Volume 247 — Federal Reporter

Hollister, Judge. Action by Lucinda Barber, administratrix of the estate of James C. Barber, deceased against Judson Harmon and another, receivers of the Cincinnati, Hamilton & Dayton Railway Company. There was a judgment for plaintiff, and defendants bring error.

Farrington, Judge. ( Action by Antone Lewis Vascacillas against the Southern Pacific* Company, a corporation. There was a judgment for defendant, and plaintiff brings error. The plaintiff, a teamster, was driving a team, with a wagon loaded with lumber, on a street running north and south in the city of Reno, when he approached a railroad crossing where the defendant had five tracks running east and west.

Louie Ding was convicted of conspiring with others to violate Act Cong. May 6, 1882, c. 126, § 11, 22 Slat. 61, as amended by Act July 5, 1884, c. 220, 23 Stat. 117 (Comp. St. 1916, § 4298), by bringing into the United States alien Chinese persons not entitled to be or remain in the United States, and he brings error.

Action by the United States against the United States Fidelity & Guaranty Company. There was a judgment in part for the United States, and the United States brings error.

Riner, Judge. Action by William B. Hoshaw, successor to George W. Hoyt, as trustee in bankruptcy of the estate of the Cook Bros. Company, a bankrupt, against Rose M. Cosgriff, as administratrix, and others. From a -judgment for defendants, plaintiff appeals. The trustee in bankruptcy of the estate of Cook Bros. Company, a bankrupt, brought this action against appellees to recover certain property which it was claimed belonged to said estate.

Thomas D. McCallum. was convicted of misapplication of the moneys, funds, and credits of the Arkansas National Bank, in violation of Rev. St. § 5209, and he brings error.

<p>In Error to the District-Court of the United States for the Eastern District of Virginia, at Norfolk; Edmund Waddill, Jr., Judge.</p> <p>Action by Evalyn Charlton, administratrix of the estate of James H. Charlton, deceased, against the. Chesapeake & Ohio Railway Company. There was a judgment for plaintiff, and defendant brings error.</p>

Middleton Smith, Judge. B. P. Parish was convicted under Penal Code, § 211, of sending through the mails obscene, lewd, .and lascivious matter, and brings error.

<p>Tn error to the District Court of the United States for the Southern District of West Virginia, at Charleston; Benjamin F. Keller and Chas, A. Woods, Judges.</p> <p>B. F. Cooper was convicted of receiving a sum of money to influence his decision as a juror, and he brings error.</p>

<p>In Error to the District Court of the United States for the Western District of Virginia, at Eynchburg; Henry Clay McDowell, Judge.</p> <p>Action by the United States against the Chesapeake & Ohio Railway Company. Judgment for defendant, and the United States brings error.</p>

<p>1. Work and Labor <S=>30(3)—Action by Agent for Compensation—Instructions.</p> <p>By a written contract defendants authorized plaintiff to sell timber lands owned by them at a net price to them, plaintiff to receive any excess obtained above such price. Through plaintiff’s efforts a person was secured, who took an option on the land at an advanced price; hut the option was not exercised, and the contract between the parties expired. Defendants then requested plaintiff’s aid in further negotiations with the same person,' and through his efforts a sale was made at a lower price. Held, in an action to recover for his services on a quantum meruit, that defendants, having availed themselves of the labor done by plaintiff in his prior negotiations with the purchaser, were not entitled to an instruction that anything done by him under the contract should not be considered by the jury.</p> <p>2. Interest @=»7—Bight to Interest—Money Due on Implied Contracts.</p> <p>In such case a contract to pay plaintiff reasonable compensation for his sendees was implied, when they were requested, and on recovery plaintiff was entitled to interest from the time the sale was effected, both by tbe general law and under Revisal N. C. 1908, § 1954, which provides that money due by contract shall bear interest, which shall be distinguished from the principal in the verdict; and the fact that the jury did not make any finding as to interest, but only the value of plaintiff’s services, was a technical omission, which did not deprive him of the right to interest, or the court of the power to include it in the judgment.</p> <p>Dayton, District Judge, dissenting in part.</p> <p><§^For other cases see same topic & KEY-NUMBER iii all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the District of Wyoming; John A. Riner, Judge.</p> <p>Suit in equity by Charles M. Bice against the Bothwell Company.. From the decree, both parties appeal..</p>

<p>In Error to the District Court oí the United States for the District of New Jersey; Thos. G. Haight, Judge.</p> <p>Ac!ion by Emma E. Johnston, individually and as executrix of the last will and testament of Henry Johnston, deceased, against the Metropolitan Casualty Insurance Company of New York. There was a judgment for plaintiff, and defendant brings error.</p>

Dooling, Judge. Suit in admiralty by J. C. Rudbach against the steamer South Coast, the South Coast Steamship Company, Claimant. Decree for libelant, and claimant appeals. On June 19, 1915, the South Coast Steamship Company chartered to Howard R. Levick, Jr., with the right of purchase, the steam schooner South Coast, on terms and conditions set 'forth in the charter party, which contains, among others, the following provisions: “Fifth.

<p>Appeal from the District Court of the United States for the Northern District of West Virginia, at Martinsburg, in Bankruptcy; Alston G. Dayton, Judge.</p> <p>In the matter of W. A. Tiller, bankrupt; Frank C. Reynolds, Taylor Morrison, and Andrew Woolf, trustees. The W. A. Tiller Building-Company and Z. T. Kalbaugh appeal from an order for the sale of property.</p> <p>The following is the opinion of Dayton, District Judge, in the court below, upon petitions to revise.</p> <p>[1] I have carefully examined the questions involved in -this bitterly contested controversy, and am satisfied that the crucial one is whether the referee, had power, by summary order, to direct the seizure of the personal property claimed by the W. A. Liller Building Company, a corporation, as the property of the bankrupt, or, in other words, whether the claim thereto by this corporation was adverse and required a plenary suit to determine its validity. Collier (10th Ed.) at page 477, discussing section 23b of tile Bankruptcy Act, very pertinently says: “It is impossible to declare a general rule which will do;ermine in every case whether a person claiming a right or interest as against the trustee is an adverse claimant.”</p> <p>Generally possession of the property is a controlling- element, and, where such possession is in a claimant, it is not a right of the bankruptcy court by summary proceeding to determine the nature of the possessor’s right and title to it. Such summary proceeding should always be resorted to with caution. However, the cases of York Míg. Oo. v. Brewster, 174 Fed. BOG, 98 O. O. A. 348, In re Rieger et al. (I). O.) 157 Fed. 609, In re Berkowitz (1). 0.) 173 Fed. 1013, and In re Holbrook Shoe & Leather Oo. (1). O.) 165 Fed. 973, seem to well establish the doctrine that, where an individual is insolvent and undertakes to form a corporation, with near relatives as incorporators, to which he conveys his property with a view to withdraw such property from ihe roach of creditors, such corporation should not be hold to be an adverse 'claimant, its holding to the contrary is only colorable and should be held to be that of the insolvent himself. It seems to me the logic of such conclusion is clear. A corporation is only a creature of law, and the law neve]1 creates means to defraud. By the admission of the bankrupt himself in this case the building corporation was formed for no other purpose than to withdraw his property from the reach of his creditors and enable him to secure for himself a salary and possibly some gain for the incorporators, who- were himself, his wife, his son under age, his brother-in-law, and his attorney securing the corporation charter.for him.. The shares of stock subscribed by others than himself wore nominal, two shares of the par value of $25 a share, those of the son and attorney being paid for in services.</p> <p>The ease here, it seems to me, falls clearly within the legal principles established by the cases cited, and therefore I must hold that the referee was justified, by summary order, in directing the seizure of the property.</p> <p>[2] Having- so determined this question, the other rulings of the referee can be easily disposed of. One is to the allowance made to the attorneys for the petitioning creditors, two of whom were also trustees. The impression indicating that it was improper to appoint: such attorneys trustees is erroneous. "A general creditor of a bankrupt or his attorney is competent.” Loveland (1th Ed.) vol. 1, p. 730, § 353; In re Lewensolm (1). O.) 98 Fed. 576; In re Lazoris (I). C.) 120 Fed. 710; In re Blue Ridge Packing Oo. (D. C.) 125 Fed. till). The fee allowed here was paid out oí funds payable to a secured bank creditor who has not complained of it. I think it could have done so under the ruling in lie Gillespie (I). C.) 190 Fed. 88, but not having done so, and months having elapsed since the allowance was made, I am inclined to hold it now estopped by its acquiescence from doing so. I do not think others can complain.</p> <p>[3] The contention made, that in order to take over this property the corporation went into bank and borrowed $2,500 and paid oil outstanding executions issued upon judgments rendered more than four months before bankruptcy proceedings, whereby this property became exempt, does not strike me as sound under the rulings of New River Coal Land Go. v. Ruffner Bros, (two cases) 105 Fed. 881. 91 O. G.-A. 559 (O. C. A. 4th Ofc), and Graham Ml’??. Go. v. Davy-Bocahontas Goal Co., 238 Fed. 488, 351 .C. C. A. 421 (O. C. A. 4th Ot.), to the effect that the bankrupt court’s jurisdiction is exclusive; and 1 think they exclude the idea that the bankrupt and a corporation formed by Mm to purchase the property, as this one was, shall be i>ermitted to detex-mine whether such sale shall stand or not. It is for the bankrupt court to determine that question, and, where creditors demand a sale of it, I cannot see how it can be well refused. The question as to whether the bank making tliis loan, or a surety paying it, is entitled to subrogation to the-liens of the executions, and entitled to payment out of the proceeds of sale, as I understand, by ihe referee’s decree, is not determined, but reserved, and therefore I make no expression as to lluit, only determining that, if he should sustain -such subrogation, the common creditors are entitled to have the property sold In order that it may be determined whether it will bring a surplus for their benefit, and in order that the property itself will not suffer dissipation, deterioration. and loss pending tlie determination of their contest against the right to subrogation in case they determine to contest it.</p> <p>Finally as to the planing mill: I do not understand that the referee’s order contemplates a sale of the wife’s real estate, but does contemplate a sale of the machinery located in the mill. This property is clearly subject to sale, unless this machinery is so attached to the realty as to make it part thereof. There is nothing to show it to be so attached. Under recent rulings of the Supreme Court it seems to be a rather difficult proposition to establish such machinery to be so attached. ' See Holt v. Henley, 232 U. S. 637, 34 Sup. Ct. 459, 58 D. Ed. 767, and Detroit Steel Cooperage Co. v. Sistersville Brewing Co., 233 U. S. 712, 34 Sup. Ct. 753, 58 L. Ed. 1166. The conclusion I reach is that the orders of the referee complained of must be approved and affirmed. The order to this effect will not be entered for ten days, so that petitioner here asking revision may have time to prepare papers for appellate review if such review is desired.</p> <p>[4] The holding herein that the bankrupt attempted transfer of his property to the corporation was in fact no transfer-thereof disposes of the objections made to his discharge. He must have actually “transferred” such property or removed it. so that it will be beyond reach of creditors and the bankruptcy court’s jurisdiction to summarily seize. This I have held he did not do; therefore he is entitled to his discharge, not having violated clause 4,. subsec. “b,” § 14, of the Bankrupt Act (Comp. St. 1916, § 9598).</p>

Petition for Revision of Proceedings of the District Court of the United States for the District of Montana; Geo. M. Bourquin, Judge. In the matter of the bankruptcy of W. N. Russell.

<p>Master and Servant <§=>279(5)—Injuries to Servant—Negligence oe Master.</p> <p>In an action by plaintiff, injured in unloading a grain car, it appearing that his ankle was caught by the rope attached to the large scoop, which his fellow servant used, and which was operated by machinery, evidence held insufficient to disclose any negligence on the part of the defendant master.</p> <p><@c^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

B. Witmer, Judge. In the matter of the bankruptcy of C. D. Raker. The claims of liens on railroad equipment made by R. D. Plerritt and the First National Bank of Renovo, Pa., were opposed by E. E. Clark, trustee. From a decree sustaining the order of the referee, awarding the fund represented by such property to the trustee, R. D. Herritt appeals.

Bill by Richard O. Smith, as trustee in bankruptcy of Clifford Lc P. Tostevin, against Rose II. Tostevin and others. From a decree dismissing the bill, complainant appeals. Appeal from a final decree dismissing a bill in equity upon its face for insufficiency.

<p>In Error to the District Court of the United States for the District .of Colorado; Jacob Trieber, Judge.</p> <p>Action by the United States against the Union Coal & Coke Company. Judgment for the United States, and defendant brings error.</p>

<p>•Collision <§»66—Steamship and Tow—Crowding While Passing Anchored Dredge.</p> <p>A finding that a collision between a steamship and a scow in tow, both passing down a channel in Baltimore Harbor, when they were abreast of an anchored dredge, the position of which was known to both, was due solely to the fault of the steamship in failing to allow sufficient room for the tug and tow to pass safely between herself and the dredge, held sustained by the evidence. »</p> <p>.«gnsFor other.cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Patents <@=>328—Invention—Insulator.</p> <p>The Markel iiatent, No. 878,302, for a two-part porcelain insulator knob composed of two duplicate matching and registering members, and having tenon fitting into a keeper mortise, claim 1, field void for lack of invention in view of the prior art.</p> <p>2. Patents <§=24—“Invention”—Multiplication oe Parts.</p> <p>Ordinarily “invention” does not lie in merely making in two parts that which before was made in one.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Invention.]</p> <p><£cs>For other cases seo same topic & KEY-NUMBEit in all Key-Numbered Digests & Indexes</p>

<p>Patents <@==>328—Invention—Tobacco Stripping Machine.</p> <p>The Hutcheson patent, No. 713,8S6, for a tobacco stripping machine, held void 'for lack, of patentable novelty and invention, in view of the prior art.</p> <p>(gx^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by the Warren Bros. Company against W. S. Pace and T. S. Pace, individually and as partners doing business as Pace Bros. On final hearing.</p>

<p>. Romanus E. Baker and Jacob M. Wilhide were indicted for the offense of attempting to induce those subject to the Selective Draft Act to disobey it. Defendants acquitted on directed verdict of, not guilty.</p>

In Bankruptcy. In the matter of the Parsons Manufacturing Company. On petition by individual creditors to review orders of the referee relative to the choice, appointment, and approval of trustees. The case having' been recommitted to the referee to state the facts, the order affirming the appointment of trustee was vacated, and the case returned to the referee for further proceedings.

<p>Aliens <@=>98—Naturalization—Right to—-Declaration oe Intention.</p> <p>Naturalization Act June 29, 1906, c. 3592, § 3, 34 Stat. 596 (Comp. St. 191.6, § 4351), declares that the naturalization jurisdiction of all courts specified, state, territorial, and federal, shall extend only to aliens resident within the respective judicial districts of such courts. Section 4 (Comp. St. 1916, § 4352) provides that an alien may be' admitted only by complying with certain acts, of which one is to declare on oath before the clerk of any court authorized to naturalize aliens, or his authorized deputy, in the district in which such alien resides, two years at least prior to his admission, his intention to become a citizen and various other matters, including his present place of residence in the United States. An applicant filed a declaration of intention in the Southern district of New York while temporarily sojourning in that district, and in the absence of himself and ills wife from his home, which was in the Eastern district of New York. It appeared that the applicant, understanding that he had a legal right to claim as his residence the place where he was actually living for a short time, gave in his first papers the residence of his brother-in-law. Held that, in view of the rule that jurisdiction attaching to a court upon the filing of a final petition is not thereafter lost by the removal of the alien from that jurisdiction, and as the requirement that an alien state his residence in his declaration of intention is for the purpose of determining which clerk shall be entitled to fees, and to enable authorities to verify the statements of the alien as to his movements in the interim, the error made by the alien in his statement as to his residence does not warrant the rejection of his declaration of intention and necessitate a denial of the petition for admission to naturalization.</p> <p><@s»For other cases see same topic & KEY- NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Aliens ¡New. vol. 7 Key-No. Series]—Naturalization—Cancellation—Nature of Remedy.</p> <p>Wliore tlio result would tie the same in any event, the question wheti-.ei a suit to cancel a certificate of naturalization will lie, or whether * writ of error in the naturalization proceedings was the only reined,' need not he determined.</p> <p>2. Aliens g=>(>8—Naturalization—Right to.</p> <p>When a petitioner for naturalization appeared and filed his'declaration of intention, the clerk asked for his address, and, upon being told “280 Broadway,” wrote it in the blank opposite the word “residence,” and added, without inquiry, “New York City, N. Y.” There are probably five 280 Broadways in New York City, and the applicant was not allowed to road the declaration, or do more than swear the answers he liad given the clerk wore true. Bold that, while an alien seeking naturalization is seeking a high privilege, and naturalization cannot he based upon purel.v constructive residence, the petitioner’s declaration, being a bona fide declaration, cannot be rejected because of bis admission that he lived in a district other than that stated in the declaration of intention; the error being that of the clerk taking the declaration of intention.</p> <p>other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Admiralty. Libel by A. T. Foreman and others against J, M. Benas & Co.</p>

In Bankruptcy. In the matter of the bankruptcy of J. W. Johnson. The bankrupt’s application for the allowance of a homestead exemption was granted by the referee over objections, and objecting creditors petition for review.

