ homestead, yet stated that it embraced defendant’s home place, and that each and every part of such place was conveyed, whether particularly described or not, included that portion of the land on which was located defendant’s homestead.</p> <p>2. Homestead <&wkey;133 — Cancellation oe Conveyance — Burden of Proof— Fraud.</p> <p>Where the terms of a mortgage included defendants’ homestead, defendants had the burden of proving that they were misled and deceived into signing it, and that it was obtained through fraud or misrepresentation of the mortgagee’s agent.</p> <p>3. Mortgages <&wkey;596, 597 — Foreclosure—Redemption.</p> <p>Under Code Ala. 1907, §§ 5746, 5747, respectively declaring that where real estate is sold under any deed of trust or power of sale in a mortgage, it may be redeemed by the debtor from the purchaser within two years thereafter in the manner following, and that the possession of the land must be delivered to the purchaser within ten_days after sale thereof by the debtor if in his possession or any one holding under him by privity title on written demand by the purchaser, a debtor, unless he surrenders possession of the land within ten days after written demand, loses his right to redemption.</p> <p>4. Mortgages <&wkey;596, 597 — Foreclosure—Redemption—Right to Redemption.</p> <p>Under Code Ala. 1907, §§ 5746, 5747, relating to redemption of land sold under mortgage foreclosure and delivery of possession to purchaser, a mortgagor must deliver possession of all of the land mortgaged upon proper demand after sale, and his retention of a portion of the land included in the mortgage will, where without excuse, forfeit his right to redemption.</p> <p>5. Quieting Title <&wkey;7(2) — Cloud on Title — Right of Redemption.</p> <p>A purchaser of land sold under mortgage foreclosure is entitled to have quieted his title against the mortgagor’s statutory right of redemption, where the mortgagor by his refusal to deliver possession of all of the premises within ten days after written demand forfeited his right of redemption.</p> <p>6. Courts <&wkey;328(2) — Federal Courts — Jurisdictional Amount.</p> <p>Land worth not less than $7,500 was sold to foreclose a mortgage for $2,-500. The mortgagor having refused to deliver possession of the whole of the mortgaged premises, the mortgagee, which purchased the property on foreclosure, sued to quiet its title to that portion of the premises of which it had acquired possession against any right of redemption by the mortgagor and incidentally to recover the land, possession of which the mortgagor had withheld. Held, that though the portion of land withheld by the mortgagor was worth less than $3,000, a greater sum than that amount was involved, the equity of redemption obviously being worth about $5,000, and hence the federal court had jurisdiction.</p> <p>7. Quieting Title <&wkey;50 — Suits—Complete Relief.</p> <p>A mortgagee having purchased property on foreclosure and having been admitted by tbe mortgagor into possession of all but a small part of the land sued to quiet title to such land on theory that mortgagor, by refusing to surrender possession of whole on demand, had foi’feited right of redemption, held, that, as equity abhors a multiplicity of suits, that portion of the bill seeking to recover the land withheld by the mortgagor is not open to objection on the theory that the mortgagee should not be allowed to maintain its bill to quiet title to lands not in its possession, but the right of the mortgagee to recover the lands withheld must be determined so as to give complete relief.</p>

<p>1. Internal Revenue <&wkey;9- — Corporation Taxes — “Gross Income.”</p> <p>Act Aug. 5, 1909, c.' 6, § 38(1) 36 Stat. 112, imposes a special excise tax of 1 per cent, upon the entire net income over and above $5,000 received by any corporation. Section 38(2) declares that such, net income shall be ascertained by deducting from the gross amount of the income of such corporation: First, all of the ordinary and necessary expenses actually paid within the year; , second, all losses sustained; and, third, interest actually paid within the year on its bonded or other indebtedness to the amount of such bonded or other indebtedness not exceeding the paid-up capital stock of such corporation. The statute further defines “gross income” as the gross amount of the income of such corporation received during -the year. A corporation engaged in brokerage business bought and carried securities for its customers. On these purchases the customers paid'only a part of the purchase price, and consequently owed the corporation balances on which they paid interest, while the corporation in turn also paid on the purchases only a part of the purchase price, and accordingly owed' balances on them, on which it paid interest, but the interest received by. the corporation from its customers on such purchases exceeded the interest’ paid by it on the purchases. JIM, that in computing the gross income of the corporation, the entire interest received by the brokerage corporation from its customers on account of such securities must be returned as part of the gross- income, without deducting therefrom the interest paid by the corporation on account of the same purchases.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Gross Income.]</p> <p>2. Internal Revenue ,<&wkey;9 — Corporation Taxes — Deductions.</p> <p>In such case,-»'the interest paid'by the corporation on account of the purchases of securities must be treated as payments made by the corporation on its bonded or other indebtedness, and consequently can, in computing the net income, be deducted only to an amount not exceeding the paid-up capital outstanding at the end of the year.</p>

<p>In Error to the District Court of the United States for the District of Maine; Clarence Hale, Judge.</p> <p>Action by William W. Osgood, administrator, against the Delano Mill Company. .Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from the District Court of the United States for the District of New Mexico; Wm. H. Pope, Judge.</p> <p>Suit by the United States of America against Robert P. Ervien, Commissioner of Public Lands of the State of New Mexico. From a decree for defendant, complainant appeals.</p>

<p>1. Bankruptcy <§=>211 — Courts—Districts.</p> <p>Where the state court entered judgment for claimants awarding them a vendor’s lien on property of the bankrupt, judgment of the state court awarding the lien is conclusive on the court of bankruptcy, unless the lien was voided by the filing of the petition in bankruptcy.</p> <p>2. Vendor and Purchaser <S=>269 — Vendor’s Liens — Recognition.</p> <p>Vendors’ liens are recognized and enforced in the state courts of Colorado.</p> <p>S. Courts <§==>372(1) — Federal Courts — Enforcement or Lien Given by State Law.</p> <p>The Federal Courts will enforce vendors’ liens if in harmony with the jurisprudence of the state in which the action is brought.</p> <p>4. Bankruptcy <§=>200(4) — Liens—Validity.</p> <p>Vendors who sold mining claims to the bankrupt corporation recovered judgment against the bankrupt in the Colorado state court, which declared a lien on the property and ordered foreclosure and sale. The judgment was rendered within less than four months of the filing of petition in bankruptcy. Bankr. Act July 1, 1898, c. 541, 30 Stat. 564, § 67f (Comp. St. 1916, § 9651), declares that all levies, judgments, or other liens obtained through legal proceedings against a person who is insolvent at any time within four months prior to a petition of bankruptcy shall be deemed null and void in case he is adjudicated a bankrupt. Held, that the section did not apply, and the vendor’s lien could be enforced, for, being recognized by the state law, the lien came into existence on the sale of the property, and the judgment merely established the amount of the debt and ordered foreclosure.</p>

Application by Thomas V. Redman for writ of habeas corpus against F. H. Duehay, President of the United States Board of Parole, and others, constituting a board for paroling prisoners in the United States Penitentiary, McNeil Island, Wash. From an order discharging a rule to show cause, applicant appeals.

<p>Petition toi Revise Order of the District Court of the United States for the District of South Dakota; James D. Elliott, Judge.</p> <p>In the matter of Louis Henkin, bankrupt; Charles B. Fousek, trustee. Petition by the bankrupt to revise an order of the District Court.</p>

In Error and Cross-Error to the District Court of the United States for the Southern Division of the Southern District of California; Olin Wellborn, Judge. Action by N. W. Stowell against the ’Rialto Irrigation District, a corporation. There was a judgment denying plaintiff part of the relief sought, and defendant brings error, and plaintiff sues out a cross-writ of error.

<p>In Error and Cross-Error to the District Court of the United States for the Southern Division of the Southern District of California; Olin Wellborn, Judge.</p> <p>Action between Burt Chellis and the Rialto Irrigation District. There was a judgment, and both parties bring error.</p>

<p>1. PATENTS <3=65 — Description.</p> <p>The patent law requires certainty of expression and a mere conjectural allusion or ambiguous reference to the subject-matter of a later patent contained in a prior will not overcome the validity of the later one.</p> <p>2. Patents <3=58 — Anticipation—Btjbden oír Proof.</p> <p>The burden of proving anticipation of a patent alleged to be infringed is on defendant, and in case of reasonable doubt, the doubt must be resolved against anticipation.</p> <p>15. Patents <3=124 — Claims—Multiplicity.</p> <p>Multiplication of the claims oí a patent which relate to the same subject-matter and are both broad and specific, being undoubtedly phrased to protect the patentee against any possible prior inventions which might amount to anticipation, does not invalidate the patent.</p> <p>4. Patents <3=328 — Validity—Infringement.</p> <p>Puller patent, No. 1,101,2(18, for a stencil blank capable of being sten-cilized, consisting oí a dry but hygroscopic sheet of fibrous material Impregnated with a coagulated colloidal substance and a tempering agent, and No. 1,101,269, for a process of forming a stencil sheet, which consists in impregnating a sheet of fibrous material with a colloidal substance, rendering such substance normally nonplastic, but capable of being temporarily softened, held valid, not being anticipated, and, except as to claims 23 and 24 of the first patent, to be infringed.</p> <p>5. Patents <3=328 — Infringement—What Constitutes.</p> <p>Puller patent, No. 1,101,270, for a method of preparing duplicate stencils, consisting of a particular method of drying the stencil sheet after it has been cut and moistened, whereby the opening in the sheet made in forming the letters or figures is enlarged, held not to show invention, and not to he infringed.</p>

<p>1. Patents <§=>328 — Validity and Infringement — Design for Electric Lighting Fixture.</p> <p>The Bayley design patent, No. 49,593, for a design for an electric lighting fixture, consisting of a bell-shaped glass reflector suspended from a rod or chain with a bowl type reflector suspended underneath it, held not anticipated, valid, and infringed.</p> <p>2.'Patents <§=>71 — Designs—Anticipation.</p> <p>A design cannot be anticipated by showing the elements separately to be old, but the structure must be viewed as a whole as it appears in use.</p> <p>3. Patents <§=>328 — Validity and Infringement — Electric Lighting Fixture.</p> <p>The Bayley patent, No. 1,153,454, for an electric lighting fixture, held not anticipated, valid, and infringed.</p> <p>4. Trade-Marks and Trade-Names <§=>70(1) — Unfair Competition.</p> <p>A defendant, who substantially copied a patented device made and sold by complainant under a trade-name, merely changing the name and advertising and selling it as his own product, held chargeable with unfair -competition.</p>

In Admiralty. Suit for collision by the Delaware, Lackawanna & Western Railroad Company, owner of the tug Lackawanna, against the steam tug Triton and the barge Nanticoke. Decree for libelant against both vessels.

<p>1. Injunction <&wkey;85(l) — Relief—Scope.</p> <p>State officials cannot be restrained and enjoined from attempting to enforce an act prohibiting the sale and advertisement of cigarettes, if valid, merely on the ground its prohibitive provisions did not apply to a particular newspaper company or its employés printing’ or publishing such advertisement, for there would be abundant opportunity to establish that fact in defense of a criminal prosecution.</p> <p>2. GommeRce <&wkey;16 — “Interstate Commerce” — What Constitutes.</p> <p>As “interstate commerce” is not only traffic, but is intercourse, the publication of a newspaper and its distribution from one state to another is interstate commerce.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.]</p> <p>3. Commerce <&wkey;40(l) — Interstate Commerce — Burden on.</p> <p>The sale of cigarettes in a foreign state to a citizen of Kansas, in which slate the sale of such articles was prohibited by Laws Kan. 1917, c. 169. and their carriage from such foreign state into the state of Kansas and delivery in the original packages, is an interstate commerce transaction, which it is beyond the power of the state of Kansas to prohibit or unduly restrict or burden; Congress having exclusive control of interstate commerce.</p> <p>4. Commerce <&wkey;16 — Injunction <&wkey;85(2) — Interstate Commerce — Burden on.</p> <p>Laws Kan. 1917, c. 366, § 1, declares it, shall be unlawful for any person, company, or corporation to barter, sell, or give away any cigarettes or cigarette papers, while section 2 declares that it shall he unlawful for any person, company, or corporation to advertise cigarettes or cigarette papers. Plaintiff, a Missouri corporation, engaged in the business of printing a newspaper in the state of Missouri, sold and distributed its newspaper throughout the state of Kansas, delivering the same by means of the postal service, express companies, and other carriers. The sale of cigarettes'was authorized in the state of Missouri, and Congress Ifas placed no restrictions on interstate commerce in cigarettes. Held that, as the state of Kansas could not prohibit or unduly burden interstate commerce in cigarettes, it could not burden or unduly limit interstate commerce in newspaper advertising, for that would indirectly affect interstate commerce in the articles; and hence the statute, in so far as it was leveled against the advertisement of cigarettes in a newspaper distributed in interstate commerce, was unenforceable, and its enforcement by state officials may be enjoined.</p>

<p>1. Shipping t&wkey;177 — Demurrage—Discharging by Lighter.</p> <p>Where a vessel required to discharge her cargo at a dock employs lighters for the purpose, the consignee is not liable for damages in the nature of demurrage, if the lighters are discharged within the time allowed if the vessel had discharged directly.</p> <p>2. Shipping <&wkey;183 — Demurrage—Lighterage.</p> <p>The rules of the Maritime Exchange, Harbor of New York No. 4, regulating rates of demurrage in case of lighters, does not measure damages in the nature of demurrage, where there is no contractual relation between the parties and such damage must be proved.</p>

<p>In Equity. Suit by Philip F. Du Pont against Pierre S. Du Pont and others. Supplemental opinion on settlement of decree.</p>

