Volume 248 — Federal Reporter

Dooling, Judge. _ _ Petition by the Coggeshall Launch Company, a corporation, for limitation of liability, in which the prosecution of an action brought by Eliza A, Early in the state court to recover damages growing out of the death of her son by reason of the alleged negligence of the Launch Company, operator of a vessel, and the owner, was enjoined. _ Eliza A. Early thereupon filed her claim in' answer to petition for limitation of liability.

M. Morton, Jr., Judge. Michael J. Griffin was convicted of unlawfully and knowingly depositing and causing to be deposited in the mails, in violation of Penal Code, §§ 211, 212, certain nonmailable matter, and he.brings error.

Suit by Andres B. Crosas Graham and others against Andres Crosas O’Ferral and another. From a judgment of the Supreme Court of Porto Rico, affirming a judgment of the district court for defendants, plaintiffs appeal.

Cushman, Judge. Bill.by the Detroit Trust Company and Alexander McPherson, as trustees, against the .S. E. Slade Dumber Company and others, on which a receiver was appointed. Thereafter the First National Bank of San Francisco and others intervened by petition, seeking modification of the order allowing the receiver to operate the property of the principal defendant and to enter into a logging contract. From an order denying the petition, petitioners appeal.

<p>1. Depositions &wkey;90 — Objections—Waiver—“Competent Evidence.”</p> <p>While the deposition of a witness will not ordinarily he admitted when lie is present, a deposition taken under a stipulation that it might he read in evidence by either party, and that all objections were waived unless made at the time of taking the deposition, but that objections to materiality and competency were reserved, is admissible, without any showing that the witness was not within the jurisdiction, for the reservation of objections to the materiality and competency of the testimony was not a reservation of objections to the deposition as a whole; “competent evidence” being that which the very nature of the" thing to be proved requires as the fit and appropriate proof in the particular case.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Competent Evidence.]</p> <p>2. Seamen <&wkey;29(5) — Injuries—Evidence—Sufficiency.</p> <p>In an action by a seaman, injured while setting up the lashings to secure a deckload of lumber, evidence held to show that the injury resulted from a defective turnbuckle hook, which opened when the link encircling its shank slipped off as the result of the falling out of a nail used to close it.</p> <p>3. Seamen <&wkey;29(3) — “Seaman Having Command” — “Fellow Servant.”</p> <p>Under Seamen’s Act March 4, 1915, c. 153, § 20, 38 Stat. 1185 (Comp. St. 1916, § 8337a), declaring that, in any suit to recover damages for any injuries sustained on board a vessel, or in its service, seamen having command shall not be held fellow servants with those under their -authority, a boatswain, who directed a seaman to set up deck lashings to secure a deckload of lumber, and under whose orders the seaman was acting, must be deemed a “seaman having command” and not a “fellow servant.”</p> <p>[Ed. Note.- — For other definitions, see Words and Phrases, First and Second Series, Fellow Servant.]</p> <p>4. Seamen <&wkey;29(2) — Inj uries — Defective Appliances.</p> <p>Both the vessel and the owner are liable to an indemnity for injury received by a seaman in consequence of the unseaworthiness of the vessel, or failure to supply and keep in order proper appliances appurtenant thereto; therefore a vessel and its owners are liable to a seaman who suffered injuries as the result of a defective turnbuckle hook, which was part of the deck lashings, and which opened while the lashings were being tightened.</p> <p>5. Seamen <&wkey;29(4) — Risks—Assumption oe Risk.</p> <p>As a seaman, after a vessel leaves port, cannot, as can an ordinary workman on shore, leave his work if he apprehends injury, a seaman does not assume the risk resulting from a defective appliance, which the owners, in the exercise of high diligence and care, might have discovered.</p>

Dooling, Judge. in the matter of the bankruptcy of the Turpin Hotel Company, a corporation. From an order of the District Court, affirming an order of the referee in bankruptcy, disallowing the claim of the Powell Street Investment Company, opposed by L. J. Scooffy, as trustee in bankruptcy, the Investment Company appeals.

Lewis, Judge. Suits by the United States of America against Lillian Kirk, against Eugene A. Austin and others, against Eugene Wilder and others, and against De Witt C. Bryant. The several suits being dismissed, the United States appeals; the causes being consolidated on appeal.

<p>1. Commerce &wkey;>14 — Interstate Commerce.</p> <p>Act Cong. June 16, 1906, c. S335, 34 Stat. 267, providing for the admission into the Union of the then territory of Oklahoma and Indian Territory as the state of Oklahoma, declared in section 3 that the Constitution to be formed should contain a provision that the manufacture, sale, barter, or otherwise furnishing of intoxicating liquors within those parts of the new state known as the Indian Territory and the Osage and other Indian reservations should be prohibited for a period of 21 years from the date of the admission. Const. Okl. art. 1, § 7, forbids the manufacture and sale of intoxicating liquors in the state, and Rev. Laws Okl. 1910, § 3605, contains a similar provision. Webb-Kenyon Act March 1, 1913, c. 90, 37 Stat. 699 (Comp. St. 1916, § 8739), declares that the shipment or transportation in any manner or by any means whatsoever of any intoxicating liquors from one state, territory, or district of the United States to any other state, territory, or district, which liquor is intended by any person to be received, possessed, or sold, or in any manner used, either in the original package or otherwise, in violation of any law of such state, ' territory, or district, is prohibited. Held that, as the purpose of the act was to remove from the protection of interstate commerce liquor shipments into those states, territories, or districts where the manufacture or sale thereof is unlawful, and to render the state law apiilieable, the interstate shipment of intoxicating liquor into the state of Oklahoma is unlawful, and a common carrier cannot be enjoined from refusing to receive shipments for delivery into that state.</p> <p>•2. Commerce <&wkey;14 — Interstate Commerce — Indian Territory.</p> <p>As the Oklahoma laws forbid the manufacture and sale of intoxicating liquors therein, interstate shipments of intoxicating liquor into portions of Oklahoma which formerly were comprised in an Indian reservation are not authorized, because the Indian titles have been extinguished; the Webb-Kenyon Act having deprived such shipments of the protection arising out of their interstate character.</p>

Clayton, Judge. Action by A. E. Walker, Superintendent of the Banks of the State of Alabama, liquidating the Clanton Bank, against the United States Fidelity & Guaranty Company. Judgment for plaintiff, and defendant brings error.

Bill by the Union Trust Company against the Great Eastern Lumber Company and others. On petition of commissioners to sell, payment of taxes was directed, and complainant appeals.

<p>1. Witnesses . <&wkey;159(2) — Competency—Transactions with Persons Since Deceased.</p> <p>Code Ala. 1907, § 4007, declares that there shall be no exclusion of any witness because he is a party or interested in the issue tried, except that no person having a pecuniary interest in the result of the suit or proceeding shall be allowed to testify against the party to whom his Interest is opposed as to any transaction with or statement by a deceased person whose estate is interested in the result of the suit or proceeding. In an action by the administratrix to recover under the Alabama Employers’ Liability Act (Code 1907, § 3910), damages for the death of her intestate, a servant of the defendant company, the superintendent, whom it was claimed was negligent in directing him to work in a bin or washer in which was stored a large amount of coal, was called as a witness, and, though not allowed to testify as to his instructions to plaintiff’s intestate, was allowed to testify as to the facts surrounding the latter’s entrance in the bin. Held that, as the purpose of the act was to remove the common-law disqualifications against tesuinony by parties and those interested, and the safeguard was for the estate of deceased persons, defendant’s superintendent was competent to testify as to Ms orders as well as the surrounding circumstances; it not being contemplated that the statute would be invoked to protect a master from liability for fatal injuries to a servant resulting from the negligence of its own superintendent, by rendering the superintendent incompetent to testify as to his orders, this being particularly true as the recovery under the Alabama Employers’ Liability Act does not go into the estate of the deceased servant.</p> <p>2. Witnesses i®=» 128 . — Competency—-Transactions with Persons Since Deceased.</p> <p>The mere fact that the Alabama Employers’ Liability Act gives the administrator of a deceased servant the right to sue for damages for death does not render the Code applicable, for the administrator sues for the benefit of those declared by the act entitled to the recovery, and the recovery becomes no part of the deceased’s estate subject to the claims of his creditors.</p> <p>8. Witnesses @=>128 —Competency—Transactions with Persons Since Deceased.</p> <p>As the recovery does not inure to the benefit of thfe estate of the deceased servant, the estate carmot be deemed liable for the costs of the proceedings, so as to render the action one affecting the estate of a deceased person, within Code Ala. 1907, § 4007; this- being so, even though the administrator, on becoming a nonresident, might under appropriate statutes he required to give bond for costs for that reason.</p> <p>4. Courts <S=‘Í76 — Federal Courts — -Evidence.</p> <p>Under Rev. St. § 858 (Comp. St. 1916, § 1464), declaring that the competency of a witness to testify in a civil action in the federal court shall be determined by the laws of the state where the court is held, the federal courts should follow the decisions of the highest state court, interpreting such local statute as to competency of witnesses.</p> <p>5. Courts @=>349 — Precedence—Presumption.</p> <p>In the absence of direct decisions by the state courts as to the competency of witnesses, it will not be presumed, in an action in the federal court, that such state court’s rule of decision is in conflict with the unambiguous terms of the statute.</p> <p>6. Appeal and Error @=>1053(1) — Review—Harmless Error.</p> <p>In an action for the death of a servant, where the master’s superintendent was competent to testify, not only as to his orders to the deceased servant, but the circumstances surrounding the fatal accident, the withdrawal of testimony by the superintendent as to orders was harmless as to the defendant master; the error being one which the plaintiff alone could complain of, because leaving the question of the orders of the superintendent to inference.</p>

<p>1. Bankruptcy <3=407(1) — Discharge—Construction of Act.</p> <p>Though provisions for discharge were not an incident to the original bankruptcy acts, those provisions should not be construed against the bankrupt, and, if Ms discharge is to be denied, it must be because there has been strict proof of the existence of some one of the bars which the statute has provided.</p> <p>2. Bankruptcy <3=414(3) — Discharge—Denial—Concealment of Assets.</p> <p>For a bankrupt to be denied a discharge on the ground of concealment of assets, the case must be made out by more than a mere preponderance of evidence.</p> <p>3. Bankruptcy <3=414(3) — Discharge—Deniaj^—Bvidhstoe.</p> <p>Evidence held insufficient to show that the bankrupt who transferred his property to a corporation within four months of bankruptcy was guilty of any fraudulent intent to hinder and delay Ms creditors; the bankrupt receiving practically all of the stock of the corporation.</p> <p>4. Bankruptcy <§=>177 — Effect—Rights of Insolvent Debtor.</p> <p>An insolvent debtor has the right of disposition of his property until the commencement of proceedings in bankruptcy against him.</p> <p>5. Bankruptcy <§=3180 — Discharge—Denial—Transfer.</p> <p>Though it may have that effect incidentally, a transfer by an insolvent • debtor cannot he set aside under Bankruptcy Act July 1, 1898, c. 541, § 67e, SO Stat. 564 (Comp. St. 1916, § 9651), as one tending to hinder and delay creditors, unless it was made with the intention of unlawfully hindering, delaying, and defrauding creditors.</p> <p>6. Bankruptcy <§=>407(3) — Discharge—Fraudulent Transfer.</p> <p>An insolvent debtor who owned a number of stores organized a corporation of which he held all the stock except a few qualifying shares held by his wife and another, and to such corporation he transferred the more profitable stores; it being his avowed intention to break the leases on the unprofitable stores. The bankrupt made no effort to dispose of the stock so received in fraud of creditors, and contended that he incorporated his more profitable business for the purpose of securing ad-. ditional capital. Held that, where it did not appear that he had any unlawful intent to hinder and delay his creditors, a discharge could not be denied, though the transfer occurred within four months of the filing of the petition, on the ground that he was guilty of a fraudulent transfer with intent to hinder, delay and defraud creditors.</p> <p>Hough, Circuit Judge, dissenting.</p>

<p>Appeal from the District Court of the United States for the District of Oregon; Robert S. Bean, Judge.</p> <p>Suit by R. A. Graham against the J. D. Spreckels & Bros. Company, a corporation, and another. From a decree dismissing the bill, complainant appeals.</p>

<p>1. Salvage <S=>38 — Services Rendered by Chartered Vessel — Right to Award for Risk to Vessel.</p> <p>As between charterer and owner, even when the charterer was owner pro hac vice under a demise, the determination of the question as to who is entitled to the share of salvage money awarded for the risk to the vessel depends both upon who is entitled to the vessel’s services and earnings and upon whom the loss would fall if the vessel had been injured or lost in the salvage operations, and in a proper ease the award may be apportioned between them.</p> <p>'2. Shipping <S=s>54 — Demise by Charter — Liability of Charterer for Injury to Vessel.</p> <p>A charterer under a time charter of demise, in the absence of provisions in the charter party to the contrary, is only responsible as bailee for hire for ordinary diligence, and is only liable for ordinary negligence in the care of the vessel.</p> <p>3. Salvage <&=»38 — Services Rendered by Demised Vessel — Apportionment of Award.</p> <p>A time charter of a tug, which was a demise, contained no provision respecting salvage services, nor requiring redelivery of the tug in as good condition as when received, except that, in case of trips to a certain outside port, the charterer was required to procure insurances, or, if that could not be obtained, to give a bond to protect the owner from loss or damage to the boat while on such trips. The tug rendered a dangerous salvage service in New York Harbor in rescuing two scows laden with war munitions and high explosives, which had broken loose during a storm and imminently threatened the safety of other shipping1. A fund was paid into court by the owners of the cargoes to compensate the sal-vors. Helé, that the court, after making a satisfactory award to the crew, properly decreed that the remainder of the available fund should be apportioned between the owner and the charterer, on the basis of risks incurred.</p> <p>■1. Admiralty <§=>121 — Proctor's Pees — Contract Between Attorney and Client.</p> <p>A controversy with respect to a contract between a proctor and his client for foes cannot be litigated in the admiralty suit.</p> <p>5. Salvage <@=>52 — Suits for Salvage — Costs.</p> <p>Proctor’s fees are not properly allowable as costs, to bo taken out of the general fund recovered in a suit for salvage.</p> <p>6. Salvage <@=>38 — Apportionment of Award — Share of Crew.</p> <p>The fact that the captain of a tug demised to a charlerer was, under his contract of hiring, entitled to a share of the charterer’s part of a salvage award, held not to deprive him of the right to share also in the award to the crew.</p>