<p>Exceptions, Bill of <@=»38, 43(2)—Time of Settling—“Extraordinary CIRCUMSTANCE.”</p> <p>A bill of exceptions cannot be settled, after the expiration of the term at which judgment was rendered, without an express order of court made during the term, or by consent of the parties, save in very extraordinary circumstances; and a mere misunderstanding of the rule is not an “extraordinary circumstance,” such as the absence or inability of the judge to sign the bill of exceptions, which will allow settlement after expiration of the term.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and. Second Series, Extraordinary Circumstances.]</p> <p><g=»Foi other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>Note.—The defendant thereafter applied to the Circuit Court of Appeals for a writ of mandamus to compel the District Judge to settle the bill of exceptions nunc pro tunc, and that application was denied.</p>

<p>In the matter of the application of Karl Albert Rindner for a writ of mandamus,. directed against the clerk of the District Court.</p>

In Bankruptcy. In the matter of the bankruptcy of. P. J. Sullivan Company, Incorporated. Application by H. A. Whiting, trustee in bankruptcy, and Frank B. Hodges, ancillary receiver, for an order or decree directing the Vocátional High School Commission in the city of Syracuse to deliver to the -trustee and receiver certain property, or in default thereof to pay the value of such property.

<p>Prosecution of Louis LI. Perlman by the United States. Heard on motion to strike out plea in abatement, and on motion to quash the indictment.</p>

<p>In Equity. Bill by J. Wadsworth Baldwin, as trustee in bankruptcy of Ea Rue II. Kingston and William A. Burnett, individually and as copartners, against Etta C. Kingston, to set aside a conveyance alleged to have been made in fraud of creditors.</p>

<p>In Equity. Suit by Carl W. Smith, trustee in bankruptcy, against Amos Coury and others.</p>

<p>In Equity. Bill by William A. Rogers, Limited,- against the Rogers Silverware Redemption Bureau, Incorporated, which sought affirmative relief.</p>

In Equity. Bill by the De Pauw University, a corporation, the Ruse Land & Development Company, Limited, a corporation, and others, against the Public Service Commission of Oregon and Frank J. Miller and others, as members of the Public Service Commission of Oregon and as individuals.

<p>1. Bankruptcy <§=»320—Provable Debts—Contingent) Demands.</p> <p>Bankrupt was a director in a bank which had been placed in the hands of the state banking commissioner for liquidation, who had brought two suits against bankrupt and the other directors to charge them jointly and severally for misuse of funds of the bank. These suits were pending at the time of the proceedings in bankruptcy; the defendants denying liability. Hold, that the claims of the commissioner were not provable debts against the bankrupt’s estate, either by him or by the bankrupt’s codirectors, because they were not fixed liabilities, absolutely owing, but were not only contingent, but the amount of the liability, if any, could not be ascertained until final distribution of the assets of the bank.</p> <p>2. Bankruptcy <S=3320—Provable Debts—Unliquidated Claims.</p> <p>Bankruptcy Act July 1, 1898» c. 541, § G3b, 30 Stat. 562 (Comp. St. 1916, § 9647), authorizing the liquidation of unliquidated claims, applies only to claims provable under subdivision “a.”</p> <p>3. Bankruptcy <s=>320—Provable Debts.</p> <p>The provision of Bankruptcy Act, § G3a (1), that a debt, to be provable, must be a “fixed liability s> * * absolutely owing at the time of the filing of the petition,” must be also read into subdivision (4), and applies to debts on open account or contract provable thereunder.</p> <p><@5»]j'or other cases see same topic & K13Y-NUMBEU in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by the Duplex Printing Press Company against Emil J. Deering and others.</p>

<p>In Equity. Suit by the Champion Spark Plug Company against the Champion Ignition Company and Albert Champion. On motion by complainant to dismiss counterclaim.</p>

<p>In Admiralty. Petition by the Franco Ottoman Shipping Company, Limited, owner of the steamship Cromwell, for limitation of liability. Hearing on claims of the Wilmington Railway Bridge Company and others.</p>

In Equity. Bill by Catharine P. Mathieson and another against Thomas J. Craven, executor and trustee under the will of Thomas Jami-son, deceased, and others. After, decree for complainants and dismissal of the bill as to defendants Oliver V. Jamison and others, Vesta R. Bastían and another petition to intervene.

<p>1. Injunction <3=»77(1)—Authority of Court of Equity—Issuance of Injunction.</p> <p>Where the refusal of a municipal officer to grant the permit, required as a prerequisite for the exhibition of a moving picture, amounts in law to an abuse of discretion, whereby property lights aro or will be Injuriously affected, a court of equity has jurisdiction to enjoin such officer from refusing the permit.</p> <p>2. Theaters and Shows <@=»1—Moving Pictures-—Right of Exhibition.</p> <p>The natural right of every man who has a moving picture lilm is to exhibit it; but for the good of society the right of exhibition may be denied, where it would be violative of laws or ordinances.</p> <p>3. Theaters and Shows <§=»!—Moving Pioturf.s—Exhibition—Refusal of Permit.</p> <p>Under a municipal ordinance, providing that permits for the exhibition of moving pictures shall not be granted, if the picture be immoral or obscene, or portrays any riotous, disorderly, or other unlawful scenes, or has a tendency to disturb the public peace, a permit to exhibit a moving picture Aim, which contains scenes.of torture that may be terrifying and horrifying, cannot be denied; the picture not being one falling within those prohibited by the ordinance.</p> <p>4. Words and Phrases—“Abuse of Discretion.”</p> <p>“Abuse of discretion” does not necessarily mean willful intent to do harm, or actual exercise of the discretion with willful intent to violate the law; and such abuse is presumed where an officer, having discretion, acts wholly outside of the law, notwithstanding there is no evidence of an intent to so act.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Abuse of Discretion.]</p> <p><3£5>E’or othei cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Action by Mrs. Nora Givens, administratrix, against Pearl Wight and J. L. Lancaster, as receivers of the Texas & Pacific Railway Company, begun in state court and removed by defendants to the federal court. On motion to remand.

<p>Shipping <©=>51—Breach of Charter—Effect of War Embargo.</p> <p>A sailing vessel was chartered to carry a cargo to a French port by a charter party, requiring prepayment of the freight and providing that “freight earned retained and irrevocable, vessel lost or not lost,’1’ the voyage was commenced, but the vessel was compelled by stress of weather to seek a port of refuge, and returned to New York, from which she sailed. After such return the Federal Exports Administrative Board placed an embargo on shipments by sailing vessels going through the war zone, which prevented a resumption of the voyage at that time. The owner compelled the charterer to unload the cargo, but refused to refund the freight paid. Held, that such action was a breach of the charter; that the rights of the parties were the same as though the voyage had not been commenced; that the freight was not earned, because the cargo was not forwarded, nor had the ship been lost; that under the charter the owner was bound to either forward the cargo or refund the freight money; and that, having elected to abandon the voyage and not to tranship the cargo, it was equitably liable in damages to the amount of the freight paid.</p> <p><£c»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Thomas Welsh was indicted for bringing into the United States a letter, and he moves to quash the indictment, and for return of the letter.

In the matter of the bankruptcy of the Ragland Brick Company, in which R. M. Hudson intervened, petitioning for permission to ship certain bricks and for order that the trustee show cause. The Bank of Ragland also intervened, praying- dismissal of the petition. An order of the referee in favor of the petitioner having been upheld by the District Court, the Bank of Ragland appeals.

<p>Brokers <©=>81—-Agency tor Sake op Property— Purchase by Agent.</p> <p>Defendants were agents for tlie sale of land owned by complainants in Oklahoma. They made an oral agreement for its sale, and at their suggestion complainants executed a deed to the purchaser and sent it to a bank, to be delivered on payment of the price. By agreement with the grantee therein one of defendants paid the money to the bank. The deed was delivered and the grantee conveyed to such defendant. No writing had been signed as necessary to constitute a valid and binding contract of sale, under Rev. Laws Okl. 1910, § 941. Held, that the agency had not terminated when defendant took the deed, and he could not make a valid purchase without complainants’ knowledge and consent, and tnat they were entitled to have the same set aside and the two deeds canceled.</p> <p><§=5>For other oases see same topic & KEY-NUMBEB in all Key-Numbered Digests & Indexes</p> <p>Sanborn, Circuit Judge, dissenting.</p>

Petition to Revise Order of the District Court of the United States for the Southern District of Iowa; Martin J. Wade, Judge. In the matter of the voluntary proceeding in bankruptcy by C. G. Norris. Petition by T. G. Armstrong and others, creditors, to revise an order denying a motion to set aside the adjudication.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in equity by the Sherman National Bank of New York against the Shubert Theatrical Company, impleaded, and others. From an order .granting an injunction pendente lite, the defendant company appeals.</p>

<p>1. Mortgages <s=j3S(1)—Evidence as to Character of Instrument—Weight and Sufficiency.</p> <p>Where one of the owners of land executed a note to a bank, with defendant apparently as surety, and filled in defendant’s name as grantee in a deed previously executed in blank, and defendant subsequently paid the note and recorded the deed, evidence held to show that the deed, though absolute on its face, was given as security.</p> <p><®=»Foi other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>2. Mortgages <§=>38(2)—Evidence as to Character of Instrument—Degree and Proof.</p> <p>Evidence to show that a deed absolute on its face is a mortgage must be clear and convincing.</p> <p>Booth, District Judge, dissenting.</p> <p><@=»l>’or other cases see same topic & KEY-NUMBER in all Key-Nunibered Digests & Indexes</p>

, In Error to the District Court of the United States for the District of Nebraska; J. W. Woodrough, Judge. Action by the International Land & Investment Company against the Atchison, Topeka & Santa Fé Railway Company. There was a judgment for ‘ plaintiff, and defendant brings error.

Action by William Skerman against the Philadelphia & Reading Railway Company, begun in the state court, and removed to the federal court. There was a judgment for plaintiff, and defendant brings error.

<p>Appeal from the District Court of the United States for the District of Kansas; John C. Pollock, Judge.</p> <p>Creditors’ bill by Neis O. Hultberg against Friedborg A. Anderson. From a decree for complainant, defendant appeals.</p>

Niles, Judge. Action by Corbet Erkhart, by J. H. Erkhart, his next friend, against the Cybur Eumber Company. There was a judgment of voluntary nonsuit, and a motion for judgment and to set aside the order granting the nonsuit. Plaintiff brings error.

Van Valkenburgh, Judge. Action by the Bear Cat Mining Company, a corporation, against the Grasselli Chemical Company, a corporation. There was a judgment in favor of plaintiff for $1 damages only, and it brings error.

<p>1. Mashsb and Servant @=5281(3)—Injuries to Servant—Actions—Evidence—Sufficiency.</p> <p>In an action for personal injuries received by plaintiff, who was caught upon a nail in the axle of a small traveling wheel used on defendant,'s coal conveyer, evidence held sufficient to support a judgment for plaintiff under the instruction which charged that, if the act of plaintiff in getting on the conveyer contributed to the accident, he could not recover.</p> <p>2. Master and Servant @=>101, 102(1)—Injuries to Servant—Saipe Place to Work.</p> <p>It is the duty of the master to furnish his servant with a safe place in which to work and safe appliances with which to work.</p> <p>3. Master and Servant @=>228(3)—Injuries to Servant—Contributory Negligence.</p> <p>Employers’ Liability Act Ala. (Code 1907, § 3910) subds. 1, 2, declare that, when a personal injury is received by a servant, the master is liable to such servant as if he were a stranger when the injury is caused by reason of any defect in the condition of the ways, works, machinery, or plant connected with or used in the business of the master, or when the injury is caused by reason of the negligence of any person in the service or employment of the master who has any superintendence intrusted to him whilst in the exercise of such superintendence. The coal conveyer of defendant, consisting of an endless steel belt resting on small traveling wheels, was unsafe because large nails* bent so that they would not fall out were used to hold the wheels in place at the ends of the axles. The foreman of Hie master directed plaintiff, the only laborer at work, to do the best he could in removing rock, wood, or other foreign matter which might go into the crusher. Plaintiff was caught by one of the nails and injured. Meld, that the accident fell within the scope of both sections, particularly the latter, and so contributory negligence could not be imputed to plaintiff; defendant’s negligence consisting not only of the furnishing of unsafe machinery, hut of the negligence of its foreman.</p> <p>other cases see samo topic & KEY-NUMBER in all Key-Numhered Digests & Indexes</p>

<p>1. Aliens <S=»53—Immigration—Unlawful Entry.</p> <p>Where a naturalized citizen of Canada, on being requested by bis brother, a resident of the United States, to come into this country on account of the dangerous illness of the brother’s wife, applied to the immigration office in Montreal, established pursuant to Immigration Act Eeb. 20, 1907, c. 1134, § 32, 34 Stat. 908 (Comp. St. 1916, §.4281) for permission to enter the United States, and after examination of himself and of his wife was given a pass, the entry of such perspn into the United States cannot be deemed in violation of law.</p> <p>2. Aliens @=^53—Immigration—Deportation—Persons Likely to Become Public Charge.</p> <p>Immigration Act 1907, § 2, as amended by Act March 26, 1910, c. 128, 36 Stat. 263 (Comp. St. 1916, § 4244), provides for the exclusion of aliens likely to become a public charge and persons who have been convicted of or admit having committed a felony or other crime or misdemeanor involving moral turpitude. Section 20 of the act of 1907 (Comp. St. 1916, § 4269) provides for deportation within three years after entry of an alien who shall become a public charge from causes existing prior to landing. A naturalized citizen of Canada who was physically fit, after regularly obtaining a pass, entered the United States. Thereafter, it appearing that a check which he had drawn while in Canada proved bad, and there being a contention that he was guilty of fraud, the alien was ordered deported as a person liable to become a public charge at the time of his entry. Held, that as the alien denied any dishonesty or commission of an offense, and as it appeared that he had entered into business in the United States and was earning a substantial salary, he cannot be deported as a person liable to become a public charge, or as one who has committed or attempted the commission of a crime involving moral turpitude.</p> <p><§=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Northern Division of the Western District of Washington; Jeremiah Neterer, Judge.</p> <p>Libel by Henry Sorenson against the Alaska Steamship Company, a corporation. From the decree (243 Fed. 280), libelant appeals.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in admiralty for collision by David Cohen and others, owners of the schooner Thomas R. Wooley, against the barge Josephine; Josepliine E. Cane, claimant. Decree for libelants, and claimant appeals.</p> <p>This is an appeal from a decree of the District Court (Judge Mayer presiding), upon a libel in rem against the scow Josephine for a collision occurring inside the Stonington breakwater in the early morning of January 16, 1915, between herself and the schooner Thomas B. Wooley. The District Court held the Josephine solely at fault for failure to maintain an anchor light on the night in question and exonerated the schooner. The finding of the court as to the light was upon disputed evidence and the appellant does not challenge it here, but accepting the fact that the scow was at fault for failure to maintain her light, insists that the schooner was likewise at fault in omitting to maintain a proper lookout when she came into the harbor.</p> <p>On tiie .15th of January, 1913, the schooner set sail from College Point, N. Y., bound for New Bedford, Mass., with 700 barrels of cordage oil. At 4 a. m. on the 16th, while somewhere off Stonington, Conn., the weather, which had become threatening, forced her into Stonington Harbor for refuge. The wind was southwest, it was raining in squalls, and the schooner could not see objects on the water more than a few feet outboard, though lights were plainly visible, as there was no fog. The harbor at Stonington is in part formed by two breakwaters, one upon the east, which does not concern this case, the other upon the south and west, terminating in an arm extending northeast and southwest. The southern and western breakwater formed on the night in question a protection against the weather. Inside it and upon the anchorage ground three barges had been anchored, the first, the Josephine, without a light, the second, with an anchor light properly burning on its after staff, and the third, which need not be considered. The Josephine was 115 feet long, and on the night in question loaded to a freeboard of probably not over 2 feet. She was anchored close up to the second barge which carried the light.</p> <p>The Wooley was coming down Long Island Sound, with her sheets eased, running free on the starboard tack, bound east. To enter Stonington Harbor she had to starboard her wheel and come around through an angle of more than 180 degrees. When off the harbor sbe saw the light of the second barge across the breakwater, as well as the light upon the end of the breakwater itself. Starboarding, she jibed and came around on the port tack, continuing to come into the wind until she rounded the end of the breakwater. Thereupon she continued close-hauled, meaning to anchor on the port side of the barge, of which she saw the light. As she approached, she eased her fore-sheets and let her jib run. She had passed the light on the second barge and was about to luff into the wind, when her mate, Comillet, made out the second barge about 25 feet off the starboard bow. He called out to the captain, who was at the wheel, and who at once put down his helm; but it was too late to avoid a contact., The schooner’s rudder fouled the tackle of the barges and she was forced inshore, where she sank, doing the damage in question.</p> <p>There were three in the crew of the Wooley, the master, Swenson, the mate, Oornillet, and the cook, Carroll. Before rounding the breakwater all were on deck, but their subsequent positions and maneuvers are the subject of dispute.</p>

Suit in ecpiity by the Crescent Tool Company against the Kilborn & Bishop Company. From an order granting a preliminary injunction, defendant appeals. This is an appeal from a temporary injunction granted by the District Court for Connecticut on the 25th day of January, 1917, restraining the defendant pendente lite from manufacturing and selling its adjustable wrenches.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in equity by J. Hartley Manners against the Triangle Film Corporation and the Rialto Theater Corporation. From an order granting an injunction pendente lite, defendants appeal.</p>

Suits in admiralty by Egbert N. Brown, Jr., James Brooks, and Andrew Bull against the Standard Oil Company of New York, tire Brooklyn Union Gas Company, and the City of New-York. Decree for libelants against the Standard Oil Company alone, and it appeals.