<p>In Equity. Suits by the Railway Steel Springs Company, by the Central Trust Company of New York, by the Metropolitan Trust Company of the City of New York, and by the Bankers' Trust Company of New York, against the Chicago & Eastern Illinois Railroad Company. Causes consolidated. On exceptions of the Metropolitan Trust Company toi the master’s report.</p> <p>This is a consolidated case, and the present issue arose on the claim made by the Metropolitan Trust Company of the City of New York, trustee in a mortgage executed by the Chicago & Indiana Coal Railway Comp'any, December 1, 1885, that by the terms of the consolidation agreement entered into between the Chicago & Indiana Coal Railway Company and the Chicago & Eastern Illinois Railroad Company, on June 6, 1894, the lien of its mortgage was extended over the property of the Chicago & Eastern Illinois Railroad Oompany and also over tlie property subsequently acquired by the company as afterward consolidated.</p> <p>The Chicago & Indiana Coal Railway Company was a road completed between Pair Oaks, Ind., and Brazil, Ind., in the year 1886.</p> <p>Mr. II. H. Porter, who owned the controlling interese in the Brazil Block Goal Company, a company owning most of the mines in the Brazil coal fields, Ind.. acquired by foreclosure sale the property of the Chicago & Great Southern Railway Company, extending from Pair Oaks, Ind., on the Louisville, Aew Albany & Chicago Railway (known as the Morion) to Yeddo, in the same state, a distance of 76 miles. Mr. Porter organized the Indiana Railway to take title to the property. At the same time he organized the Lake Michigan Ohio Railway Company for the purpose of constructing a road south from Yeddo to the Ohio river, passing through Brazil. The name of this latter company was changed to Chicago & Indiana Coal Railway Company in October, 1885. On December 1, 1885, the Chicago & Indiana Coal Railway Company executed its mortgage to the Metropolitan Trust Company of the City of New York and R. B. F. Pierce, trustee, to secure an issue of bonds, the total amount of which was unlimited. Under this mortgage, bonds to the amount of 81,000,000 were issued on account of the construction of the line from Yeddo to Brazil, and it was provided that additional bonds to the extent of $18,000 might be issued for each mile of single-track railroad thereafter acquired by construction, purchase, or consolidation, and a further* additional amount of $7,000 per mile of railway constructed or acquired for the purchase of equipment, and $8,000 per mile for double track.</p> <p>Under date of April 4, 1886, the Chicago & Indiana Coal Railway Company and the Indiana Railway Company were consolidated under the name of the Chicago Indiana Coal Railway Company, with a capital stock of $10,000,000. The Chicago & Indiana Coal Railway Company thereafter extended its lines in a northeasterly direction from Fair Oaks, to La Crosse, a distance of 27 miles, completing the work in January, 1887. The trains of the Chicago & Indiana Coal Railway Oompany were intended to use, and for a year or more did use, the Morion tracks from Fair Oaks to Chicago.</p> <p>For many years previous to this time the Chicago & Eastern Illinois Railroad Company, a corporation formed by the consolidation of Illinois and Indiana corporations, was operating a railroad from Chicago south through Danville to Torre Haute, and by means of a branch had been enjoying the monopoly of transportation of the coal from the Brazil coal fields. Soon after the completion of the Chicago & Indiana Coal Railway Company, fierce competition arose between the two roads over the Brazil coal business. As a result thereof, Mr. Porter bought the controlling interest in the Chicago & Eastern Illinois Railroad Company. This purchase was made about the middle of the year 1887.</p> <p>On November 3, 1887, the Chicago & Eastern Illinois Railroad Oompany executed its general consolidated and first mortgage to the Central Trust Company of New York, as trustee, to secure an issue of bonds, the total amount of which was unlimited. Of these bonds $8,000,000 in amount were sot, apart to be used for retiring prior bonds, and the mortgage provided that additional bonds might be issued to the extent of $18,000 per mile of additional single-track extensions and branches thereafter acquired by the railroad company by construction, purchase, or consolidation, $7,000 per mile for every rnile of railroad, including branches and extensions for additional equipment, and an additional amount of $8,000 per mile for every mile of double track (not meaning side tracks) thereafter acquired by the railroad company. The mortgages executed by the coal road and the Eastern Illinois contained in general the same provisions, with the exception that the Eastern Illinois mortgage contained the following provision not found in the Chicago & Indiana Coal mortgage:</p> <p>“If the railroad company shall hereafter consolidate' its property and franchises, by sale or otherwise, with the property and franchises of any other railroad company or companies, the several parties to such consolidation may, by apt words expressed in the agreement, give to this indenture the force and effect of a mortgage conveying to the trustee, above named as its successor, all of the railroads and appurtenant property of tlie several parties, at the date of such agreement, and all railroads and appurtenant property which maybe thereafter acquired, by construction or otherwise, by such consolidated company, to secure upon terms of equality the bonds which may have then been issued hereunder by the railroad company, as well as all bonds which may be thereafter issued by such consolidated company, in substantial compliance with the provisions hereof. In case such agreement shall be made, bonds issued by such consolidated company shall be substantially in the forms above set forth, but in the name of the consolidated company, and shall be executed under its corporate seal and attested by the signatures of its president and secretary. It is the intent of this provision to invest such consolidated company with power to issue bonds for the purposes expressed, and subject to the conditions named in this mortgage or deed of trust, to the same extent as they could be issued by the railroad' company if no such consolidation had been made, thereby giving to the holders of all bonds issued hereunder, whether by the railroad company or its successors, equality of security.”</p> <p>During the summer of 1887, the Eastern Illinois had caused to he incorporated two other railroad companies, namely, the Strawn & Indiana State Dine Railroad Company and the Chicago, Danville & St. Douis Railroad Company, for the purpose of constructing a branch to and an extension of the Eastern Illinois line. The roads were constructed with the fluids of the Eastern Illinois, and under its supervision and by its employes. No stock was ever issued in these roads, and the same were finished and in operation by the Chicago & Eastern Illinois Railroad Company prior to November 1, 1887. The stockholders’ meeting of November 1, 1887, which authorized the mortgage to the Central Trust Company, also ratified a consolidation agreement between the Chicago & Eastern Illinois Railroad Company and the two latter named roads under the name of the Chicago & Eastern Illinois Railroad Company. On November 12, 1887, the agreement was formally executed by the officials of the several companies. The latter consolidation agreement contained (article 7) the following provisions:</p> <p>“Article VII. The mortgage or deed of trust made and entered into on the first day of November, in the year A. D. 1887, by and between the Chicago & Eastern Illinois Railroad Company, party of the first part hereto and the Central Trust Company of New York, a corporation created by and existing under the laws of the state of New York, trustee, shall have the force and effect of a first mortgage executed by the consolidated company, and shall equally secure the payment of all bonds which have been issued under it by the Chicago & Eastern Illinois Railroad Company, as well as pursuant to, and in accordance with its provisions by the ■ consolidated company; but nothing in this article contained shall be construed in such manner as to limit or restrict the powers of said consolidated company to execute other mortgages or deeds of trust, conveying its property, or any part thereof, to secure the principal or interest of any other debt or debts which it may create.”</p> <p>On December 1, 1887, the Eastern Illinois and the Coal road entered into a traffic agreement whereby the traffic of both roads was controlled by a joint committee appointed by the directors of each company. In 1888, the consolidation agreement of November 12, 1887, was amended by a vote of the stockholders of the Chicago & Eastern Illinois Railroad Company to provide that the stock of the Eastern Illinois might be issued to be exchanged for the stock of any other railroad whose tracks connected with the Eastern Illinois.</p> <p>In pursuance of this power, in March, 1889, the Eastern Illinois acquired the entire amount of outstanding preferred and common stock of the Coal road by exchange of its own stock therefor, share for share, and on May 1st took over the operation of the Coal road and closed all its books of account and took charge of its receipts and disbursements. The corporate organization of the Coal road was kept up by annual stockholders’ meetings and by the election of directors to whom were issued qualifying shares.</p> <p>Under date of June 1, 1892, the Chicago & Indiana Coal Railway Company executed a lease of all its property to the Chicago & Eastern Illinois Railroad Company for 999 years. The Eastern Illinois Company agreed to pay, in lien of rental, all taxes and assessments on the leased property and the principal and interest of all of the outstanding bonds secured by the mortgage to the Metropolitan Trust Company. Under date of June 6, 189-1, the Eastern Illinois Company and the Goal Railway Company entered into articles of consolidation, the name of the consolidated company being the Chicago & Eastern Illinois Railroad Company. The consolidation agreement contained the following provisions:</p> <p>“Article VII. The mortgage or deed of trust made and entered into on the 1st day of November, in the year A. D. 1887, by and between the Chicago & Eastern Illinois Railroad Company and the Central Trust Company of New York, a corporation created by and existing under the laws of the state of New York, trustee, also the mortgage or deed of trust made and entered into on the 1st day of December, In the year A. D. 1885, by and between the Chicago & Indiana Coal Railway Company and the Metropolitan Trust Company of the City of New York, a corporation created and existing under the laws of the state of New York, and R. B. E. Pierce, of Grawfordsville, in the state of Indiana, trustees, shall have the force and effect of first mortgages executed by this consolidated company, and shall equally secure the payment of all bonds which have been issued under either of said mortgages or deeds of trust by the Chicago & Eastern Illinois Railroad Company or the Chicago & Indiana Coal Railway Company, as well as all bonds which may be hereafter issued by this consol Mated company, pursuant to and in accordance with the provisions of said mortgage or deed of trust made and entered into on the 1st day of November, in the year A. D. 1887, by and between the Chicago & Eastern Illinois Railroad Company and said Central Trust Company of New York, trustee.</p> <p>“No bonds shall be hereafter issued under or pursuant to said mortgage or deed of trust made and entered Into on the 1st day of December, in the year A. D. 1885, by and between the Chicago & Indiana Coal Railway Company and said Metropolitan Trust Company of the City of New York and said R. B. E. Pierce, trustees; but nothing in this article contained shall he construed in such manner as to limit or restrict the powers of this consolidated company to execute other mortgages or deeds of trust conveying its property, or any part thereof, to secure the principal or Interest of any other debt or debts which it may create.”</p> <p>No consideration was paid to the Chicago & Eastern Illinois Railroad Company for the execution of the above article 7 either by the Metropolitan Trust Company or any one else.</p> <p>The total amount of bonds issued by the Chicago & Eastern Illinois Railroad Company under Its mortgage to the Central Trust Company was $21,-343,000, of which $13,950,000 were issued subsequent to June (>, 1894. From the proceeds of these bonds issued for construction after .Tune 6, 1894, the railroad from Chicago to Terre Haute was double-tracked, a line to St. Louis was acquired and also a lino In Illinois to the Ohio river was purchased, and numerous feeder lines built.</p> <p>In 1905, the Chicago & Eastern Illinois Railroad Company executed its mortgage to the Bankers’ Trust Company of New York, under which about $18,009,000 of bonds were issued and are now outstanding. The claim of the Metropolitan Trust Company was that by virtue of article 7 of the consolidation agreement of June 6, 1894, its mortgage became a valid and subsisting lien on all the property of the Chicago & Eastern Illinois Railroad Company, as follows:</p> <p>“(1) As to all property, rights and interests acquired by or through said constituent Indiana Company a first charge and lien prior and superior in law and in equity, to any other charges or liens whatsoever.</p> <p>“(2) As to all property, rights and interests acquired by or through said constituent Chicago Company a charge and lien prior and superior to any other charges or liens whatsoever created thereon or attaching thereto subsequently to the date of said articles of consolidation, to wit, June 6, 1894.</p> <p>“(3) As to all property, rights and interests other than such as are comprised in subdivisions (1) and (2) of this paragraph XVII, a first charge and lien, prior and superior to any other charges or liens whatsoever, except to the extent, if any, that said mortgage of the Illinois Company, dated November 1, 1887, may be determined to be a valid and subsisting first lien thereon, and to this extent a first charge and lien jointly with the lien of said Illinois Company mortgage, said lien being in all respects joint and equal and without preference or priority of any hind in favor of the lien of said Illinois Company mortgage as against the lien of said mortgage of Chicago & Indiana Coal Railway Company.”</p> <p>Other facts necessary to an understanding of the question will be found in the opinion.</p>

<p>1. Cap.kj tors <3=26 — Cartage Tariff — Liability fob Demurrage.</p> <p>Under the provision of a cartage tariff that shipments so handled will not be subject to car service or storage service accruing through the company’s failure to make delivery within specified free time, goods subject to cartage tariff are not exempt from demurrage, unless the failure to make delivery within the specified free time is that of the company.</p> <p>2. Carriers <@=26 — Cartage Tamm — Demurrage—“Delivery.”</p> <p>“Delivery,” within the provision of a cartage tariff that shipments so handled will not be subject to car service or storage service accruing through the company’s failure to make delivery within the specified free time, is the cartage delivery to bo made by the company’s cartage agent from the car duly placed on the delivery tracks to the terminal cartage point.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Delivery.]</p> <p>5$. Carriers <3=26 — Cartage Tariff — Demurrage—Fault of Railroad or Consignee.</p> <p>Failure of the company’s cartage agent to make delivery of the contents of cars within the free time allowed after the cars were placed on the delivery, track was not that of company, so as, under the cartage tariff, to free the consignee from liability for demurrage, where it was because the consignee was not ready for their contents, and instructed the cartage agent, who was willing and ready to seasonably unload and deliver every ear, to unload and deliver other cars, and so due to the consignee’s fault; and this, though the cars had been placed on the delivery track in an order different from that of their shipment, in which order the consignee wanted their contents, any claim of the consignee on this account being separate from that of liability for demurrage.</p> <p>4. Carriers <3=26 — Demurrage Tariff — “Railroad Error or Omission.”</p> <p>Provision of a demurrage tariff that no demurrage charges shall be assessed for detention of cars through railroad errors or omissions refers to such errors and omissions after placement of the cars on delivery track and notice thereof.</p> <p>5. Carriers <3=38 — Offenses—Demurrage—Knowledge.</p> <p>Under the rule that it will be charged with the sum of the knowledge of its agents within the scope of their respective functions, a railroad knowingly commits the offense of not assessing demurrage charges, where the traffic officials ignore the plain declaration of the cartage tariff under which the shipment is made that it is exempt from demurrage charges only if the failure to make the terminal delivery is that of the railroad, and the cartage agent knows that the cars are being held on the delivery tracks merely because the consignee will not accept unloading.</p> <p>6. Carriers <3=38 — Demurrage—Bunching.</p> <p>Under provision of a demurrage tariff for extra free time in case of bunching, as the direct result of the act or neglect of the carriers, bunching as the result of the consignee’s previous fault in not accepting will not avail.</p> <p>7. Carriers <3=26 — Demurrage—Notice.</p> <p>Though a demurrage tariff contemplates a notice of arrival of cars and a notice of placement, any notice of placement agreed on by the parties is sufficient to start the running of time, irrespective of sufficient preliminary notice of arrival. ' .</p> <p>8. Criminal Law <§==>1168(4) — Harmless Error — Failure to Withdraw Evidence. ' ' • ’ '</p> <p>Failure to directly and clearly withdraw evidence hearing only on issues withdrawn cannot be complained of, where its retention was not likely to prejudice the jury in the 'determination of the simple questions remaining.</p> <p>9. Carriers - <§=>38 — Failure to Assess Demurrage — Penalty.</p> <p>The trial court, in deciding what penalty to impose for carrier’s failure to charge $60 demurrage on 12 cars, for which it was convicted, could consider discrimination disclosed, for which there could be no conviction till the Interstate Commerce Commission had passed on it, or even if it did not "violate the letter of any demurrage or other tariff.</p> <p>Evans, District Judge, dissenting.</p>

Petition for Revision of Proceedings of the District Court of the United States for the Western Division of the Western District of Tennessee; John E. McCall, Judge. In the matter of the bankruptcy of the Busch-Grace Produce Company. Petition by C. S. Dashiell, trustee, and others, to revise an order of the District Court.

M. Bourquin, Judge. Suit by Sweet, Causey, Foster & Company, a corporation, and others, against the City of Bozeman, a corporation, and others. From a decree for complainants, defendants appeal.

In Error and Cross-Error to the District Court of the United States for the Western District of South Carolina, at Greenville; Joseph T. Johnson, Judge. Action by the Portsmouth Cotton Oil Refining Corporation against the Woodruff Oil & Fertilizer Company. There was a judgment for plaintiff, and defendant brings error, while plaintiff assigns cross-errors.