<p>1. Judgment <&=713(2) — Conceusiveness or Adjudication — Mattisiis Not in Issue.</p> <p>When a second suit is between the same parties or their privies and upon the same cause of action as a former suit, the judgment or decree in tile first is conclusive upon all the parties and their privies in the second suit, not only as to every question and issue which was, but also upon every question and issue, claim, or defense, which might have-been, presented in the first suit; but whore the second suit is upon a different cause of action, but between the same parties as the first, or their privies, the judgment or decree in the first operates as an estop-pel in the second only as to those points or questions which were actually litigated and determined in the first suit.</p> <p>2. Judgment <®=?713(2) — Res Judicata — Identity of Causes of Action. A decree for the defendant in a suit by a lessor for the cancellation of a lease and its assignment as clouds upon his title is a bar to a second suit by the lessor or his privies for the same relief upon different grounds, but which might have been set up in the former suit.</p> <p>3. Judgment @=>731 — Res Judicata — Exclusion oe Issues.</p> <p>That the court, after having announced its decision in a suit, refused • to permit the filing of an amended complaint setting up additional grounds for the relief prayed for, does not change the effect of the decree as a bar to a second suit by plaintiff for tile same relief.</p> <p>4. Judgment @=>682(1) — Persons Concluded — Purchasers Pendente Lite.</p> <p>One who, pending a suit to cancel a lease, made a contract with the lessor, who was plaintiff, to purchase the land in case the lease was canceled, became from that time privy to the suit, and was bound by the decree therein, although it was adverse to the lessor.</p>

<p>1. Courts <§=366(8) — Federal Courts — Authority of Decisions of State Courts.</p> <p>The national courts uniformly follow the construction of the Constitution and statutes of a state, announced by its highest judicial tribunal, in all cases that involve no question of general or commercial law, and no question of right under the national Constitution or acts of Congress: and the character and limits of the powers and liabilities of the municipal and quasi municipal corporations of a state are generally questions of state or local law.</p> <p>2. Counties <S=150(1) — Indebtedness—Constitutional and Statutory Limitations.</p> <p>Const. Old. art. 10, § 19, requires every resolution and ordinance by a county levying a tax to specify distinctly the purpose for which the tax is levied, and declares that no tax lot led and collected for one purpose shall ever be devoted to another, one. Section 26 provides that no county shall be allowed to become indebted in any maimer or for any purpose to an amount exceeding in any year the income and revenue provided for such year without the assent of throe-fifths of the voters thereof voting at an election to be held for that purpose. Comp. Laws Old. 1909, § 1683, provides that “it shall be unlawful for the board of county commissioners to issue any certificate of indebtedness, * * * or to make any contracts for or incur any indebtedness against the county in excess of eighty per cent, of the tax levied for county expenses during tlic current year, nor shall any expenditures be made or indebtedness be contracted, to bo paid out of any of the funds of said county, in excess of eighty per cení, of the amount levied for said fund.” 'Held, that, under the decisions of the Supreme Court of the state that sjich constitutional provisions are not a grant of power to counties, but a limitation oil the power of the Legislature, section 1683 of the statutes, being within such limitation, is valid, and a board of county commissioners is without authority U> contract for an indebtedness in excess of 80 per cent, of the special fund applicable to its payment.</p> <p>3. Counties <o=»223 — Indebtedness—Action Against County.</p> <p>In an action to enforce such a contract, illegal because its execution is beyond the powers of 1 he county commissioners, it is immaterial what use the county made of the fund.</p> <p>4. Counties <3=130 — Recovery of Payment by County.</p> <p>Although contracts by a county for bridges were unenforceable, because they created an indebtedness in excess of the current levy for the road and bridge fund, which was prohibited by the state Constitution and statutes, payments made thereon in a subsequent year, after the bridges had been built and accepted, and from funds of another levy which could be legally used for the purpose, wore not without consideration, and cannot lie recovered by the county.</p> <p>5. Payment <3=82(3) — Recovery—Action—Nature and Grounds of Obligation.</p> <p>An action to recover money paid voluntarily will lie only where equity and good conscience require the return of the money.</p> <p>6. Counties <§=3.31(2) — Powers—Contracts Ultra Vires.</p> <p>Under a constitutional provision, which prohibits county commissioners from contracting an indebtedness in excess of the levy made for the fund applicable to its payment, tbe validity of sucb a contract does not arise from want of corporate power in tbe county to make it, but from tbe failure of tbe commissioners to make prior provision for its payment.</p> <p>7. Counties ,<§=>130 — Recovery of Payments — Invalidity of Contract.</p> <p>Where a contract by a county or city is prohibited by law, so that the county or city cannot make it by any means at its command, and it has paid money under sucb a contract, without receiving any benefit therefrom, sucb money may be recovered back; but, where tbe county or city has tbe corporate power to make a contract, tbe object of which is legitimate, but the contract is invalid because tbe officers fail to pursue methods which are within their power and prescribed by law to render it valid, and the contract has been executed, the county or city, which retains the benefit, cannot recover money paid thereon.</p>

<p>1. Monopolies <&wkey;24(l) — Anti-Tbust Act — Right or Individual to Maintain Suit.</p> <p>A complainant, who shows no injury to himself, other than as a member of the general public, cannot maintain a suit for violation of the provisions of Sherman Anti-Trust Act July 2, 1890, c. 647, 26 Stat. 209 (Comp. St. 1916, § 8820 et seq.), prohibiting monopolies or combinations in restraint of interstate commerce.</p> <p>2. Cabbiers <&wkey;>34 — Intebstate Commebce Act — Commodities Clause — Suits poe Violation.</p> <p>A bill held not to show such personal wrongs or injury to the complainant as to entitle him to maintain a suit for the appointment of receivers for coal companies on the ground of violation of the commodities clause of the Interstate Commerce Act (Act Feb. 4, 1887, c. 104, § 1, 24 Stat. 379, as amended by Act June 29, 1906, c. 3591, § 1, 34 Stat. 5S4, 585 [Comp. St. 1916, § 8563 (6)]).</p>

<p>Bankruptcy <&wkey;355 — Rent—Right of Mortgagee.</p> <p>Rents collected by the trustee from premises mortgaged by the bankrupt, between adjudication and sale under foreclosure proceedings, go to the mortgagee under claim of deficiency, instead of the general creditors of the bankrupt represented by the trustee, for Bankruptcy Act July 1, 1898, e. 541, 30 Stat. 544, deprives the mortgagee of his right to reach such rents by legal process, and it is equitable that in case of deficiency he should be protected, notwithstanding a mortgage does not entitle the mortgagee to collect the rents.</p>

T. Dooling, Judge. In the matter of the bankruptcy of H. S. White, doing business under the name of the H. S. White Machinery Company. The bankrupt’s application for discharge was granted, the order of the referee denying discharge being reversed, on the ground that William R. Pentz, as trustee in bankruptcy, had not been authorized by the creditors to oppose the discharge (238 Fed. 874), the trustee appeals.

Trippet, Judge. _ ' _ Alexander Gladstone, alias William Vines, was convicted of having unlawfully in his possession, and transporting and concealing, opium prepared for smoking, contrary to law, and he brings error.

Call, Judge. Suit by the Turner Construction Company against the Union Terminal Company and others. From the decree, granting part only of the reljef sought, complainant appeals.

<p>Appeal from the District Court of the United States for the Eastern District of Texas; Gordon Russell, Judge.</p> <p>Suit by the Sabine Hardwood Company, Rimited, against the West Dumber Company and others. From a decree for defendants (238 Fed. 611), complainant appeals.</p>

M. Morton, Jr., Judge. Petition by Carl A. Blackington for writ of habeas corpus against the United States of America and others. From an order discharging the writ, and remanding petitioner to custody of his commanding officer (245 Fed. 801), petitioner appeals.

<p>Appeal from the District Court of the United States for tire Western District of Pennsylvania; Charles P. Orr, Judge.</p> <p>Suit by the H. C. Fry Glass Company against the McKee Glass Company and others. From a decree imposing a penalty on defendants for violating an injunction, they appeal.</p>

<p>In Bankruptcy. In the matter of the bankruptcy of William A. Greer. On objection by E. W. Avey, creditor, to the bankrupt’s petition for discharge.</p>

In Equity. Bill by Atkinson & Co., Incorporated, against the Al-drich-Clisbee Company, on which receivers were appointed. On petition by the receivers for a decree fixing their fees and for partial distribution, in which tlie attorney for the respondent corporation claimed compensation for services and expenses rendered and incurred during receivership. Distribution directed in accordance with memorandum filed.

Iii the matter of a request by the clerk of the court as to instructions as to the issuance of subpoena duces tecum in criminal proceedings. Clerk directed to issue same.

<p>1. COURTS <&wkey;273 — Federal Courts — Jurisdiction—District.</p> <p>Under Judicial Code (Act March 3, 1911, c. 231) § 52, 36 Stat. 1101 (Comp. St. 1916, § 1034), declaring that, when a state contains more than one district, every suit not of a local nature against a single defendant must be brought in the district where he resides; but, if there are two or more defendants residing in different districts, it may be brought in cither district, a suit against several defendants some of whom resided, in the Northern and some in the Southern district of Florida, though nor a local suit, may be maintained in the Southern district.</p> <p>2. Courts <&wkey;26i)- — Jurisdiction oe Federal Courts — Enforcement of Liens.</p> <p>A credilor cannot, where he was given no lién by contract, justify the maintenance of a suit in district other than that of the debtor’s residence, on the ground that it was one to enforce a lien on specific personal property in the district, and within Judicial Code, § 57 (Comp. St. 1916, § 1039), whore such creditor had not acquired any lien by leyy of execution. 8. Courts <&wkey;269 — Federal Courts — Jurisdiction—Suit to Remove Cloud os Title.</p> <p>Judicial Code, § 57, authorizing suits to enforce any legal or equitable lien upon, or claim to, or to remove any incumbrance, lieu, or cloud upon, title to veal and personal property to be begun in the district where the property is located, does not authorize a suit to set aside transfers of personalty by a debtor, and to have the property declared that of the debtor and subjected to the payment of his debts, in the district wherein the property was located, where neither complainant nor the debtor resided. therein.</p> <p>4. Courts &wkey;>209 — Federal Courts — Jurisd rerroN.</p> <p>A suit, which was not one to enforce a lien or remove a cloud from the title to property, must, where the basis of jurisdiction was diversity of citizenship, be begun, in accordance with Judicial Code, § 51 (Comp. St. 1916, § 1033), either in the district; of the residence of complainant or defendant, and cannot be instituted in the district wherein the property of the defendant, the transfer of which was attacked, was located.</p> <p>8. Fraudulent Conveyances <&wkey;255(l) — Setting Aside — Necessary Parties.</p> <p>Though complainant in the courts of North Carolina, in which the debtors reside, recovered a judgment against them, such debtors are necessary parlies in a suit in the federal District Court for Florida, wherein transfers of property by the debtors were sought to be set aside, and the property subjected to complainant’s demand, for the debtors in that proceeding might question the validity of the debt and the amount.</p>

Habeas Corpus. Application by the United States, on the relation of Max Pascher, for a writ of habeas corpus against Eugene F. Kin-kead and others, acting as Focal Board for Division No. 1, County of Hudson, State of New Jersey.

<p>1. Bankruptcy &wkey;>205 — Trustee—Creditors—Rights.</p> <p>Save in so far as the trustee is given the rights of a judgment creditor as of the date of the filing of the petition, and levies, judgments, attachments, or other lien obtained through legal proceedings within four months of bankruptcy are invalidated by Bankruptcy Act July 1, 1898, c. 511, § 67f. 30 Stat. 564 (Comp. St 1916, § 9651), the trustee in bankruptcy, and the creditors - through him, obtain no greater rights against those having enforceable liens than the bankrupt would have had in their place.</p> <p>2. Bankruptcy &wkey;>205 — Liens—Priorities.</p> <p>If a judgment or other lien has been acquired within four months of bankruptcy, and is vacated, the claim of the trustee is superior to that of any person claiming under some other subsequent transfer or lien, even though the latter be innocent of any intent to obtain a preference, for such claimant would take subject to the lien invalidated by the adjudication in bankruptcy.</p> <p>3. BANKRUPTCY <&wkey;188(3) — Constructive Trusts — Equitable Lien — Nature of.</p> <p>The equitable rights of claimants, as creditors of another corporation whose property the bankrupt acquired, on the theory that it was transferred subject to a trust ex maleficio, cannot be treated as a valid lien superior to the' right of general creditors of the bankrupt, until by some legal proceeding it has become attached to the property of the bankrupt.</p> <p>4. Bankruptcy <&wkey;19S — Liens—Priorities.</p> <p>The bankrupt, with knowledge of its liabiliity for false representations, acquired the property of another corporation. Claimants within four months of bankruptcy recovered judgment against the bankrupt’s trans-feror and execution was returned nulla bona. Meantime all of the property, of the bankrupt was attached, and the attachment lien was discharged by the bankruptcy proceeding, because perfected within four months of bankruptcy. Helé that, as claimant’s right to follow such property into the hands of thei'bankrupt after transfer on the theory of a trust ex maleficio, was, until perfected by some legal process against the bankrupt and return nulla bona of execution against the transferor corporation, inferior to the rights of general creditors of the bankrupt, claimant’s lien depending as it did on judicial process had within four months was under Bankruptcy Act, § 67f, discharged by the adjudication.</p>

<p>Ves Hall was indicted for violation of Espionage Act, § 3. On motion for directed verdict of acquittal.</p>

<p>In Equity. Bill by the Stark Bros. Nurseries & Orchards Company against William P. Stark and William H. Stark, trustees, doing business under the name and style of William P. Stark Nurseries. 'Decree for complainant.</p>

In Equity. Suit by George D. Chapman, as trustee in bankruptcy of the Syracuse Candy Works, Incorporated, against Edward A. Hunt.