<p>Appeal from the District Court of the United States for the Eastern District of Arkansas; Jacob Trieber, Judge.</p> <p>Suit in equity by Martha Adella JBumpass against Ellen A. Mc-Gehee. From the decree, complainant appeals.</p>

Tuttle, Judge. Action by Anna Sutherland, administratrix of the estate of Phyllis Sutherland, deceased, against the Standard Oil Company, begun in state court and removed to the federal court. There was a judgment for plaintiff, and defendant brings error.

In the matter of the bankruptcy of Julia F. Garrity. From an order denying discharge, the bankrupt appeals. Appeal from order denying discharge entered in the District Court for the Southern District of New York. The bankrupt is a teacher in the public schools of this city, receiving a salary of $2,G50 annually. She became a voluntary bankrupt on December 27, 1915, and scheduled no assets.

Trespass to try title by David L. Gallup and others against Griffin Creal and Monroe Reese. There was a judgment for- the last-named defendant, and plaintiffs bring error.

<p>Collision <§¡=>74—Tow and Anchored Vessel—Obstruction op Fairway. Evidence helé insufficient to sustain the allegation of libelant in a collision suit that claimant’s steamship, when struck by the tow of libel-ant’s tug, was improperly anchored where she obstructed the fairway.</p> <p><j^For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Van Valkenburgh, Judge. Suit in equity by Daniel G. Saunders, Jr., against G. U. Moore and G. A. Alexander, doing business under the firm name of Moore & Alexander. Decree for complainant, and defendants appeal.

Suit in equity by the Manton-Goulin Manufacturing Company against the Dairy Machinery & Construction Company. Decree for complainant, and defendant appeals. This is an appeal from a final decree in the District Court (238 Fed. 210), Thomas, J., presiding, for the District of Connecticut awarding the usual interlocutory decree of infringement upon patent 756,953, issued on April 12, 1904, to A. Gaulin.

Suit in equity by the Auto Pneumatic Action Company against Kindler & Collins, the Gavióla Company, the Superior Pneumatic Action Company, and the Needham Piano Company. Decree for complainant, and defendants appeal. This is an appeal from a decree of the District Court for the Southern District of New York (A. N. Hand, District Judge, presiding), holding valid and infringed plaims 26, 27, and 31 of patent 766,601 to T. Danquard, August 2, 1904.

Suit in equity by the Van Kannel Revolving Door Company against Eyon & Elealy. Decree for defendant, and complainant appeals. Tins appeal involves the validity and alleged infringement of claims 1, 2, and 8 of patent 656,062 to Van Kannel, August 14, 1900, for improvements in revolving doors.

<p>Appeal from the District Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge.</p> <p>Suit in equity by the Corrugated Paper Patents Company against the Peter Heibel & Sons Planing Mill & Manufacturing Company. Decree for complainant,,and defendant appeals.</p>

Biff by the American Cone & Wafer Company against the Consolidated Wafer Company. From a decree dismissing the bill, complainant appeals. Tire bill was to procure specific performance of a contract for the assignment of parent 1,122,013 issued to John P. Groset and assigned by Mm to the defendant.

<p>Appeal from the District Court of the United States for the District of Connecticut.</p> <p>Suit in equity by the Dicks Press Guard Manufacturing Company and others against the American Hardware Corporation. Decree for defendant, and complainants appeal.</p>

<p>Patents <S=»328—Invention—Process or Drying and Varnishing Prints.</p> <p>The Crump patents, No*. 644,281, for a process of drying and varnishing prints, and No. 644,282, for the product of such process, held void for lack of patentable invention, in view of the Clark British patent, No. 3,357, of 1867.</p> <p><gzs>Foi other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the District of Connecticut.</p> <p>Suit in equity by H. D. Smith & Co. against the Southington Manufacturing Company. Decree for defendant, and complainants appeal.</p>

<p>In Equity. Suit by the Van Kannel Revolving Door Company against Oscar W. Uhrich and Burns H. Uhrich, doing business as the Atchison Revolving Door Company.</p>

<p>In Equity. Suit by Arthur V. Hinman and others against the Starch Bros. Company. On final hearing.</p>

<p>In Admiralty. Libel against the tug Leonard Richards and the scow 6 S for illegal dumping in New York Harbor. Dismissed upon trial as to the tug.</p> <p>This is a libel in rem against the tug Leonard Richards, dismissed upon the trial, and the scow 6 S, for illegal dumping in New York Harbor under Act June 29, 1888, as amended by Act Aug. 18, 1894. The fact of dumping within the limits of the harbor is admitted, but the claimant relies upon two points: First, that under section 4 of the act of June 29, 1888, no libel lies against the scow until the fine or penalty has been assessed against the owner or master in criminal proceedings; second, that under section 3, as amended by the act of August 18, 1894 (Comp. St. 1916, § 9935), the minimum penalty is $100 and not $250.</p>

<p>lu Equity. Suit by the Marquette Manufacturing Company against the Oglesby Coal Company. On application to defendant for an order requiring complainant to answer interrogatories.</p>

<p>In Admiralty. Labels by the United States against Lour Packages of Cut Diamonds, claimed by Max Goldstein.</p>

In Admiralty. labels by Edward M. Timmins, David Roche, James Kennedy, and others against the steamship Tijuca, together with libels by Frederick Bouchard and others against the same vessel.

Thomas Casey and others were indicted for conspiracy to violate Selective Service Act May 18, 1917, § 13, and the regulation of the Secretary of War promulgated in pursuance of that section, by keeping and setting up a house of ill fame within five miles of a military post or station used for military purposes. On motion to quash and demurrer.

In Bankruptcy. In the matter of the D. F. Herlehy Company, an alleged bankrupt. On motion of petitioning creditors to strike from the files the answer of the Lewis-Weller Manufacturing Company, a creditor.

<p>At Law. Action by the United States, for the use of the Carnegie Institute of Technology, a corporation, against the C. A. Riffle Company, a corporation, and another.</p>

In Bankruptcy. In the matter of the bankruptcy of the 35% Automobile’ Supply Company. The proof of claim of E. A. Shatz was expunged by the referee, and claimant petitions for review.

<p>1. Customs Duties <§=>133—Forfeiture—Proceedings.</p> <p>Under Act June 22, 1874, c. 391, § 17, 18 Stat. 189 (Comp. St. 1916, § 10132), declaring that whenever, for an alleged violation of the customs revenue laws, any person who shall he charged with having incurred any fine, penalty, forfeiture, or disability other than imprisonment, or shall be interested in any vessel or merchandise seized, when the appraised value of such vessel or merchandise is not less than $1,000, shall present his petition to-the judge of the district in which the alleged forfeiture occurred, etc., setting forth the facts of the case and praying for relief, such judge shall, if the case in his judgment requires, proceed to inquire in a summary .manner into the circumstances, of the case, a decision in a summary proceeding thereunder that there was no fraud in connection with the importation of merchandise is not a binding adjudication, preventing the subsequent maintenance of a libel to forfeit the merchandise; the purpose of the summary proceeding being merely to secure clemency of the Treasury Department, whose power to remit forfeitures is purely administrative.</p> <p>2. Customs Duties <§=>125—Importation—'Value.</p> <p>Under Act Oct. 3, 1913, c. 16, § III, par. “I,” 38 Stat. 184 (Comp. St. 1916. § 5527), declaring that the owner, consignee, or agent of any imported merchandise may “at the time when he shall make entry of such merchandise * * * make such addition in the entry to, or such deduction from, the cost or value given in the invoice * * * as in his opinion may raise or lower the¡ same to the actual market value or wholesale price of such merchandise at the time of exportation to the United States in the principal markets of the country from which the same has been imported,” where the consignee, at the time of entry and before examination, raised the value.of merchandise to correspond with the market value in the country from which it was imported, the step will prevent forfeiture for undervaluation; the consignee having the legal title, even though fraud was attempted by the consignor.</p> <p><@^>iror other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Equity. Suit by Margaret C. Anderson .against Thomas C. Patten, Postmaster of the City of New York. On motion to restrain the postmaster from denying use of mails to the October issue of the Tittle Review.

Foster, Judge. In the matter of the bankruptcy of James J. Woulfe. The claim of Mi's. Mary Mui-phy, wife of James J. Woulfe, bankrupt, which was opposed by James J. McLoughlin, trustee, and others, was disallowed in part, and claimant appeals.

Campbell, Judge. Suit by the United States against É. E Halsell. Erom .a decree in part for the United States, and dismissing the bill as to part of the relief sought, the United States appeals. W. P. McGinnis, U. S. Ally., and Paul Pinson, Sp. Asst. U. S. Atty., both of Muskogee, Okl.

<p>In Error to the District Court of the United States for the Eastern District of Oklahoma; Ralph E. Campbell, Judge. •</p> <p>Jack Davis and others were convicted of crime, and they bring error.</p>

<p>Petition to Revise Order of the District Court of the United States for the Southern District of Iowa; Martin J. Wade, Judge.</p> <p>In the matter of tile bankruptcy of Julius H. Hosmer, doing business under the name of the Hawkeye Buggy & Implement Company. Petition by Polk County, Iowa, against G. F. Burns, trustee in bankruptcy, and others, to revise a judgment (233 Fed. 318) giving priority to the Kens of landlords over claims of the county for personal taxes.</p>

<p>In Error to the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge.</p> <p>Assumpsit by Grin S. Wilson against the Studebaker Corporation of America. There was a judgment for plaintiff (240 Fed. 801), and defendant brings error.</p>

<p>Appeal from the District Court of the United States for the Eastern District of New York.</p> <p>Bill by the Aunt Jemima Mills Company against Rigne.y & Co. From a decree (234 Fed. 804) dismissing the bill, complainant appeals.</p>

Uibel by the Cuneo Importing Company against the American Importing & Transportation Company, which by petition made Daniel Bacon a respondent. There was a decree in favor of libelant against the American Importing & Transportation Company, and in favor of the impleaded respondent (241 Fed. 421), and the Transportation Company appeals.

Action by the Pacific Coast Casualty Company against the General Accident, Fire & Fife Assurance Corporation, Limited. There was a judgment for plaintiff, and defendant brings error. Writ of error to the District Court, Southern District of New York (Mayer, J., presiding), upon a judgment entered for the plaintiff upon a verdict directed by the court at the close of the evidence.

A. Youmans, Judge- Suit by Alvin D. Goldman, trustee, against the Nashville Lumber Company and the Graysonia-Nashville Lumber Company. Decree for complainant, and the last-named defendant appeals.

Cotteral, Judge. Suit by the Compania Palomas de Terrenos y Ganados, Sociedad Anónimo, and another, against Sigmund Lindauer, Arthur A. Temke, and others. Decree for complainants, and the defendants named appeal.

• Action at law hy Vincent Sawickas against the Lehigh & Wilkes-Barre Coal Company, judgment for plaintiff, and defendant brings error. Sawickas was a miner in the employ of the Coal Company, and while so employed, and In Pennsylvania, received serious personal injuries by the premature explosion of a blast, which he was preparing with the assistance of his workman or helper. This suit is to recover damages for such injuries.

Suit in equity by the Royal Trust Company, Lucy Adaline LIurd Van Horne, Adaline Van Horne, and Richard Benedict Van Horneras executors and trustees under the will of Sir William C. Van Horne,, against the Equitable Life Assurance Society of the United States. From an order denying a preliminary injunction, complainants appeal.

Pollock, Judge. Suit by R. M. Barnes and another against Conrad Peintner, in which May Peintner, as executrix, was substituted. From a decree in favor of complainants, defendant appeals*

<p>Appeal from the District Court of the United States for the District of Arizona; Wm. H. Sawtelle, Judge.</p> <p>Suit by the United States against the Grand Canyon Cattle Company, a corporation. From a decree for defendants, complainant appeals.</p>

<p>Appeal from the District Court of the United States for the Western District .of Pennsylvania; Charles P. Orr, Judge.</p> <p>Suit by the Clinton Mining & Mineral Company against A. J. Cochran and others. From a decree dismissing the bill, plaintiff appeals.</p>

Trippet, Judge. Suit by thé Coca-Cola Company against Rose Orr and Frank F. Orr, doing business as the Orr Drug Company, or the Orr Pharmacy. From an order and decree dismissing the cause on plaintiff’s motion without prejudice, defendants appeal. Appeal from an order and decree granted on plaintiff’s motion, and against defendant’s objections, dismissing the cause without prejudice.

<p>1. Puis mo Lands <§=>120—Homesteads—Acquisition.</p> <p>On testimony that ho had continually resided on the land for five years after application, defendant was granted a patent. It appeared that he had not cultivated the land during ihat time, and had improved it onlj by erecting some wire fences and preparing a rude dugout, in which he occasionally spent a night or two; it being his custom to go onto the premise's from other land on which he lived, and to there stay a short time, eating food prepared away from the homestead property. Held that, as the purpose of the Homestead Act (Rev. SI. §§ 2289-2291 [Comp. St. 1916, §§ 4539-4532]) is to allow bona fide settlers to obtain a home, and as to secure the gift the applicant must show that he has made the land a homestead, the patent granted to defendant should be vacated on the ground of fraud in its procurement.</p> <p>2. Public Lands <§=>120—Homesteads—Vacation of Patent.</p> <p>As Rev. St. § 2291, provides that,, in order to obtain a patent, the entryman must present final proofs, after the expiration of five years and before the expiration of seven years from the date of entry, showing that he has resided on and cultivated the land for a term of five years immediately succeeding the initiation of the homestead entry, an entry - man, who obtained a patent by fraudulent representations that he had resided upon and cultivated the land for five years after entry, cannot avoid a cancellation of the patent by showing that two years after obtaining his patent he raised a crop, and later resided on the land for several years, making improvements and continuing to cultivate it.</p> <p><gs>Foi other cases see samo topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>3. Public Lands ®=»120—Patents—Cancellation.</p> <p>Where an entryman, by fraudulent representations that he had resided upon and cultivated the land for five years after entry, obtained a homestead patent, he cannot defeat suit to cancel the patent on the theory that the government should place him in statu quo and reimburse him for improvements, for the government, in disposing of its public lands, does not assume the position of an ordinary vendor, but has attempted to advance the interests of the whole country by opening the lands to entry in comparatively small tracts, under restrictions designed to promore settlement and development, and a suit to cancel a patent obtained through fraudulent representations is not only one to regain title, but is intended to enforce the statutes and policy relating to settlement of public lands.</p> <p><©cs>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Retition to Revise Order of the District Court of the United States for the Northern District of Iowa; Henry Thomas Reed, Judge. In the matter of the bankruptcy of G. II. Gurier and C. H. Gurier, individually and as copartners under the style of Gurier & Co. The J. G. Cherry Company, a corporation, and others, filed an involuntary petition. After adjudication, Hunter, Walton & Co., a copartnership, filed a petition to set aside tlie adjudication in bankruptcy.