<p>Appeal from the District Court of the United States for the Northern District of West Virginia, at Martinsburg; Alston G. Dayton, Judge.</p> <p>In the matter of the bankruptcy of the Norwalk Motor Company. Petition by C. G: Smith, receiver of the Norwalk Motor Car Company,' and others, to review an order of the referee, opposed by the Shenandoah Valley National Bank of Winchester, Va., and others. From a decree affirming the order of the referee, petitioners appeal.</p>

Johnson, Judge. Action by the Southern Railway Company against the Board of Commissioners of Public Works of the City of Union, S. C. There was a judgment for defendant, and plaintiff brings error.

Newman, Judge. Action by the Georgia Railway & Electric Company against A. O. Blalock, Collector of Internal Revenue for the District of Georgia. There was a judgment for plaintiff, and defendant brings error.

Petition to Superintend and Revise Proceedings of the District Court of the United States for the Southern District of Georgia; William Wallace Lambdin, Judge. In the matter of the Bankruptcy of A. Rosenthal. On petition of L Koppel and Albert G. Ingram, trustee, to review an order of the referee allowing the claim of the Georgia Railroad Bank as a secured claim, the order was reversed and set aside (238 Fed. 597), and the claimant bank petitions to superintend and revise.

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Bill by George Hoyles Dunscomb against the Chicago, Burlington & Quincy Railroad Company. From a decree dismissing the bill, complainant appeals.</p> <p>The material facts appear by stipulation. June 34, 1870, George Hoyles Dunscomb of the Province of Ontario, Canada, married Harriet C. Gore. Appellant, born May 31, 1871, is the only issue of the marriage. The father died March. 21, 1871, leaving a will dated December 14, 1870, in which he. bequeathed to his wife 100 shares of stock in appellee, an Illinois corporation, and other stocks and bonds, and making bequests of cash and chattels to various other persons, with residuary bequest of his property to the children of a brother, and appointing his wife and the brother as executors. There was a codicil of same date as the will, as follows:</p> <p>“In the event of my having issue by my wife, Harriet Catherine Dunscomb, I give, devise and bequeath to my said wife, for the term of her natural life, the income from all the real and personal estate that I may die possessed of, and on her death I give and bequeath said real and personal estate to the child or children of our marriage now living, or who may be living at the time of my death, or born after my death, to be divided equally among them share and share alike.</p> <p>“The real and personal estate to be realized by my trustee either at public or private sale, whichever may in the discretion of the said trustee be deemed best for the interest of my estate, at the death of my wife and divided among the issue of my' marriage as above directed.</p> <p>“And I do appoint Charles H. Muirheid, of the city of Philadelphia, in the state of Pennsylvania, in the United States of America as trustee under this my will to collect and receive and pay over the income of the trust estate, therein comprised, to my wife if she survives me, during her life, and at her death to dispose the said real and personal estate as above directed.</p> <p>“And I bequeath to the said Charles II. Muirheid for his services as trustee the usual commission.”</p> <p>The will and codicil were duly probated in and according to the law of Ontario, and the wife was appointed sole executrix; the brother declining to act.</p> <p>Among the assets of the estate were 261 shares of stock in appellee railroad company. The stock certificates therefor were assigned and surrendered by the executrix, and in pursuance were duly transferred by the National Bank of Commerce of New York, the transfer agent of the railroad company, to “Charles H. Muirheid, trustee for Harriet C. Dunscomb under the will of George II. Dunscomb,” and new certificates of stock issued by the bank to Muirheid in his stated capacity; a copy of the will and codicil having been lodged with the transfer agent bank as evidence of the right of the executrix to assign the stock. While Muirheid so held the stock, the railroad company declared two stock dividends amounting on this stock to 13 and 21 shares, for which certificates were issued to Muirheid as such trustee. The market value of the stock fluctuated greatly between 1872 and 1877, at one time being as high as 143, the lowest point being 78. The trend was generally downward.</p> <p>The widow married one Hunt, and they went for a time to England to reside. July 3, 1877, after correspondence between her and Muirheid, which showed a desire and consent on her part to have the railroad stock sold and its proceeds invested by Muirheid in more stable security, a sale was made at the then market price, of slightly below par, and the proceeds invested by the trustee in interest-bearing mortgages on Philadelphia real estate, which were considered good, and for about five years thereafter the interest on the mortgages was paid to Mrs. Hunt. The transfer agent accepted surrender, and canceled the certificates of this stock so standing in the name of the trustee, and issued new certificates to his vendees. The record shows that thereafter and down to 1900 the market value of the stock continued to fluctuate, going as high as 149% and as low as 53%. Subsequently Muirheid used the mortgages, as well as other property belonging to the trust estate, for his own purposes. In 1883, Muirheid died leaving his estate wholly insolvent, and but a small part of the trust estate so misapplied was ever recovered.</p> <p>In 1883, Mrs. Hunt, then residing in Ontario, brought suit there in chancery against Muirheid’s administrator, Sharp, for the appointment of a new trustee for her deceased husband’s estate; her then infant son being made a party defendant. The infant appeared by duly appointed guardian ad litem, and an order was entered appointing the Toronto General Trusts Company, a Canadian corporation, as trustee to collect. Shortly thereafter, on petition of the guardian ad litem, as well as of the trusts company, the court appointed the trusts company as trustee generally, and authorized the sale of certain railroad and other bonds which were yet remaining in the trust estate, and the investment of the proceeds in real estate mortgages. It appears that the securities which came so into the new trustee’s hands, and were sold under such order, and the proceeds invested pursuant thereto, realized $12,150.19.</p> <p>In the same proceeding, upon petition of the trust company and the guardian ad litem, the chancellor, on June 30, 1883, caused entry to be made upon his minute book that in his opinion suit should be taken by the infant, in the proper court, to impeach the transfer by trustee Muirheid of the railroad stock, and to take advice on prospect of success of such suit. It was stated in the entry that this would involve the expense of a visit of the guardian ad litem to the United States, which expense shall be borne by the trust estate.</p> <p>Pursuant to the advice obtained and to such direction of the Chancery Court of Ontario, the trusts company as trustee of the estate of Dunscomb, deceased, brought suit July 6, 1883, in the Supreme Court ofoNew Yprk against the railroad company (appellee here) and the National °Bank of Commerce of New York, to compel restoration of the railroad stock so sold by trustee Muirheid, and transferred by the bank, and an accounting for the dividends which had theretofore been declared on the stock, and, if it was impossible to restore or transfer the stock, then to compel payment of its value to the trustee. It appears that the guardian of the infant was also a general officer of the trusts company, and that prior to the institution of this suit an agreement in writing was entered into, whereby the guardian and Mrs. Hunt agreed, with certain attorneys who would undertake the suit, that these attorneys should be paid for their services therein a stipulated percentage of all that would be recovered in the suit or by compromise. It appears further that during the pen-dency of that suit there were negotiations for its settlement, and that on June 14, 1887, upon application of the trusts company and the guardian ad litem made to the Chancery Court in Ontario, in the said trusteeship there still pending, a certain proposed compromise of the New York suit was authorized by the Ontario court, although the compromise was in fact never effected. Answers to the New York suit were filed by the defendants therein, and on November 17, 1887, the suit was dismissed on the ground that the trusts company had not the legal capacity to sue in New York. Upon appeal to the General Term the judgment was affirmed, but was reversed by the Court of Appeals, and a new trial granted. T. G. T. Co. v. C. B. t& Q. R. R. Co., 123 N. Y. 37, 25 N. E. 198.</p> <p>Upon retrial the Special Term rendered judgment in favor of the railroad company and against the National Bank of Commerce.. Upon appeal-to the General Term the judgment was affirmed as to the railroad company and reversed as to the bank, that court holding that the trustee Muirheid had the right to sell the railroad stock in question. On appeal by the trusts company to the New York Court of Appeals, the judgment of the General Term was on June 20, 1893, affirmed.</p> <p>On June 19, 1899, Mrs. Hunt and her son, appellant, wbo was then aged 28, filed petition in the High Court of Justice of Ontario for the discharge of the trusts company as trustee of the estate, and for direction to the trustee to transfer to the petitioners all property of the trust estate. On the hearing of the petition that court on June 21,1899, found that the accounts of the trustee had been passed and are satisfactory to the petitioners, who are the only parties interested in the trust estate, and ordered that the trustee “do forthwith transfer and assign the estate of the said George Hoyles Dunscomb as aforesaid to the petitioners and that thereupon the said the Toronto General Trusts Oorporation be and they are hereby discharged of and from the said trust and from all accountability and liability in respect of the said estate.”</p> <p>On March XI, 1904, appellant exhibited in the circuit court of Cook county, Ill., his bill in chancery against appellee, setting forth the facts concerning said railroad stock substantially as herein stated, and asking relief similar to that sought in the New York action, and as here demanded. The suit was dismissed for want of prosecution December 11, 1912. Eight months afterwards the bill in this- cause, similar in its scope to the others referred to, was filed, federal jurisdiction being invoked through diversity of citizenship, the plain-tff, although living at Chicago, being a citizen of Canada. Mrs. Hunt, the mother, was living when this suit was instituted. Upon hearing the District Court dismissed the bill for want of equity, and plaintiff appeals.</p>

Bean, Judge. Suit by the Eastern Oregon Band Company against the Deschutes Railroad Company. From the decree (213 Fed. 897), both parties appeal. In equity. Suit to restrain defendant railroad company from constructing, maintaining, or operating a railroad over certain lands owned by the complainant.

<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 W. O. White against the Chicago Great Western Railroad Company. Judgment for defendant, and plaintiff brings error.</p>

Clayton, Judge. In the matter of the bankruptcy of B. A. Collins. A petition by the II. M. liobbie Grocery Company for review of an order of the referee denying reclamation of merchandise sold the bankrupt having been granted, and reclamation allowed (242 Fed. 975), E. O. Jones, trustee in bankruptcy, appeals.

Trippet, Judge. Action by the United States against the United States Eidelity & Guaranty Company, a corporation. There was a judgment for the United States, and defendant brings error.

J. Cochran, Judge. In the matter of the bankruptcy of J. Rheinstrom & Sons Company. Samuel S. Fels asserted a lien upon certain of the bankrupt’s running accounts receivable as superior to that of George Rueders & Co. and others. From an order allowing priority to the claims of George Rueders & Co. and others, Samuel S. Fels appeals.

<p>Accord and Satisfaction <&wkey;>7(l) — Acceptance—Debt.</p> <p>Whore a lessor accepted a smaller sum than the rent reserved in full payment, the debt was discharged.</p>

Bill by the Postal Telegraph-Cable Company against the City Council of Augusta. From an interlocutory decree ordering the issuance of a preliminary injunction (242 Fed. 538)', defendant appeals.

<p>In Error to the District Court'of the United States for the District of Maine; Clarence Hale, Judge.</p> <p>The Boston & Maine Railroad Company was convicted of transporting, in violation of the Plant Quarantine Act of August 20, 1912, one carload of pine lumber from Maine into Massachusetts without a certificate showing it had been inspected and pronounced free from gypsy moth infection, and it brings error.</p>

<p>1. Patents <&wkey;328 — Validity and Infringement — Brick Machine.</p> <p>The Arnold patent, No. 787,019, for a brick machine, claim 2, as limited by its terms, held not infringed. Claim 8 held void for lack of invention, in view of the prior art.</p> <p>2. Patents <&wkey;165 — Construction—Voluntary Limitation or Claims.</p> <p>The intentional, limitation of a claim by the'patentee is binding on him, although the limitation was voluntary.</p> <p>3. Patents <&wkey;178 — Doctrine of Equivalents.</p> <p>When a word of limitation in a claim in a patent for a machine is not a matter of mere form, as describing a particular machine, but represents a thought essential to that which the inventor regarded as his new step, its limiting effect cannot be neutralized through the rule of equivalents.</p>

<p>Appeal from the District Court of the United States for the District of New Jersey; Charles P. Orr, Judge.</p> <p>Suit in equity by the United States Drainage & Irrigation Company against Jesse P. Manahan. Decree for defendant, and complainant appeals.</p>

<p>In Equity. Suit by the One-Piece Bifocal Lens Company against the Bisight Company and Benjamin Mayer. Decree for complainant.</p>

<p>In Admiralty. Suit by Gustav E. Atkinson, as administrator of the estate of Alfred Siljander, deceased, against Thomas J. Scully. Decree for libelant.</p>

In Bankruptcy. In the matter of the bankruptcy of S. Aboudara. Petition by the Eng-Skell Company to review an order of the referee denying petitioner’s claim to retake property.

In Admiralty. Suit for salvage by the Fisheries Products Company and others against the steamship Edilio and others. Decree lor li-belants.

<p>Aliens <@=361 — Naturalization—Free “White Person” — Hindu.</p> <p>In view of the historical significance of the term, and its subsequent development, a member of the Hindu race cannot be admitted to citizenship under the statute which from 1790 to 1S75, without change, has provided for the naturalization of free white persons; the term “white person” as used in the statute not necessarily including all Caucasians.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, White Person.]</p>

<p>At Raw. Ejectment by Mary Seaples, an Indian, against Ida B. Card and others. On demurrer to answer and counterclaim.</p>

At Law. Suit by Clarence Jellison against the Krell Piano Company and others, begun in state court and removed to the federal court, where one cause of action was dismissed. On motion for remand.