<p>In Equity.' Bill by the American Smelting & Refining Company, a corporation, against the Bunker Hill & Sullivan Mining & Concentrating Company, a corporation. On motion for preliminary injunction.</p>

<p>1. Banks and Banking <3=248(1) — Liquidation Agent — Authority.</p> <p>A loan to a liquidation agent of a national banking association cannot make stockholders individually liable under Rev. St. § 5220 (Comp. St. 1916, § 9806), and section 5151.</p> <p>2. Banks and Banking <@=283 — Liquidation Contracts — Ratification by Stockholder.</p> <p>The directors of defendant national hank recommended by resolution that it was expedient to go into voluntary liquidation, under Rev. St. §§ 5220, 5223 (C'omp. St. 1916, §§ 9806, 9810), providing that any association may go into liquidation and be closed by the vote of its shareholders owning two-thirds of its stock, and declaring that an association which is in good faith winding up its business for the purpose of consolidating with another shall not be required to deposit lawful money for its outstanding circulation, and that the question of a consolidation with complainant bank by a sale of the assets of the bank should be submitted to stockholders. Though the directors of the defendant bank had authorized its officers to transfer to complainant all of its assets as cash or as collateral for its notes, the assets had been turned over, but no notes had been taken indicating any indebtedness. Defendant’s stockholders ratified the resolution of the board of directors, transferring and assigning the assets of their corporation to complainant. Complainant by resolution assumed defendant’s debts, and authorized its directors to contract with the directors of defendant, or such liquidating agent as might be appointed. Reid, that as the contract submitted to and ratified by the stockholders was plainly a sale, and created no debt, and all of the stockholders did not participate in the ratification, they cannot be held liable individually as stockholders by complainant, which assumed the obligations of the defendant bank, particularly as a loan to a liquidating agent could not make the stockholders individually liable.</p> <p>3. Banks and Banking <@=262 — Dissolution-Stockholders.</p> <p>In such case, the acts and conduct of the directors of defendant cannot bind the stockholders, who had a right to rely on a written resolution of liquidation; the acts of the directors not being a practical construction by the stockholders.</p> <p>4. Banks and Banking- <@=283 — Construction—Acts of Parties.</p> <p>In such case, a susbequent stockholder’s resolution authorizing the sale of a portion of the property of defendant national bank, had two years after they ratified the agreement with the directors, is not admissible as the construction of a contract between the two banks.</p>

<p>In Bankruptcy. In the matter of Morris Epstein, doing business as “The Outlet,” bankrupt. On motion to strike out specifications of objection to bankrupt’s discharge.</p>

Trippet, Judge. Charles K. Holsman and Gideon M. Freeman were convicted of conspiracy to commit an offense against the United States, by devising and intending to devise a scheme and artifice to defraud to be accomplished by use of the mails, and they bring error.

<p>1. Post Office <§=331 — Offenses—Definition—“Indecent.”</p> <p>Under Criminal Code (Act March 4, 1909, c. 321) § 211, 35 Stat. 1120, as amended by Act March 4, 1911, c. 241, § 2, 36 Stat. 1339 (Comp. St. 1916, § 10381). declaring that every publication of an indecent character shall be nonmailable, and denouncing the offense of depositing or causing to he deposited, for mailing or delivery, anything declared by the section to be nonmailable, and further declaring that the term “indecent” shall Include matter of a character tending to incite murder or assassination, the definition of the word “indecent” as including matter of a character to incite murder or assassination is sufficiently definite to sustain a prosecution for depositing such matter in the mails, the question whether the matter so deposited was indecent, as having that tendency, being for the jury to determine just as the question whether matter is obscene is for the jury.</p> <p>TEd. Note. — For other definitions, see Words and Phrases, First and Second Series, Indecent.]</p> <p>2. Post Office <§=350 — Thtal—Phovinoe of Cotibt and Jury.</p> <p>. In a prosecution for violating Criminal Code, § 211, as amended in 1911, by depositing in the mails matter of an indecent character, the question first is for the court whether the language can have the tendency attributed to it, and then for the jury to determine whether it has such tendency in fact.</p> <p>3. Post Office <§=348(2) — Offenses—Indictment.</p> <p>An indictment alleging that defendants deposited in the post office newspapers of an indecent character, in violation of Criminal Code, § 211, as amended in 1911, to be transmitted by the post office establishment to many and divers persons, the names of such persons being unknown to the grand jurors, is sufficient, though not ¿Ueging that the newspapers wore addressed to any particular persons.</p> <p>4. Post Office <§=3-48(2) — Offenses—Indictment.</p> <p>An Indictment charging a violation of Criminal Code, § 211, as amended in 1911, which averred that the newspaper deposited in the post office contained certain indecent language, and was a publication of a character to incite in the minds of persons reading the same murder and assassination, and then set forth the objectionable language in full, sufficiently alleged that the newspaper was nonmailable.</p> <p>5. Post Office <§=348(2) — Offenses—Indictment.</p> <p>An indictment alleging that defendants knowingly, willfully, unlawfully, and feloniously deposited in the post office certain indecent newspapers, in violation of Criminal Code, § 211, as amended in 1911, is sufficient, without a specific allegation that defendants knew that the papers contained indecent matter or comprehended its import.</p> <p>6. Post Office @=>31 — Trial—Defenses.</p> <p>Where, in a prosecution for violation of Criminal Code, § 211, as . amended in 1911, by depositing id the post office newspapers of an indecent character, as tending to incite murder or assassination, it was unnecessary for the government to show any specific intent on the part of defendants in writing, publishing, or mailing the newspapers, lack of such intent could not be shown as a defense. *</p> <p>7. Post Office @=>31 — Offenses—Specific Intent.</p> <p>Where defendants, who deposited in the post office newspapers alleged to be indecent, as having a tendency to incite murder or assassination, both were familiar with the articles, it is not necessary, in prosecution for violation of Criminal Code, § 211, as amended in 1911, declaring such publications to be nonmailable, to show any specific intent on the part of defendants to incite murder or assassination.</p> <p>8. Criminal Law @=>1121(1), 1122(5) — Review—Matters Reviewable.</p> <p>Where neither the testimony nor the instructions given by the court below were in the record, questions of the sufficiency of the evidence or the propriety of the refusal of requested instructions by defendants cannot be reviewed.</p>

<p>Appeal from the District Court of the United States for the Eastern Division of the Southern District of Ohio; John E. Safer, Judge.</p> <p>Suit by the Board of Commissioners of Belmont County, Ohio, and the Trustees of Pultney Township, Belmont County, against the Wheeling Traction Company. Erom a decree for complainants, defendant appeals.</p>

<p>1. Monopolies <&wkey;12(2) — What aee — Subjects of Monopoly.</p> <p>As the records are open to the inspection of all, the abstract business is not susceptible of being monopolized in same sense that dealing in a commercial product may be monopolized; so'a transaction whereby one of several competing abstract companies acquired the business of its competitors is not subject to attack.</p> <p>2. Monopolies <&wkey;12(2) — Combinations in Restraint of Trade — What are.</p> <p>Where one of three corporations doing abstract business in a city acquired the business of one of its competitors and leased the plant of another, such contract, though it. tended to suppress previous ruinous competition, was not open to attack finder Const. Wash. art. 12, § 22, declaring that monopolies and trusts shall never be allowed, and no incorporate»! company shall directly or indirectly combine or make any contract with any other incorporated company, through their stockholders or trustees, or in any manner whatsoever, for the purpose of fixing the price or regulating the production of any product or commodity : for, while one of the purposes of the contract and its netressary effect'was to suppress competition, it is not subject to attack on that ground, the purchasing and leasing company acquiring the plants of its competitors without any agreement in restraint of trade.</p> <p>8. Monopolies <&wkey;12(2) — What abe — Subjects or Monopoly.</p> <p>In such case, where the corporation organized by the purchasing company to acctuire the assets of one of the competing abstract companies fouiid itself unable to meet its obligations, owing to the weakness of the business, and at that time another competing company had already entered the field, a subsequent contract, whereby the terms of the purchase were modified and the purchasing company and its stockholders guaranteed the payment of principal and interest, is not subject to attack as creating a monopoly.</p> <p>4. Monopolies <&wkey;12(4) — Contracts — Covenants Not to Re-engage in Busrxisss.</p> <p>Covenant of a corporation, in disposing of its business to another, not to engage in the same business within a certain area and within a reasonable time, is not invalid as tending to create a monopoly.</p> <p>5. Contracts <&wkey;116(l) — Monopolies—Validity.</p> <p>Before contracting parties can be absolved from their solemn obligations, on the ground that their contracts are invalid as creating a monopoly, it must be shown that their agreements are manifestly injurious to the public, for public policy is as much concerned in holding persons to their contracts as in prohibiting contracts in restraint of trade.</p> <p>6. Corporations <&wkey;484(3) — Contracts op Guaranty — Validity.</p> <p>Const. Wash. art. 12. § 6, entitled “Limitations upon Issuance of Stock,” and declaring that corporations shall not issue stock except to bona fide subscribers or their assigns, nor shall any corporation issue any bond or other obligation for the payment of money, except for money or property received or labor done, does not, its obvious purpose being to protect creditors of corporations and prevent the issuance of worthless securities, preclude a corporation, which, through the agency of another, it organized for the purpose of accpiiring the business of a competitor, from guaranteeing the principal and interest of the indebtedness incurred by its subsidiary; it appearing that the stock of the nominal purchasing corporation was held by the shareholders of the principal company, and’ there being a valuable consideration for the guaranty.</p> <p>7. Corporations &wkey;>484(3) — Stockholders—Guaranty—Validity.</p> <p>Where a corporation organized another corporation to acquire the business of a competitor, and the stock of. the nominal purchasing corporation was owned by the shareholders of the principal company, a contract by the shareholders of the principal company, guaranteeing the obligations of the- subsidiary company on account of tile purchase, is valid, notwithstanding Const. Wash. art. 12, § 6, forbids a corporation to issue a bond or any other obligation for the payment of money, except for the money or property received or labor done, for the provision, if for the benefit of stockholders of a corporation, might by them be waived.</p> <p>8. Chattel Mortgages <&wkey;101 — Construction—Notes.</p> <p>While a note and chattel mortgage should be construed together, yet, as the provisions of the note govern in case of a conflict, the holder may, where there had been a long-continued default in payment of interest, exorcise the option given in the note and declare the whole of the principal and interest due, regardless of the provisions of the mortgage as to defaults.</p> <p>9. Abatement and Revival <&wkey;84 — Answer to Merits — Premature Action —Waiver.</p> <p>The objection that a suit was prematurely brought is waived, where, without presenting the objection in any way to the court below, defendants answered to the merits.</p>

Petition to Revise Order of the District Court of the United States for the Southern District of New York. In the matter of the bankruptcy of the R. E. Taylor Corporation, The petition of Ezra P. Prentice, as receiver of the bankrupt, to enjoin the Maxwell Motor Sales Corporation from making any claim upon the proceeds of a sale of certain motor cars being denied, the receiver petitions to revise.

Action between Hyman I,. Siegelschiffer and the Penn Mutual Rife Insurance Company and another. There was a judgment for the latter, and the former brings error. On motion for dismissal. A motion was made to dismiss the writ of error on the ground, among others, that it was not taken within six months after the entry of the judgments sought to be reviewed. The judgments in the court below were entered on January 8, 1917. The writ of error was taken out on July 9, 1917.

Action by Marie Rouise Thomas .against the Austro-American Steamship Company. Judgment for plaintiff, and defendant brings error. In 1914, the Steamship Company maintained a line between Trieste and New York. The plaintiff below, Mrs. Thomas, obtained in Italy, passage tickets for herself and daughter entirling them to transportation from Trieste to New York.

C. Van Fleet, Judge. Action by the Power. & Irrigation Company of Clear Lake, Cal., a corporation, against Heinz Springe. From a judgment for defendant, plaintiff brings error. The defendant in error, Springe, on the 20th of September, 1906, entered into a contract with one Shuman, by which he agreed to sell and the latter to purchase certain real estate situate in Lake county, Cal., for the sum of $47,000, and certain personal property for $8,000.

Action by Moses Pellerin against the International Cotton Mills, begun in the state court and removed to the federal court. There was a verdict for plaintiff, and, on defendant’s motion, verdict was set aside, and judgment for defendant ordered; but defendant’s contention that the action was not maintainable under the' New Plampshire Employers’ Eiability Act was not sustained. Plaintiff brings error, and defendant also brings error. manded, with directions..

<p>Petition for Revision of Orders of the District Court of the United States for the Eastern District of Kentucky; A. M. J. Cochran, Judge.</p> <p>Petition of C. U. Wood, as trustee m bankruptcy of G. W. McDaniel & Co. and George Mitchell, individually, to revise orders of the District Court in the case of such bankrupts.</p>

<p>1. TlilAU <©=>278 — INSTRUCTION S — EXCEPTIONS—GENERALITY.</p> <p>“Exception to charge a:? given” is futile, because general.</p> <p>2. Trial <@=s>273 — iNSTiirrcTio ns — Exceptions—Time.</p> <p>Exception to charge, laten after the ;jury retires, is too late.</p> <p>3. Courts <©=>019 — Federal Courts — Formo wing State Statute — Cross-Exam tn ation.</p> <p>(Jen. Code Ohio, § 11-197, construed as giving a party an unlimited right to cross-examine an adversary called by him, is not a matter of procedure, or a law of evidence, or a rule as to the competency of testimony or witnesses, but is a matter of trial administration, which the federal courts need not follow, under the Conformity Act (Rev. St. § 911 [Comp. St. 1916, § 1-5371).</p> <p>4. Appeal and Ebeok @=»928(4) — Presumption — Existence oe Evidence.</p> <p>The testimony not being in the record, it must be presumed on appeal, in an action against a publishing company for libel in the publishing of articles written by J.,.its editor, that there was testimony of such character as to warrant submission of the question of its liability to punitive damages; and refusal of the requested instruction that, relative to malice as a foundation' for punitive damages, the Jury could not impute any malice of J. to his employers, as the malice of an agent cannot be imputed to his principal; such instruction, to be worth anything, meaning that on the evidence in the case the editor’s malice could not be imputed to the company, as the malice of an agent may, under proper circumstances, including his quality and authority, be imputed to his principal, and subsequent approval or ratification by a corporation of the unlawful acts of even a subordinate agent also making it liable to punitive damages.</p>

M. Bourquin, Judge. Suit by H. G. Hills against the Mutual Oil Company. From a decree for plaintiff, defendant appeals. This is a suit in specific performance, brought by Hills, plaintiff, against the Mutual Oil Company, defendant, to require the performance of an agreement for the sale of stock in the defendant company, and for accounting.