<p>1. Judgment <§=3218-—Form and Requisites of Judgment Entry.</p> <p>Any entry, whatever its form, is a sufficient entry of a judgment, if the substance of the entry clearly shows that it was intended as the determination of the court, and shows the nature and scope of the relief granted.</p> <p>2. Divorce <@=>243—Alimony—Judgment.</p> <p>An entry in a divorce suit appeared to be the act of the court, and not of the clerk, and contained findings of plaintiff’s residence, of the service of summons, of the fact of marriage, and of the cause for divorce, and then ordered, adjudged, and decreed that the marriage he dissolved, and further ordered, adjudged, and decreed that plaintiff was entitled to alimony from defendant, and “that he bo ordered to pay” plaintiff the monthly sums therein specified. Held, that this was not a mere recital that a judgment be thereafter entered, but had the effect of a judgment for the amount of alimony stated.</p> <p>3. Courts <§=3322(1)—Federal Courts—Evidence—Citizenship oe Parties.</p> <p>Where no issue of diversity of citizenship was made by the pleadings, evidence as lo timo spent by plaintiff in a state other than that of which she testified she was a resident was properly excluded.</p> <p>4. Appeal and Error <@=>226(1)—Reservation of Grounds of Review—Objections.</p> <p>An objection that the introduction in evidence of certified copies of certain statutes made unnecessary costs could not be urged on appeal, when not made when the exhibits were offered in evidence.</p> <p><©^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Elmer Denning was convicted of having feloniously persuaded and induced a woman to go from one place to another in interstate commerce for the purpose of prostitution, and he brings error.

Dickinson, Judge. Action by the United States against the Philadelphia & Reading Railway Company for penalty for confinement of cattle in violation of the Twenty-Eight Hour Law. There was a judgment for the United States (238 Fed. 428), and defendant brings error.

Dickinson, Judge. Action by the United States against the Philadelphia & Reading Railway Company for violation of the Twenty-Eight Hour Daw. There was a judgment for defendant, and the United States brings error.

<p>X. Master and Servant @=»222(X)—Injuries to Servant—Fellow Servants —Negligence.</p> <p>The rules of a mining company declared that each man should ascertain by careful examination that the particular place in which he was employed was safe, and that, if unsafe, measures should be taken to remove such danger at once before proceeding with the work, and, if necessary, the foreman or the shift boss should be notified. A miner, who operated a drill, on beginning his work attempted to test the rock above his place of work with his drilling machine; there being no bar to pry down the loose rock. The shift boss, who had charge of the operations on that level, assured the miner that the place was all right, and directed him to commence work. After about ten minutes work loose rock fell, injuring him. Held that, as the very rule of the mining company gave the shift boss or foreman the ultimate authority to determine the safety of the working place, he was to that extent vice principal of the mining company, and his negligence was that of the mining company, even though he was a fellow servant of the miners, and hence the miner did not assume the risk of injury from fall of rock, being entitled «to rely on the statement of the shift boss.</p> <p>2. Master and Servant <®=»222(X)—Injuries to Servant—Assurance of Vice Principal.</p> <p>rn such case the order and assurance of the shift boss, who was given control of operations on that level, were within the authority implied in the rule of the mining company.</p> <p><£rs>For otliei oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Railroads @=400(2)—Injury to Child on Track—Trespasser—When Question oe Fact.</p> <p>Defendant owned a short line of railroad in a city, consisting of five tracks; the two outer tracks being used for moving trains and the others for the storage of cars, some awaiting repairs, and some, further movement. The crippled cars sometimes remained there for several months. On one side of the tracks, on about the same level and not separated from them, was an open field, which for many years, without objection from defendant, had been used as a playground at all times of the year by children, who also played on and between the tracks, and were often on and around the standing cars. A moving freight train of 50 or 60 cars stopped on the nearest track, where it stood for some half an hour; the engine not being in sight. Plaintiff, a boy 11 years old, with companions, was playing a game beside thq tracks, using in the play a piece of wood which they lost. Plaintiff finally saw it under the standing train and crept in after it, when tile train started without warning, running over him and cutting off his arm. There was no evidence that defendant had actual knowledge of his presence. Held, that the occupancy of the track by the train was so like the previous occupancy of the other tracks by standing cars that plaintiff could not be said as matter of law to have been a trespasser, to whom defendant owed no duty of notice, but that such question was properly left to the jury.</p> <p>®:»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Trippet, Judge. Action by the H. F. Dangberg Fand & Five Stock Company against H. C. Day and S. A. Foster, copartners doing business under the firm name and style of Day & Foster. There was a judgment for defendants, and plaintiff brings error.

Rudkin, Judge. Action by Emma C. Lee and H. Lee, her husband, against Alexander Levison and others. There was a judgment for defendants, and plaintiffs bring error.

<p>1. Fraudulent Conveyances <@=>154(4)—Withholding Mortgage from Record.</p> <p>Though under Rev. St. Tex. 1911. art. 6824, relative to the recording of deeds and mortgages, the failure to record a mortgage would not affect its validity, and though under most circumstances a mortgage to secure a valid debt cannot be held fraudulent, a mortgage given with the understanding that it would not be recorded lest other creditors take action, and in order that the contracting of new debts might not be Interfered with, might be set aside as in fraud of creditors.</p> <p><g=a>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>2. Bankruptcy <®=>18o—Fraudulent Transfers—Rights oe Trustee.</p> <p>Under Bankruptcy Act July J, 1898, c. 541, § 70e, 30 Stat. 565 (Comp. St. 1916, § 9654), providing that the trustee may avoid any transfer by the bankrupt which any creditor might have avoided, a mortgage fraudulent as to creditors, in that it was given with the understanding that it would bo withheld from record, so as not to affect the bankrupt’s credit, might be set aside at the suit of the trustee, and the four months period of limitation had no application.</p> <p><§cs>For other cases see same topic & K13Y-NUMBER. in all Key-Numbered Digests & Indexes</p>

Action by the United States against Wolf Feldman. There was a judgment for defendant, and the United States brings error.

<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 Charles Armann. Petition by Lucius E. Judson, trustee, to revise an order confirming a report of the referee sustaining the claim of the holder of a chattel mortgage to the proceeds of the mortgaged property.</p>

Orr, Judge. Petition by the United States against Antonio Morena. From a decree dismissing the petition, the United States appealed, and certain questions were certified to the Supreme Court.

Suit in equity by the Charles Green Company and Arthur W. Clapp and Herbert C. Newell, doing business as Oberly & Newell, against the Henry P. Adams Company. Motions for a supplementary injunction and to punish for contempt denied, and plaintiffs appeal. Appeal from order entered in District Court for tbe Southern District of New York refusing to issue a supplementary injunction or to punish the defendant for contempt. The Green Company and others own Patent No. 1,180,141.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Bill by George S. Gordon, Mitchel Wolf, and Harry Cowen, individually and as copartners, doing business as the Gordon-Wolf-Cowen Company, against the Turco-Halvah Company, Incorporated, Nathan Radutsky, and others. There was a decree for complainants. On order to show cause why defendants should not be punished for contempt of the decree, defendants were adjudged guilty of contempt, and the master’s report, awarding a penalty against them, was confirmed, and defendants appeal.</p> <p>This is an appeal from a final order, entered February 19, 1917, adjudging the defendants, who are the appellants herein, guilty of contempt of a final decree in the suit and confirming a master’s report awarding a penalty against them. The suit was begun by bill filed in the District Court on the 16th of December, 1915, to which answer was filed on January 15, 1915, and thereafter, on March 4, 1915, by consent of both parties, a decree was entered, without hearing, adjudging that the plaintiffs were the sole owners and exclusive licensees under two letters patent, the first, 1,063,533, issued on June 3, 1913, to George H. Gordon, one of the plaintiffs, and the other, 1,074,483, issued on September 30, 1913, to Mitchel Wolf and Harry Cowen, the other two of the plaintiffs. These patents were for candies of the kind generally known as “halvah,” a Turkish sweetmeat originally made up of sugar and sesame oil. The first patent, which alone need be considered in this case, described the process of mixing 35 pounds of corn syrup with 15 pounds of granulated sugar and boiling the same until it became of a pasty or mushy consistency. At this stage 2 pounds of Turkish soap root were added to render the product more white and to give it greater viscosity. Next the patentee added approximately 50 pounds of specially prepared peanut butter, and a very small quantity, say one-half a tea spoon ful, of suitable flavoring essence. Tbe peanut butter was to be made from peanuts which were roasted until free from moisture, hut not so long as to change the color of the nuts, so that the oil should not be affected by excessive roasting. The result was that the peanut butter was white, and not the usual yellowish color. Of the three claims in suit only two need be mentioned:</p> <p>“1. A sweetmeat consisting of about 35 per cent, com syrup, 15 per cent, granulated sugar, 50 per cent, of a whitish peanut butter, and a flavoring essence.</p> <p>“2. A bleached sweetmeat compound, composed of approximately 35 per cent, corn syrup, 15 per cent, granulated sugar, and 50 per cent, of a whitish peanut butter.”</p> <p>The consent decree mentioned above further adjudged that the defendants had infringed both said letters patent and concluded with an injunction against making any candy containing the inventions in question, or either of them, “or any candy or food products like or similar to those that they, or any of them, have hitherto made.”</p> <p>On November 8, 1015, the plaintiffs procured an order to show cause why the defendants should not be punished for contempt of this decree. In support of this order they filed affidavits setting forth the facts hitherto recited, and also showing the purchase from the defendants of certain specimens of halvah on October 22, 1915. The composition of these samples was stated in the affidavit of a chemist, one Ludwig Saarbach, as containing approximately 35 per cent, corn syrup, 15 per cent, sugar and about 50 per cent, peanut but tear, with a small percentage of soap root. So far as the affidavit further stated an infringement of the second patent, it need not be recited. In further support of the motion the plaintiffs submitted an affidavit of one Johann Wind, a former employe of the defendants, who alleged that during the months of September and October, 1915, and until November 5, 1915, he had been concerned with the manufacture of the defendant’s halvah. He stated the corrrposition of the same, which was about 49 per cent, of corn syrup, 6 per cent, of granulated sugar, 42 per cent, of peanut butter, and less than 3 percent. of com or maize oil, with a small quantity of soap bark. Ho also stated that the peannt butter then used was of a whitish color, as It had only been slightly roasted.</p> <p>In answer to this motion the defendants only produced the affidavit of one Olaude A. O. Rosell, a chemist and patent lawyer. Tiiis affidavit contained no dispute of the facts set forth in Wind’s or Saarbach’s affidavits, and confined itself to a criticism of the relevancy and pertinency of the affidavits of the plaintiff. It also alleged that tire defendants were manufacturing under a patent issued to him, the affiant, No. 1,154,059, on September 21, 1915, of which the application had been made five days after tbe consent decree here in suit. The claims of this patent were for “a food product containing maize oil, ground oleaginous seed and sweetening agent in proportions to form a. solid friable compound,” and the gist of the patent lay in the fact that maize oil was to be substituted in part in the manufacture of halvah for sesame oil or peanuts or other oils of the sort. The proportions, however, were not stated in the patent itself.</p> <p>Upon this showing the District Court passed an interlocutory order finding the defendants in contempt for violating the provisions of the final decree of March 5, 1915, in respect of the Gordon patent, No. 1,063,533, but not in respect of the Wolf & Cowen patent, No. 1,074,483, and directed a reference to a special master to ascertain the amount of the candy so sold in violation of that decree and the profits obtained therefrom. 233 Fed. 430. At the hearing one of the defendants, Radutsky, testified that all the halvah made by them during the period of the accounting was composed of 50 per cent, glucose and sugar, 25 per cent, peanut butter, 18 per cent, sesame seed, and 7 per cent, maize or com oil, and that the peannt butter was not whitish, as provided in the patent, but yellow. He further testified that all the ingredients used by the defendants were the same throughout the period of the accounting, and that the color of the peanut butter was always the same. Thereupon the master held himself concluded by the interlocutory decree from considering whether the halvah was an infringement of the decree, upon the theory that, once the plaintiffs had shown that all the halvah was homogeneous, the matter was at an end. He found the defendant’s profits to be $2,129.70, to which he added the plaintiff’s charges and disbursements in the contempt proceeding of $700.92, together with a counsel fee of $750, making in all damages of $3,580.62. The District Court confirmed this finding, with modification of the amount of the counsel fee, and an order was entered on February 19, 1917, against the defendants, in the sum of $2,784.16, for which execution was directed to issue. It is from this order that the appeal was taken.</p>

<p>1. Patents <3=114—Suits in Equity to Obtain—Evidence.</p> <p>In a suit in equity to obtain a patent, brought under Rev. St. § 4915 (C'omp. St. 1916, § 9460), the rule is (1) that the proceeding is not an appeal, but an independent proceeding; (2) that testimony taken in an interference proceeding in the Patent Office, and out of which the subject-matter of the hill arises, is not competent as evidence, in the absence of proof establishing the right to introduce secondary evidence; (3) that the record of the proceedings in the Patent Office is likewise not competent evidence, except that admissions of the parties made in such proceedings may he received, and statements of witnesses made therein may be used for purposes of cross-examination; (4) that the plaintiff may show by the Patent Office proceedings that a judgment of priority has been rendered against him for the purpose of showing his light to maintain tile bill; (5) that, to overcome the presumption in favor of, that judgment, the proof must be clear and convincing.</p> <p>2. Patents <3=114—'Suit in Equity to Obtain—Evidence.</p> <p>Under such rules, in a suit b/'ought after an adverse decision by the Court of Appeals of the District of Columbia in an interference proceeding, it was error for the court, on motion by defendant to dismiss, to receive or consider the judgment and proceedings in a prior interference between the parties, which were in no manner a part of complainants’ hill, but a matter for defendant to plead or prove, if he desired to avail himself of it.</p> <p>3. Judgment <3=634—Res Judicata—Judgment as Bah oh Estoppel.</p> <p>There is a difference between the effect of a judgment as a bar to a second action for the same cause and its effect as an estoppel in another suit between the same parties upon a different cause of action. In the former case a judgment on the merits must he pleaded, and is an absolute bar to a subsequent action; it concludes the parties, not only as to every matter which was offered and received to sustain or defeat the suit, hut also as to any other matter which might; have been offered for that purpose. In the latter case, the judgment in the prior action may be offered in evidence, and operates as an estoppel only as to those matters which were there direct!y in issue, and either admitted by the pleadings or actually tried.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Suit in equity by Francis G. Crone against the John J. Gibson Company. Decree for complainant, and defendant appeals. This is an appeal from an interlocutory decree declaring valid and infringed claims 1, 2, 3, 4, 5, 6, 7, and 8 of letters patent No. 1,009,011, issued on November 14, 1911, to the plaintiff, Francis G. Crone, as assignee of Dayton A. Baldwin, inventor.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in equity by the Cutler Mail Chute Company against the American Mailing Device Corporation. Decree for complainant, and defendant appeals.</p> <p>The action is upon two letters patent, both issued to Joseph Warren Cutler for improvements in mail chutes. Claims 3) 4, 5, 6, 7, 8, 14, and 19 of No. 758,128 are in issue, which patent is hereinafter called the first Cutler patent, and is dated April 26, 1904 (application filed September 14, 1903). Claims 3, 21, 34, 39, 40, and 41 of No. 943,183 are likewise in suit. This patent is hereinafter referred to as the second Cutler patent, and is dated December 14, 1909 (application filed December 12, 1906).</p> <p>Upwards of 2,000 hotels, apartment houses, and office buildings in this country contain mail chutes of this plaintiff or its predecessors; all said devices being made under one or more of three patents now expired, and granted to the present .patentee’s brother. These expired patents are Nos. 284,951, 336,038, and 390,347. Of these the latest date of issue is 1888. The pioneer nature of these earlier patents is evidenced by the now widely ex. tended use of the word “mail chute,” which is found in the specification of No. 336,038, while the expired Cutler patents themselves are all for a “letter box connection.” The brothers Cutler seem to have originated the thing and its accepted name, and the nature and extent of the monopoly accorded the first inventor may be best judged from the first claim of the earliest patent:</p> <p>“In combination with a building of two or more stories a mail receptacle consisting of a box or receptacle located in a lower story and a conductor extending thence upward to a higher story and there provided with an inlet opening.”</p> <p>A mail chute is plainly of no great service unless the letters therein deposited are collected by the official letter carriers. Accordingly for years, and before the issuance of either patent in suit, the subject-, has been regulated by the Postmaster General, pursuant to act of Congress. Act Jan. 23, 1893, c. 41, 27 Stat. 421 (Comp. St. 1916, § 7277), Postal Regulations, § 672. Officially the mail chute consists of a “mailing chute” and a “receiving box.”</p> <p>Those patents (so far as involved in this case) relate only to the chute portion, will ch receives letters falling oftentimes from a great height, and acquiring considerable velocity in descent. In 1905 the Postal Department made a regulation that all portions of the interior of the chute should be “easily readied by postal authorities, but not by other persons.” This meant, of course, that some method of gaining access to the interior should be provided, not involving dismantling or disintegration of the completed chute, nor violence on the part of the investigator.</p> <p>Under the expired Cutler patents plaintiff had supplied with the approval of tlie postal authorities the considerable number of chutes above mentioned, of a style known herein as Model B. The panel (i. e., the glass front) of such chute could not be removed from the metal body to which it was affixed without possible straining of metal parts and certain dismemberment of the shop-fitted panel and sides. The postal rule of 1905 resulted from the construction by plaintiff of a chute responding to the first patent in suit; but its operation was deferred until July, 1907, upon representations that the plaintiff had many old chutes on hand and many unfilled orders therefor.</p> <p>Of the claims in issue (in the first Cutler patent) the third is the most general, and is as follows:</p> <p>“A mail chute embodying a plurality of superposed tubular sections, and having an independently movable panel to permit access to the interior of the chute without removing adjacent chute sections.”</p> <p>The fifth claim describes the panel merely as “removable,” and as having “portions projecting inwardly beyond the meeting edges of the panel and the walls of tlie chute.”</p> <p>Tlie seventh claim restricts the opening to one side, calls for a “removable panel for closing the opening,” and describes the “sides of said panel [as] projecting inwardly beyond the adjacent walls of the chute.”</p> <p>Claims 4, 6, and 8 may be said to constitute a class, in that they all describe as an element of invention the joints between panel and chute. Claim 6 is typical:</p> <p>“A mail chute having an opening at one side to permit access to the interior thereof and a removable panel for closing the opening, the meeting edges of the panel and walls of Hie chute being removed from the corners of the chute and said panel having projecting portions extending inwardly beyond said meeting edges to prevent lodgment of mail matter therein.”</p> <p>Claims 14 and 19 are as follows:</p> <p>“A mail chute embodying the channel or body open at one side having tlie flanges at the edges of said opening in combination with a door or closure embodying tlie side frames each provided witli parallel flanges, and the glass panel secured between them, a portion of the door-frame extending- between the flanges on the body.”</p> <p>“A mail chute embodying a channel or body portion open at one side and having the inwardly extending flanges at the sides of said opening and the removable panel for closing said opening and a plurality of locking devices for securing it.”</p> <p>Of the claims in issue of the second Cutler patent plaintiff’s counsel suggest that No. 21 is typical. We find it so, and it is as follows:</p> <p>“The combination with a support, of a mail chute having a removable portion or panel to permit access to the interior thereof, means for securing the chute to the support and a movable member for preventing access to the securing means and also securing the removable portion or panel of the chute in position and a key lock for securing said member in position.”</p> <p>Tlie defendant is a corporation which began business in 1914. In several buildings it erected chutes, some at least of which were examined by the plaintiff before suit, and were asserted to be infringements. There is no contest over the style of construction first employed by. defendant. It will be referred to as “defendant’s first form of chute.”</p> <p>Prior to notice of infringement, and several months before this action was begun, this first style of construction was abandoned, and what will be called “defendant’s second form of chute” put on the market. Plaintiff, while denying that defendant’s second form is actually made as testified to, still claimed infringement. The court below held that both of defendant’s chute forms infringed all the claims in suit, and decreed accordingly; defendant took this appeal.</p>