<p>In Equity. Suit by the Second National Bank of Erie against Eugene A. Georger and the Huron Iron Mining Company. On motion to dismiss bill.</p>

<p>In Equity. Suit by Emil Guenther against the Dennis-Simmons Lumber Company. Decree for complainant in part and for defendant in part.</p>

<p>Death <§=39 — Action fob Wrongful Death — Limitation.</p> <p>Under the Pennsylvania statute giving a widow a right of action for the wrongful death of her husband, to be asserted within a year after the death, suck an action is not barred by the fact that an action by the decedent for the injury would be barred by limitations.</p>

<p>1. Receivers <@=s>112 — Authority or — Instructions.</p> <p>Receivers are officers of the court, and may properly ask instructions concerning the administration of the property in their charge, and so it is tlieir duty, if they believe a tax to be unlawful, to apply for instructions whether to pay the same.</p> <p>2. Receivers <§=»112 — Instructions—-Knjoining Taxes.</p> <p>Despite Rev. St. § 3224. (Comp. St. 1916, | 5947), declaring that no suit for the purpose of restraining the assessment or collection of any tax shall be maintained, receivers, as officers of the court, may, where they deem the property or income from the property in their charge not to be subject to tax, as contended by collecting officials, apply to the appointing court for instructions as to payment.</p> <p>3. Internal Revenue @==>7 — Income Taxes — Property in Charge oe Receiver.</p> <p>Act Oct. 3, 1913, c. 16, § 2, A to N, inclusive, 38 Stat. 166, making detailed provision for the imposition and collection of income taxes from individuals and corporations, joinst-stock corporations, or associations organized for profit and having a capital stock represented by shares, omitted the word “receivers.” Prior to the adoption of such statute it had been held, under Corporation Tax Act Ang. 5, 1909, c. 6, § 38, 36 Stat. 112, which also omitted reference to receivers, that excise taxes could not be imposed upon a receiver of a corporation. Held, in view of such construction, and of the fact that Income Tax Act Sept. 8, 1916, c. 463, pt, 2, § 13, subd. “e,” 39 Stat. 771 (Comp. St. 1916, § 6336m), provided for payment of income taxes by corporate receivers, that no income tax could be assessed on income collected by receiver of an insolvent corporation, the reference in Act Oct. 3, 1913, § 2, subds. “d” and “e,” to receivers showing that the term was used with respect to receivers of individuals.</p>

<p>Canals ¡§=29 — Operation—Injury to Vessel Navigating — Hidden Obstructions.</p> <p>Respondent undertook to take libelant’s tug and barge in tow through tile Cape Cod Canal, of which respondent was. owner. It provided a helping tug and also a pilot, who had sole charge of the navigation of all the vessels. During the passage libelant’s tug struck an obstruction and was sunk. The obstruction was a rocky peak on a shoal, which had not been removed when the canal was dug, and which extended to within 7 feet of the surface at low water. The draft of the tug was 12 feet. The canal was not completed, but had been opened by respondent for the passage of vessels of 15 feet draft or less, and the main channel was of sufficient depth. The rock was somewhat out of such channel on the sloping bank, but where the water should have been of sufficient depth for the tug. Its presence was not in fact known to respondent or its pilot, field, that respondent, having undertaken, not only to provide a safe passageway for libelant’s vessel, but also the duty of piloting them, was bound to know of and guard against any existing obstructions, that the grounding raised a presumption of its negligence, and that, in the absence of proof of negligence or fault on the part of libelant’s vessels, it was liable for the loss.</p>

M. Morton, Jr., Judge. Action by the Capital Savings Bank & Trust Company against the Inhabitants of the Town of Framingham. There was a judgment for defendant, and plaintiff brings error.

<p>In Error to and Appeal from the District Court of the United States for the District of Colorado; Robert E. Rewis, Judge.</p> <p>Action by James Syas against the Union Pacific Railroad Company. There was a judgment for plaintiff, and defendant brings error and appeals.</p>

<p>In Error to the District Court of the United States for the Northern District of Georgia; William T. Newman, Judge.</p> <p>Albert H. Dean was convicted of having altered a postal money order, in violation of Penal Code, § 218 (Comp. St. 1916, § 10388), and he brings error.</p>

District of Kentucky; Walter Evans, Judge.' Suit by the Union Stockyards Bank of Wichita, Kan., against Ered Hamilton and others. From a decree for defendants, complainant appeals.

<p>In Error to the 'District Court of the United States for the District of Minnesota; Page Morris, Judge.</p> <p>Action at law by the National Elevator Company against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for defendant. Plaintiff brings error.</p>

<p>Judgment @=>570(5) — Res Judicata — Judgment or Dismissal.</p> <p>Under Gen. St. Minn. 1913, § 7825, which provides that "an action may be dismissed without a final determination of its merits * * * (3) by the court where, upon the trial and before the final submission of the case, the plaintiff abandons it, or fails to substantiate or establish lite cause of action or right to recover,” and the established rule of practice thereunder in Minnesota, which by the conformity statute is made the rule of the federal courts in that state, an order of dismissal, without more, made on motion of defendant and over the objection of plaintiff, is not a final determination of the merits, and does, not bar a second action ; but a judgment entered by the court on a verdict for the defendant directed by the court, on the motion of defendant made at the proper time, determines the merits, and is a bar to a second action. At the close of plaintiff’s evidence in the ease defendant moved for a dismissal on the merits, which motion was opposed, and the court entered an order “that this action be and the same is hereby dismissed.” Plaintiff brought error, and the case was contested in the appellate court and affirmed. I-IelA, that the order made, under the statute and practice and as presumably intended by the court, did not determine the merits nor bar a second action; that defendant, not having sought its modification, but, on the contrary, having defended it through the appellate court, was bound by it as to its legal effect, and was not entitled to an injunction to restrain a second action against it on the same cause of action.</p>

<p>Appeal and Error <S=>1010(1) — Review—Findings of Fact.</p> <p>* A finding by a trial court that an instrument conveying a homestead was not a mortgage, but an absolute and unconditional conveyance of the title, held not so unsupported by evidence as to warrant an appellate court in setting it aside.</p>

<p>1. Patents ®^328 — Validity and Infringement — Package-Sealing Machine.</p> <p>The Ferguson patent, No. 1,066,193, claims 1, 2, 3, 9, and 10, for a pact-age-sealing machine, for use in connection with a wrapping machine, in view of the prior art, and of disclosures made to the patentee,by the customer for whom the first machino was built, held void for lack of patentable invention. Claim 7 also held not infringed, conceding its validity.</p> <p>2. Patents <S=>35 — Evidence of Invention — Commercial Success.</p> <p>Favorable public reception of a patented device is not important, where lack of invention is plain.</p>

Appeals from the District Court of the United States for the Western Division of the Southern District of Ohio; Howard C. Hollister, 'Judge. Suit by the Meccano Limited against F. A. Wagner, trading as the American Mechanical Toy Company, and the Strobel & Wilken Company, who counterclaimed.

<p>Monopolies <&wkey;29 — Anti-Trust Act — Combination oe Retail Lumber Dealers.</p> <p>Defendants were members of a voluntary membership association of retail lumber dealers which adopted the practice of making on the first of each year a “customers’ list” according to the following plan: By means of circular letters a list was obtained from each member of the manufacturers and wholesalers with whom such member dealt. From such lists was compiled a list of all the customers of each such manufacturer and wholesaler within the association. By exchange with other associations the lists were extended to their territory. The secretary, through reports from members and otherwise, obtained information of “unethical” or “irregular” shipments by such manufacturers or wholesalers, to consumers, co-operative associations or mail order houses and notified their customers, who took the matter up direct with the offending dealer. Information so obtained was also furnished to and published in trade papers. The result, as intended, was to prevent such sales and shipments to outside parties to a large extent. Held, that such action on the part of the association and its members was in restraint of interstate commerce, and that defendants were chargeable with conspiring to restrain such commerce in violation of Anti-Trust Act, Act July 2, 1890, c. 647, § 1, 26 Stat. 209 (Oomp. St. 1916, § 8820).</p>

H. Bingham, Judge. Action by the West End Street Railway Company against John E. Malley, Collector. There was a judgment in part for plaintiff, and plaintiff brings error, while defendant also brings error.

<p>In Error to the District Court of the United States for the Northern District of Mississippi; Henry C. Niles, Judge.</p> <p>Action by the Board of Commissioners of Muddy Bottom Swamp Land District, No. 1, Tippah County, Miss., against the Equitable Surety Company. There was a judgment for defendant, and plaintiff brings error.</p>

Sheppard, Judge. Action by Carro A. Brawner against the Royal Indemnity Company. There was a judgment for defendant, and plaintiff brings error.

Bill by Rensselaer L. Curtis against the Walpole Tire & Rubber Company, upon which Robert C. Fisher and another were appointed receivers. Robert S. Emerson, trustee in bankruptcy of the Consumers’ Rubber Company, presented a claim. From the decree dismissing the claim for damages for mismanagement, and for an equitable lien on a sum. of money, claimant appeals.

, Judge. Suit in equity by the Norfolk County Water Company against the City of Norfolk and T. S. Purdie, William M. Plannan, and S. S. Nottingham, members of the Board of Control of said City. Decree for defendants, and complainant appeals.

In the matter of the bankruptcy of Moody-Hormann-Boelhauwe, a corporation. On petition of the Clinton Wire Cloth Company and others, after the demurrer of W. C. Moody, Karl E. Hormann, and Charles T. Boelhauwe was overruled, Moody-Hormann-Boelhauwe, a corporation, after jury trial, was adjudicated a bankrupt, and the individual defendants appeal.

Bourquin, Judge. Suit in equity by Charles H. Moyer, as trustee for the Western Federation of Miners, a voluntary unincorporated association, and Charles H. Moyer, C. F. Mahoney, and Ernest Mills, as members of such association, against the Butte Miners’ Union. Decree for defendant, and complainants appeal.

<p>Internad Revenue <&wkey;9 — Excise Tax on Corporations — Corporations “Organized for Profit” — “Engaged in Business.”</p> <p>The Boston Terminal Company was organized under a special statute (St. Mass. 1896, c. 516) closely defining its organization and powers for the purpose of building and maintaining a union station. As in effect required by the act, its capital stock, or $500,000, was subscribed for by the five railroad companies named therein, in equal shares. Such companies were also required to use the station, and to pay therefor, in proportion to the use made of the same, such amounts as should be necessary to pay the expenses of the corporate administration and of maintaining the station, the interest on the company’s bonds, which amounted to $14,-500,000, and dividends on its stock not exceeding 4 per cent. Such companies were also required in case of foreclosure to pay any deficiency of the bonded debt in the same proportions. The company received a substantial income aside from, payments from the railroad companies from facilities furnished to the traveling public and from leases and concessions. It had never paid any dividends on its stock. It was required to pay a state franchise tax on its capital stock, but the station property was assessed to the railroad companies. Held, that the company was a corporation “organized for profit” and “engaged in business,” within the meaning of 'section 38 of the Tariff Act of August 5, 1909, c. 6, 36 Stat. 112, and subject to the special excise tax thereby imposed; that its gross income under the act included all sums received from the railroad companies, and that it was entitled to a deduction therefrom on account of interest paid, under clause 2, to the extent only of the interest on so much of its debt as equaled its capital stock of $500,000.</p>

In the matter of the Milwaukee Motor Company, bankrupt; First Trust Company, trustee. Appeal by A. J. Farmer from an order disallowing his claim. Appellant Farmer, a mechanical engineer, was employed as superintendent of the bankrupt’s gas engine shops at Milwaukee.

<p>Appeal from the District Court of the United States for the District of New Jersey; John Rellstab, Judge,</p> <p>Suit in equity by Robert Graham Hengst against the John B. Carter Company. Decree for complainant, and defendant appeals.</p>

<p>Í. Negligence ®=»2o — -What Constitutes — Attractive Nuisance.</p> <p>It is actionable negligence for one to leave unguarded, on a part of his premises which he knows is frequented by children for purposes of play, a dangerous thing, which may be fatal to any one who touches it, without taking any precaution against the mischief likely to result.</p> <p>2. Negligence @=»32(2) — Landowneks—Liability.</p> <p>A landowner, who leaves on his premises, which are frequented by children, an unguarded dangerous agency, is liable to a third person who, without negligence on his part, is injured in an attempt to rescue the child or children in peril.</p> <p>3. Electricity <@=>19(2) — Pleading—Demurrer—Scope.</p> <p>Plaintiff’s petition alleged that between a thickly settled street and the tracks of the defendant company there was a strip of land covered with grasS, uninclosed, which was customarily used by children in the neighborhood as a playground, and that defendant made no objections to such use. The petition further alleged that cables of wires transmitting electricity in volume sufficient to instantly kill a human being, from an electric plant on one side of defendant’s tracks to a customer on the other side, fell in a heavy storm and were severed by a passing train; that a short while thereafter defendant’s section hand removed the cables, throwing them on the grass-covered plot used by children as a playground, although knowing at that time that they were heavily charged with electricity; that one of the wires came in contact with the grass and ignited it, and some of the children, seeing the fire, went to that place and began to jump over it, whereupon plaintiff’s husband, realizing the danger of the children, approached the fire to save them, but in going to the place whore the children were playing stepped on the live wire and was instantly killed. Held that, though the complaint might be subject to criticism on the ground that the word “children,” as used with reference to those playing and jumping across the Are, was defective in not showing that they were immature persons of insufficient capacity to be capable of guarding against the peril to which they were exposed, that defect could not, under Georgia practice, be raised by general demurrer, and as against general demurrer the petition must be deemed sufficient; the word “children” being used in its common acceptance.</p> <p>4. Trial <S=»143 — Province of Jury — 'Conflicting EIvidence.</p> <p>An issue is for the jury when the evidence is conflicting.</p>

<p>Appeal from the District Court of the United States for the District of Minnesota; Page Morris, Judge.</p> <p>Suit by the United States against Rudolf Mueller. From a decreé dismissing the complaint, the United States appeals.</p>

Appeals from the District Court of the United States for the Eastern District of Virginia, at Norfolk; Edmund Waddill, Jr., Judge. Suit in admiralty by Bannie Barnes against the ferryboat Rockaway, the Ferries Company, claimant, and the tug Richard F. Young, Henry Crew, claimant. Decree for libelant against both vessels, and claimants appeal.

<p>1. Evidence @=>402 — Quad Agreement Inconsistent with Note.</p> <p>In the absence of fraud, accident, or mistake, the -maker of a note cannot defeat action thereon by proving a prior or contemporaneous agreement inconsistent within it.</p> <p>2. Set-Oee and Counterclaim @=>22(2) — Action on Contract — Tort as Set-Ove.</p> <p>Under the law of Georgia, a tort cannot be set off in an action at law on contract.</p>

<p>Appeal and Erkpb <§=>931(10) — Beview—Presumptions.</p> <p>There is a presumption in favor of the correctness of the findings upon which the decree appealed from was based.</p>

<p>Bankruptcy <§=>169 — Preference—Set-Off.</p> <p>A creditor receiving an illegal preference is not entitled to have the amount due from the bankrupt set off against such preference.</p>

<p>Appeal and -Erbor 1011(1) — Review—Findings of Fact.</p> <p>A finding of fact by a trial court, made on conflicting testimony of witnesses, some of whom testified orally, will be regarded on appeal as presumptively correct.</p>

the District Court of the United States for the Southern District of Iowa; Martin J. Wade, Judge. Action at law by Della Thrailkill against the Crosbyton-Southplains Railroad Company and the C. B. Dive Stock Company. Judgment for defendants, and plaintiff brings error.

Boyd, Judge. Action by John Rucas & Co. against S. O. Bradley, who counterclaimed. There was a judgment for defendant on his counterclaims, and plaintiff brings error.

<p>1. Patents <@=>83 — Right to Patent — Use oe Invention as Trade Secret.</p> <p>The right to preserve a monopoly in an invention by its use as a trade secret for profit, and the right to secure its protection under the patent laws, are inconsistent.</p> <p>2. Patents <@=>83 — Right to Patent — Use oe Process as Trade Secret.</p> <p>An inventor of a process who used it in secret for nearly 10 years, placing the product on public sale, cannot thereafter, when difficulty is encountered in protecting the secret, obtain a patent, and thus extend his monopoly for the patent term, but will be held to have elected to abandon his right to a patent.</p> <p>3. Patents <@=>83 — Right to Patent — “Abandonment.”</p> <p>The policy of the patent law is to secure to the public the full benefit of inventions after expiration of the fixed term deemed sufficient to reasonably stimulate invention, and any action of an inventor which would defeat such policy by withholding his invention from the public for an indefinite time for his own profit will operate as an abandonment of his right to a patent, which in every sense material to the patent laws is tantamount to an “abandonment” to the public of the invention itself.</p> <p>[Ed. Note. — Lor other definitions, see Words and Phrases, First and Second Series, Abandonment.]</p> <p>4. Patents <@=>328 — Validity—Process eor Making Glass.</p> <p>The Macbeth reissue patent, No. 13,760 (original No. 1,097,000), for a formula and process for making glass, held void for abandonment.</p>

Suit in equity by the W. W. Sly Manufacturing Company against the Central Iron Works. Decree for defendant, and complainant appeals. Appeal from decree dismissing appellant’s bill for want of equity. Appellant’s suit was to sustain two patents, No. 514,097, issued February 6, 1894, and No. 703,813, issued July 24, 1902; the application for this last patent having been filed March 5, 1902. Both patents, if valid, were infringed by ap-pellee.