<p>1. Negligence <3=592 — Imputed Negligence — Dkiveb and Passenger.</p> <p>Where deceased, for Cue purpose of trying out a motor truck with a view to its purchase, applied to the owner for the use of the truck, and the owner assented on condition that an experienced chauffeur should drive and demonstrate it, the deceased, who was paying for the use of tiie truck, must, though riding thereon and directing its general route, be deemed a passenger, and the negligence of the chauffeur cannot be imputed to deceased.</p> <p>2. Railroads <3=55350(21) — Crossing Accidents — Jury Question.</p> <p>Where deceased, while riding on a motor truck in company with a presumably competent driver, who was demonstrating it for the owner, was killed when the truck was struck by defendant’s train, the fact that deceased, the view being open, did not interfere with the management of the truck when it was driven on the tracks, does not as a matter of law show that the deceased was guilty of contributory negligence, but that question is for the jury.</p> <p>Hunt, Circuit Judge, dissenting.</p>

H. Rudkin, Judge. Bill by the Continental & Commercial Trust & Savings Bank, a corporation, and another, as trustees, against the Fidelity Lumber Company, in which the Union Trust & Savings Bank, a corporation, was appointed permanent receiver. Objections by S. G. Armstrong and others to the receiver’s report of claims were overruled, and claimants appeal. The Union Trust & Savings Bank is receiver of the Fidelity Lumber Company, a corporation.

Niles, Judge. Bill by the Jones & Hopkins Manufacturing Company, on behalf of itself and all other creditors, against the Asa W. Allen Company, a corporation, and others. PArom a decree for complainant, defendant Keutucky Wagon Manufacturing Company appeals.

<p>1. Patents <&wkey;319 (1) — Accounting- fob Infringement — Apportionment op Profits or Damages.</p> <p>On an accounting for infringement of a patent for an improvement or of a part of a structure, the ultimate question is whether the real invention and its influence in bringing about the infringing sales can be so far identified as to admit of reasonable apportionment of profits or damages; if it can, the-apportionment must be made.</p> <p>2. Patents <&wkey;319(l) — Accounting for Infringement — Measure of Damages.</p> <p>There is no legal presumption that, but for infringement by a defendant, complainant, which was the owner of the patent and manufacturing thereunder, would have made as many sales at the same profit as were made, in a like period before the infringement, when defendant was a partner in the business, and such an assumption is too conjectural to be safely taken as the measure of damages for the infringement.</p> <p>3. Patents <&wkey;312(3) — Damages for Infringement — Reasonable Royalty.</p> <p>Complainant was owner of a patent for a power truck frame for loco- . motive toys, adapted for use with various kinds of vehicle bodies, which patent was infringed by defendant. Both parties were manufacturers and sellers of vehicle toys, on some of which the power truck was used, and others not. Held, that the testimony of the parties themselves, taken on an accounting before a master, as to the prices at which such toys were sold, both with and without the patented truck, afforded a basis for apportionment of profits or damages, and also for establishing a reasonable royalty for the patented device.</p> <p>4. Patents <&wkey;319(l) — Infringement—Accounting for Damages.</p> <p>On an accounting for damages for infringement, each case is controlled at last by its own peculiar facts and circumstances, and the pecuniary loss in any event can be determined only through reasonable approximation.</p> <p>5. Patents <&wkey;324(5) — Damages for Infringement — Increase of Award by Court.</p> <p>The refusal of a trial court to increase the damages awarded against an infringer on an accounting held so far within its discretion that, on the facts shown, it would not be disturbed by the appellate court.</p>

<p>In Equity. Suit by Niele A. Christensen and others against the General Electric Company. Erorn a taxation of costs, plaintiffs appeal.</p>

<p>Criminal prosecution by the United States against Peter Schaefer, Paul Vogel, Louis Werner, Martin Darkow, and Herman Lemke. On démurrers to indictment.</p>

<p>In Bankruptcy. In the matter of the bankruptcy of Robert F. Armstrong. On opposition to discharge.</p>

<p>1. BANKRUPTCY <&wkey;!26-REVIEW 03? ELECTION 03? TRUSTEE — CONPIRMATION 03? Findings of Referee.</p> <p>On petition to review the election of a trustee in bankruptcy, in the absence of the evidence on which the referee acted in making his decisions as to the rights of certain claims to be voted, the referee’s findings of fact as to all the claims must be confirmed.</p> <p>2. Bankruptcy <&wkey;125 — Election op Trustee — Discretion of Referee to Adjourn Meeting of Creditors.</p> <p>The referee in bankruptcy has the discretion to adjourn the first meeting of creditors from time to time, to investigate disputed claims before the voting for trustee is completed.</p>

<p>In Bankruptcy. In the matter of George W. Kline, bankrupt. On review of order of referee denying claim of. International. Harvester Company of America, to certain property.</p>

<p>In Equity. Bill by the General Investment Company against the Bethlehem Steel Corporation and others. On petition for preliminary injunction.</p>

<p>Carriers <&wkey;2Il — Interstate Carriage op Live Stock — Twenty-Eight Hour Law-Proper Speeding.</p> <p>Under Act June 29, 1900, e. 3594, §§ 2, 3, 34 Stat. 608 (Comp. St. 1916, §§ 8652, 8653), wliich. require railroad carriers of live stock to unload the same into pens for rest at least once in each 28 hours, and unless provision is made therefor by the shipper, to properly feed and water such stock during the rest period, under penalty, and giving them a lien for the reasonable expense thus incurred, a railroad held entitled in such case to recover for 250 pounds of hay prepared in advance and furnished to each carload of a shipment of cattle, although a quantity of hay amounting to 150 to 200 pounds, was placed in the racks in each car by the shipper when the shipment was made, the statutory obligation of the carrier being to feed during the period of rest, and it being the opinion of the Department of Agriculture, stated in a circular Issued for the information of carriers, that 250 pounds per car is a proper allowance.</p>

In Equity. Suit by one Hickson and others against one Davenport and others. On motion by defendants to dismiss the bill.

<p>1. Abuy AND Navy <&wkey;20 — Conscription Act — Exemptions.</p> <p>As Conscription Act May 18, 1917, c.. 15, 40 Stat. 70, which in section 5 declares that all male persons between the ages of 21 and 30 shall be subject to registration in accordance with regulations to be prescribed by the President, except officers and enlisted men of the regular army, etc., and that all persons so registered shall be and remain subject to draft, unless exempted or excused, provides in section 4 that local and district exemption boards to be created by the President shall have power within their respective jurisdictions to hear and determine all questions of exemption, such boards have jurisdiction over nondeclarant aliens, and as such aliens are required to register, they are mit, though the act provides for their exemption automatically, excluded from its provisions, but must present their claims to the proper boards in compliance with the rules provided.</p> <p>2. Constitution at. Law &wkey;>318 — Dun Process of Law.</p> <p>A nondeclarant alien, although by the terms of Conscription Act May 18, 1917, exempt from service, is not denied due process of law because required to present and secure his exemption through the exemption boards provided for; the requirement as to due process of law not entitling him to a judicial trial as to the question ol' exemption.</p> <p>3. Treaties <&wkey;>5 —Suspension—Congríes.</p> <p>As Conscription Act May 18. 1917. § 14, declares that all laws in conflict with the act are suspended during the emergency of existing war, a treaty entered into before the enactment of the statute, exempting an alien from military service, does not, unless he was duly exempted by the act, entitle him to such exemption, for the treaty, if in conflict with the act, was repealed; Congress having the same right to suspend or abrogate a treaty as any other law.</p> <p>4. Treaties <&wkey;ll — Nondeclarant Aliens — Treaty Bights.</p> <p>That Conscription Act May 18, 1917, which provides for the exemption of nondeclarant aliens, requires them to present their claims for exemption to the éxemption boards created by the President pursuant to the act, does not deprive such aliens of treaty rights securing them against liability for military service; it not being an infringement of the treaty exemption to prescribe the conditions under which it should be claimed.</p> <p>5. Army and Navy <&wkey;20 — - Oonscríption Aot — Exemption—Presentations.</p> <p>The filing of an exemplion claim as required by Buies and Regulations. § 10, for the selective draft provided for by Conscription Act May 18, 1917, and the affidavit required by section 18, showing that the registrant was a nondeclarant alien, is a condition precedent to exemption on that ground, and, where the exemption is not claimed as provided, such alien is not entitled to be exempted from military service.</p> <p>G. Constitutional Law &wkey;>70(3) — Separation of Powers — Wisdom or Legislation.</p> <p>The courts have no concern with the expediency or policy of a statute.</p> <p>7. Army and Navy <&wkey;>20 — Conscription Act — Enemy Aliens.</p> <p>As Conscription Act May 18, 1917, § 14, suspends ail inconsistent statutes, and, while exempting subjects of Germany, makes no provision as to others who might become alien enemies, a subject of Austria-Hungary, unless excused as a nondeclarant alien, is not entitled to exemplion because, by reason of a subsequent declaration of war against Austria-Hungary, ho had become an alien enemy.</p> <p>8. Army and Navy <&wkey;20 — Conscription Act — Decision of Exemption Boards. '</p> <p>Though the provisions oí Conscription Act May 18, 1917, making the decision of the exemption boards final, is constitutional, the civil courts, while they cannot review such decisions, may, where the boards have acted in excess of their jurisdiction, or have denied a fair hearing, grant relief.</p> <p>9. Habeas Corpus <&wkey;23 — Conscription Act — Decision of Local Boards.</p> <p>Bules and Regulations, § 11, for the selective draft provided for by Conscription Act May 18, 1917, declares that, as soon as practicable after the order in which persons are liable to be called for military service shall have been determined, a list of the names and residences of such persons in the order of their liability shall be posted in the offices of the respective local boards in a place accessible to the public view, that as promptly as practicable a complete copy of such list shall be made accessible to the press, and that, when any person is called by, a local board, notice shall be mailed by the clerk, directed to the address on his registration card. Petitioner, a nondeelarant alien and a subject of .Austria-Hungary, was certified into military service, not having presented his objection to the local or district boards. Helé, in the absence of any showing, other than petitioner’s assertion that he received no notice, that the local board had not performed its official duty, petitioner is not, as the provisions of the act making the determination of such exemption boards final, are constitutional, and there is a presumption of performance of official duty, entitled to habeas corpus to secure his release on the theory that he was denied a fair hearing by the exemption boards.</p> <p>10. Habeas Corpus <&wkey;23 — Conscription Act — Certification into Service —Habeas Corpus.</p> <p>A nondeclarant alien is not entitled to habeas corpus to obtain his release, having been certified into service under Conscription Act May 18, 1917, as he failed to claim his exemption on account of alienage, where it did not appear that in accordance with Rules and Regulations, §§ 28 and 50, that he had by proper affidavit, together with an excuse for fail-. ure to earlier present the same, made claim for exemption to either the district or local board after certificatibn.</p> <p>11. Habeas Corpus <&wkey;6 — Relief—Discretion.</p> <p>Where petitioner, who was certified into the service under Conscription Act May 18, 1917, having failed to comply with the rules and regulations as to claim for exemption, was not absolutely entitled to relief on account of his alienage, the issuance of habeas corpus to secure release rests in the sound discretion of the trial court.</p> <p>12. Habeas Corpus <&wkey;6 — Conscription Act.</p> <p>Where petitioner, who was certified into service under Conscription Act May 18, 1917, after appealing to his commanding officer for relief on the ground that he was a nondeclarant alien, did not file a petition for habeas corpus until nearly two months thereafter, and he had not presented his claim for exemption in accordance with the rules and regulations governing the draft, it is not an abuse of discretion to deny his application, for such claim should be presented at the earliest possible moment, and an alien should not be allowed to receive maintenance, pay, and allowances for a considerable time and then assert his exemption.</p> <p>13. Army and Navy <&wkey;20 — Conscription Act — Scope of.</p> <p>As the Conscription Act provides for the exemption of nondeclarant aliens, and as such aliens would prove unsatisfactory soldiers,.if unwilling to serve, it is against the policy of the law for local draft boards to attempt to include such aliens in the army; it being for the benefit of the service that they be excluded.</p> <p>14. IFaijkas Coiíiurs <&wkey;S5(:!) — Writ—Petition- -Iss DANCE of Wiut.</p> <p>One pel'llionlng for habeas corpus to secure release from military service, into which lie was certified under Conscription Act May 18, 1917, must, in view of the authority of the independent executive tribunals and military officers to first determine claims of exemption, affirmatively show oils the fact' of Ills petition tha1 he is entitled to such writ, and on hearing will he able to make at least a prima facie case entitling him to the release, or the petition will be dismissed, and neither will the writ be grunted, nor will a rule to show cause why it should not be granted be issued, as in ordinary cases.</p>

At Haw. Action by Clarence O’Dell against the Southern Railway Company. There was a verdict for plaintiff, and defendant moves for new trial.

<p>1. Negligence <®=s>136(1) — Direction of Verdict — Jury Question.</p> <p>Whore there was evidence of defendant’s negligence, the question was for tlie jury.</p> <p>2. Master and Servant <@=^289(39) — Contributory Negligence — Jury Question-Proximate Cause.</p> <p>Where there was evidence of negligence on the part of a railroad company, and under the laws of the state where the accident occurred tlie servant’s contributory negligence would only reduce the recovery, a verdict cannot bo directed for the company on the ground that the servant’s own contributory negligence caused the accident, for tlie proximate cause of the accident is a jury question.</p> <p>3. Master anb Servant <g=>2S8(14) — Assumption op Risk — Jury Question.</p> <p>Whore, before the accident, the injured servant complained of the defects, and was assured that they would be remedied, bis recovery cannot lie denied on the ground of assumption of risk; but it is a question for the jury whether a reasonable time to remedy the defects had elapsed before the injury.</p> <p>4. Evidence <®=»29 — Judicial Notice — Public Laws.</p> <p>The United States courts take judicial notice of tide public laws of all tbe states of tbe Union.</p> <p>5. Statutes <S=»279 — Pleading—Judicial Notice.</p> <p>In an action in tbe federal District Court for South Carolina for personal injuries sustained in North Carolina, tbe court, in view of tbe South Carolina requirement that tbe complaint shall concisely state tbe facts giving rise to tbe cause of action, should apply to tbe facts averred the applicable North Carolina statutes, even though not specially pleaded, for it takes judicial notice of them.</p> <p>6. New Trial <§==>171 — Proceedings on Retrial — Amendments of Pleading.</p> <p>Where, on the first trial of a personal injury action by a railroad employs, the proof failed to show that he was engaged in interstate commerce as alleged, so as to come within federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [Comp. St. 1916, §§ 8657-8665]), and an amendment conforming the complaint to the proof was allowed, the employs, a new trial having been granted, should he allowed, the evidence then showing that he was engaged in interstate commerce, to amend his complaint so as to conform to the proof notwithstanding the railroad company traversed the allegation of the amended complaint that the employe was engaged in interstate commerce.</p> <p>7. Commerce <®^27(8) — “Interstate Commerce” — Federal Employers’ Liability Act.</p> <p>A railroad employe, injured while working on an electric motor, cannot, though the company was engaged in both intrastate and interstate commerce, be deemed engaged in interstate commerce; it not appearing that the particular motor was in any way used in interstate* commerce.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.]</p>

In Equity. Bill by the Central Bank & Trust Company, a corporation, and others, against the Greenville & Western Railroad Company, in which the State of South Carolina intervened, praying that operation through a receiver previously appointed should be resumed.