Suit in equity by William H. Miner against the T. H. Symington Company. Decree for complainant, and defendant appeals. The action is upon three patents: No. 668,655 issued to plaintiff Miner (Claims 4 and 5). This patent is hereinafter referred to as the first Miner patent. No. 668,656, also issued to the plaintiff Miner (Claim 8). This patent is hereinafter referred to as the second Miner patent. These two Miner patents were applied for and issued on the same days.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in equity by Horace G. Johnson and Henry S. Cooper against M. H. Lambert. Decree for complainants, and defendant appeals.</p>

<p>1. Patents <©=>328—Validity—Infringement.</p> <p>The Lyon patent, No. 1,198,246, for an automobile bumper, consisting of two integral spring steel strips having considerably greater vertical width than thickness to render them relatively rigid while resiliently yielding in horizontal directions, held valid and infringed by defendant’s device.</p> <p>2. Patents <©=>328—Validity—Anticipation.</p> <p>The Lyon patent, No. 1,198,246, for an automobile bumper, held valid, and not anticipated either by the prior art or previous patents for various styles of bumpers.</p> <p>i@=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>3. Patents <§=»26(2)—Validity—Invention.</p> <p>If a new combination and arrangement of known elements produce a new and beneficial result never obtained before, it is evidence of invention.</p> <p>4. Patents t®=ol65—Claims—Construction.</p> <p>Since all claims in a patent must bo given as broad a scope as fhoir language will bear, no court is justified in reading into a claim limitations not set forth to establish the invalidating force of a prior construction.</p> <p>5. Patents <s=>328—Validity—Infringement.</p> <p>The amended claims in the Fageol patent, No. 1,202,090, for an automobile bumper, held not infringed by the Lyon patent, No. 1,198,246, for such a bumper, for there can be no revamping of an abandoned or unsuccessful construction or patent application so as to invalidate a patent for a successful device.</p> <p>6. Patents <§^168(2)—Claims—Amendment.</p> <p>Effect will not be given amendments filed in a patent application, in an effort to secure claims broad enough to affect a patent for a device already made public, but for which patent had not then been issued.</p> <p><§C5jFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Patents <§=^328—Vauditt and. Infringement—Knitting Machine.</p> <p>The Mayo patent, No. 726,178, for improvements in knitting machines, claims 23, 24, 38, 41, 43, 48, 49, and 130, are of doubtful validity in point of invention and novelty, but in any event must be limited to the precise construction shown; as so limited, held not infringed.</p> <p><©s^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by Scott & Williams, Incorporated, against the Hemphill Manufacturing Company. On final hearing.</p>

In Equity. Petition by Shrauger & Johnson, a corporation, against the Phillip Bernard Company, a corporation. On final hearing.

In Kquity. Suit by William Barber against the Otis Motor Sales Company. On settlement of an order on the amended mandate of the Circuit Court of Appeals.

<p>Patents <S=^328—Validity—Continuous Press.</p> <p>The Fiddyiuent & McNally patent, No. 810,446, for a continuous extracting press, is void for lack of invention, in view of the prior art and analogous arts, and also for use.of the patented structure for more than two years prior to the application.</p> <p>cgs=aPor other cases see same topic & KEY NUMBER in all Key-Numbered Digests & Indexes</p>

<p>At Law. Action by the Illinois Cudahy Packing Company, a corporation, against the Kansas City Soap Company, a corporation. On motions of respective parties for directed verdicts.</p>

<p>1. Statutes <S=21t>—Construction—Revenue Laws.</p> <p>While taxing statutes are to be strictly construed, this merely means that neither I ho courts nor the executive may, through judicial or administrative const ruction, impose a tax not imposed by Congress, and, when Congress has Indicated its purpose and intent to tax. the law is not to be strictly construed, but is to be given that construction given to remedial statutes.</p> <p>other cases see same topic & KIST-NUMBKlt in ali Key-Numbered Digests & Indexes</p> <p>2. Internal Revenue <3=9—Income Tax—Deductions.</p> <p>Revenue Act Oct. 3, 1913, c. 16, § 2, G(b), 38 Stat. 173, provides that mutual marine insurance companies shall include in their return of gross income gross premiums collected and received, but shall be entitled to include in deductions amounts repaid to policy holders on account of premiums previously paid and interest upon such amounts, and that life insurance companies shall not include as income in any year such portion of any actual premium received from any individual policy holder as shall have been paid back or credited to such policy holder or treated as an abatement of premium within such year. Ilold that, where a mutual life insurance company exacted the advance payment of an estimated reasonably safe maximum premium and returned to policy holders the excess after the actual cost of the insurance was known, it was entitled to exclude from its gross income all moneys so repaid to policy holders within the year, if previously received for premiums, whether received during the year or not.</p> <p>3. Statutes <3=216—Construction—Opinions of Members of Congress.</p> <p>While an act of Congress must -be accepted fqr the purpose of interpretation in the form in which it was finally passed, and cannot be altered or amended to conform to the meaning' given it by individual members who advocated its passage, or by a committee which may have discussed it in a report, such expressions of opinion are entitled to weight in construing the law.</p> <p>4. Internal Revenue <3=9—Income Tax—Deductions—“Dividend.”</p> <p>Under Revenue Act Oct. 3, 1913, § 2, G(b), a mutual life insurance company, limiting premiums to actual cost, but exacting the advance payment of an estimated reasonably safe maximum premium, and returning the excess after the actual cost is known, is entitled to exclude from its gross premiums the amounts so paid to policy holders, though there have been some accretions by way of interest or other profit, and though the statute forbids the taxable income to be reduced by dividend payments, as the word “dividend” merely means a unit portion of something which has been divided, and does not necessarily include the thought of profit, and the dividends referred to are not to be deducted because they have once been excluded.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Dividend.]</p> <p>5. 06nstitutional Law <3=70(3)—Judicial Functions—Wisdom of Legislation.</p> <p>In construing a law, the judicial inquiry is not into what enactment Congress should have made, but into what enactment Congress did in fact make.</p> <p>6. Internal Revenue <3=9—Income Tax—Deductions.</p> <p>Under Revenue Law Oct. 3, 1913, § 2, G(b), a mutual life insurance company, limiting premiums to the actual cost of the insurance, but exacting the advance payment of an estimated reasonably safe maximum premium, and returning the excess after the actual cost is known, is entitled to exclude from the gross income amounts so repaid to policy holders, though representing the return of premiums received before the enactment of the statute, as the act is to be construed as a system of taxation, as if it had always been in force and had never had a beginning.</p> <p><g=^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

At Law. Action by Louis B. Harrison against the City of Tampa, a municipal corporation. On demurrers and motion to strike certain of the defendant’s pleás, together with motion by defendant to strike portions of the declaration.

At Law. Action by the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company, against the Freedom Oil Works, a corporation. On rule for judgment for want of sufficient affidavit of defense.

In Bankruptcy. In the matter of the Patterson Lumber Company, bankrupt. On petition of the Belmont Trust Company for leave to file bill to foreclose mortgage.

<p>In Admiralty. Suit by the American Sugar Refining Company against the steamship Carisbrook. Decree for respondent.</p>

In Equity. Suit by Central Trust Company of New York, as trustee, against Missouri, Kansas & Texas Railway Company. On motion by the Mercantile Trust Company, intervener, to strike out parts of the answer of complaint to its petition.

In Bankruptcy. In the matter of the bankruptcy of Samuel Agree. On petition by the bankrupt for leave to withdraw an offer of composition.

At Law. Action by Eugene C. Donohue, trustee of the American Silica Company, a corporation, bankrupt, against Joseph W. Dykstra and Alexander Zindlor, copartners doing business as J. W. Dykstra & Co., to recover an alleged preference of the bankrupt made within four months of bankruptcy. On motion for new trial after verdict for defendants.

In the matter of the petition for naturalization of Francesco Famolaro. On petition for rule to show cause why an order admitting applicant to citizenship should not be canceled.

<p>In Equity. Bill by Beatrice H. Holloway and others against Louis A. Collee and others.</p>

<p>1. Cancellation oe Instruments <@=313—Jurisdiction—Adequate Remedy at Raw.</p> <p>Plaintiff, asserting that defendant, through fraud, induced her to execute a note payable to him, to pay at that time a sum of money in cash and to give defendant an agreement to purchase corporate stock, sought to enjoin suit on 1;3ie note which it was alleged would be brought in New York, as well as suit on the agreement to bny the stock and to have the note and the agreement brought into court and canceled, and to recover the amount of payments. Under Judiciary Act Sept. 24, 1789, <:. 20, 1 Stat. 73, if a right asserted is one which a court of law can grant as plain, adequate, and complete relief as the holder of the right is entitled to without aid of court of equity, the person asserting such right must proceed in a court of law. Held, that as, when action is brought on a note and contract to purchase stock, plaintiff can set up any fraud in defense of such actions, even though the action be one at law, equity is without jurisdiction to grant plaintiff relief.</p> <p>2. Equity <@=351(2)—Injunction—Right to Maintain.</p> <p>tin such case, plaintiff is not entitled to relief on the ground of multiplicity of causes of action.</p> <p>3. Jury <g=312(1)—Jury Trial—Right to.</p> <p>In such case, in view of the issues of fact as to fraud, the parties are entitled to trial by jury.</p> <p>¡§xs»For other cases see same topic & KEY-NUMBEK in all Key-Numbered Digests & Indexes</p>

<p>1. Injunction <0^118(4)—Scut por Injunction—Pusading.</p> <p>A petition by receivers of a corporation for an injunction to restrain the payee of a note of the corporation, to which petitioners allege they have a complete set-off, and his agent, from transferring certain bonds held by them as collateral, hold sufficiently specific as to the ownership of the note, the agency of the second defendant, and. the alleged set-off.</p> <p>2. Equity <£.-=302 —Pleading - Allegations by Way qv Recital.</p> <p>An allegation of an essential fact in a bill in ounity by way of recital, but in such form that the existence of the fact appears by necessary implication, is good as against a motion to dismiss.</p> <p>$^>For oilier caaes sec same lopic & KEY-NUMBER in all Key-Numbered Digests &, Indexes</p>

In Equity. Suit by the Peerless Eight Company against Evser Levitón and Isidor Levitón, copartners trading as the Levitón Gaslight Company. There was a decree for complainant pro confesso, and it moves for a docket fee.

<p>In Bankruptcy. In the matter of the bankruptcy oí J. A. Falsone. Petition by trustee to have the value of property sold and bought in by the Evansville Brewing Association, a mortgage creditor, applied to the amounts fixed in deficiency decrees. Proceeding to review the order of the referee granting the trustee’s petition.</p>

<p>Aim'ual and Error @=>442—Stay of Proceedings—Right to Grant.</p> <p>Tlie replevin act of Pennsylvania of 1901 (P. L. 88) allows plaintiff, on entry of original judgment in his favor, to sue out a writ in the nature of a retorno habendo, or a writ of fieri facias for the value of the goods and damages, or to maintain an action on the replevin bond given. Plaintiff, in a replevin in tlie federal District Court for Pennsylvania, recovered a judgment against defendant, who sued out a writ of error to the Circuit Court of Appeals, which did not operate as a supersedeas; tlie writ being taken after the expiration of CO days from the judgment, and no bail being given. Thereafter plaintiff began suit against the surety on the replevin bond. Held that, as the service of a writ of error or perfection of an appeal within CO days is a condition to a supersedeas, and it is not within the power even of the appellate court to grant a stay of process if this has not been done, action on the replevin bond cannot be stayed until determination of the writ of error.</p> <p>@=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Petition by John Grant Lyman against Fred G. Zerbst, Warden of the United States Penitentiary at Atlanta, for a writ of habeas corpus.</p>

In Bankruptcy. In the matter of the East Stroudsburg Glass Company. The trustee petitioned the court to restrain the sale of certain of the bankrupt’s property by the Security Trust Company, as trustee for bondholders secured by a mortgage, on the ground that it was not bound by the lien of the mortgage. The court permitted a sale of all the property, directing that the proceeds should be kept separate. On rule to show cause why restraining order should not be made permanent.

<p>Application of Charles E. Gerlach for a writ of habeas corpus to obtain his release from imprisonment under a sentence of court-martial.</p>

<p>1. Principal and Agent @=69(4)—Sales Agent—Right op Agent to Purchase.</p> <p>Under Civ. Code Ga. 1910, § 3582, declaring that without the express consent of the principal, after a full knowledge of all the facts, an agent employed to sell cannot be himself the purchaser, an agent to sell is not, without the consent of his principal, authorized to make sales in foreign markets under an arrangement whereby the agent should assume all risks and contingencies of loss and take all the proiits, as this would amount to a sale by the agent to himself, and one cannot lawfully do by indirection what he is positively forbidden to do.</p> <p>2. Principal and Agent <@=84—Dales Agents—Commissions.</p> <p>Where a sales agent, without the consent of his principal, sold goods in a foreign market under an arrangement whereby be was to assume any loss incurred and to take the proiits, such agent, having violated his agreement, is not, under Civ. Code Ga. 1910, § 3586, entitled to any commissions, hut the principal is entitled to all profits, subject to no deduction for commissions.</p> <p><®=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Equity. Suit by Robert H. Ingersoll and others against Edward L. Doyle and others. On complainants’ motion for preliminary injunction and defendants’ motion to dismiss.