<p>1. Courts @=>3D1 — Number of Judges Sitting — Injunction.</p> <p>Under Judicial Code, § 266 (Act March 3, 1913, c. 231, 36 Stat. 1162 [Comp. St. 1916, § 3.243]), the presence of three judges is necessary to the hearing of a bill for injunctive relief against the enforcement by state officers of a state statute alleged to be unconstitutional.</p> <p>2. Courts @=>308 — Federal Courts — Injunction.</p> <p>Where the amount involved is above the jurisdictional amount, the federal courts can take jurisdiction invoked on account of diversity of citizenship to enjoin the enforcement of an unconstitutional state statute.</p> <p>3. Food <§=>3. — Acts—Purpose.</p> <p>One of the purposes of the several Ohio acts relating to food and drugs and to dairy products is to prevent deception in their sale to consumers and conserve the public health.</p> <p>4. Courts @=366(1) — Precedents—Rinding Precedents.</p> <p>The construction given to state acts relating to food and drugs and dairy products by the highest state tribunal is binding on the federal courts.</p> <p>5. Food @=2 — Statutes—Legislative Question — “Skimmed Milk” — “Food" —“Adulterate”—“Misbrand.”</p> <p>Gen. Code Ohio, § 5774, provides that no person shall manufacture, offer for sale, sell, or deliver, or have in his possession with intent to sell, or deliver, any article of food, which is adulterated or misbranded. Section 5775 declares that a compound article is a “food” if used by man as such, while section 5778 declares that a food is “adulterated” if a valuable or necessary constituent or ingredient has been wholly or in part abstracted; section 5785 declaring that it is “misbranded” if it is labeled so as to deceive or mislead the purchaser, or if the label bears a statement regarding such food which is false or misleading, but that the section shall not apply to mixtures or compounds recognized as ordinary articles or ingredients of articles of food or drink if the label state the percentage of each ingredient. Section 12736 dejares milk to be standard or unadulterated if it contains not more than 88 per cent, of water fluid, while subsequent sections denounce the' offense of selling adulterated milk, although section 12720 permits the sale of skimmed milk as such, while section 32725 provides that whoever manufactures, sells, exchanges, exposes, or offers for sale or exchange condensed milk unless it has been made from pure, clean, fresh, healthy, unadulterated and wholesome milk from which the cream has not been removed, shall be punished. Held, that the statutes in their applicability to a compound article made by condensing “skimmed milk,” which is milk from which the cream has been taken in whole or in part, and the addition of cocoanut oil, cannot beheld invalid, the question being for the Legislature, where it was debatable whether such article was as nutritious as condensed milk made from unskimmed milk, this being particularly true where the compound lent itself and was often sold for regular condensed milk made of un-skimmed milk.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Adulterate; Food; Misbrand; Skimmed Milk.]</p> <p>6. Constitutional Law @=>70(3) — Province of Court — Wisdom of Statute.</p> <p>In such case, the courts have no concern with the wisdom of such statutes, and the Legislature cannot be held to have transcended its powers; the statutes having a substantial relation to a proper purpose, the protection of public health, and the prevention of deception in the sale of dairy products.</p> <p>7. Food <§=>2 — Statutes—Construction—Validity.</p> <p>Gen. Code Ohio, § 12725, prohibiting the manufacture and sale of condensed milk unless made from unskimmed milk, cannot be held invalid because the product made by condensing skimmed milk and adding cocoanut oil was not known at the time of its enactment, on the theory that the Legislature might have unwittingly prohibited the sale of an article of which it had no knowledge.</p> <p>8. Food <§=>2 — Statutes—Validity.</p> <p>Such statute, being intended to protect public health and prevent deception in the sale of condensed milk and being regulatory and not prohibitive, is not invalid under the state or federal Constitutions.</p> <p>9. Commerce <§=>12 — Interstate Commerce — Burden Upon.</p> <p>As National Pure Food and Drugs Act June 30, 1906, c. 3915, §§ 7, 8, 34 Stat. 769, 771 (Comp. St. 1916, §§ 8723, 8724), does not purport to declare that an article of food whose transportation in interstate commerce is allowed may be sold in a state to which it is shipped if it is susceptible of use and is used as a means of deceiving customers, and as the constitutional provision giving Congress the right to regulate interstate commerce does not deprive the states of their power to pass under their police power legislation to protect their citizens, hence, though the labels on the tins containing defendant’s product made by condensing skimmed milk and adding cocoanut oil, shipped to Ohio in interstate commerce, stated the nature of the article, the percentages of vegetable oils and solids, and were sufficient under the national act, yet as it was advertised even on the labels for the same purposes as condensed milk and sold as such, purchasers being deceived, Gen. Code Ohio, § 12725, forbidding manufacture and sale of condensed milk made from anything but wholesome milk from which the cream has not been removed, is valid and enforceable.</p> <p>10. Constitutional Law <§=>296(1) — Due Process oe Law — Statutes.</p> <p>Gen. Code Ohio, § 12725, forbidding the manufacture and sale of condensed milk unless it be made from unadulterated milk from which the butter fat has not been removed, is not, because it recognizes the principle of equality among those engaged in condensing milk, in violation of Const. U. S. Amend. 14,’as depriving one manufacturing a product from skimmed milk and cocoanut oil of his property without due process of law; the statute not being unreasonable or arbitrary.</p>

<p>In Equity. Suit by the American National Bank of Macon against the Commercial National Bank of Macon and its shareholders. On motion to dismiss bill.</p>

In Bankruptcy. In the matter of A. Victor, bankrupt. On petition to review order of referee requiring bankrupt and his wife to deliver to H. E. Ranham, trustee, certain personal property.

At Raw. Action by Mary A. Murphy against John Clark Mitchell. Application on rule to show cause for an order striking from the new complaint allegations, which were claimed to be mere conclusions or in the alternative requiring plaintiff to make the complaint more definite and certain.

<p>At Law. In the matter of the petition of Joseph Cordaro for admission to citizenship.</p>

Newman, Judge. In the matter of the bankruptcy of H. P. Meilcleham. From an order of the District Court, granting the bankrupt a discharge (236 Fed. 401), Mrs. Virginia A. Grafton, the objecting creditor, appeals.

Petition to Revise Order of the District Court of the United States for the Western District of Oklahoma; John H. Cotteral, Judge. In the matter of J. E. Terrell, bankrupt. Petition of E. R. Anderson, trustee, to revise, in matter of law, an order directing the surrender of property to the Oklahoma Moline Plow Company, claimant.

<p>Appeal from the District Court of the United States for the Southern District of Ohio-; John E. Safer, Judge.</p> <p>Suit in equity by W. C. Sterrett, as receiver of the Alabama Trust & Savings Company against the Second National Bank of Cincinnati, Ohio. From the decree, both parties appeal.</p>

<p>1. Insurance <&wkey;272, 668(6) — Marine Insurance — Disclosure.</p> <p>An applicant for marine insurance is under legal obligation to disclose all facts material to the supposed risk; but the materiality of any fact not disclosed is as much a question of fact as that of nondisclosure or disclosure.</p> <p>2. Insurance <&wkey;665(2) —Martne Insurance — Disclosure—Evidence.</p> <p>In an action on maritime policies protecting the insured against war risk only, based on a binder issued by an agent of the insured, which, binder specified no warranties, evidence held to show that the underwriter knew that the applicant for insurance did not want insurance with warranties as to neutrality, because he could not give them, and hence that such applicant was not bound to disclose that Ms nationality was that of one of the belligerents.</p> <p>3. Insurance <&wkey;668(10) — Jury Question — Proximate Cause.</p> <p>Proximate cause of an injury or loss is a question for the jury, unless there is but one inference possible in the settled facts.</p> <p>4. Insurance &wkey;>402 — [Marine Insurance — Policies—War Risk.</p> <p>A mere increase of sea peril by removal for belligerent purposes of aids to navigation does not afford ground for recovery under a policy of maritime insurance protecting against war risk only.</p> <p>5. Insurance <&wkey;l 18 — Marine Insurance — “Proximate Cause.”</p> <p>That cause is proximate which sets other causes in motion, and an intervening act is not a “proximate cause,” unless it is efficient to break the causal connection.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Proximate Cause.]</p> <p>6. Insurance <&wkey;413 — Marine Insurance — War Risk — Policy—Proximate Cause.</p> <p>A shipper of cotton destined to a Swedish port, there to be transshipped to Austria, which country, with Germany, was engaged in war witli Great Britain and its allies, secured a maritime policy protecting against war risk only; the insurance covering the risk of capture, seizure, or destruction or damage by men of war, by letters of marque, takings at sea, arrest, restraints, detaimnents, and acts of kings, princes, and people, authorized by and in i>rosocution of hostilities between belligerent nations. The master of the vessel, intending to proceed to a Scottish port and there to submit to examination by British authorities, was boarded by a British cruiser, which sent an armed party on board and directed the steamer to take a particular route to the Scottish port and by night. During the night, aids to navigation having been removed or extinguished, the vessel was wrecked. The master of the vessel relied on the alleged superior local knowledge of the naval officer in charge of the boarding party. Held that, as the vessel would not have been boarded, or directed to proceed during the night, but for the war, the loss was the proximate result of acts authorized in prosecution of hostilities, and hence covered by the policy.</p> <p>7. Insurance &wkey;>182 — “Binder.”</p> <p>A “binder” is used in marine insurance as an application for insurance made on behalf of the proposed insured and approved by the insurer or his agent.</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 Frampton E. Ellis, administrator of Samuel A. Pegram, deceased, against Dodge Bros. Demurrer to the petition was sustained (237 Fed. 860), and plaintiff brings error.</p>

<p>Appeal from the District Court of the United States for the Northern District of Georgia; William T. Newman, Judge.</p> <p>Suit by the Royal Exchange Assurance of London against Marvin E. Thrower. From a decree (240 Fed. 811, 1024) in favor of defendant and allowing his claim for a set-off, complainant appeals.</p>

<p>1. Quieting Titus &wkey;>12(l) — Actions—Rtgiit to Maintain.</p> <p>Under Con. St. Fla. 1906, § 1930, one out of possession, claiming title, legal or equitable, to land, may maintain a bill against any person, not in actual possession, who claims an adverse estate or interest therein, for the purpose of determining such estate and interest, and quieting or removing clouds from title.</p> <p>2. Estoppel <&wkey;3i — Estoppel by Deed — Officer of Corporation.</p> <p>The president of a corporation, who executes a deed in its behalf containing covenants of assurance that it is unincumbered and free from al) former taxes, and with full warranty of title, is estopped from setting tip any title or lien in himself, claimed by him at the time he executed the deed, on the theory that he, who by language or conduct leads another to do what he would not otherwise have done, shall not subject to loss or damage such person so relying on his representations or conduct.</p> <p>3. Taxation &wkey;>768 — Recordation op Tax Deed — Kffeiot.</p> <p>Where the father of the president of a corporation furnished the money with which to buy in land of the corporation sold for taxes, under an agreement that the deed taken in the name of the president should be held as security, but nothing in the tax deed, which was recorded, showed his rights, such secret equity cannot be asserted against the grantees of the corporation, holding under a deed executed by the president with full warranty, for the president of the corporation is estopped to assert Ms tax title, and the record of the trust deed did not show the equity.</p> <p>4. Estoppel &wkey;>45 — By Deed — Grantees.</p> <p>Where the president of a corporation, who executed in its behalf deeds containing full warranties, thus estopped himself from asserting a tax title to such lands, Ms grantee, the president not claiming title from any other source, is bound by the estoppel against the president.</p> <p>5. Qtjieting Title <&wkey;29 — Defenses—Laches.</p> <p>The president of a corporation, having previously acquired a tax' title to wild uninclosed prairie lands of the corporation, executed a deed in behalf of the corporation, conveying the same with covenants of assurance that they were unincumbered, free from former taxes, and of full warranty. Thereafter the president conveyed a portion of the lands to his codefendants. For more than 20 years complainant and its predeees-sors paid the taxes on the lands, during which time neither the president nor his grantees paid any taxes. Held, that, as laches does not grow out of mere lapse of time, hut is based on a delay which works a disadvantage to another, and from the very nature of the doctrine each case must turn on its peculiar facts, complainant’s suit to quiet title against the claims of the president and his grantees was not barred by reason of the delay. ¡</p>

<p>Petition to Superintend and Revise from the District Court of the Únited States for the Western District of Texas; Duval West, Judge.</p> <p>In the matter of the bankruptcy of Sarah Catherine Woodward. The bankrupt scheduled land as exempt as part of her rural homestead, and A. Robinson, trustee, filed his report on exemptions omitting the land. The referee sustained exceptions of the bankrupt to the trustee's report and held tire land exempt, whereupon the trustee and Sanger Bros, petitioned for review of the referee’s order. The District Court having reversed the decision of the referee and directed the trustee to schedule the land as part of the assets, the bankrupt petitions to superintend and revise.</p>

<p>Appeal from the District Court of the United States for the District of New Jersey; Thos. G. Haight, iJudge.</p> <p>Libel by Barland & Wolff, Limited, against the steamship Kaiser Wilhelm II. From a decree dismissing the libel (230 Fed. 717), libel-ant appeals.</p>

Warren Davis, Judge. In the matter of the bankruptcy of the American Paper Company. Walter P. Gardner, trustee, appeals from an order (243 Fed. 753) disallowing a set-off against claim of the George F. Hills Company.

J. Cochran, Judge. Action by Carrie Salyer, administratrix of Raleigh Reed, against the Consolidation Coal Company, begun in state court and removed to the federal court. There was a judgment of dismissal, and the succeeding administrator brings error, although the writ appears to have been sued out in the name of the original plaintiff.

G. Haight, Judge. Action by Edwin J. Hilt, Jr., and another, against the Erie Railroad Company. There was a judgment for plaintiffs, and defendant brings error.

Sheppard, Judge. In the matter of the bankruptcy of the Pancoast-Morgan Company. M. Coppard, trustee, excepted to the claim of C. N. Tontos, a creditor, and the creditor appeals from an order and decree affirming the order of the- referee sustaining the exceptions to the allowance of his claim.