At Law., Action by James G. Puckett against the Columbus Power Company and the Postal Telegraph-Cable Company, begun in the slate court and removed by the last-named defendant to the District Court on the ground of a separable controversy. On motion to remand.

In Bankruptcy. In the matter of the bankruptcy of the East Stroudsburg Supply & Construction Company. On rule to show cause why Louis Sulkin, mortgagee, should not release certain lots from the lien of his mortgage, and the same should not be ordered sold, discharged of the mortgage lien.

<p>1. Trade-Marks and Trade-Names <®=95(1) — Preliminary Injunctions— Conflicting- Affidavits.</p> <p>A preliminary injunction, restraining defendants from the use of a particular word as a trade-mark and from incorporating it in their corporate title, will not he granted, where the affidavits as to the rights of the parties were in hopeless conflict.</p> <p>2. Tkade-Marks and Tjiade-Kames <S=»G8 — Use—Competition.</p> <p>Where complainant, a corporation of a foreign country which, manufactured ‘'Pasteur” filter tubes, was not doing business in the United States, and defendants were not in competition with it, an injunction restraining them from the use of the trade-mark “Pasteur” will be denied, where the tubes they sold were genuine tubes manufactured 'by complainant. for the right in such trade-mark cases is based ’on the deception of the public, as In cases of unfair competition.</p> <p>3. Injunctions <S=3l37(l) — Pkeliminaby Injunction — Right to.</p> <p>Where an injunction had been issued against defendant’s principal, and l>y its terms it restrained, not only the principal, but its agents, an injunction against defendant to protect the same rights which complainant asserted in the suit against the principal will not on that ground be granted, for the first injunction extended to defendant.</p> <p>4. Tbadr-Maeks and Trade-Names <§=»95(5) — -Use oe Trade-Names- — Right to Enjoin Dependant.</p> <p>■ Where defendant, by the long-continued use of a trade-name, established a reputation in business, and this was permitted by complainant, though it was entitled to restrain defendant’s use of such name, complainant cannot at a later day prohibit defendant’s use of the name, for that would be inequitable.</p>

Cynthia Scott was indicted for keeping a house of ill fame within five miles of a naval training station and fort. On demurrer to the indictment.

In Bankruptcy. In the matter of the bankruptcy of George Board-way. On motion to vacate an ex parte order restraining the collection and enforcement of a judgment against the bankrupt recovered by default, after his discharge, on a claim which existed prior to his bankruptcy and which had been discharged by the general order.

<p>In Admiralty. Libel by Edward Rutz against Edwin Allen Douglass, part owner of the schooner Rebecca R. Douglass, and others.</p>

<p>In Equity. Bill by the Cardinal Film Corporation against Fred Beck and others. Decree for complainant.</p>

Lewis, Judge. Petition for mandamus by Mark Norris and others against the Montezuma Valley Irrigation District and others. To review a judgment (240 Fed. 825) granting the prayer for relief in part and denying it in part, plaintiffs bring error.

A. Youmans, Judge. Bill by B. F. Bush, receiver of the St. Douis, Iron Mountain & Southern Railway Company, against J. H. Branson, Sheriff and ex officio Tax Collector, and others. From a decree for defendants, complainant appeals.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Libel by William A. Higgins and another against the Anglo-Algerian Steamship Company, Limited. From a decree dismissing the libel (242 Fed. 568), libelants appeal.</p>

Action by George W. Linnekogel against the Erie Railroad Company. There was a judgment for plaintiff, and defendant brings error.

Action by Isaac J. Silverstein, doing business as the Globe Thread Company, against Levi Strauss & Co, Incorporated, begun in the state court and removed to the federal court, where it was consolidated with an action by Levi Strauss & Co. against Silverstein, plaintiff in the other action. There was a judgment for Silverstein and Strauss & Co. brings error.

Elliott, Judge. Action by Clement F. Porter, Jr., receiver of the Independent Elevator Company, against E. M. Davies & Co., a corporation. There was a judgment for plaintiff, and defendant brings error.

<p>1. Counties <§=>133(6) — Contracts for Cruising Assessable Timber Land — ■ Powers of County Board.</p> <p>Const. Idaho, art. .18, § 6, provides for the election biennally of a county assessor, who shall be ex officio tax collector. Rev. Codes Idaho, § 2119, as amended by Laws Idaho 19131, c. 127, authorizes the board of county commissioners, on application by the assessor and after a hearing on 30 days’ notice, to empower the assessor to appoint such deputies and clerks as the business of his office may require and to fix their compensation. Laws Idaho 1913, c. 58, declares that it shall be the duty of the assessor to assess all real property in his county, and in making assessments to actually determine as near as practicable tlie full cash value of each parcel assessed, and further provides for the classification of lanas as agricultural, timber, or mineral lands, etc., and requires the taxpayer to make a statement as to the nature and value of his lands. Held, that the county hoard is not authorized to contract with a third person to cruise 'the taxable timber lands of the county at a large expense.</p> <p>2. Counties <@=»152 — Limitation of Indebtedness — “Ordinary and Neces- ‘ sart Expense.”</p> <p>A contract for cruising taxable timber lands of a county at an expense considerably exceeding its yearly revenue is invalid; such expense not being an “ordinary and necessary expense,” within Const. Idaho, art. 8, {j 3, prohibiting counties from incurring indebtedness or liability in any year exceeding the income and revenue 'for such year, unless certain designated conditions are complied with relative to the authorization of the debt and provision made for its payment, but providing that the restriction shall not apply to the ordinary and necessary expenses authorized by general laws of the state.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Necessary Expenses; Ordinary Expenses.]</p>

<p>1. Executors and Administrators <&wkey;421 — Action to Impress Trust on Assets in Hands or Distributee — Equitable Character op Action.</p> <p>An action by the executor of the payee of a note against the distributee of the maker’s personal estate, to impress a trust upon a portion of the estate, and to hold the distributee as trustee in respect thereto, under duty to assign and transfer to the payee’s executor to the amount of the note, was an action purely in equity, to enforce a purely equitable obligation against one who owed plaintiff no legal duty.</p> <p>2. EXECUTORS AND ADMINISTRATORS &wkey;>423-SUIT TO SUBJECT ASSETS 1ST HANDS of Distributee —Cause of Action.</p> <p>The causo of action was not the debt of the distributee’s ancestor on the note, but was the distribution of the ancestor’s estate to the distribu-tee many years after.</p> <p>8. Limitation of Actions <&wkey;30(l) — Statute of Limitations- -Application— Aci ton Not Against Debtor.</p> <p>A stai uto of limitations, with a saving clause as to nonresidence of a debtor, applicable to action on a debt against the debtor, is not applicable to an equitable cause of action to subject a portion of the assets of the debtor’s estate in the hands of a distributee to payment of the debt.</p> <p>4. Equity &wkey;>87(l) — Laches—Statutes of Limitation.</p> <p>In applying the doctrine of laches in equity actions, federal courts are not bound by statutes of limitation of the forum, even when such statutes are applicable by their terms to such actions. Though in actions at law the federal courts are bound by the literalism of statutes of limitation, in equity the question of unreasonable delay within the statutory limitation is still open, and to be determined by the circumstances of each particular case; and even where a statute of limitations exists, and has been made applicable in general terms to suits in equity, defendant may avail of plaintiff’s laches, though the time fixed by the statute has not expired.</p> <p>5. Equity <&wkey;>S7(l) — Laches—State Statute of Limitations — Exception of Statute.</p> <p>If the limitation of an applicable state statute yields to the doctrine of laches as applied by federal courts, an exception of the statute saving a right of action also must yield, when the statute itself falls before a doctrine with which it is in conflict.</p> <p>6. Equity <&wkey;72(l) — “Laches.”</p> <p>In legal significance, “laches” is not mere lapse of time, whether greater or less than the precise time of a statute of limitations; it is delay for such time as makes the doing of equity either impossible or doubtful, as involves the inequity of permitting a claim to be asserted after the death of parties, change of title, or intervention of the rights of others, where, in consequence, evidence has been lost or- become obscured, the discovery of the truth is made difficult, and the party attacked is placed in a position of evident disadvantage.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Laches.]</p> <p>•7. Equity &wkey;>78 — Action to Impress Trust on Assets in Hands of Dis-tributee- -Laches — Exception of Statute of Limitations.</p> <p>Where the maker and payee of a note were both dead, suit by the payee's executor and residuary legatee against the distributee of the maker's personal estate, to impress a trust on assets received In the distribution for application to payment of the note, was barred by laches, where brought 33 years after the claim could have been assorted against the maker of the note, 35 years after it could have been jiroved against his estate in the hands of his administrator, and 14 years after it could have been asserted against the distributee himself, and was not saved in equity by any exception of a statute of limitations as to nonresidence of debtors, even if applicable by analogy.</p>

<p>CONTRACTS &wkey;116(l) — Validity—Public Policy.</p> <p>An agreement by a daughter to cancel an indebtedness due from her mother, who was an elderly woman of moderate means, on payment of a nominal consideration, providing that, if the mother should at any time thereafter mortgage or sell any of her real estate, or incur indebtedness amounting at any one time to $1,000, without the consent in writing of the daughter, then the indebtedness canceled should immediately become due and payable, is valid, and not open to attack on the ground that it is in restraint of trade, for the mother’s alienation of her property was in no way burdened.</p>

<p>1. Trial &wkey;>244(4) — Instructions—Undue Prominence to Particular Acts.</p> <p>Tbe refusal of defendant’s requested instruction that particular acts did not constitute negligence was proper, for that would give an undue prominence to those acts which plaintiff did not assert were, taken by themselves, negligence; the negligence charged being a combination of acts.</p> <p>2. Carriers <&wkey;320(8) — Garríase or Passensers — Actions—Jury Question.</p> <p>Whether a street railway company was negligent in failing to warn passenger that at the place its surface car was stopped there was a considerable space between the car and the platform because of a curve in the platform held, for the jury.</p> <p>3. Carriers <&wkey;320(l) — Carriage of Passengers — Negligence — Regulations.</p> <p>Where the conduct of the injured passenger was in no way affected by a regulation of the defendant carrier with regard to the point at its platform where cars should stop, the question of the reasonableness of the regulations is properly submitted to the jury.</p> <p>4. Appeal and Error <&wkey;263(l) — Review—-Exceptions Reviewable.</p> <p>Defendant’s exception to that part of the charge alleged to contain a request of plaintiff cannot be sustained on writ of error, where it appeared from the charge that it ivas not given as an instruction, but only as a statement of plaintiff’s' contention.</p> <p>5. Qabriers <&wkey;321(6) — Carriage of Passengers — Triai>—Instructions.</p> <p>At defendant’s transfer point plaintiff suffered injuries when she stepped into a space between the platform and the car. It appeared that the car was first brought almost to a stop at a place where the platform was parallel to the- tracks, and was then slowly propelled to the stopping place at which point the platform curved away from the tracks. Plaintiff alleged that such movement of the car, coupled with the failure to warn, constituted negligence. The court, having referred to the movement of the car after it was brought nearly to a stop, charged that plaintiff claimed that should be considered, together with all.other matters, in. determining whether defendant- was guilty of negligence, and that such unquestionably was the law. Held that, in view of the reference to the preceding contention, the charge was correct.</p> <p>6. Trial <&wkey;l 42 — Province of Jury — Conflicting Evidence.</p> <p>Where reasonable men may draw different conclusions from the undis-plivable facts the question is for the jury; hut, if only one -conclusion is possible, the question is one for the court.</p> <p>7. Carriers &wkey;;i20'(8) — Carriage of Passengers — Actions—Jury Question.</p> <p>in personal injury action by a passenger, who on attempting to hoard defendant's oar at a transfer point stepped in the space between the platform which at that point curved away from the tracks and the car, the questions whether defendant, its servants having brought the car nearly to a stop at the point where plaintiff and others were standing waiting, and then slowly moved it to the point where the accident occurred, without giving' any warning as to the space between the car and the track, was negligent, and whether the passenger was guilty of contributory negligence, held for the jury.</p>

<p>1. Vendor and Purchaser <&wkey;18(l) — Contracts—Options.</p> <p>Though on its resident agent’s submission of plaintiffs offer for the purchase of a sugar plantation, defendant, a French corporation, replied that the negotiations could not be completed by cable, and suggested that plaintiff come to Paris, plaintiff was given no option for the purchase of the property, entitling him to recover damages because it was sold by defendant before his arrival in Paris to conclude negotiations; it appearing that plaintiff relied on a contract claimed to have been entered into by cabled acceptance of his offer, and, finding that position untenable at trial, advanced the theory of an option.</p> <p>2. Jury <&wkey;37 — 'Inkringkitent op Right — Review—Diructxojí op Ytjrihot.</p> <p>In an action for breach of an alleged contract for the sale of a sugar plantation, the Circuit Court of Appeals, though linding there was no evidence warranting submission of the case to the jury and that a verdict, should have been directed for defendant, cannot, on defendant’s writ'of error, enter a verdict and render judgment for defendant, but must remand for new trial.</p>