At Law. Action by Michael Craven against Embury P. Clark. The case was closed by the entry of “Neither party.” On motion by plaintiff to restore the case to docket.

<p>Ootjbts <£=3508(2)—Injunction by United States Court to Restrain Proceeding in State Court.</p> <p>A charterer oí a vessel which was lost has no claim against the vessel for the recovery of prepaid charter hire, which can be asserted in proceedings by the owner for limitation of liability; but such cause of action is personal, and an action thereon in a state court cannot properly be enjoined by the admiralty court in the limitation proceedings.</p> <p>other eases see same topic & KEY-NUMBER in all Key-Numbered Digests &< Indexes</p>

<p>1. Appeal and Error <@=1022(1)—Review—Findings.</p> <p>The concurrent findings of a master and the trial judge will not be disturbed ou appeal, upon any less than a demonstration of plain mistake; this being especially true where the trial court’s opinion showed Unit the master was well fitted to discharge his duties, and that the judge most painstakingly scrutinized the report and exceptions.-</p> <p>2. Contracts <@=350(1)—Construction—Evidence.</p> <p>On a bill to foreclose a mechanic’s lien, a finding by the master, concurred in by the lower court, that the contractor was equitably entitled to a month’s extra time lor completing the work by reason of defendant’s delays and other unavoidable delays, held not contrary to the evidence.</p> <p>3. Contracts <3=284(4)—Building Contracts—Arbitration.</p> <p>Where a building contract provided for submission of claim for extension of time of construction to the owner’s engineers, anil lor arbitration in case of dissent from their decisions, a presentation of claim for extension, and its rejection by the engineers or arbitrators, would bar it.</p> <p>4. Contracts <@=284(4)—Building Contracts—Extensions—Arbitration.</p> <p>In such case the rejection of the claim by the engineers or arbitrators is final, though the engineers pass on the question whether their own default caused delay which, under the contract, entitled the contractor to an extension.</p> <p>5. Damages <@=122—Building Contracts—Extension of Time.</p> <p>A building contract, which made the contractor’s obligation to complete erection of the steel work by dates named conditional upon the absence of delays, due to rolling mill, transportation, or other circumstances beyond tlie contractor’s reasonable control, further declared that, if the contractor should be delayed by any act, neglect, or default of the owner, or delay due to rolling mills, the time for completion should he extended for a period equivalent to the.time lost, and that such period should be determined and fixed by the owner’s engineers, but no allowance should be made unless a claim therefor should be presented in writing to the engineers within 48 hours of the occurrence of the delay. There was a further provision for arbitration in case of dissatisfaction with the engineers’ award. Due to numerous short delays, occurring in a brief space of time, the contractor was delayed for at least a month. The contractor continued work, and the engineers gave an estimate which the defendant owner refused to pay; its previous notice of a willingness to arbitrate not having been acted upon. After completion of the building, tile contractor sued for the balance of the contract price and for extras, and defendant demanded a foreclosure of its lien, which, as the action was in the federal court, necessitated the filing of a bill on the equity side of the court. Defendant answered, setting up its damages by reason of the contractor’s delay, and by a cross-bill prayed a decree for the amount of its damages, less the amount of the contract price, unpaid. Held, that where, in such suit, there was little doubt that an extension for at least a month would have been given, had the contractor so asked, and as it continued work long after the lapse of the contract period, and defendant accepted the work, defendant, which in reality was claiming damages in a court of equity, falls within the rule that he who seeks equity must do equity, and the contractor is entitled, on the computation of damages for its delay, to have the case treated as if the period for completion had been extended for at least one month.</p> <p><@=For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>6. Contracts @=>322(4)—Actions—Evidence.</p> <p>In a suit by a contractor to foreclose Ms lien for payment due, held, that a finding by the master, concurred in by the trial judge, that the contractor’s steel erection was on a certain date so far completed as not to substantially interfere with follow-up trades, should not, under the evidence, be rejected as erroneous.</p> <p>7. Damages @=>163(2)—Minimizing Damages—Burden of Proof.</p> <p>While it is the duty of a party not in default to minimize the damages ¿rising from the opposite party’s default, the burden of proving that the damages could have been mitigated is upon the party asserting it.</p> <p>8. Evidence @=>595—Burden of Proof—Consideration of Evidence.</p> <p>Though the burden of proving an issue be on a particular paYty, inferences may ,be drawn from testimony, regardless of its source.</p> <p>9. Damages @=>189—Building Contracts—Evidence.</p> <p>A finding 'by the master, concurred in by the trial judge, to the effect that the defendant owner did not use reasonable efforts to minimize its damages, resulting from the contractor’s breach, held not so contrary to the evidence that it could be disturbed on appeal.</p> <p>10. Damages @=>140—Adequacy—Building Contracts.</p> <p>In a suit by a contractor to foreclose its lien, the award of damages on account of the contractor’s delay in completion of the building held, under the evidence, adequate.</p> <p>11. Damages @=>122—Building Contracts—Delay in Completion.</p> <p>Where a delay in completion of a building was due, partly to the default of the contractor (in a certain time proportion only) and'partly to the default of the owner, the contractor is not liable in damages for the owner’s loss of rentals by reason of the delay.</p> <p>12. Costs @=>158—Allowance—Overruling of Objections to Master’s Report.</p> <p>Where, because the master’s original report was not sufficiently full to permit a disposition of the exceptions thereto without an original examination by the court of all testimony presentéd, the court re-referred the cause, no allowance of costs under general equity rule 67 (198 Fed. xxxvii, 115 O. O. A. xxxvii), should he made on account of objections and exceptions to the master’s first report overruled, which were practically duplicated in the exceptions and objections to the second report.</p> <p><§rs>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Pope, Judge. Suit by the Raton Waterworks Company against the City of Raton. J. J. Shuler and others were adjudged guilty of contempt for violating an injunction order, and they appeal and bring error.

H. Seward Thomson, Judge. Action by John Paterlini and Mary Paterlini, citizens and subjects of the kingdom of Italy, against the Memorial Hospital Association of Monogahela City, Pa., a corporation, and Joseph A. Herron and others, citizens of Pennsylvania. There was a judgment for defeud1ants (241 Fed. 429), and plaintiffs bring errof.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Creditors’ hill by Alwin Ball, Jr., against the Improved' Property Holding Company of New York, together with ancillary dependent bills by the Empire Trust Company, as trustee, against the Improved Property Holding Company of New York and others. A receiver was appointed, and Eliza L. Parsons.and others, trustees under the last will and testament of William Barclay Parsons, deceased, and others, and Eliza E. Parsons and others individually, filed objections to the account of the receiver. From an order sustaining the report of the master, and overruling their objections, Eliza L. Parsons and others appeal.</p> <p>This is an appeal from an order disposing of the balance of a certain sum of money in the hands of the receiver of the defendant herein upon confirmation of a master’s report filed June IS, 1916. The order was made in the • administration of the property of the defendant, which came first into ■this court by a creditor’s bill to sequester all the assets of the corporation and to prevent its dissipation by attachments, executions, and other legal process issued by its creditors. In May, 1912, the bill was filed and a decree entered on May 21, 1914, appointed temporary receivers for the corporation, followed on May 3Í, 1914, by an order making permanent such receivers and directing them to conserve the assets of the company for its creditors. The assets of the corporation consisted for the most part of terms for years in real estate in the city of New York, among which was a lease to the corporation from certain individuals who were trustees under the will of William Barclay Parsons, deceased. The lease was made on January 21, 190S, and was at the yearly rent of £33,500 a year. If had the usual covenants iu pay the taxes levied upon the property, rights o£ re-entry for defaults, and oilier clauses common in such cases. On June 3, 1912, the Parsons trustees applied to the District Court for leave to dispossess the receiver, who was in actual possession under the orders of May, 3912, and to take over the lease in accordance with the rights of re-entry therein provided, and this leave was given on July lit, 1912, and remained available to the lessors from that time on. At the time when the receiver was appointed the taxes were largely in arrears and the lessor had the right therefore to re-enter under its lease in accordance with the Code of Civil Procedure of the State of New York.</p> <p>On July 3, 3912, the. Equitable Trust Company, as trustee for bondholders under a mortgage executed on June 1, 1906, toy ancillary dependent bill began to foreclose that mortgage. The Empire Trust Company was a party defendant to this suit, as trustee under a junior mortgage of May 24, 1909, known as E-mortgage, which covered part of the assets of the defendant. On July 12, 1912, the receivership was divided, and one sec of receivers from that time forth took possession of and received the income from the property covered by the Equitable Trust Company mortgage which did not include the premises lea seal by the Parsons trustees. The third receiver, Joseph J. OThmolrae, continued as receiver of the rest of the property of the defendant, including the premises now in question. Finally, on November 20, 1912, the Empire Trust Company of New York, as trustee under the mortgage of May 2i, 1909, already mentioned, by ancillary dependent bill started to foreclose its mortgage (the B-mortgaga), and the receivership was extended to that property for the benefit of the Empire Trust Company as such trustee, and an order was signed on November 25, .1912, directing the disposition of the income from the properties to be made by the receiver. The relevant parts of that order are as follows:</p> <p>"Ordered that Joseph J. O’Donoime, Jr., as receiver of the property of Improved Property Holding Company of New York, covered by its said mortgage dated Muy 21, 1909, pay and apply and disburse the rents and income from each, of the properties in his possession as and when received by Mm as follows:</p> <p>"(a) Ten per cent. (10%) of the gross rents and income of each of the said properties shall bo set aside in a separate fund and held for or applied to the payment of the expenses, charges and obligations of the receivership, including a fair proportion of the expenses of the maintenance of the general offices of Joseph J. O’Donohue, Jr., as receiver in any of his aforesaid capacities at No. 505 Fifth avenue, borough of Manhattan, city of New York, and the wages of the employes and assistants connected therewith.</p> <p>"(b) After the deduction of said ten per cent, all rents and income from the said property shall be applied to the payment of operating or maintenance charges or expenses of the said property, exclusive of taxes, ground rents and mortgage interest.</p> <p>“(c) After making the deductions and payments provided for above in paragraphs (a) and (b) the said receiver shall pay and apply the balance of the rents and income from each such property to the payment of the taxes and other governmental charges thereon, and the rentals due the owners thereof, the interest on mortgages thereon, and othdr sums payable on account of obligations in respect of each such property, by the Improved Eroperty Holding Company of New York and properly payable by the receiver hereby aj)pointed, it being the intent of this order that the rents and income from each property applied under this provision shall be applied to such property only.</p> <p>“(d) After making the deductions and payments provided for above in paragraphs (a), (b), (c), the receiver shall hold the balance of the rents and income from each such property, subject to the further order of this court.”</p> <p>Meanwhile, the bondholders under the mortgage of May 24, 1909, known as B-mortgage, desiring to maintain the lease of 505 Fifth avenue, entered into negotiations with the Parsons trustees looking toward the payment of back taxes and made a provisional agreement with the Parsons trustees that upon the payment of such back taxes they should keep the leasehold for two years from January 1, 1913. In order to obtain the necessary money, which amounted to more than $30,000, on November 27, 1912, they petitioned the court for leave to issue receivers’ certificates, the proceeds of which should go to pay these taxes, and relieve the term from the threat of re-entry, as well as to pay the interest due upon a mortgage of the term to the lessors. On the same day the court passed an order granting the prayer of this petition and authorizing the receiver to issue $30,000 of receivers’ certificates. The material part of this order is as follows:</p> <p>“Ordered that the prayer of said petition be and it hereby is granted so far as is hereinafter set forth, and the said Joseph J. O’Donohue, Jr., as receiver of the property of Improved Property Holding Company of New York, covered by its mortgage dated May 24, 1909, be and he hereby is authorized to issue his certificates of indebtedness to an amount not exceeding $30,000, upon the terms and conditions hereinafter set forth.</p> <p>“Said certificates, to the amount of the principal and interest thereof, shall constitute a lien upon all the property of every nature and description of Improved Property Holding Company of New York, subject to its mortgage dated May 24, 1909, made to Empire Trust Company, as trustee, and upon all the net earnings and income of the said property after deduction of 10 per cent of the income from the said property, as provided-in the order filed in the above entitled causes on the 23th day of November, 1912, except so much of said property and earnings as may be necessary to defray costs, counsel fees and disbursements as finally allowed by the court. Said lien shall be prior, as respects said property, to the mortgage of Improved Property Holding Company of New York dated May 24, 1909, to the lien of the mortgage of Improved Property Holding Company of New York, dated October 1, 1911, made to New York Trust Company, as trustee, and to the claims of the general unsecured creditors of Improved Property Holding Company of New York. * * *</p> <p>“The proceeds of the said certificates shall be applied to the following purposes and no other:</p> <p>“(1) The payment of the arrears of taxes, water rents and other charges, together with interest thereon to the date of payment, assessed against the premises in the borough of Manhattan, in the city of New York, known as No. 505 Fifth avenue, which premises were leased by indenture dated January 24, 1909, between Eliza L. Parsons, Schuyler Parsons and William Barclay Parsons, as trustees, parties of the first part, and Improved Property Holding Company of New York, party of the second part.</p> <p>“(2) To the payment of the arrears of interest upon the mortgage upon said leasehold, dated January 21, 1908,.made by Improved Property Holding - Company of New York to Eliza L. Parsons, and others, as trustees.</p> <p>“(3) To the payment of interest at the rate of 6 per cent, per annum upon any deferred payments heretofore, since May 21, 1912, made to the lessors under said lease, from the date when such deferred payments became due to the date of the payment thereof.</p> <p>“(4) To the payment of a counsel fee not exceeding $1,000 to counsel for the said lessors for legal services made, necessary by the receivership of Improved Property Holding Company of New York.”</p> <p>Later it became necessary to obtain seven thousand dollars more upon similar receivers’ certificates for the same purposes, and on the 17th day of November, 1913, the District Court passed an order in the same terms authorizing the issuance of such added certificates.</p> <p>On June 1, 1915, the Parsons trustees obtained the leave of this court to begin the foreclosure of their mortgage upon the term for years because of the defaults in the payment of the installments of interest due upon the same, foreclosure was begun, a receiver appointed in tlie state courts, and the property taken out of the hands of tlie District Court.</p> <p>The receiver having disposed of all the property in one way or another filed his accounts and prayed leave for a discharge on June 19, 1915. The accounts were later continued down to April 1, 1916, and showed a balance on hand derived altogether from the net income out of the property while it had been managed by Mm, and those funds which had been turned over to him on his separate appointment in June, 1912. On July second, 1915, the Parsons trustees filed certain objections to the account, of the receiver as so tiled, which matter stood over until April 13, 1916. Meanwhile, and on November 11, 1915, the Parsons trustees filed supplemental objections to the accounts, these latter seeking to raise the question whether the receivers’ certificates had priority over their claims for rents which had arisen during the occupation of the receiver. The District Court on April 1, 1916, denied leave to the Parsons trustees to file the supplemental objections heretofore noticed, bnt referred the whole accounts as brought down by tlie revised summary of April 1, 1016, to a special master to take and state the same and to report on the proper allowances, claims and general distribution of the balance found due. ’This report the special master filed on June 13, 1916. He disregarded the claims of the Parsons trustees under the ruling of the District Court, passed the accounts, and made certain allowances to the receiver’s attorneys. To this report the Parsons trustees excepted, but the report was confirmed with certain modifications in the allowances.</p> <p>The substantial questions involved are those sought to be raised by the supplemental objections of the Parsons trustees, i. e., whether upon the net balance of the income derived from the management of all the properties covered by the B-inortgage the receivers’ certificates are a lien ahead of the rent arising under the Parsons lease, and, if not, where in marshaling the income they should stand and where should stand the allowances to the trustee and its solicitors.</p>

<p>In Error to the District Court, of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge.</p> <p>Action at law by the Savannah River Sales Company against James B. McFarland, Jr., trading as the McFarland Lumber Company. Judgment for plaintiff, and defendant brings error.</p>

Hollister, Judge. Bill by the Peninsular Chemical Company against Samuel Levinson and another. From a decree dismissing the bill, plaintiff appeals. The Nelson-Baker Company is engaged, at Detroit, in the business of manufacturing drugs and medicines.