<p>1. Street Railroads <&wkey;117(34) — Injuries to Persons on Tracks — Disco v-ered Peril.</p> <p>Plaintiff, while proceeding south along the sidewalk, of a street, stepped on a switch track running across the sidewalk and connecting with the main tracks on the street. A car, which had discharged its load at a point south of the switch, was started onto the switch track by a sudden application of power, and struck plaintiff as she stepped onto the track. The motorman, though seeing plaintiff approaching and that she was unaware of the oncoming car, applied the emergency brake, but gave no signal of his approach, which would have enabled her to step back to a point of safety. Held that, although plaintiff might have been guilty of contributory negligence, it could not be declared as matter of law the proximate cause of the injury, but the question whether plaintiff’s contributory negligence, or the negligence of the motorman after discovering her position of peril, was the proximate cause of the injury, was properly submitted to the jury.</p> <p>2. Street Railroads <&wkey;117(23) — Personal Injuries — Directed Verdict— Propriety.</p> <p>Where the question of the negligence of the motorman after discovering plaintiff’s peril was presented by the evidence; a verdict should not have been directed for defendant on the ground that plaintiff was guilty of contributory negligence.</p>

Eibel by Btirns Bros., a corporation, against the steamer Bronx, claimed by George W. Beebe. From a decree for libelant, claimant appeals. The corporation of Burns Bros, filed a libel against the domestic vessel Bronx for supplies, furnished (as alleged) at the instance of master and owner. That steamer was at the time in the possession of Beebe, as charterer, who maintained a ferry.

<p>Petition to Revise Order of the District Court of the United States for the Eastern District of New York.</p> <p>In the matter of the bankruptcy of Gussie Nankin. The bankrupt was directed by order of the District Court to turn over moneys to the trustee, or to show cause why she should not be punished for contempt, and she petitions to revise the order.</p>

Petition to Revise an Order of the District Court of the United States for the Northern District of New York. In the matter of the bankruptcy of the Pierce, Butler & Pierce Manufacturing Company. Petition by the Chicago Tribune for payment for printing notice of sale, contested by the trustee.

<p>In Error to the District Court of the United States for the Eastern District of Pennsylvania; J. Whitaker Thompson, Judge.</p> <p>Action by Irma Spitz against the Maryland Casualty Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Bankruptcy <&wkey;323 — Proceeding—Colíate ral.</p> <p>Bankruptcy Act July 1, 1898, c. 541, § 57, subd. “h,” 30 Stat. 560 (Comp. St. 1916, § 9641), provides that the value of securities held by secured creditors shall be determined by converting the same into money according to terms of the agreement pursuant to which such securities were delivered to such creditor, or by such creditors and the trustee by agreement, arbitration, compromise, or litigation, as the court may direct, and the amount of such values shall be credited upon the claims, and a dividend paid only on the unpaid balance. A creditor, who held a note of the bankrupts secured by a pledge of corporate stock, sold the shares something more than a year after the adjudication. It was agreed that the value of stock at the time when the petition in bankruptcy was filed was approximately $17,000, while the sale price of stock was nearly $24,000. Held that, the creditor having converted the stock into cash, he could not, although the statute provided other alternative methods for fixing the value of collateral, demand that the collateral should be treated as of its value at the date of the filing of the petition in bankruptcy, so as to allow him to receive additional dividends.</p>

Petition for Revision of Proceedings of the District Court of the ’United States for the Middle District of Pennsylvania; Chas. B. Wit-mer, Judge. In the matter of the bankruptcy of William D. Van Horn. Benno Revison and others filed an involuntary petition in bankruptcy against William D. Van Horn, and, his demurrer thereto being overruled, the alleged bankrupt petitions to revise.

<p>Courts @==>366(13) — Federal Courts — Following State Decision.</p> <p>Where, in an action in the federal court to recover Texas land, claimed adversely under the ten-year statute, the court, in accordance with the then latest decision of the Texas Supreme Court, instructed that the claim of right made an essential to adverse possession, required more than mere entry with intention to acquire adverse title; and the Texas Supreme Court, after submission of the case, reannounced the original rule to contrary that a naked trespasser might by ten years’ adverse possession acquire title, the instruction was erroneous.</p>

<p>In Error to the District Court of the United States for the Southern District of Texas; Waller T. Burns, Judge.</p> <p>Action by J. W. Head and others against the City of Earedo. There was a judgment for plaintiffs, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the Northern District of Texas; Edward R. Meek, Judge.</p> <p>W. H. McNeil was convicted of embezzlement, and he brings error.</p>

<p>Appeal from, the District Court of the United States for the South-, ern District of Florida; Rhydon M. Call, Judge.</p> <p>Suit by the United States against the Charleston South Carolina Mining & Manufacturing Company. From decree for plaintiff, defendant appeals.</p>

<p>Indictment and Information <§=»S7(2) — Sufficiency of Date.</p> <p>An indictment presented on March 16, 1916, which charged that heretofore, to wit, on the 1st day of November, 1916, at or near Attalla, in the county of Etowah, state of Alabama, defendant did steal from the mails, etc., and further alleged, that the registered package stolen was mailed on November 6th, 1915, is not subject to demurrer on the ground that the date laidas the date of the theft was an impossible one occurring,after the finding of the indictment, for, in view of the; other allegations,' the indictment informed accused of the offense charged and would support a plea of former jeopardy.</p>

<p>Appeal asd Ekbob <S=>1096(1) — Subseqtjeiut Appeal.</p> <p>Save in exceptional circumstances, questions decided upon one writ of error or appeal are not open to consideration by the same appellate court on a subsequent writ of error or appeal in the same case.</p>

<p>In Error to the District Court of the United States for the Northern District of Alabama; William I. Grubb, Judge.</p> <p>Tom Hollis was convicted of conspiring to commit an offense against the United States, and he brings error.</p>

<p>In Error to the District Court of the United States for the Northern District of Alabama; Wm. I. Grubb, Judge.</p> <p>Simp Patterson was convicted of crime, and he brings error.</p>

Suit by the Linde Air Products Company against the Morse Dry Dock & Repair Company. From a decree dismissing the bill (239 Fed. 909), complainant appeals. The action is the usual bill in equity upon patent to Jottrand, No. 831,078, and all the claims thereof. The application was filed August 22, 1005, and the patent issued September 18, 1906.

<p>Patents <§=328 — Validity and Infringement — Gas Making Apparatus.</p> <p>The Carpenter & Barnum patents, No 1,091,111, for a standpipe, for use in the manufacture of gas, and No. 1,140,113, for a process of reducing stoppage in such, standpipes, are void for lack of invention, in view of the prior art. No. 1,122,683, for a valve for lateral conduits leading from gas retorts to the standpipe, held not infringed.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Kentucky; Andrew M. J. Cochran, Judge.</p> <p>Suit in equity by Kennon Dunham against the Kelley-Koett Manufacturing Company. Decree for defendant, and complainant appeals.</p>

<p>1. Principal and Agent <s=>3(1> — Agents—'Who abe — “Sales Agent.”</p> <p>Complainant, a New Jersey corporation, which owned a controlling interest in the stock of an Ohio corporation, entered into a working agreement which characterized complainant as the Ohio corporation’s general sales agent. By this agreement complainant was to receive a so-called commission of 10 per cent, on the contract price o£ goods purchased of complainant by any customer or customers and manufactured by the Ohio company, out of which sums complainant was to pay all expenses incurred in advertising and effecting sales. A portion of the orders taken in Ohio were placed directly with the Ohio company, and the residue of iis output was produced for complainant, which entered into contracts for the delivery of manufactured articles. Hold, that, as a “sales agent” is one who sells goods which another person has delivered to him for that purpose and receives a compensation for his services by commission or otherwise, and as the goods manufactured by the Ohio company were not delivered to complainant for sale, complainant was not the agent of the Ohio company.</p> <p>2. Courts «=5816 — Federal Courts — Jurisdiction—Diversity of Citizenship.</p> <p>In such case where members of a union working for the Ohio corporation struck at a time when it was under obligation to complainant to fill a large number of contracts for machines required by the United States as war necessities, complainant, contending that the union and its members, by intimidation of other employés of the Ohio company, etc., prevented completion of the machines, filed in the federal District Court for Ohio a bill against the Ohio corporation and the Union and others to enjoin interference with the work, field that, even though both corporations were interested in the performance of the contracts, nevertheless the Ohio corporation was properly joined as a defendant, and, there being diversity of citizenship, the suit could not be dismissed under Judicial Code (Act March 3, 1911, c. 231) § 37, 36 Stat. 1098 (Con*. St. 1916, § 1010), on the ground that complainant and the Ohio corporation attempted collusively to make complainant a party for the purpose of creating a ease cognizable in the federal courts, and for the further reason that a collusive arrangement is not shown.</p> <p>3. Master and Servant «=5338 — Strikes—Right of Labor Unions.</p> <p>While laborers and members of a labor union have a legal right to strike, an employer has also a legal right to run an open shop, employing without discrimination both union and nonunion men, and a labor union has no right to prevent by coercion nonunion men from working.</p> <p>4. Master and Servant @=>388 — Strikes—Rights of Union.</p> <p>If an employer, whoso union employés struck, engages others through misrepresentations, that affords no grievance to the strikers, and does not warrant them or their sympathizers to forcibly prevent a person employed through misrepresentations from working.</p> <p>5. Sheriffs and Constables «=>86 — Duty of Sheriff — Relative Duty of Mayor.</p> <p>Ocn. Code Ohio, §§ 4250, 4518, make the mayor the conservator of the peace of municipalities. Section 4549 confers on him all powers possess; ed by sheriffs to suppress disorders. Section 4373 authorizes the mayor, in case of riots, to appoint additional policemen and officers for temporary service; and section 4378 declares that the police force shall preserve the peace, protect persons and property. Section 2833 declares that each sheriff shall preserve the public peace. Section 12811 declares that, whenever three or more persons are unlawfully or riotously assembled, all judges, justices of the peace, sheriffs, and other ministerial officers shall make a proclamation in the hearing of such persons, commanding them to disburse, and, if they refuse, such officers shall call on all persons near, and, if necessary, throughout the county, to aid in taking into custody persons so assembled. Held, that both the sheriff of the county and the mayor of a municipality are bound to maintain the peace in the municipality, and prevent riots and unlawful assemblies, and the sheriff cannot evade his responsibility on the ground that he did not take steps to prevent rioting because of the duty of the mayor.</p> <p>6. (Master and Servant <@=>338 — Picketing—Authority.</p> <p>While lawful picketing is permissible, large numbers should be avoided, and pickets, though they may invite workmen from a plant, factory, etc., against which the strike has been declared, to stop and discuss the strike situation, are not entitled to intimidate such workmen, or by force prevent them from working.</p> <p>7. Municipal Corporations <@=3708(1) — Highways—Use.</p> <p>The streets and highways are for the use of all law-abiding people, and members of labor unions and strikers have no authority to intimidate or prevent persons from using them.</p> <p>8. Equity <@=365(2) — Maxims—Scope.</p> <p>The equitable maxim that he who comes into equity must do so with clean hands does not apply to every unconscientious act or inequitable conduct on the part of the offending party, but is limited to misconduct in connection with the matter in litigation; hence, though complainant be treated as the real party in interest and bound by the acts of its subsidiary corporation, the fact that the subsidiary corporation might have broken an agreement with striking workmen under which they returned to work does not preclude complainant from securing a temporary injunction restraining the strikers from violating the law and by illegal and unlawful methods preventing others from working.</p> <p>9. Monopolies <@=>20 — Trusts—Clayton Act.</p> <p>That a New Jersey corporation owned a controlling interest in the stock of an Ohio corporation engaged in the manufacture of tools, etc., and sold the product of the Ohio company, which was in fact its subsidiary, does not bring the New Jersey corporation within Clayton Act Oct. 15, 1914, c. 823, § 7, 38 Stat. 731 (Comp. St. 1916, § 8835g), declaring that no person engaged in commerce shall acquire, directly or indirectly, the whole or any part of the stock or other capital of another corporation engaged in commerce, where the effect of such acquisition may be to sub- • stantially lessen competition; the ownership of the stock of the Ohio corporation not lessening or in any way affecting competition between the two companies.</p> <p>10. Injunction <@=>101(3) — Strikes—Labor Union.</p> <p>Complainant owned a controlling interest in the stock of an Ohio corporation, whose product it largely disposed of, and Which corporation was under contract to manufacture for complainant machines that complainant had agreed to deliver to the United States government, and which were necessary in prosecution of war work. Union employés of the Ohio corporation struck, and by threats, actual intimidation, and violence, in which members of the union, their officers, and sympathizers participated, prevented other employés of the Ohio corporation from working, thus interfering with complainant’s rights. The peace officers of the municipality and county failed to discharge their sworn duties, and by acquiescence at least assisted the striking lawbreakers, and in one case arrested guards employed by the Ohio corporation, instead of their assailants. Held that, as the union did not take any steps to enforce law and order and had no legal right to coerce other employés, thus preventing them from working, the preliminary injunction should be granted, restraining the union and its members from continuing such violence.</p>

In Bankruptcy. In the matter of the bankruptcy of Boyd Fackler. On exceptions of the bankrupt to the special master’s report sustaining creditors’ specifications of objections to a discharge.

Petition by Simson King for a writ of habeas corpus to secure the release of George King, committed by the County Judge of Campbell county, Ky. George King, the party in custody, directed delivered to military authorities.

<p>1. Chattel Mortgages &wkey;>99 — Filing Anew — Statute.</p> <p>Under Lien Law N. Y. (Consol. Laws, c. 33) § 235, as amended by Laws 1915, c. 608, which, pro-rides that a chattel mortgage shall be invalid as against creditors of the mortgagor and subsequent purchasers of the mortgagees in good faith after the expiration of the first or any succeeding term of one year, unless within 30 days next preceding the ■expiration of such term a statement, containing a description of such mortgage, etc., or a copy of the mortgage with its indorsements, is filed in the proper office in the city or town where the mortgagor then resided, and if the chattels are located in the city of New York at the time of the execution of such mortgage a copy of such mortgage and its indorse-ments, etc., must be filed in the same office or offices where the original mortgage or copy thereof was filed at the time of the execution of the same, a statement or copy must, where the chattels are in New York City, he reified in the several offices in which the mortgage or copies may have been originally filed.</p> <p>2. Chattel Mortgages >&wkey;97 — Renewal—Lien Law — Time for Filing.</p> <p>Lien Law N. Y., § 235, as amended by Laws 1915-, c. 608, requiring annual refiling of chattel mortgages within 30 days next preceding the expiration of each term of a year as condition to validity, must be construed strictly, and a renewal filed prior to the 30-day period is invalid.</p> <p>3. Chattel Mortgages &wkey;97 — Renewal—Lien Law — Time for Filing.</p> <p>Where a copy of a chattel mortgage was filed in the county in which the property was located on February 16th, a renewal notice filed on January 16th of the following year was too early, and was ineffective, under Lien Law N. Y., § 235, as amended by Laws 1915, c. 60S, requiring such renewal notice, etc., to be filed within 30 days next preceding the term of one year from the first filing, etc., for, no matter how the time be computed, the notice was filed more than 30 days before the expiration of the year; this being true, even though the law would not consider the part of the day on which the, original filing occurred.</p> <p>4. Chattel Mortgages <&wkey;97 — Renewal—Lien Law — Time for Filing.</p> <p>In such case, where the original mortgage was filed in the county of the mortgagor’s residence on February 10th, and the renewal notice was filed in that county on February 18th, and, as stated above, in the county where the property was located on February 16th, both renewal notices were filed within time for the term of one year cannot be delayed by filing copies for a time.</p> <p>5. Chattel Mortgages &wkey;>97 — F iling of Renewal — Effect on Original.</p> <p>A delay of 6 days in filing, pursuant to Lien Law N. Y., § 232, a copy of a chattel mortgage in the county where the property was located, does not render invalid the original filing, in the absence of evidence showing that any person was deceived, or that there was any intent to deceive, by reason of such delay.</p>

In Equity. Bill by William Barnes and Annie C. Barnes, as executor and.executrix of the last will and testament of Albert Barnes, deceased, against Myra B. Martin, as sole surviving executrix of the last will and testament of Walter S. Logan, deceased.