<p>1. Corporation's <&wkey;3S2%, New, vol. 16 Key-No. Series — Public Service Corporations — Discrimination.</p> <p>It is the duty of a public service corporation, lawfully authorized to use the streets and public places of a municipality in order to furnish to consumers water, gas, electricity, light, heat, power, or any other public utilii.v, to render like contemporaneous service for like compensation to consumers conducting like operations under like conditions and circumstances, and for unjust discrimination between competitors and substantial injury to one of them, caused by a breach of this duty, the injured competitor may maintain an action in tort against the corporation for the pecuniary loss inflicted upon him by such discrimination.</p> <p>2. Damages <&wkey;159(l) — Action for Damages — Pleading and Proof.</p> <p>In such an action, defendant’s liability is not for money had and received, but in tort for damages, which are not measured by the difference between the amount plaintiff paid and the amount he would have paid, if charged at the same rate as his competitor for like service, but may he either more or less, and must be pleaded and proved.</p> <p>3. Corporations &wkey;,382%. New, vol. 16 Key-No. Series — Public! Service Corporations — Discrimination in Rates.</p> <p>Unreasonable rates charged by a public service corporation are either those chat are so low as to be noncompensatory or so much higher Ilian merely compensatory rates that they are exorbitant. The fact that two rates or two sets of rates are unjustly discriminating neither establishes nor necessarily implies that either of them is unreasonable.</p> <p>4. Corporations <&wkey;382%, New, vol. 16 Key-No. Series — Public Service Corporations — Rates.</p> <p>Where maximum rates which may be charged by a public service corporation are prescribed by the state or municipality having authority, such rates are presumptively reasonable, and one charged such rates cannot maintain a suit against the corporation on the ground that they arc unreasonable, without having first secured decision or action to that effect by the body having authority to change them.</p> <p>5. Electricity <&wkey;ll — Rates—Discrimination—Sufficiency of Complaint.</p> <p>The complaint in an action against an electric company, based on alleged discrimination in rates charged for light and power to plaintiff and a competitor receiving lite service, held to state facts sufficient to constitute a cause of action for the recovery of damages, although it was apparently drawn on the erroneous theory that plaintiff was entitled to recover the difference between the amount paid by it and the amount paid by its competitor as money had and received to its use, and stated no proper measure of damages.</p> <p>6. Damages <&wkey;40(8) — Loss on? Profits — Destruction or Interruption of Business.</p> <p>The general rule is that the expected profits of a commercial business are generally too remote, speculative, and uncertain to sustain a judgment for their loss; but there is an exception to this rule, to the effect that the loss of profits from the destruction, interruption, or depression of an established business may bo recovered, if the plaintiff malees it reasonably certain by competent proof what the amount of his loss actually was.</p> <p>Stone, Circuit Judge, dissenting in part.</p>

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Action by the Prairie Oil & Gas Company against the Globe & Rutgers Insurance Company of tlie City of New York. There was a judgment for plaintiff on a directed verdict, and defendant brings error.</p> <p>The plain! iff is a corporation existing under the laws of tile state of Kansas. The defendant is a corporation existing under the laws of the state of New York. The plaintiff sues oil a policy of insurance issued to defendant on February 6, 1914, insuring against all direct loss or damage by lire, except as in itie policy provided, to the amount of $6,177,000. The property insured consisted of Iron tanks (used for storing petroleum) and their contents. White tlie policy was current, two fires occurred: (1) On September 2, 1914, destroying tanks numbered 8, 9, and 13, together with their contents, at Barney Farm, Drumwright, Olcl.; and (2) on September 6, 1914, destroying tank numbered 1306, with its contents, at Sliamiondale, Mo. The two fires are made the subject of two separate causes of action in the same complaint.</p> <p>The defendant's answer sets up a general denial as to each cause, of action. As a separate and partial defense to the first cause of action it sets up the assured’s refusal to permit the defendant to replace tlie property destroyed; and as a separate defense to the first and second causes of action the answer alleges that the plaintiff had wholly failed to servo on defendant a statement, signed and sworn to by it, stating its knowledge and belief as to tbe time and origin of the fires, its interest, and that of all others in the property, the cash value of'the various items making up the same, the incum-brances, if any, thereon, other insurance, if any thereon, and a copy of the description and schedules in all policies, as well as any changes in the title, use, occupation, location, possession, or exposure of the property from the time the policy was issued.</p> <p>As to the first cause of action it is stipulated between the attorneys that the number of barrels of fluid destroyed in tanks 8, 9, and 13 at Barney Farm, Drumwright, Okl., by fire, on September 2, 1914, was as follows: Oklahoma crude fluid, 122,778.77 barrels, less fluid saved, 2,899.59 barrels; net amount of petroleum destroyed, for which the plaintiff in error admits liability as to quantity only, was 116,282.80 barrels; that the tanks themselves were each of 55,000 barrels capacity, and were worth at the time of the fire in the aggregate $3S,250 ($12,750 each), and were totally destroyed by said fire, and that the amount of the liability of the plaintiff in error is the sum of $15,000 ($5,000 each). The occurrence of the fire of September 2, 1914, the ownership of the property on that day by the assured, and that the fire was not caused by any of the causes excepted in the policy were also admitted.</p> <p>As to the second cause of action it is also stipulated that the number of barrels of fluid destroyed in tank No. 1306 at Shannondale, Mo., by fire on September 6, 1914, was as follows:</p> <p>. “Contents of tank No. 1306:</p> <p>Oklahoma crude fluid.,.52,025.77 bbls,</p> <p>Less sediment... 1,085.51 “</p> <p>50,940.26 “</p> <p>Less oil saved... 7,882.00 “</p> <p>Net amount of fluid destroyed.43,058.26 “</p> <p>“In connection with the above figure, 43,058.26, representing total amount of fluid destroyed, in barrels, it will be on the trial of this action the contention by the defendant (insurance company) that there should be deducted thereform 1,291.75 barrels which will be claimed by the defendant (insurance company) represents sand and water in the fluid destroyed, and which contention the defendant (insurance company) reserves the right to endeavor to prove at the time of the trial of this action.”</p> <p>The stipulation admits that tank 1306 was the property of the assured, and was totally destroyed by fire on September 6, 1914; that the value of the said tank at the time of the fire was $12,750, and that the plaintiff in error is liable in the amount of '$5,000; the occurrence of the fire of September 6, 1914; the ownership of the property on.that day by the assured; and that the fire was not ca ised by any of the excepted causes in the policy.</p> <p>At the close of the trial counsel for defendant, moved to dismiss, and the motion was denied. Counsel for plaintiff moved for a direction of a verdict for the plaintiff on each cause of action, and this was granted, and judgment entered for $8,451.19.</p>

Proceeding in admiralty for limitation of liability by tire New York, New Haven & Hartford Railroad Company, owner of Transfer No. 21. Otto Schmuck and others, owners of the motorboat Pilot, appeal from a decree finding Transfer No. 21 without fault for a collision.

<p>Appeal from the District Court of the United. States for the Southern District of Mississippi; Henry C. Niles, Judge.</p> <p>Bill by the Puffer Manufacturing Company against Stokes V. Robertson, State Revenue Agent for the State of Mississippi, and others. Erom a decree dismissing the bill, complainant appeals.</p>

Suit in admiralty by John D. Dailey and De Witt C. Ivins against William F. Carroll and the City of New York. Decree for libelants against respondent Carroll, and he appeals. Dailey & Ivins orally chartered from Carroll the scow Edna L. Woods, at a price that “included the captain.” This “captain came with the scow,” was not paid by the charterer, and there was no arrangement that charterer could discharge him. Carroll admitted that he hired and paid the man.

Appeals from the District Court of the United States for the Western District of New York. Suits in admiralty by Walter U. Kennerdell, by Frank Preston, and by George Hackemer, Jr., an infant, by bis guardian ad litem, against the steamship F. B. Squire; the Jenkins Steamship Company, claimant. Decrees for libelants, and claimant appeals. Final decrees in admiralty were entered in the District Court for the Western District of New York.

Tuttle, Judge. Suit in admiralty by Harris "W. Baker, owner of the barge Eleanore, against the steamer J. Pierpont Morgan; the Pittsburg Steamship Company, claimant. Decree for claimant, and libelant appeals.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in admiralty by Lewis K. Thurlow, owner of the barge Panay, against the New England Steamship Company, Skeffington S. Norton, Joseph T. Lilly, John JB. O’Reilly, and John T. Farrell, composing the firm of Norton, Lilly & Co., and the steamtug Carroll, the Carroll Towing Line, claimant. Decree for libelant against the New England Steamship Company, which appeals.</p> <p>Libelant owns the barge l’anay, and sued for injury to that vessel, caused by unnecessary exposure to a severe gale. The Pan-iy was chartered by libel-ant to the New England Steamship Company for one year, by an instrument giving the charterers the bare boat; i. e., without crew or master. Libelant furnished a master, whom charterer accepted and paid, but there was no obligation to keep the man, and as matter of fact he was shifted to another boat of respondent’s fleet at charterers will. The charter party required charterer ■ “to exercise ordinary care and skill in * * * using * * * said barge, * * * to return the said barge * * * at the expiration of this charter party in as good order and condition as when received, reasonable wear and tear and damage caused by the acts of God, * * * strand-ings, and all other dangers and accidents of seas, rivers, harbors, and navigation excepted.”</p> <p>The charterer loaded the Panay with cargo for a steamer lying at the Bush Terminal, obtained a pérmit from the agents for said steamer, Norton, Lilly & Co., to put it aboard, placed the barge alongside the steamer, and left her with the harge master aboard. The tug Carroll subsequently removed the Panay to a berth where she was more exposed to the weather, the wind and sea rose during the night, and early next morning the barge master reported to the charterer by telephone that he was in danger. The charterer’s agents did not promptly get assistance to her, so that after some hours she dumped her cargo and was herself considerably injured. This occurred more than 18 hours after the Carroll had taken her from alongside the steamer.</p> <p>The libel charged the New England Steamship Company as charterer, and accused both respondents and the Carroll of negligence in giving the Panay a dangerous berth and not timely taking her to a place of safety. The court below entered decree against New England Steamship Company only, and dismissed the libel as to Norton, Lilly & Go. and the Carroll. The New England Steamship Company took this appeal.</p>

<p>Sales &wkey;>202(6) — Sale of Grain — Time of Taking Effect — Delivery.</p> <p>The buyer of wheat, in accordance with the rules of the Texas Wheat Growers’ Associaüon, wrote letters of confirmation, directing shipment to Galveston for export, and reciting: “Delivery of grain not perfected until grain reaches destination and has been inspected and weighed.” The seller, having signed and returned such letters of confirmation, loaded the grain for shipment; bills of lading being issued to the seller, with directions to notify the buyer. Drafts attached to the bills of lading were paid by the buyer on presentation; the bills of lading being delivered to the buyer. Held, that title then passed to the buyer, notwithstanding want of inspection and weighing, for there may be a sale without completed delivery, so that loss of the grain in a flood at Galveston must fall on the buyer.</p> <p>Walker, Circuit Judge, dissenting.</p>

<p>1. Shipping <&wkey;84(3) — Stevedores-—Tackle—Duty of Vessel.</p> <p>Where a vessel furnished the tackle for use by stevedores, It owed a duty to the stevedores to use reasonable care to see that the tackle was fit • for use, and the furnishing of tackle with defects which a reasonable inspection would have disclosed is negligence.</p> <p>2. Shipping <&wkey;86(2) — Stevedores---Personal Injuries — Evidence. 3</p> <p>On libel by a stevedore, injured in loading a vessel when a bale of cotton fell as the result of the breaking of a clevis furnished by the vessel, a finding that the defect in the clevis could have been ascertained by an ordinarily careful inspection 7wld warranted under the evidence.</p> <p>3. Master and Servant <&wkey;354 — Workmen’s Compensation Act — Application to Stevedores.</p> <p>A stevedore employed by a Texas company was injured while loading a vessel. Under the Texas Workmen’s Compensation Act (Acts 33d Leg. c. 179 [Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5246h-524Gzzzz]) the stevedore asserted a claim against his employer and received payment from an insurer, with whom the stevedore’s employer as well as the agents of the vessel had taken out insurance. Held, that, as the' Texas act was inapplicable to the stevedore’s claim against the vessel, and as he asserted no claim against the insurer as an insurer of the vessel or its agents, such payment did not. bar his claim against the vessel, but amounted, at most to a pro tanto satisfaction.</p> <p>4. Appeal and Error <&wkey;932(l) — Review—Presumptions.</p> <p>Where testimony showing a pro tanto satisfaction of libelant’s claim was received, it must be assumed on appeal that the lower court gave proper effect thereto.</p>

Lewis, Judge. Action by George W. Vallery, as receiver of the Colorado' Midland Railway Company, against the Glenwood Irrigation Company. There was a judgment for plaintiff for partial relief, and both parties bring error.

Lewis, Judge. Bill by the United States against the Routt County Coal Company, the Rugby Fuel Company, and others. From a decree dismissing the bill as to the named defendants, complainant appeals.

Johnson, Judge. Bill by the Standard Brokerage & Distributing Company against the American Falls Milling Company. Injunction prayed for was denied, and from a decree awarding damages to complainant, defendant appeals.

<p>1. Master akd Servant &wkey;>101, 102(1) — Injuries to Servant-Save Peace to Work.</p> <p>It is the duty of the employer to íumish a safe place for the employe to work; but there is no obligation to furnish an easy and convenient place.</p> <p>2. Shipping <&wkey;81(3) — Injuries to Stevedore — Liability of Vessel.</p> <p>An employe of a stevedore company, who for convenience in directing oi>erations placed himself on the middle s'ection of a hatch, the other two sections of which had been removed for loading, and was injured when the cover gave way, is not entitled to recover against the vessel, the hatch being safe when the three sections were in place, and the only insecurity resulting from the removal of the other two, for the fault, if any, was that of the contracting stevedore in charge of the loading, and not tile vessel; this being particularly true in view of the fact tiiat it was not imperative for libelant to take a position on the hatch cover to direct operations.</p>

<p>In Error to the District Court of the United States for the District of Nebraska; Thomas C. Munger, Judge.</p> <p>Action by Harlan A'. Bennett against Clifford P. Fall. There was a judgment for plaintiff, and defendant brings error.</p>

<p>Coubts <®=>405(5) — Circuit Court of Appeals — Jurisdiction.</p> <p>Wh'ere a demurrer was sustained to plaintiff's petition on the ground that the amount in controversy was below the jurisdictional amount for federal courts, the Circuit Court of Appeals has no jurisdiction to review the question on writ of error.</p>

<p>1. Patents <S=^112(3) — Granting of Patents — Presumption.</p> <p>Tbe granting of a patent creates the presumption of patentable invention.</p> <p>2. Patents <&=a!1.‘! — Infringement—Dismissal—Validity of Patent.</p> <p>A patent for an improved acid arsenate of lead in tbe form of a line powder cannot, on motion to dismiss a bill for infringement, be declared invalid for want of invention on the ground that the prior art as disclosed by the patent showed nothing new was produced, except a difference in degree of fineness of the powder, for in so recondite a science as chemistry a difference in degree may produce revolutionary results, and hence the validity of the patent should be determined by trial on the merits.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Pennsylvania; Oliver 13. Dickinson, Judge.</p> <p>Suit in equity by the Globe Knitting Works against Keeva Segal and Benjamin Segal, doing business as the Quaker Manufacturing Company. Decree for defendants, and complainant appeals.</p>