<p>1. Landlord and Tenant <@=>167(1)—Defects in Premises—Liability of Landlord.</p> <p>Civ. Code La., art. 670, declares that every one is bound to keep his buildings in repair so that neither all nor any part of the material composing them may injure the neighbors' or passengers, under penalty of all losses and damages which may result from the neglect of the owner, while article 2322 declares that the owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it or when it is caused by a vice in original construction. Held, that the articles impose a duty on the owner of a building to keep it in a safe condition and make him answerable for damages occasioned by its ruin, fall, or collapse, whether such is due to structural vice or neglect to repair, and the owner cannot acquit himself of liability as to third persons lawfully on the premisos by contracting with his tenant that the latter shall make repairs demanded of the owner by statute; but such freedom from liability extends only to those in privity with the tenant.</p> <p>2. Landlord and Tenant <@=>164(0)—Defects in Premises—Liability of Landlord—Privity of Lessee.</p> <p>The wife of one who rented two rooms, together with an appurtenant gallery, from the tenant of the premises who contracted to maintain them in repair, is not in such privity with the tenant that her recovery pursuant to Oiv. Code La., art 2322, for injuries resulting from the collapse of the gallery railing, can be defeated even though the lease required the tenant to keep the premises in repair and freed the landlord from liability as to tbe tenant for damages caused by vice or defects in the property except for’neglect to make repairs after reasonable written notice.</p> <p>(gs^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeals from the District Court of the United States for the Western District of Pennsylvania; W. H. Seward Thomson, Judge.</p> <p>In the matter of the bankruptcy of James S. Kuhn and William S. Kuhn, partners doing business as J. S. & W. S. Kuhn and W. S. Kuhn & Co. From orders (241 Fed. 935) allowing the claims of the Seaboard National Bank of New York and others against the partnership assets, A. C. Robinson, trustee in bankruptcy, appeals.</p>

Rose, Judge. In the matter of August Samet, doing business as A. Samet & Co., bankrupt. From an order denying him a discharge on objections by the Farmers’ & Merchants’ National Bank of Baltimore, the bankrupt appeals.

<p>Appeal from the District Court of the United States for the Western Division of the Northern District of Ohio; John M. Killits, Judge.</p> <p>Suit in equity by the Troy Carriage Sunshade Company against the Kinsey Manufacturing Company. Decree for defendant, and complainant appeals.</p>

<p>1. Insurance @=445(2)—Statutes—Applicability.</p> <p>Rev. St. Mo. 1909, § C915, declaring that, in all suits on life policies hereafter issued by any company doing business in the state to a citizen of the state, it shall be no defense that the insured committed suicide, unless he contemplated suicide at the time he made his application for the policy, and any stipulation in the policy to the contrary shall be void, which is found in the article entitled “Life and Accident Insurance,” is applicable to a policy issued by a Missouri corporation organized under the laws pertaining to life and accident insurance under the assessment plan, where the policy provided for a. quarterly payment, called interchangeably “premium” and “assessment”; it appearing that the indemnity in case of death was fixed in amount, and that, while the dates for payments were subject to change, no departure from the fixed annual amount was contemplated.</p> <p>2. Insurance <5=125(2)—What Law Governs.</p> <p>A resident of California forwarded to defendant, a Missouri corporation engaged in writing life and accident insurance, his application for insurance, and defendant issued the policy and forwarded it to the applicant. The application, which was made a part of the contract of insurance, declared that the policy must be acceptable or the payment would be returned, and that the applicant, upon receipt of the policy, should, if satisfactory, accept it, and, if not satisfactory, return it within throe days. The policy further stipulated that it should not cover any injury, fatal or otherwise, sustained by the insured prior to his acceptance of the policy. Held, that the contract of insurance, the applicant having accepted the policy, was entered into in the state of California, acceptance being in that state, and hence governed by the laws of California, under which the stipulation of nonliability for suicide was valid, instead of the Missouri laws, making suicide a defense only if the insured at the time of his application contemplated self-destruction.</p> <p>3. Constitutional Law @=>206(4)—Insurance @=445(2)—Privileges and l-ujurxii ipo or Citizens of Severai. States.</p> <p>Rev. St. Mo. | 6915, declaring that in all suits on life policies hereafter issued by any company doing business in the state, to a citizen of the state, it shall be no defense that the insured committed suicide, unless he contemplated suicide when he made his application, is not, though restricted to citizens of tile state of Missouri, invalid with respect to ilie restriction on the ground that it abridged the iirivlleges or immunities of citizens of the United States or denied equal protection of the law, for the statute does not impose any affirmative burden on citizens of other states from which it relieves its own, but merely restricts the free<lorn of contract of Missouri citizens with respect to life insurance. Held, further, that this statute in the instant case denies to plaintiff no privilege in the Missouri courts that would not be denied to her equally if she were a citizen and resident of Missouri.</p> <p><©s»For other casos see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Courts <§^96(1)—Precedents—Binding Force.</p> <p>A federal District Court is bound by decisions of the Circuit Court of Appeals of that circuit.</p> <p>2. Internal Revenue <®^9—Corporation Excise Taxes—Income.</p> <p>A Joint-stock company engaged in writing industrial and also life insurance on the level premium plan adopted the practice, the premiums charged exceeding the cost of the insurance, of returning the excess to policy holders as so-called dividends which could be used to reduce renewal premiums or to purchase; paid-up additions to the policies already mentioned. Only a few of the company’s policies were participating, and the payment of such dividends was voluntary as to all other policy holders. Held that, notwithstanding the payment of the so-called dividends was to n great extent voluntary, those amounts should not be added to the company’s gross income for tax under Corporation Excise Tax of 1909 (Act Aug. 5, 1909, c. 0, § 38, 36 Stat. 112), imposing taxes on corporate income.</p> <p>3. Internal Revenue <@^>9—Corporate Income.</p> <p>Corporation Excise Tax Act of 1909 declares that the net income of corporations engaged in the insurance business shall bo ascertained by deducting from the gross income, among other items, the net addition, if any, required by law to be made within the year to reserve funds. New Jersey corporations authorized to do insurance business are required to file annual statements in such form and containing such matters as the Commissioner of Banking and Insurance shall prescribe, who is in return required to annually cause a valuation to be made of all outstanding policies of every life insurance company. Pursuant to that law and regulation of the commissioner, a New Jersey corporation engaged in writing life and industrial insurance was required to make additions to its reserve funds for all business written including those policies on which the premiums had not been paid at the time of making the valuation. Held that, as such sums paid into the reserve could not be used by the corporation as income, they should not be considered in computing its income for taxation, for, in case the policies on which premiums were due lapsed, sums set aside as a reserve therefor would in succeeding years become available as income and subject to taxation.</p> <p><S=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Bill by William Sauer against the Detroit Times Company.</p>

At Law. Action by Harriett C. Brien, executrix of the estate of James Brien, against the Detroit United Railway. There was a verdict for plaintiff, and defendant moved for new trial.

In Bankruptcy. In the matter of the bankruptcy of Frank Berry. Plenary proceedings by the trustee against one Quinn. The petition of the trustee was denied by the referee, and he petitions to review the order.

<p>Louis Werner and another were indicted for treason. On demurrer to the indictment.</p>

<p>111 Equity. Bill by Alfred G. Scattergood and others against the American Pipe & Construction Company, for the appointment of a receiver. On motion to vacate decree.</p>

<p>1. Removal of Causes <@=49(3)—Joinder—Separable Controversy.</p> <p>Comp. Laws Fla. 1914, § 1389, declares that causes of action, of whatever kind, by and against the same parties in the same rights, may be joined in the same suit, except that replevin and ejectment shall not be joined together. Section 3148 declares that a railroad company shall be liable for any damage done to persons, stock, or other property by the running of the locomotives, cars, or other machinery of such company, unless the company shall make it appear that their agents have exercised all ordinary reasonable care and diligence; the presumption being against the company. Plaintiffs, claiming damages for injuries asserted to have 'been inflicted through the joint negligence of defendant traction company, a foreign corporation, and its motorman, jointly sued the two in the state court. Held that, as section 3148 has been construed by the Florida Supreme Court as a rule of evidence, the two causes of action could be joined; the fact that the motorman was directly liable and the corporation under the doctrine of respondeat superior not changing the rule, negligence being the basis for the right against each. Hence the foreign corporation could not remove the case to the federal court on the ground of its diversity of citizenship; there being no separable controversy.</p> <p>2. Removal op Causes <@=48—Separable Controversies—Right to Remove.</p> <p>Where a declaration in an action in the state court, in which a resident and a nonresident were joined as defendants, states a cause of action, there is no separable controversy which the nonresident can remove to the federal court.</p> <p>3. Courts <@=508(8)—Removal—Injunction Against Proceedings in State Court.</p> <p>A nonresident defendant may, its petition for removal having been denied, file the transcript in the federal court, and, it appearing that the joinder of a resident as defendant was fraudulent and thai the declaration did not state a cause of action against both, secure an order enjoining further proceedings in the state court; but, unless the declaration is defective and there is a fraudulent joinder, the cause should be remanded.</p> <p><§£soFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Suit in equity by Peter McClelland, Jr., against John K. Rose, trustee, and others. From a decree dismissing a supplemental bill filed by him, complainant appeals.

<p>3. Mortgages 17.!—Lien and Priority—Mortgage and Mechanic's Lien.</p> <p>Where a contractor for the construction of buildings had knowledge that the money for the buildings was to be borrowed from a trust company- and to be secured by mortgage on the property, and by its contract was to.be paid a specified part of the contract price by tbo trust company, it is not entitled to a lien prior to the company’s mortgage for any amount remaining due on its contract which, together with the payments received from the trust company, would be In excess of such specified suin, although the mortgage was not recorded until after the work was begun.</p> <p>2. Constitutional Law <3ts»248—Mechanics’ Ltens <Sn»:nO(l)—Equal Protection of Laws—Statute Am,owing Attorney's Fees.</p> <p>Gen. St*Fla. 3906. § 2218, which provides that the plaintiff in a suit, to enforce a mechanic’s or materialman's lien, if successful, shall recover an attorney’s fee, regardless of -whether or not he recovers the amount sued for, is unconstitutional, as denying to defendants in such suits the equal protection of the laws.</p> <p><®sbFoi other cases seo same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Killits, Judge. Action by Viola M. Nichols against the City of Cleveland. There was a judgment of dismissal, and plaintiff brings error.

Appeals from the District Court of the United States for the District of Massachusetts; Jas. M. Morton, Jr., Judge. Libel by Sylvanus Smith & Co., Incorporated, against the steamship Sagamore, claimed by Alexander Fenton, together with libels by Sarah J. Doggett, as administratrix of the estates of John A. Doggett and another, against the White Diamond Steamship Company, Limited, and by Guy Sullivan, administrator, against the same defendant.

Suit in equity by Elias C. Benedict against the City of New York. Decree for defendant, and complainant appeals. This causo comes here on appeal from the United States District Court for the Southern District of New York.

Suit by the United States of America against the Porter Fuel Company, consolidated with a suit by the same plaintiff against the Porter Fuel Company and another. From decrees for defendants, the United States appeals.

<p>In Error to the District Court of the United States for the Eastern District of Arkansas; Jacob Trieber, Judge.</p> <p>Action by Mary M. Hill and others against Will Hill and others. Judgment for defendant, and plaintiffs bring error.</p>

<p>Appeal from the District Court of the United States for the District of Massachusetts; Frederic Dodge, Judge.</p> <p>Suit in equity by Frederic W. Cloudy against Henry Alfred Hansen, executor. Decree dismissing bill on motion, and. complainant appeals.</p>

Appeals from the District Court of the United States for the Second Division of the Southern Division of the Northern District of California; Wm. C. Van Fleet, Judge.

<p>1. Patents <s=>318(G)—Infringement—Accounting for Profits.</p> <p>That an infringer, during the time of infringement, substituted pressed steel plates for malleable cast plates, which it had previously used in making one part of the infringing structure, thereby effecting a saving in cost and increasing its profits, does not entitle it, on an accounting for profits, to deduct the amount of such saving, but its liability is for the profits actually made.</p> <p>2. Patents <3s»318(0)-—Infringement—Accounting for Profits.</p> <p>An infringing manufacturer paid to its sides managers, in addition to their salaries, a commission on the account of their sales, including mo infringing article. Held that such payments were essentially a division of profits, and that on an accountng for profits of the infringement no part of the amount could bo deducted as a part of the cost of manufacture.</p> <p>Patents €¿*x‘!18(6)—Infringement’—Accounting for Profits.</p> <p>An infringer, which both manufactured and sold the infringing article, on an accounting for profits, is not entitled to a deduction, in addition to all proper allowances for cost of manufacture, of a manufacturer’s profit.</p> <p>•1. Patents C^318(3)-~-Infrtngemiínt—Accounting for Profits.</p> <p>Where expert accountants have accurately determined from the hooks of an infringer the profits actually made by the manufacture and sale of the infringing article, the court cannot safely apply the standard of comparison rule, by undertaking to estimate what profits would have been made upon some other open form of the structure, which defendant might have made, but did not.</p> <p>5. Patent's €^318(3)-—Infringement—Accounting for Promts—'Relevancy of Evidence.</p> <p>An established profit upon an “open” structure, which may ho attributed to a variety of causes, cannot be made the basis for an inference that an canal profit on a patented structure was not attributable to the invention.</p> <p>6. Evidence <g=»593—Inferential Facts.</p> <p>The susceptibility of a fact to produce an inference must be denied, when the probative force or effect of that inference may bo wholly frustrated at the option of the one to he affected by it.</p> <p>T. Patents <3=*>319(1)—Infringement—Right to Damages.</p> <p>The law does not attempt in advance to enumerate with precision the circumstances under which a patent, owner may be substantially damaged by infringement, but the right to damages, substantial or nominal, depends upon the proof in the particular case.</p> <p>8. Patents <S=»319(i)—Infringement—Damages .Rbcovkkabijk.</p> <p>In finding a “reasonable” royalty, as a basis for computing’ damages for infringement, the degree to which the infringement has been profitable or unprofitable to the infringer cannot be a controlling factor, but it is to be determined on all available pertinent proofs.</p> <p>9. Patents <$s»319(3)—Damages foe Infringement—Increase by Court.</p> <p>Evidence that defendant, on examining a new patented improvement In an article which it manufactured, at once appropriated the invention and refused to cease infringement until compelled at the end of long litigation, and that pending the suit it unsuccessfully attempted, through’ one of its officers, to obtain a patent for itself embodying all of the essential features of complainant’s invention, with only colorable changes, held to render it proper for the court to increase the damages awarded for the infringement.</p> <p>t@=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & indexes</p> <p>10. Evidence ©==>99—“Relevancy.”</p> <p>The test of “relevancy” of evidence is that an evidentiary fact can be considered as admissibly relevant only when the desired conclusion based upon it is a more probable or natural, or at least a probable or natural hypothesis, and when the other hypothesis or explanations of the fact, if any, are either less probable or natural, or at least not more probable or natural.</p> <p>[Ed. Note.—Eor other definitions, see Words and Phrases, First and Second Series, Relevancy.]</p> <p><§=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Bill by the M. B. Fahey Tobacco Company against Joseph Senior and H. N. Heusner, who claimed affirmative relief.</p>

<p>Removal of Causes <§=»3, 17—Actions under Employers’ Liability Act— Construction oe Statute.</p> <p>Tlie provision of Judicial Code (Act March 3, 1911, c. 231) § 28, 36 Slat. 1094 (Comp. St. 1916, §' 1010), that no case arising under the federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [Comp. St. 1916, 8657-8665]), “brought in any state court of competent jurisdiction, shall bo removed to any court of the United States,” does not merely confer a personal privilege or exemption, which may be waived by the plaintiff, but is a limitation upon the jurisdiction of the federal District Courts as a class, and where, in such a case, the declaration counts upon the federal statute, although it may also count upon a state statute, the case Is not removable, and no action taken in a federal court after its attempted removal can give that court jurisdiction, or deprive the plaintiff of the right to have the cause remanded at any stage of the proceedings.</p> <p><£=?>For other cases see same topic & KDY-NTJMBFIt in all Key-Numbered Digests & Indexes</p>