In Bankruptcy. In the matter of the bankruptcy of Resnek, Shapiro & Co. On petition by the receiver for an order requiring Samuel Res-nek and Ida Resnek to turn over to him property alleged to be owned by the bankrupt and in their possession.

<p>In Error to the 'District Court of the United States for the Western District of Pennsylvania; Charles P. Orr, Judge.</p> <p>Action by the United States against the Pennsylvania Railroad Company. There was a judgment for plaintiff, and defendant brings error.</p>

<p>Bankruptcy <&wkey;31G(l) — Cobtobation—Phovable Claims.</p> <p>Notes given i'or money borrowed by the maker to purchase the stock of a mercantile corporation, and so used, are not provable against the corporation in bankruptcy as against other creditors, in the absence of its assumption of the debt, although the maker continued to hold practically all oí its stock, controlled its business, and made payments of principal and interest from its assets; nor is the position of the holder improved by the fact that the maker afterward substituted for one of his own notes a note of the corporation made by himself as president, but without consideration, nor hy the fact that the former owners of the stock paid the existing indebi edness of the corporation from its proceeds.</p>

In Frror to, the District Court of the United States for the Middle District of Alabama; Henry D. Clayton, Judge. Action by the First National Bank of Montgomery, Ala., against the Maryland Casualty Company. There was a judgment for plaintiff, and defendant brings error.

Meek, Judge. Action by Rada Pigg and another against the Citizens’ National Bank of Stamford, Tex. There was a judgment for plaintiffs, and defendant brings error.

<p>1. Master and Servant t&wkey;27g(l0), 280, 281(3) — Injuries to Servant — Actions — Evidence.</p> <p>In an action for the death, of an electrician employed in a mine and Rilled by the fall of the cage in the hoisting shaft up the side of which he was making his way, evidence held to warrant a finding that the master was negligent and the electrician was not negligent and did not assume the risk.</p> <p>2. Master and Servant <&wkey;124(l) — Injuries to Servant — Negligence.</p> <p>The duty of an employer towards employes is not discharged by merely furnishing suitable machinery and appliances in the beginning, but comprises a continued oversight and inspection to keep them so; hence a mining company, though the brake shoes which it supplied to control the operation of cages in the hoisting shafts had originally been sufficient, is negligent where it allowed the use of the brake shoes after they had so worn as to be insufficient.</p> <p>3. Master and Servant <&wkey;270(10) — Injuries to Servant — Actions—Evidence.</p> <p>In an action for the death of an electrician employed in a mine, who was killed by the fall oí a cage in the hoisting shaft up the side of which he was climbing to reach an air shaft, where he was going to make a necessary change in electric cables, it was contended that the removal of timbers from another cage which counterbalanced the one that fell and so lightened the other cage that the brakes failed to hold the one that fell, was not permitted until it was believed the electrician was in place of safety and had finished working on the electric cables in the air shaft, during which work he used the cages for assent and descent. Held, that evidence that the falling cage struck others working at the bottom of the shaft was admissible to show that no particular care was exercised for the electrician.</p> <p>4. MASTER AND SERVANT <&wkey;>241-INJURIES TO SERVANT-NEGLIGENCE.</p> <p>Whore the two coges in the 1wo .shafts of a mine counterbalanced one another, an employe who in the discharge of his duties proceeded to climb up tíre side of the shaft under one of the cages, which was elevated while timbers were being removed from the other cage cannot be deemed negligent, the brakes being set to prevent movement of the cages, where the difference of the weight of the two cages caused by the removal of timbers from one of them was not much greater, if at all, than would be reasonably expected in the customary movement of miners and the hoisting of coal, which movements wore controlled by the brakes.</p> <p>5. Master and Servant <&wkey;205(l) — Injuries to Servant — Assumption of Risk.</p> <p>An employé has a right to presume that his employer has performed his primary duty with respect to machinery and appliances, and does not assume risks which by the exercise of ordinary care he might have ascertained.</p> <p>6. Trial ¡&wkey;2(IO(l) — I nstrtjotions — Refusal.</p> <p>Refusal of instructions covered by the general charge is not error.</p> <p>7. Trial <S&wkey;210 — Instructions—Refusal.</p> <p>Argumentative charges are properly refused.</p> <p>8. Trial <&wkey;234(2), 244(2) — Instructions—Refusal.</p> <p>Instructions giving undue prominence to some features of the evidence or predicated on an erroneous statement of the evidence are properly refused.</p> <p>9. Appeal and Error <&wkey;110,724(3) — Review—Matters Reviewahle.</p> <p>The denial oí a motion for new trial and the overruling of a motion in arrest cannot be assigned as error, nor is a general assignment that, upon pleadings, evidence, and record, verdict should have been for plaintiff in error available.</p>

<p>In Error to the District Court of the United States for the Eastern District of Arkansas; F. A. Youmans, Judge.</p> <p>Criminal prosecution against William H. Garanflo and Robert D. Duncan. Judgment of conviction, and defendants severally bring error.</p>

<p>1. Courts <&wkey;372(3) — Precedents—Decisions of State Court.</p> <p>The liability of a master for personal injuries of his servant is a question of general law; and, in the absence of state statute, it is not governed in the federal courts by decisions of state courts, but by the common law and rules of decision of the Supreme Court and other federal courts.</p> <p>2. Negligence &wkey;>l — What Constitutes.</p> <p>Negligence is a breach of duty, and where there is no duty or no breach, there is no negligence.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Negligence.]</p> <p>8. Master and Servant &wkey;>101, 102(8), 236(1) — Injuries to Servant — Dukes or Master and Servant — Provision and Operation.</p> <p>The duty of a master is one of provision, while that of a servant is one of operation, it is the duty of the master to exercise reasonable care to provide a reasonably safe place in which, and reasonably safe machinery or appliances with which, the servants may do the work assigned to them, and it is the duty of the servant to exercise reasonable care so to use the place, machinery, and appliances furnished and so to conduct the operations intrusted to him as to protect himself from risk, danger, and injury, and neither the master nor the servant is liable for a breach of the other’s duty.</p> <p>4. Master and Servant &wkey;JlT7, 227(1) — Injuries to Servant — Nonliability of Master — Servant’s Negligence of Operation.</p> <p>Where the place in which a servant is required to work, or the machinery or appliances with which he is required to work, or the method of doing the work, becomes dangerous, and results in injury only because of the negligence of the injured servant, or of his fellow servants, the master is not liable.</p> <p>5. Master and Servant &wkey;101(l) — Injuries to Servant — “Fellow Servants” — “Common Service.”</p> <p>All wlio enter Into the service of a common master except those who become heads of and vested with absolute control of separate departments or branches of a great and diversified business thereby become engaged in a common service, and are fellow servants in all they do except that which they do in discharge of the master’s nondelegable duty of provision.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First Series, Common Service; First and Second Series, Fellow Servant.]</p> <p>6. Master and Servant <&wkey;216(l) — Injuries to Servant — Assumption op Bisk.</p> <p>In the absence of statutory provision to the contrary, each servant by accepting his employment voluntarily assumes the risk and danger of the negligence of his fellow servants in the discharge of their duty of operation, whether those duties are of superintendence and direction, or those of equal or subordinate service.</p> <p>7. Master and Servant <&wkey;203(l,3) — Injuries to Servant — Assumption op Bisk.</p> <p>A servant assumes the ordinary risks and dangers of his employment, and the extraordinary risks and dangers which he knows and appreciates.</p> <p>8. Master and Servant &wkey;>222(l) — Injuries to Servant — Assumption of Bisk.</p> <p>Neither the order of a vice principal to a servant to work in a dangerous place, or in a dangerous way, nor his assurance of the servant’s safety, nor the servant’s fear of losing his job' will relieve the servant from his assumption of risk and danger, where they were readily observable and were known and appreciated by him, unless the vice principal makes a promise to remove them.</p> <p>9. Master and Servant <&wkey;243(l) — Injuries to Servant — Negligence op Master.</p> <p>Plaintiff, a section man, while assisting in the cutting of a rail with a sledge hammer and chisel, was injured by a piece of steel, which was chipped off and driven into his eye. A rule of the railroad company declared that goggles provided for that purpose should be worn when cutting rails with a track chisel, and such goggles were in the toolhouse when the accident occurred. A short time before the accident, while cutting other rails, a piece of steel chipped off and struck plaintiff on the wrist. On the day of the accident plaintiff told his foreman that he wanted something to protect his eyes, but the foreman replied, “do on; that is all fight; we never use themand plaintiff, fearing to lose his job, did as he was directed. Held, that the railroad company, having made its order and furnished goggles, was not negligent.</p> <p>10. Master and Servant &wkey;>189(3) — Injuries to Servant — “Fellow Servants.”</p> <p>In such case, as the work of cutting the rails was merely one of operation, the foreman was plaintiff’s fellow servant for whose negligence the railroad company was not liable.</p> <p>11. Master and Servant <&wkey;219(15) — Injuries to Servant — Vice Principal —Negligence.</p> <p>In such case, as the danger was obvious to plaintiff, having been brought to his attention by the previous chip of steel which struck him in the wrist, he assumed the risk, and the company was not liable, though the section foreman be treated as a vice principal.</p>

<p>1. Evidence <&wkey;441(14) — Parol Evidence Affecting Writings — Evidence to Modify Written Contract.</p> <p>Where, on its expiration, a written contract was renewed by another writing which provided that it should be attached to the* original contract, which was “to be considered as continuing * * * with all its covenants, conditions and provisions wi thout change except as to the date of expiration thereof,” and the contract was clear and unambiguous, in an action at law on the renewed contract evidence was not admissible to show that the original contract had been modified by parol prior to the renewal and that it was the intention that the modification should be carried into the renewal.</p> <p>2. Execution <&wkey;158(l) — Stay to Permit Equitable Defense — Power of Court.</p> <p>It appearing, however, that defendant had misconceived its remedy, the court might properly stay execution on the judgment in favor of plaintiff to permit defendant to lile a bill in equity to reform the contract, and if its contention was sustained, and the contract reformed, stay execution permanently.</p>

<p>In Error to the District Court of the United States for the Southern District of Georgia; W. W. Lambdin, Judge.</p> <p>Action by Minnie E. Winn against the Atlantic Coast Dine Railroad Company, begun in state court and removed to federal court. There was a judgment for plaintiff, and defendant brings error.</p>

<p>1. RaicRoads <&wkey;271(2) — Injuries to Persons on Tracks — Licensees.</p> <p>At a point directly opposite a railroad station, and about 200 feet south of a street crossing, there was an open space of at least 30 feet used for all purposes fey arriving and departing trains, and on this space bundles of newspapers were thrown from the early train which brought them from a nearby city, and the dealers to whom they were directed were accustomed to go upon the ground and pick out their own bundles. The custom had continued for several years, and was well known to the railroads using the station. A news-dealer in a town a few miles away went to get his papers and took the deceased with him to help. When they reached the station, the train that brought the papers had gone, and a number of bundles were lying in the open space within a short distance of the south-bound track. No regular train was duo to arrive upon this track for nearly an hour, and the dealer and deceased proceeded to inspect the bundles in order to select what was theirs. While thus engaged; an unscheduled train of defendant came along and struck them both, inJuring the dealer and killing plaintiff’s decedent. The railroad company owning the track and station operated no trains of its own, but allowed defendant and another railroad company to use the property and operate their trains thereon. Held, that defendant railroad company, deceased, and the news-dealer were licensees of the company owning the tracks and station, and defendant was hound to exercise reasonable care for the safety of the news-dealer and deceased.</p> <p>2. Railroads <&wkey;278(l) — Contributory Negligence — Statute.</p> <p>In such case, Act N. J. March 30, 1869 (P. L. p. 806; 3 Comp. St. 1910, p. 4245), declaring that it shall not be lawful for any person not eoin- • nected with or employed by any railroad, except when the same shall be laid upon a public highway, to walk along the tracks, and if any person shall be injured by an engine or car while walking, standing, or playing on any railroad, or by jumping on or off a car while in motion, such person shall be deemed to have contributed to the injury sustained, and shall not recover therefor in damages, has no application; deceased not being, walking or playing on the railroad tracks at the time of his death.</p>

<p>Courts <§=>508(2) — Federal Courts — Enjoining Suit in State. Court — Priority op Jurisdiction.</p> <p>A federal court, which by its receiver has taken possession of real estate in a suit to foreclose a mortgage on the same, and has entered a decree for its sale, has exclusive ancillary jurisdiction to adjudicate all claims against the property, and may properly enjoin the prosecution by third persons in a state court of a suit to enforce an alleged prior lien thereon.</p>

Johnson, Judge. Action by Domenico Bianco, administrator of the estate of James Ozzello, deceased,' against the Bingham Mines Company, a corporation. There was a judgment for plaintiff, and defendant brings error.

<p>In Error to the District Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge.</p> <p>Action by Carlton A. Munger against the St. Louis Merchants' Bridge Terminal Railway Company. There was a judgment for plaintiff, and defendant brings error.</p>

Dickinson, Judge. Charles Eetterman and Samuel Frank were convicted of conspiring to commit an offense against the United States, by stealing property and money of the United States, in violation of Act March 4, 1909, c. 321, §§ 37, 47, 35 Stat. 1088 (Comp. St. 1916, §§ 10201, 10214), and they bring error.

<p>In Error to the District Court of the United States for the Eastern District of Arkansas; E. A. Youmans, Judge.</p> <p>Action by J. Mr Moore and others against the Coca-Cola Company. There was a judgment for plaintiffs, arid defendant brings error.</p>

I. Grubb, Judge. Action at law by Mrs. Jimmie Sue Darnell, administratrix of the estate of George W. Darnell, deceased, against Charles Hann. Judgment for plaintiff, and defendant brings error.