<p>1. Patents <3^>828 — Validity and Infringement — Watch Barret,.</p> <p>The Thalhoter patent, No. 672,655, for an improved watch barrel, designed, as stated by the patentee, to improve the mechanism in simplicity of construction and the facility with which the parts may be disassembled, in such respects discloses utility and invention, but is limited to the specific structure shown, and, as so limited, helé not infringed.</p> <p>2. Patents <?:»8J2(8) — Infringement—Evidence.</p> <p>When the question of infringement is in doubt, the fact that the patent is a mere paper patent may 1urn the scale against infringement.</p> <p>8. Patents <3^>812(3) — Suit for Infringement — Bight to Relief in Equity.</p> <p>The facts that complainant in an infringement suit bought the patent as a part of the assets of an insolvent corporation, that it was never made use of, that defendant had been making the alleged infringing device for seven or eight years, and had built up a valuable trade therein before complainant brought suit, and that he did not bring it to a hearing until the end of the pal out term, are sufficient grounds for denying him relief in equity, by injunction and accounting.</p>

<p>1. Patents <@=>324(5) — Accounting foe Profits of Infringement.</p> <p>The District Court, on exceptions to the report of a master finding the profits made by an infringer, is not bound by the rule that such finding's have the weight of the special verdict of a jury, regardless of the substantial equities of the case.</p> <p>2. Patonts <@=>322 — Infringement—Accounting for Profits. ,</p> <p>The findings of a master as to the profits made by a defendant from infringement disapproved and the amount substantially reduced.</p>

<p>Patents <3^328 — Validity—Metal Oase Broom.</p> <p>Tlie Lay patent, No. 946,284, for a metal case broom, the essential feature of which is the use of two-pointed nails or staples having both points beveled on the outer side to fasten the broom straw in the casing, the staples being drawn through one side of the casing against the inner surface of the other side, causing them in most cases to clinch by bending toward each other, and thus more firmly hold the straw, is void for lack of invention, in view of tlie prior art and analogous arts, in which the use of such staples for a similar purpose had long been known.</p>

<p>In Equity. Suit by W. C. Robinson and others against the Tubular Woven Fabric Company. On final hearing on supplemental bill.</p>

<p>In admiralty. Dibel by H. W. Peterson against the American steamship Royal Arrow. Decree for libelant.</p>

<p>In Bankruptcy. In the matter of, the Independent Sewer Pipe Company, bankrupt. On review of an order of the referee disallowing a claim.</p>

<p>In Equity. Bill by the United Timber Corporation against Joseph Bivens, Sr. On rale to show cause why a restraining order or preliminary injunction should not issue until hearing. Injunction denied in regard to pending action at law, but defendant enjoined until hearing from bringing other actions, or from interfering with complainant’s alleged right to enter upon the lands for the purpose of enjoying easements granted by deeds set forth in the bill.</p>

In Bankruptcy. In the matter of the bankruptcy of II. C. Fackel-man, as surviving partner of Pomeroy & Fackelman, a copartnership, and PL C. Fackelman, individually.

<p>At Raw. Action by the Northwestern Mutual Life Insurance Company against Henry Fink, Collector, etc. Judgment for plaintiff.</p>

<p>In Bankruptcy. In the matter o£ R. H. Edelen, bankrupt. On review of order of referee sustaining objections to claims of Thomas S. Moore and others.</p>

<p>1. Batíjcbottcy ©¿=>226 — Obdeks of Rumbee — Finding of Facts.</p> <p>An order oí' a referee in a matter in which there is a dispute of fact must be supported by a finding of tbe ultimate facts; the specific facts to be found depending upon the particular case.</p> <p>2. Bankbuptcy <g=>250(i) — Oobpouatioks—-Assessment op Stogkiioldebs.</p> <p>To authorize an assessment upon stockholders of a bankrupt corporation it is necessary for the referee, inter alia, to find (1) that the assets of the company are insufficient to pay its debts; (2) that the stock, or some of it, was not paid for in full, and that the holders thereof had, or are chargeable with, knowledge of that fact in the acquirement of the stock; and (3) the pro rata share that the holders of such stock must pay, up to the par valuó thereof, in order to liquidate the indebtedness of the company and pay the expenses of the proceeding. When such findings have been made, the referee may order an assessment upon the holders of such unpaid stock for any amount of the unpaid portion found to be necessary, and for such amount only.</p> <p>3. Bankkuptcy <§=>225 — Rekbkees—Necessity ov Finding Facts.</p> <p>If a trustee, in support of a petition filed by him, fails to produce sufficient evidence to enable the referee to find the facts to sustain the order prayed for, the petition should be dismissed.</p>

In liquify. Suit by Erskine Hewitt against James Speyer, Henry Ruhlender, Richard Schuster, and Eduard Beit Von Speyer, individually and as copartners composing the firm of Speyer & Co., and the United States Mortgage & Trust Company, as trustee under the mortgage of the Guayaquil & Quito Railway Company.

<p>In Equity. Suit by the John A. Roebling’s Sons Company of California ¿gainst G. Hermann Kinnicutt and others. On motion to dismiss bill.</p> <p>The complaint alleges that: (1) Plaintiff is a California corporation. (2) Kinnicutt, Bacon, Kissel, and Stiller, copartners doing business as Kissel, Kinnicutt & Co. (hereinafter called Kissel), and Hepburn, Hiñe, and Mainland, The trustees, and Ilendee, are citizens of Now York and residents within the Southern District. The amount involved is jurisdictional. Idaho Kailway, Tight & Power Company (hereinafter called Kailway) is a Maine corporation, having an authorized capital stock of BOO,000 shares, par value $100 per share, of which 200,000 are common and 100,000 preferred. (3) Railway was qualified to and did do business in Idaho, and was there the owner of certain railroad and other properties. (4) Between March and May, 1913, plaintiff sold and delivered to Railway, in Idaho, merchandise ol the value of $38,577.17, which Railway agreed to pay. (5) Of this amount $21,057.37, with interest, remained unpaid. (6) In December, 1918, the Westinghousc Company, a Pennsylvania corporation, brought suit by a creditors’ bill against Railway in the District Court of the United States for the District of Idaho, Southern Division, and a receiver was appointed and Railway was adjudged insolvent. (7) About December 20, 1915, the District Court aforesaid entered its “final decree and judgment” by which, inter alia, it was adjudged and decreed that Railway was indebted to plaintiff upon its above-mentioned claim in the sum of $24,9(30.29 (principal and interest). Thereafter execution was issued and returned wholly unsatisfied. (8) The Revised Statutes of Maine provide for personal liability of stockholders for debts of 'a Maine corporation (which provisions will be referred to infra). (9) Prior to the sale of the merchandise by plaintiff to Railway a syndicate was formed for the purpose of acquiring and controlling certain railroad and other properties in Idaho and Oregon, which syndicate was composed of Kissel and others (Kissel being syndicate manager) and acquired control of certain securities and other property, including the stock of Railway to be organized under the laws of Maine. Between November, 1911, and August, 1912, in pursuance of an agreement between members of the syndicate whereby each member was to bo the separate owner of a specified amount of the common stock of Railway, the syndicate made certain written proposals to the board of directors of Railway whereby the syndicate offered to sell to Railway the stock and other property held by the syndicate in consideration of the issuance and delivery to the syndicate, or upon its order, of a large amount of securities of Railway, including approximately $6,630,000 of its 5 per cent, first and refunding bonds secured by a mortgage upon all the property of Railway, and together therewith approximately 96,896 shares of the common stock of Railway aggregating at par value $9,689,600. The property was sold under foreclosure and realized far less than the face of the mortgage bonds. (10) Tlie value of the assets of Railway prior to foreclosure did not exceed $4,000,-000, and since foreclosure Railway has had no assets with which to pay its remaining indebtedness and has ceased to carry on business, and it is therefore requisite to call on the holders and owners of Railway’s capital stock to discharge the amount remaining unpaid on the capital stock. (11) The offers above mentioned were, prior to August, 1912, accepted by the Railway’s board of directors, which consisted, in part at least, of the members of the syndicate. Said Railway’s directors, pursuant to the offers, caused approximately $6,630,000 of the bonds and approximately 96,896 shares of common stock to be issued to or on the order of the members of the syndicate, and “for convenience caused certain certificates” of the capital stock “to be issued or transferred to and held by” Hepburn, Hiñe, and Mainland “as trustees for the said syndicate and members thereof,” and “said capital stock * * * thereupon became and was the separate property of the members of said syndicate in certain agreed shares or parts, the exact amount of which” plaintiff does not know. The members of the syndicate, however, then and there became and ever since have been owners of not loss than 12,000 shares of the capital stock of Railway, and said certificates, representative of the capital stock, ever since their issue to the trustees (including the date of the incurring of the debt of Railway to plaintiff), have been and are now held by the trustees for the separate benefit of the members of the syndicate. The total outstanding stock of Railway is $12,565,100, par value, common, and $3,536,400, par value, preferred, and the total outstanding bonds is about $9,095,000. (12) The stock and other property which the syndicate transferred to Railway in return for the issuance to the members of the syndicate of the bonds and stock were of less value than the bonds issued, executed, and delivered by Railway and no consideration was paid by Railway for the 96,896 common, and neither defendants nor any member of the syndicate paid to Railway any consideration whatsoever upon the par value of the 96,896 common, which, including stock belonging to the- members of the syndicate, remains unpaid. (13) The Kissel firm individually and as copartners became subscribers for not less than 13,600 shares for which payment has not been made bona fide in cash or otherwise at a fair valuation and under the laws of Maine are liable to judgment creditors as original subscribers for the amount remaining unpaid on their subscriptions. (14) The members of the syndicate (except Fuller for one share) do not appear on the books of the Railway as stockholders of record. The trustees appear on the books as holding 96,896 shares of common, but that plaintiff has no means of ascertaining who are the real or equitable owners of the stock liable to the creditors of Railway, except by a discovery and accounting. (15) That Hendee was a subscriber for not less than 3,000 shares, which were issued to him for the benefit of Fuller, or of the Kissel firm and therefore that Hendee, or the person or corporation for whom he holds the stock, is liable, as an original subscriber to judgment creditors. (16) Plaintiff is without a plain, complete, and adequate remedy at law.</p> <p>The relief prayed for is as follows: (1) That the usual writ of subpcena issue. (2) That defendants Kissel (this does not include Hepburn nor Hine) may set forth an account of any right, title, or interest in and to any shares of the capital stock of Railway subsciibed for or agreed to be taken or held by them, or any of them, or by any one for their benefit, and briefly, all the circumstances under which all and every of payments or transfers or subscriptions or agreements were respectively made, and how the same respectively have been applied or disposed of. (3) That defendant George El. Hendee may, in effect, make full discovery concerning his holding. (4) That there be a discovery of the terms of the trust, and an adjustment of liabilities thereunder, of all parties herein named as defendants. That defendants Hepburn, Hine, and Mainland may set forth an account of the transactions by which they became trustees or voting trustees of any shares of stock in the Railway, the number and par value of said shares, and the terms and conditions upon which they hold the same. The name or names of the person, persons, partnerships, or corporations for whom or which said shares or any of them are held by said trustees; any sum or sums of money or other matter of value received by or paid by said trustees or any of them for the said shares of capital stock or any of said shares in consideration of any right, title, or interest, legal or equitable, which may have been transferred, assigned, or set over to said trustees; and what persons, partnerships, or corporations are, or were at any time herein mentioned, the real and true owners in law or equity of said shares of stock so held by said trustees. (5) That the defendants, or any of them, may be adjudged and decreed to pay to the plaintiff the amount of the balance due on the debt of Railway, to wit, $24,960.29, with interest according to the provisions of the laws of Maine, the contribution of each of said defendants to be computed thereunder according to the amount unpaid bona fide in cash or other thing or matter of value on the par value of any shares of the capital stock of Railway for which said defendants or any of them are adjudged to have subscribed'and which were held by or for them or any of them at the time the said debt of Railway to plaintiff was incurred. (6) That plaintiff may have such other and further relief, etc. Plaintiff does not sue on behalf of all creditors, nor is the bill against all the stockholders of Railway.</p> <p>The grounds for the motion to dismiss on behalf of Hepburn and Hine, individually and as trustees (which are inclusive of the grounds for the motion made on behalf oí Kissel et al.), are: (1) That the bill does not state a cause of equity. (2) That this court has no jurisdiction of the subject of the suit (;{) That there is a defect of parties, in that, as appears on the face of the hill: (a) There are other creditors of Railway who are not made parties; (b) plaintiff sues individually, and not in behalf of itself and other of such creditors similarly situated; (c) there are other stockholders of Railway, necessary parties defendant herein, who are not, made parties defendant; and (d) Railway is not made a party. (4) That the bill is multifarious, in that: (a) The liability alleged is not one asserted against all the material defendants and sufficient grounds do not appear for uniting the alleged causes of action in order to promote the convenient administration of justice; (b) it seeks independent judgments upon separate causes of action against different defendants; and (c) it joins causes of action against defendants Hepburn and nine in different capacities.</p> <p>The relevant sections of the Maine statute (R. S. of: Maine, chapter 47, sections 87, 88, 89, and 50) are quoted below:</p> <p>“Sec. <57. The capital stock subscribed for any corporation is declared to be and. stands.for the security of all creditors thereof; and no payment upon any subscription to or agreement for the capital stock of any corporation, shall be deemed a payment within the purview of this chapter, unless bona fide made in cash or in some other matter or idling at a bona fide and fair valuation thereof.</p> <p>“Sec. 88. No dividend declared by any corporation from its capital stock or in violation of law, no withdrawal of any portion of such stock, directly or indirectly, no cancellation or surrender of any stock, and no transfer thereof in any form to the corporation which issued it, is valid as against any person who has a lawful and bona fide judgment against said corporation, based upon any claim in tort or contract or for any penalty or as against any receivers, trustees or other persons appointed to close up the affairs of an insolvent corporation.</p> <p>“Sec. 89. Any person having such judgment * * * may, within two years after their right of action herein given accrues, commence an action on the case or bill in equity, without demand or other previous formalities, against any persons, if a hill in equity, jointly or severally, otherwise severally, who have subscribed for or agreed to take stock in said corporation and have not paid for the same; or who have received dividends declared from the capital stock, or in violation of law; or who have withdrawn any portion of the capital stock, or cancelled and surrendered any of their stock, and received any valuable consideration therefor from the corporation, except its own stock or obligation therefor; or who have transferred any of their stock to the corporation as collateral security or otherwise, and received any valuable consideration therefor as aforesaid; and in such action they may recover the amount of the capital stock so remaining unpaid or withdrawn, not exceeding the amounts of said judgments or the deficiency of the assets of such insolvent corporation.”</p> <p>“Sec. 50. Any corporation may purchase mines, manufactories and other property necessary for its business, and the stock of any company or companies owning, mining, manufacturing or producing materials or other property necessary for its business, and issue stock to the * * * value thereof in payment therefor, and may likewise issue stock for services rendered to such corporation and the stock so issued shall be full-paid stock and not liable to any further call or payment thereon; and in the absence of actual fraud in the transaction, the judgment of the directors as to the value of the property purchased, or services rendered, shall he conclusive.”</p>