<p>1. Copyrights <®=^55—Infringement—What Constitutes.</p> <p>8., having composed a book entitled “The Great War,” in two volumes, “The First Phase” and “The Second Phase,” contracted with complainant for publication of the work. The contract declared that S. assigned to complainant the work, and that complainant should have the first refusal of any continuation thereof. Thereafter S. contributed to a four-volume history of the world war published by his codefendants. Defendants advertised that S. was the author of their history and lauded him as a military critic. In writing of the causes of the war, S. treated of the same historical events in each work; but his treatment and comments on various military operations dealt with in both works differed. Held that, though there was some similarity in the treatment of historical events in the two works, the subsequent book was not a violation of complainant’s copyright, for it is impossible for a historian, writing twice on the same subject, to ignore important historical events, though treated in the first work, and an author, though a prior work be his own, is entitled to the use of information or material which may have been obtained from common sources, either published or unpublished, the test being whether the latter work was new and original, and furthermore that an author, after writing for one publisher concerning recent historical events, accords them a different treatment in a subsequent work, does not show an invasion of the first publisher’s copyright.</p> <p><gs»Foi other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>2. Injunction <§=»58--Negative Covenants—“Refusal.”</p> <p>Where the contract between S. and complainant provided for payment t.o 8. on a royalty basis, and at the time he entered into such contract he had not acquired great reputation as a war writer, the provision in the contract that complainant should have the refusal of any continuation of the history, which must be treated as an option, the word “refusal” being so defined, that provision cannot be construed as amounting to a negative covenant, warranting the issuance of an injunction restraining 8. from writing for any other publisher on the theory that his services wore unique and extraordinary, tor such a covenant must bo clearly understood by the parties.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Refusal.]</p> <p>3. Injunction «S^»58—Construction—Negative Covenant.</p> <p>A court of equity will infer a negative covenant in a contract of employment, whore equity and justice require; hut such covenant must be clearly implied and understood by all the parties, and should not be implied unless indispensable to ca rry out their intention.</p> <p>4. Specific Performance <8^73—Negative Covenant.</p> <p>A negative covenant in a contract of employment will be enforced only where the services are especially unique or extraordinary, as in the case of singers, artists, authors, and the like, and a clear contract is shown.</p> <p>K. Specific Performance <S=o7—Option Contracts—Mutuality.</p> <p>Where a contract between a publisher and an author merely gave the publisher an option to acquire the author’s later work, and did not bind the publisher to purchase it, the option contract cannot be enforced as a negative covenant in a contract of employment, because not mutual.</p> <p>8. Trade-Marks and Trade-Names <S=»93(8)- -Unfair Competition—What Constitutes.</p> <p>A former newspaper man wrote a history of the world war for complainant, which was advertised and greatly enhanced the writer’s reputation. Thereafter he contributed to a history of the world war published by defendants, which included contributions from many other celebrities. Defendants’ history, the title of which was similar to that of complainant, was different in appearance and was in a greater number of volumes. Held that, though defendants’ advertisement falsely represented that it was the only history of the war written by the newspaper man, complainant’s assertion of the unfair competition was not established ; it not appearing that there was any fraud or deceit whereby defendants’ history was hold out to the public as that of complainant and the name of the book never being a trade-mark.</p> <p>other eases see same topic & KEY-NUMBDR in all Key-Numbered Digests & Indexes</p>

<p>In Bankruptcy. In the matter of Rudolph Euetl, bankrupt. On re - view of order of special master denying claim of Philip Weinemann to a lien. Order confirmed.</p>

Morton, Judge. Separate actions by the Columbia-Knickerbocker Trust Company against Edwin H. Abbot, against Preston B. Keith, against John S. Ames, against Maria A. Evans, executrix, against George E. Keith, against Mary O. Cordingley, and againát E. Bothrop Ames. Judgment for defendant in each case, and plaintiff brings error. Affirmed.

Call, Judge. Thomas C. McCoy was convicted of conspiracy to defraud the United States by removing and putting on the market large quantities of distilled spirits without the payment of the tax thereon, and he brings error.

Munger, Judge. Action at law by the International Harvester Company against Amelia K. Frieke. Judgment for plaintiff, and defendant brings error. Tlic; International Harvester Company, a corporation, sued Mrs. Amelia E. Frieke on a promissory note for §3,381.64, payable to it, dated October 27, 1914, signed by her and C. A. Bard.

Keller, Judge. Charles P. Murray was convicted of a violation of Criminal Code, § 217, for having deposited and caused to be deposited in the Post Office for mailing a poison with the design and intent to injure and kill another, and he brings error.

<p>Appeal from the District Court of the United States for the District of New Hampshire.</p> <p>Suit by the E. G. Staude Manufacturing Company and others against Elie W. Rabombarde and others. A decree dismissing the bill without prejudice, but awarding costs to defendants, was reversed on plaintiff’s appeal. On petition to recall mandate.</p>

At Law. Action by W. C. McCulloughs against the United Grocers’ Corporation. On motion to quash and set aside service of summons, on the ground that the action was not brought in the proper division, and that service was insufficient.

<p> (Syllabus by the Court.) </p>

<p>Actions by J. W. Muir, administrator of George S. Muir, by Jasper W. Muir, administrator of N. W. Muir, by Thomas J. Miller, administrator of Mabel Brown Miller, by H. IT. Mashburn, administrator of Emily Mashburn, by R. 11. Miller, administrator of Gillian Miller, and by J. E. Smith against the Rouisville & Nashville Railroad Company, which were begun in the state court and removed by defendant to the federal court. On motion to remand. The proceedings were also consolidated with suits in equity by the Louisville & Nashville Railroad Company against Jasper W. Muir, administrator of George S. Muir and others, and against the other plaintiffs and their attorneys, to enjoin proceedings in the state court, which had declined to enter an order for the removal sought.</p>

<p>In Equity. Suit by the Expanded Metal Company and the Consolidated Expanded Metal Companies against the General Fireproofing Company. On exceptions to master’s report.</p>

Appeals from the District Court of the United States for the Southern Division of the Southern District of California; Oscar A. Trippet, Judge. Suits by William H. Moore, Jr., as trustee of the estate of Alfred W. Bannister, a bankrupt, against the National Bank of Bakersfield, a corporation organized and existing under and by virtue of the laws of the United States, and others. From decrees for complainant, defendants appeal.

<p>1. Touts <0=8—Invasion of Personal Rights—Liability—'“Personal Security.”</p> <p>One of the absolute rights which every person possesses is that of personal security, which consists in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation, and every wrongful invasion of such right of personal security gives rise to a liability in tort for the damage done.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Personal Security.]</p> <p>2. F'oon <g=25—Sales—Warranties.</p> <p>While at common law, if there is no express warranty of the quality of the goods sold and no fraud, the maxim of caveat emptor applies, and no warranty is implied by law, the rule is otherwise with respect to an article sold directly for consumption, as food, and the seller is liable for the consequences where he knew, or by the exercise of reasonable care might have known, that it was dangerous.</p> <p>3. Food <0=25—Sales—Liability.</p> <p>While ordinarily a manufacturer or vendor is not liable to third par-lies who have no contractual relations with him, the rule is otherwise with respect to one dealing with imminently dangerous articles as unwholesome food; and, where a manufacturer of food from diseased pork disposed of it to a dealer, and the dealer in turn sold it to one in whose family plaintiff was employed as a domestic, plaintiff may, having suffered injury from eating the unwholesome food recover against the manufacturer, as though ihere were no" contractual relations between them.</p> <p>4. Pood <0=25—Manufacturer—Defense.</p> <p>Where a packer engaged in interstate commerce negligently manufactured food from diseased pork, the fact that it had been inspected and passed by United States inspectors provided for by Comp. St. 191(i, §§ 8681-8716, does not relieve the packer from liability; the purpose of the inspection being to impose additional safeguards, instead of freeing packers from liability for negligence.</p> <p>5. Negligence <©=30—Care—Ordinary Care.</p> <p>Where it appears that everybody engaged in a particular business conducts it in a certain way, such standard of conduct will be accepted as the standard of ordinary care of prudent men engaged in that particular business.</p> <p>C. Negligence <©=56(1)—Liability—Proximate Cause.</p> <p>There is no liability for a negligent act unless the negligent act is the proximate cause of the injury, and to establish prbximate cause, it is necessary that there be a causal connection between the negligent act and tho injury.</p> <p>7. Food <0=25—Actions—Evidence—Sufficiency.</p> <p>In an action by plaintiff who contracted trichinosis after eating a product manufactured by defendant from diseased pork, evidence held insufficient to show that defendant was negligent in its inspection and sale of the. product, or that its negligence, if any, was the proximate cause of the injury; it appearing that the pork was marked, “Inspected and Passed” by the United States Inspectors, who were conversant with the mode of inspection.</p> <p><j=For other casos see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>8. Food @=>25—Actions—Evidence— Sufficiency.'</p> <p>In action for injuries received by plaintiff, who ate food manufactured by defendant from pork which was infected with trichinae, evidence held insufficient to show that defendant in its preparation of the product was guilty of negligence; it appearing that if it had submitted the pork to a temperature sufficient to kill the parasites, it would have destroyed its food value.</p> <p><@E»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Petition to Revise Order of the District Court of the United States for the Southern District of New York.</p> <p>In the matter of the bankruptcy of John J. Gannon. An order of the. referee directing the bankrupt’s surrender of a life insurance policy, or in the alternative payment of the cash surrender value, having been reversed on petition to review (241 Fed. 733), Theodore II. Friend, Jr., as trustee in bankruptcy, petitions to revise.</p> <p>The order involved was entered in that court on April 27, 1917, and it reversed the order of the referee in bankruptcy directing the bankrupt to deliver to the trustee a policy of insurance on his life, or pay 'to thetrustee the sum of $156.75.</p>

Cushman, Judge. Action by the National Surety Company, a corporation, against Isaac Blumauer and others. There was a judgment for defendants, and plaintiff brings error. Action for judgment upon an indemnity bond. At the conclusion of plaintiff's evidence the court dismissed the plaintiff’s action and entered judgment against the National Surety Company, plaintiff in error here. By writ of error the surety company brings the case for review.

<p>Appeal from the District Court of the United States for the Eastern District of Oklahoma; Ralph E. Campbell, Judge.</p> <p>Suit in equity by the United States against George E. Black and others. Decree for defendants, and the United States appeáls.</p>

<p>Appeal from the District Court of the United States for the Western District of Texas; Gordon Russell, Judge.</p> <p>Suit by William C. Winston against Orson P. Brown and others. From a decree for defendants, complainant appeals.</p>

Wolverton, Judge. Action by Louise Weinhard and others, executrices and executors of the last will and testament of Henry Weinhard, deceased, against the R. R. Thompson Bistate Company, a corporation. There was a judgment for plaintiffs (242 Eed. 315), and defendant brings error.

Petition to Revise Order of the District Court of the United States for the Eastern District of New York. In'the matter of the bankruptcy of Charles Armann. Petition by Eucius E. Judson, trustee, to revise an order of the District Court.

Van Valkenburgh, Judge. In the matter of Moore & Payne, bankrupts. From an order awarding to the New England Equitable Insurance Company priority in a fund recovered by the trustee, Norman Cox, trustee, appeals.

E. Bledsoe, Judge. Action by T. W. Jenkins & Co., a corporation, against the Anaheim Sugar Company, a corporation. Defendant’s demurrer having been sustained, and. the action dismissed (237 Fed. 278), plaintiff brings error.

In Equity. Suits by James Francis Eddy and the Dando Printing & Publishing Company against Henry E. C. Kramer, Joseph De Done, and Frank Hobson, individually and trading as the Quaker City Calendar Company, and the De Done Ehmling Company, Incorporated, and by James Francis Eddy against Charles E. Mather, Victor Mather, and Gilbert Mather, copartners trading as Mather & Co. On final hearing.

Petitions by the United States against Hans Kamm, Tador Grahl, and Frank Thomas to annul and vacate certificates of naturalization issued to the several defendants, which proceedings were consolidated.

<p>In Equity. Bill by Warren E. Scott against Wallace Scott. On motion to dismiss.</p>

<p>Corporations <©=3574—Suit to Restrain Reorganization—Preliminary Injunction.</p> <p>The action of tbe majority stockholders of a corporation, not shown to-be insolvent, in forming a syndicate to effect a reorganization of the company on a basis which would give them a much larger percentage of the stock of the new company than they held in the old, while the minority stockholders would have a much smaller percentage, held to indicate bad faith to such an extent as to entitle the minority stockholders to a preliminary injunction to restrain further action until the case could be-heard on the merits.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Insurance <@=>708—Receivers—Appointment—Pleading.</p> <p>A bill must state plaintiff’s, case with such certainty and fullness as to show to what relief he is entitled; therefore a bill' against a fraternal insurer, alleging mismanagement, insolvency, and praying for dissolution and the appointment of a receiver, which alleged that plaintiffs were the owners of an interest in trust funds of approximately $3,500,000 held by the insurer, but did not further disclose plaintiffs’ interest, is insufficient.</p> <p>2. Insurance <@=>707—Fraternal Insurance—Contracts.</p> <p>At the time a fraternal insurer incorporated under the Massachusetts laws entered into contracts of insurance, the Massachusetts act to provide for the control and regulation of fraternal benefit societies (St. 1911, c. 628) was in force. Section 24 of such act gives the state insurance commissioner power to investigate the affairs of any fraternal benefit society, and when satisfied that such business is being conducted in an improper manner to present the facts to the Attorney General, who may institute quo warranto proceedings; and section 25 declares that no application for injunction against or proceedings for the dissolution of, or the appointment of a receiver for any such society shall be entertained by any court in the state unless the same is made by the Attorney General. Held that, as the state creating'it has the right to provide for the regulation and dissolution of a corporation, such provisions of law became part of the insurance contract between the society and its members, and hence nonresident members, suing in the federal court, could not be granted relief, where the Massachusetts Attorney General did not consent to the dissolution of the society, the appointment of a receiver, or the issuance of an injunction.</p> <p><g=^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Bankruptcy. Suit by Pierson M. Hall, as trustee in bankruptcy of the estate of-Olive S. Glenn, against Olive S. Glenn, John O. Glenn, her husband, Meredith P. Glenn, and others. On return of an order to show a cause why defendants should not be enjoined from transferring or incumbering the property pending suit.

<p>Appeal from the District Court of the United States, at Norfolk, Va.</p>

<p>On Petition to Superintend and Revise, in Matter of Law, Proceedings of the District Court of the United States at Richmond, Va., in Bankruptcy.</p>

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

<p>In Error to the District Court of the United States at Charleston, W. Va.</p>

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

<p>On Petition to Superintend and Revise, in Matter of Law, Proceedings of the District Court of the United States, at Abingdon, Va., in Bankruptcy.</p>

<p>Appeal from the District Court of the United States for the Western Division of the Northern District of Ohio; John M. Killits, Judge. Suit by Nelson J. Quinn against Edward Garland and others. From a decree for plaintiff, defendants appeal.</p>

<p>In Error to the District Court of the United States at Charleston, W. Va.</p>

Petition to Superintend and Revise from the District Court of the United States for the Northern District of Texas; Edward R. Meek, Judge. Petition by R. W. Ilaynie, trustee of Herman Winkler, bankrupt, against Sanger Bros., to superintend and revise judgment in a controversy between the parties.

<p>On Petition to Superintend and Revise, in Matter of Law, Proceedings of the District Court of the United States at Charleston, W. Va., in Bankruptcy.</p>

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

<p>In Error to the District Court of the United States at Greensboro, N. C.</p>

<p>In Error to the District Court of the United States at Roanoke, Va.</p>

<p>In Error to the District Court of the United States for the Northern District of Texas; Edward R. Meek, Judge.</p>

<p>Appeal from the District Court of the. United States for the District of Now Jersey. Suit by the Old Lexington Club Distillery Company against the Kentucky Distilleries & Warehouse Company. From decree dismissing the bill (231 Fed. 464), plaintiff appeals.</p>

<p>Appeal from the District Court of the United States for the District of New Jersey. Bill by the Safety Gas Lighter Company against Fischer Bros. & Corwin. From a decree (236 Fed. 935) dismissing the hill, complainant appeals.</p>

<p>Appeal from the District Court of the United States for the Western District of Texas; Duval West, Judge.</p>

<p>Petition to Revise Order of the District Court of the United States‘for the Southern District of New York. In the matter of William Steuer, bankrupt. On petition to revise an order of the District Court.</p>

<p>In Error to the District Court of the United States for the Southern Division of the Western District of Washington. Edward E. Cushman, Judge.</p>

Petition by Willett C. Trabue against Y. W. B. Hedgepeth and Arthur C. Earnshaw, receivers of the Tippecanoe Securities Company and others. From an order dismissing the petition, petitioner appeals.

<p>In Error to the District Court of the United States at Baltimore, Md.</p>

<p>In Error to the District Court of the United States at Philippi, W. Va.</p>

Suit by the United States «of against Solomon Louis Ginsberg to cancel a certificate of citizenshi]^^^Bn a decroo dismissing the petition (244 Fed. 209), petitioner appeals. Deci^^Bversed, and cause remanded, with directions in accordance with the opinioBd the Supreme Court (243 U. S. 472, 37 Sup. Ct. 422, 61 L. Ed. 853), answering questions certified to that tribunal. William G. Lynch, Asst. U. S. Atty., of Kansas City, Mo.

<p>Appeal from the District Court of the United States for the Western District of Pennsylvania; Charles P. Orr, District Judge. On re-argument.</p>