<p>Appeal and Error <@==>71(3) — Final Judgment — What Constitutes.</p> <p>An order suspending an interlocutory injunction pending appeal, which required defendant to file a bond conditioned to pay plaintiff in event of dismissal of the appeal, or affirmance of the decree, certain specified surrfs, is not a final determination of defendant’s right, since no action is possible under the order of suspension until the appeal from the interlocutory decree is decided, and so the appeal therefrom should be dismissed.</p>

<p>1. Patents <@=^328 — Validity akd Infringement — Pike Escape Apparatus.</p> <p>Tilo Cowles patent, No. 705,042, for a lire escape apparatus, which relates to the lower movable section of a Are escape having a pivotal support and means, consisting of an automatically shifting counterbalancer, for holding such section horizontal when in the raised or inoperative position, discloses invention and covers a meritorious and efficient device, and is entitled to a liberal construction and a considerable range of equivalents. Claims 1, 2, and 3 also held, infringed.</p> <p>2. Patents @^>165 — Construction and Scops — Words op Limitation.</p> <p>A patentee is not limited by a particular description of his device in the patent, where it is expressly stated to he the preferred form of construction.</p>

<p>1. Street Railroads <@==>66 — Charter—Duty to Operate Road.</p> <p>Though the consent of municipal authorities was a condition precedent to the' exercise by street railroad company of its charter power to construct a railway upon the streets of the city, yet, as the company was bound to secure its charter before it could apply to the municipality for consent to use the streets, the charter is not ex proprio vigore mandatory on the company to operate a street railroad system in a particular city.</p> <p>2. Street Railroads <S=^55 — Foreclosure Sale — Duty to Operate.</p> <p>A street railroad company, whose charter authorized it to construct a railway upon the streets of a municipality for its railway, under authority mortgaged its property. The company became insolvent, and, as the line could not be operated without a loss, the mortgage was foreclosed and the property sold,'with the right of the purchaser either to operate the system or dismantle and remove the physical property. The property was bought in by the mortgagee and the sale confirmed. Held, that, while the permanent property of a railroad corporation may be charged, not ’ only in the hands of the original corporation, but of purchasers as well, with the burden of the company’s charter obligations, and cannot be relieved of such burden without the consent of the state, yet, as the charter of the street railway company did not of its own force require the company to operate a system, and as the company was authorized to mortgage its- property, the property could be sold free from the burden of operating the system.</p> <p>3. Street Railroads <S=s55 — -Foreclosure—Extension.</p> <p>In such ease, the fact that' a landowner in the municipality entered into, a contract with the street railway company for the extension of a car line over his property, and to effectuate that object purchased during receivership a receiver’s certificate, did not prevent the sale of the company’s property free from the burden of operating a street railway system, for, while the breach of the contract by the company rendered it liable in damages, it created no right or easement in the street railway company’s property.</p>

<p>1. Trade-Marks and Trade-Names <§^92 — Bill—Exhibits.</p> <p>Though a bill charging unlawful imitation of complainant’s trademarks and labels and unfair competition was indefinite, in that complain-. ant’s registered trade-mark was not described therein, but merely appeared in exhibits attached to the bill, yet where defendant’s answer specifically denied that its trade-marks were an imitation of the labels and trade-marks of complainant, and the case was tried upon evidence as to the registered trade-mark of complainant as well as upon evidence of a general imitation of lábels, the case at final hearing may be considered as presenting questions both of infringement of trade-marks and of unfair competition.</p> <p>2. Trade-Marks and Trade-Names <§=>58 — Unfair Competition — What Constitutes.</p> <p>Where complainant’s registered trade-mark included a boar’s head, and complainant’s gins had long_ been before the public, the adoption by defendant of a label also bearing a boar’s head amounts to unfair competition, even though there was considerable difference in the drawings, for a trade-mark is a sign which may become known to the public by name as well as 'by sight, and as complainant’s gins might be associated with the representation of a boar’s head, the adoption by defendant o'f a similar device was unfair.</p> <p>3. Trade-Marks and Trade-Names <§=>55 — Unfair Competition-Intentional Wrong.</p> <p>Where, after notice that its label conflicted with the registered trademark of complainant, defendant refused to remove the misleading device, defendant is guilty of an intentional wrong, even though .in the first instance there was no intention on its part to palm off its goods as those of plaintiff.</p>

<p>In Admiralty. Libel by Mandel Gottesman and David S. Gottes-man, doing business under the firm name and style of M. Gottesman & Son, against the Canada Atlantic & Plant Steamship' Company, Limited, in which a foreign attachment was issued. On application to vacate the writ of foreign attachment.</p>

Charles T. Doremus was charged with unlawfully dealing in narcotics in violation of Act Dec. 17, 1914. Hearing on demurrer to indictment in style motion to quash.

<p>1. Seamen <@=»21 — Seamen’s Act — 'Wages.</p> <p>Seamen signed in Fl-ance for two years’ service on a British steamship, at that time receiving an advance of one-half of a month’s wages, which was legal under the British law. When the vessel arrived in New York, the seamen, who were afraid of submarines, demanded their full wages, which was refused by the master. Though the master refused them shore leave, they went ashore, and, having received legal advice, demanded one-half of their wages, which demand the master also refused. Thereupon the seamen libeled the vessel, claiming full wages under the Seamen’s Act (Act March 4, 1915, c. 153, 38 Stat. 1165). Held that, though the Seamen’s Act has abolished remedies for recapturing deserters and allows a seaman to recover full wages when his demand for one-half wages is not met, it does not entitle deserters to recover wages, where their demands were not in good faith and they intended to abandon their contract.</p> <p>2. Seamen <®=t>23 — Advances—Payments.</p> <p>While the Seamen’s Act forbids advances, and provides that they shall not constitute payments on account, and deciares that the section shall apply as well to foreign vessels while in the waters of the United States as to vessels of the United States, the advance by the master of the British vessel of one-half of the wages to the foreign seamen upon the signing of articles in a foreign port is binding, and must be credited to payments, such advance being legal under the British law, for it cannot be contemplated that the Seamen’s Act was intended to apply to advances made upon foreign vessels outside of the United States, but only to advances made while such vessels were in the waters of the United States.</p> <p>3. Seamen @=»23 — Advances—Congress.</p> <p>Congress has power to prohibit advances from wages to seamen while a foreign vessel is within an American port.</p>

<p>In Equity. Suit by the United States against the Booth-Kelly Lumber Company and Daniel H. Brumbaugh. Decree for complainant. .</p>

At Raw. Actions by Edgar W. Bassick and by Herbert E. John against the ./Etna Explosives Company, Incorporated, and George C. Holt and another, as receivers of the .Etna Explosives Company, Incorporated. Defendants set up a cause of equity, and prayed for affirmative relief.

In Bankruptcy. In the matter of the bankruptcy of the S. & S. Manufacturing & Sales Company. After adjudication, Frank Meckel, alleging himself to be a stockholder of the bankrupt company, filed his application to set aside the adjudication in bankruptcy.

<p>1. Criminal Daw <&wkey;872 — Trial—Stipulations.</p> <p>Where the case was submitted to the jury at the close of the session, and counsel stipulated that the clerk might take the verdict when rendered as if the court were in session, the agreement is binding, and questions as to the validity of the verdict must be decided as if the judge had been present and the court in actual formal session.</p> <p>2. Cbiminal Daw <5&wkey;881(3) — Trial.—Verdict—Certainty.</p> <p>A verdict in a criminal case must be certain in legal intendment; there being a distinction between a legal certainty and moral certainty as to what the jury in fact intended.</p> <p>3. Criminal Daw <&wkey;878(2) — Trial-—Verdict—Sueitciency—“All”—“Both.”</p> <p>Two defendants were charged with using the mails in connection with a scheme to defraud, and, while the indictment contained several counts, the court, in its charge dealing with the substance of the offenses, and not tlie form of the indictment, stated that the charges against the defendants were in substance two. The parties having stipulated that the clerk might receive the 'verdict in the absence of the judge, the reguest of the jury for the indictment, which had not been sent out with the charge, was denied. The verdict found defendants guilty as indicted on “both” counts. Held that, as the word “both” is peculiarly appropriate to express the thought of all of two, and the word “all” indicates every one of a class, etc., though it be limited to only two, the verdict is sufiicient to support a judgment indicating that the jury found defendants guilty on all of the counts; the jury having used the word “both” in the mistaken assumption that there- were only two counts (citing Words and Phrases).</p> <p>4. Post Office <&wkey;35 — Offenses—Use of Mails to Defeated.</p> <p>Practices may be indulged in which can be characterized as fraudulent, yet do not fall within the statutes denouncing the offense of using the mails in connection with a scheme to defraud; that offense requiring that the scheme be fraudulent in its inception.</p>

<p>1. United States <&wkey;.1,25 — Actions Against — Consent to be Sued — Conditions.</p> <p>If the United States gives consent to the issuance of process against it, provided the process issues within a limited time after the claim for redress arose, this limitation is strictly a condition of the remedy given, and not a statute of limitation.</p> <p>2. United States <&wkey;136 — Actions Against — Pbocedtjbe.</p> <p>Judicial Code (Act March 3, 1911, c. 231) § 24, par. 20, 36 Stat. 1093 (Comp. St. 1916, § 991), which with certain exceptions gives the District Courts jurisdiction concurrent with the Court of Claims of suits on claims against the United States, prescribes no special method of procedure, and the District Courts may adopt the procedure established for the Court of Claims, or follow their established practice, in which ease, for all purposes of procedure, the United States is to be regarded as is any other defendant, and may be brought in by summons served on the district attorney.</p> <p>3. United States e&wkey;]33 — Actions Against — Limitation—When “Suit Bbougiit” — “Bbought.”</p> <p>In a suit against the United States, under Rev. St. § 8327 (Comp. St. 1916, § 5950), to recover internal taxes alleged to have been erroneously or illegally collected, the suit is “brought,” within the meaning of the provision limiting the time for bringing suit to two years after the cause of action accrued, when the summons subsequently served is issued.</p> <p>[Ed. Note.' — For other definitions, see Words and Phrases, First and Second Series, Brought.]</p>

<p>1. Bankruptcy <&wkey;387 — Corporations — Stock Issued fob Insufficient ■Property — Right of Creditors — Composition.</p> <p>Any right against stockholders, because of a corporation issuing stock in exchange for property of inadequate value, belonging, under Stock Corporation Law N. Y. (Consol. 'Laws N. Y. c. 59) § 55, to the creditors, is unaffected by composition with creditors by the bankrupt corporation.</p> <p>2. Bankruptcy <@=^375 — Composition—Time of Offer. .</p> <p>Composition by bankrupt with creditors should be rejected; the offer to creditors being before the bankrupt was examined in open court and had filed in court its schedules.</p>

<p>In Bankruptcy. In the matter of the bankruptcy of James H. Morris and others, alleged bankrupts. On objections by creditors to the confirmation of the bankrupt’s offer of composition.</p> <p>The following is the opinion of Jackson, Referee:</p> <p>The objections contained in the specifications filed in opposition to the composition are three in number:</p> <p>First. That the composition offer is not for the best interest of the creditors.</p> <p>Second. That the bankrupts have been guilty of certain acts and have failed to perform certain of their duties, which would be a bar to their discharge.</p> <p>Third. That the offer ’ and its acceptance are not in good faith' and have been made and secured by means and promises and acts forbidden by the Bankruptcy Act (Act July 1, 189S, c. 541, 30 Stat. 544).</p> <p>■ Attorney for alleged bankrupts made a motion, that - note be mnde of his objections to any evidence being taken on specifications second and third.</p> <p>It appeared in evidence: That there are approximately 63 creditors of said alleged bankrupts, that at the first meeting 35 claims were proved, and 22 of said creditors assented to said composition. That 12 claims were proved at said meeting by creditors not assenting, and 4 creditors joined in filing specifications of objections to said composition. ’</p> <p>Also, the total deposit called for on said composition was $4,226.26, and that of this amount the alleged bankrupts deposited $726.20, and the balance, $3,500, was all deposited by the receiver. There remained in the receiver’s hands above his probable expenses $600, and a stock of merchandise and fixtures in a going business in Lawrence; said business being that of retailing ladies’ cloaks, suits, boots, and shoes. There was conflicting evidence in regard to the present value of said merchandise and fixtures. Witnesses produced by the alleged bankrupts testified that a fair value of the cloaks and suits would be $650, and that fixtures were not worth over $150 in the, store; that the boots and shoes were not worth over $250.</p> <p>On the other hand, a witness offered by the objecting creditors testified that all the merchandise in the store was worth $3,000 as a going business, and that the fixtures were worth $500.</p> <p>Upon all the evidence in regard to the value of the merchandise and fixtures, I find that a fair value for same at this time to be as follows:</p> <p>Cloaks and suits. $1,000</p> <p>. Boots and shoes. 400</p> <p>Fixtures . 200</p> <p>Total .■... $1,600</p> <p>Therefore there would be in the hands of the receiver and available for expenses, and for the creditors approximately $5,900, if no composition had been offered. •</p> <p>It appeared from the testimony of the alleged bankrupts that early in December of 1916, they became concerned about their affairs and consulted an attorney in Boston, and thereafter acted under his advice. That he advised that they carefully conserve all money that they took in; not to deposit any money in the bank, but to keep same in the safe in the store, so that said money would be available to make an offer in composition later, should the occasion arise; and that the alleged bankrupts followed these instructions until December 24, 1916, when an attachment was made on their stock .and fixtures, and a keeper placed in their store.</p> <p>On December 26th a general assignment for the benefit of creditors was made by the alleged bankrupts to Charles E. Hayes, and $2,714.15 in cash was delivered to said assignee, Hayes, which was the fund accumulated under the advice as hereinbefore stated.</p> <p>That directly thereafter an involuntary petition in bankruptcy was filed, and on January 2, 1917, Matthew A. Cregg, Esq., of Lawrence, was appointed receiver, wiih authority to conduct said business. That the $2,-714.15 above referred to was not paid to or delivered to said receiver, hut that on March 14, 1917, $1,759.75 of said sum was paid to said receiver.</p> <p>Schedules of assets and liabilities were filed in this court on January 30, 1917, and said fund of $2,714.15 in cash is not set out or referred to in said schedules, and no value was placed upon the merchandise and fixtures in schedule B (2) or in schedule B (4). There appears in the summary: “Total liabilities, $13,181.19.” “Total assets, nothing.”</p> <p>It also appeared in evidence that the assent of creditors were in the main procured by one of the alleged bankrupts, Vincent A. Rice, and said Charles R Hayes acting together, and both testified that they did not discuss assets and liabilities with the various assenting creditors.</p> <p>That while it may not be material, in view of all the circumstances, it may be considered significant that one of the attorneys for the alleged bankrupts personally signs the assent to said composition for several creditors.</p> <p>It also appeared in evidence that the alleged bankrupts kept no books or records of their business.</p> <p>Therefore, considering all the circumstances, the substantial amount and value in the estate in excess of that required for the composition, the fact that the schedules were so improperly prepared that creditors may have been misled in regard to the value of the assets, and the fact that the alleged bankrupts were preparing to make an offer in composition almost a .month before an involuntary bankruptcy petition was filed, force me to the conclusion that the objecting creditors have sustained specifications first and third, and I do so find.</p> <p>1 further report that in my opinion the objecting creditors have failed to sustain objection Second, and that said second specification should be dismissed.</p> <p>I recommend that the composition be rejected.</p>