<p>1. Insurance @=>455 — Accident Insurance — Externad, Violent and “Accidental Means” of Injury.</p> <p>To come within a policy insuring against death resulting from bodily injuries received “through external, violent, and accidental means,” it is not sufficient that the result should he accidental, but the means must also have been accidental, or, if the cause of the injury was a voluntary act, its effect must have been unusual and unexpected.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, Eirst and Second Series, Accidental; Accidental Means.]</p> <p>2. Insurance @=>455 — Accident Insurance — External, Violent, and “Accidental Means” of Injury.</p> <p>Insured discovered a pimple on his lip, which he opened with a gold scarf pin taken from his tie. The pin was infected, and infected the wound, causing his death in a few days. Held, that his death was due to an injury received “through external, violent, and accidental means,” within the terms of his policy.</p> <p>3. Insurance @=>456 — Accident Insurance — Risks Insured Asainst.</p> <p>In such case the insurer is not exempted from liability, by a provision in the policy that it should not be liable for accidental death “resulting wholly or partially, directly or indirectly, from * * * local or general infection,” except when such infection or inflammation results from a visible or open wound.</p>

<p>Mortgages @=5667(1) — Lands or Different Owners — Division op Serpees Arising from Forecuosurje Sale.</p> <p>Where a mortgage covered two tracts of land, one of which was afterward acquired by bankrupt subject to the incumbrance thereon, the surplus arising from a foreclosure sale of both tracts should he divided pro rata, according to the respective values of the two tracts, between the estate and the owner of the other tract.</p>

<p>In the matter of the applications for naturalization of Samuel Brit-ton and Frederick Willarts.</p>

<p>Appeal from the District Court of the United States for the District of Montana; George M. Bourquin, Judge.</p> <p>Suit by the Clark-Montana Realty Company, a corporation, and the Elm Orlu Mining Company, a corporation, against the Butte & Superi- or Copper Company, a corporation. From a decree for complainants (233 Fed. 547), defendant appeals.</p>

Clayton, Judge. Action by John C. Webb (individually and for the use of the Queen Insurance Company of America and the London & Lancashire Eire Insurance Company), the Queen Insurance Company of America, and the London •& Lancashire Eire Insurance Company against the Southern Railway Company, begun in the state court and removed to the federal court. Motion to remand being denied (235 Red. 578), plaintiffs bring error.

<p>1. Appeal AND Error <&wkey;8i7(l) — Review—Equity Cases.</p> <p>An appeal in an equity ease brings the entire case before the appellate court for review.</p> <p>2. Appeal and Error <&wkey;>1078(l) — Issues—’Waiver.</p> <p>A party’s failure to urge an issue in the appellate court is a waiver thereof.</p> <p>3. Appeal and Erbob <&wkey;1090(3) — Determination—Remand.</p> <p>Where a decree for defendant was on complainant’s appeal reversed, ' defendant, not having urged in the appellate court that the decree in its favor was proper under its cross-demand for reformation of a written instrument, cannot complain, on appeal from a subsequent decree for complainant, that the trial court refused to consider its cross-demand, for, as the question could have been raised on the first appeal, defendant is concluded, as questions brought before an appellate court cannot, on subsequent appeal, be again insisted on.</p> <p>4. Appeal and Error <&wkey;l(>71(6) — Review—Harmless Error.</p> <p>Where, under the evidence, defendant’s cross-demand would have been denied, had it been considered, the refusal of the trial court to consider the same is not prejudicial, if erroneous.</p> <p>5. Reformation of Instruments &wkey;>19(l) — Mistake—Mutual Mistake.</p> <p>Where defendant sought reformation of an option contract on the ground of mistake, it must show that the contract did not express the moaning which ihe parties understood was to be expressed, and also that the mistake was mutual.</p> <p>6. Reformation of Instruments <&wkey;45(l) — Evidence—Sufficiency.</p> <p>Where an alleged mistake is denied) reformation of a written instrument should not be decreed, except on evidence of the clearest and most satisfactory character.</p> <p>7. Reformation of Instruments <&wkey;45(2)-~Evidence — Sufficiency.</p> <p>Where defendant claimed reformation of an option contract on the ground of mistake, evidence held insufficient to- establish the mistake, or that the mistake, if it existed, was mutual.</p> <p>Batts, Circuit Judge, dissenting.</p>

<p>1. Judgment <&wkey;721 — Conclusive vess — Matters Concluded.</p> <p>Where defendant, an American exporter of cotton, agreed that the rules of the cotton exchange of which plaintiff, its foreign broker, was a member, should govern arbitration proceedings, and pursuant to the rules of the exchange plaintiff paid some of the awards against defendant, a judgment for plaintiff in an action against defendant, though limited to the amount of plaintiff’s payment, was, the entire awards being involved, a conclusive adjudication as to their validity.</p> <p>2. Limitation of Actions &wkey;2(l) — Fokeign Statutes — Agreement fob Arbi-TBATION AND AWARD.</p> <p>Where an American exporter of cotton, contemplating that there would be controversies as to quality, agreed with its German broker that such controversies should be arbitrated pursuant to the rules of the cotton exchange of which he was a member, and, arbitration being thereafter-had, the broker paid awards against his principal, the American exporter, German Civil Code, § 477, declaring that the claims for reduction or for compensation on account of the absence of a promised quality are barred by prescription in the case of movables in six months after delivery, unless the .seller has fraudulently concealed the defect, has no application, and the broker’s action on account of awards paid cannot be defeated, though at the time of payment action was barred.</p> <p>3. Evidence <&wkey;84 — Presumptions—Value of German Mark.</p> <p>In action by German broker against his American principal to recover on account of payments made as the result of awards in arbitration proceedings against the principal, it will be presumed, payment having been made in German marks, that the mark was then at its normal value, notwithstanding at time of trial it had, as a result of a subsequent war, to which Germany was a party, greatly depreciated.</p> <p>4. Appeal and Error <&wkey;1047(l) — Review—Harmless Error — Depositions.</p> <p>The refusal of a federal court for Texas to suppress depositions taken in Germany, on the ground that, they had not been transmitted to the court as provided by the Texas statutes, was not reversible error, though such depositions, because of a war between Germany and other countries, had been transmitted from Germany to the State Department at Washington, and thence mailed to the court, for, had the depositions boon committed to the mails in Germany, they might well never have reached their destination.</p> <p>5. JUDGMENT <&wkey;731 — CoNCMTSIVENESS—MATTERS CONCLUDE».</p> <p>Where plaintiff, a German broker, in pursuance of the rules of the cotton exchange of which he was a member, paid awards against his principal, an American exporter, a judgment in a previous action by • plaintiff against his principal, which restricted his recovery to the amount of awards paid, cannot be deemed an adjudication against plaintiff’s right of recovery on payment of the other awards; the judgment disclosing that it was held plaintiff’s right of action as to the awards unpaid had not accrued.</p> <p>6. War &wkey;10(2) — Trading with this Enemy Act — Eifect.</p> <p>Under Trading with the Enemy Act Oct. 6, 1917, c. .106, 40 Slat. 411, a writ of error to review a judgment in favor of an alien, who became an alien enemy before disposition thereof, need not be held in abeyance; bat, the judgment being upheld, it should be modified, so as to direct.payment to the clerk of the court, and by him to be transferred to the Alien Property Custodian, without prejudice, however, to the rights of any person, not an alien enemy, to establish an interest therein.</p>

<p>1. Bankruptcy i&wkey;446 — Review—Petition to Revise.</p> <p>On petition to revise, tbe facts cannot be reviewed.</p> <p>2. Bankruptcy &wkey;>451 — “Controversy Arising in Bankruptcy Proceeding” —Review.</p> <p>A proceeding on petition by a trustee to sell lands, on tbe theory that a warranty deed evidenced an equitable mortgage, opposed by tbe grantee, is a “controversy arising in a bankruptcy proceeding,” instead of a proceeding in bankruptcy, and hence an appeal to review a judgment therein lies under the general appellate jurisdiction of the Circuit Court of Appeals; the case not being one in which Bankruptcy Act July 1, 1898, e. 541, 80 Stat. 544, specifically provides for an appeal.</p> <p>[Ed. Note. — For other1 definitions, see Words and Phrases, First and Second Series, Controversy Arising in Bankruptcy Proceedings.]</p> <p>8. Mortgages <&wkey;33(5) — Conveyances Absolute on Their Face.</p> <p>Where the bankrupt, being in financial difficulties, and the mortgagees being about to foreclose, by warranty- deed conveyed a parcel of the land to an investment company, which at the same time gave her an option to repurchase the premises at any time within a period of seven months, the conveyance was, as it declared, an absolute one; it appearing that the parties so agreed, and that as part of the transaction, which was a most generous one to the bankrupt, she had an option of selling the premises within a prescribed period at their fair value.</p>

'Appeal from the District Court of the United States for the Northern District of West Virginia, at Wheeling, in Bankruptcy; Alston G. Dayton, Judge. In the matter of the bankruptcy of Thomas & Lott. Petition by the Follansbee Lumber Company, a corporation, opposed by the Bank of Follansbee. From a decree for petitioner, the bank appeals.

<p>1. Libel ant) Slander <&wkey;9(l) — Actionable Libel — Publication Tending to Injure in Business or Occupation.</p> <p>A written publication, which affects one injuriously in his trade or calling and contains imputations against his honesty and integrity, and which would as its natural and proximate consequence occasion pecuniary loss, constitutes a prima facie cause of action and is libelous per so, and the right follows to such damages as must be presumed to proximately and necessarily result from such publication.</p> <p>2. Libel and Slander <&wkey;80 — Action for Libel — Pleading.</p> <p>The logical elements of a declaration for libel are, first, the creating or making of a written document either libelous per so or libelous by reference to circumstances, and, next, its publication, and no further particulars are necessary to fully inform defendant of plaintiff’s claim. If the pleadings set np these facts, and the libelous character per se of the document and its publication be proven, plaintiff is entitled to some damage, tlio amount of which it is peculiarly within the province of the jury to determine under all the circumstances of the case.</p> <p>3. Libel and Slander &wkey;>99 — Action for Libel — Pleading.</p> <p>Defendant in an action for libel is not entitled to a bill of particulars from plaintiff, setting out the persons to whom the libel was published, with a statement of the amount of damages claimed because of each such publication.</p> <p>4. Libel and Slander &wkey;>104(l) — -Action for Libel — Evidence of Malice.</p> <p>A copy of a libelous publication sent by defendant to plaintiff is competent evidence in an action for the libel on the question of malice.</p> <p>5. Libel and Slander <&wkey;>50% — Privileged Communication — Qualified Privilege.</p> <p>Where, in response to a request by the publisher of a trade paper and rating book for information of his complaint against plaintiff, defendant, instead of stating the facts as claimed by him, furnished a copy of a circular, which he wrote and had printed, containing libelous matter concerning plaintiff, such communication was not privileged.</p> <p>6. Libel and Slander &wkey;>50 — Privileged Communication — Qualified Privilege.</p> <p>The fact that a defendant, in voluntarily sending circulars containing libelous matter concerning plaintiff to others, asked their opinion as to the propriety of publishing the same, did not render such communications privileged.</p> <p>7. Libel and Slander <&wkey;124(l) — Action for Libel — Instructions.</p> <p>Instructions given by the court in an action for libel hold without error.</p> <p>8. Evidence <&wkey;472(l) — Matters in Issue — Action for Libel.</p> <p>On the trial of an action for libel, it was not error to exclude testimony of a witness as to whether he considered the alleged libelous publication given him a confidential communication.</p>

C. Van Fleet, Judge. Action by William Tange, Jr., and another against the Western Union Telegraph Company, a corporation. Judgment for plaintiffs, and all parties bring error. Action for damages against the telegraph company because of delay in transmission and delivery of a telegram sent by Tange and Hastings from Oakland, Cal., to the Uyon County Bank, Yerington, Nev.

C. Van Fleet, Judge. Action by the American Trading Company (Pacific Coast), a corporation, against the North Alaska Salmon Company, a corporation. There was a judgment for plaintiff for nominal damages, and it brings error.

Ervin, Judge. Suit in admiralty by Erik Sandberg and others against the British ship Talus; John McDonald, claimant. Decree for libelants, and claimant appeals.

<p>1. Evidence <&wkey;178(6) — Secondary Evidence — Admissibility—Letter.</p> <p>In an action for alienation of tier husband’s affections, where plaintiff testified that,, after reading a letter written by defendant addressed to her husband, the husband destroyed the same, secondary evidence of the contents of the letter is admissible.</p> <p>2. Evidence <&wkey;378(4) — Documentary Evidence — Letter—Admissibility.</p> <p>A letter purporting to have been written by defendant to plaintiff’s husband, whose affections it was charged defendant had alienated, is inadmissible, where neither the handwriting nor the signature was identified as that of defendant, for a letter does not prove itself, and must be shown to have been written by the person against whom it is produced, or by some one authorized to act in his behalf.</p> <p>3. Evidence <&wkey;317(2) — Admissibility—Hearsay.</p> <p>In an action for alienation of her husband’s affections, testimony by plaintiff as to alleged statements made by defendant to the husband, and by him 'communicated to plaintiff, is inadmissible, being hearsay.</p>

Riner, Judge. Action by the Meyer & Chapman State Bank, a corporation, against the First National Bank of Cody, a corporation. At the conclusion of plaintiff’s case the court entered judgment in favor of defendant, dismissing the complaint, and plaintiff brings error. “This was an action by the plaintiff, Meyer & Chapman State Bank, against the defendant, First National Bank of Cody, to recover 810,000 as for money loaned.

■ Appeal from the District Court of the United States for the Southern District of New York. Suit in admiralty for collision by the Edward G. Murray Lighter-age & Transportation Company, owner of the tug Murray, against the ferryboat Pierrepont; the Union Ferry Company of New York & Brooklyn, claimant. Decree holding both vessels in fault, from which respondent appeals.

<p>In Error to the District Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge.</p> <p>Joseph Rosenthal was convicted of false swearing in bankruptcy, and he brings error.</p>

<p>In Error and Cross-Error to the District Court of the United States lor the Northern District of Mississippi; Henry C. Niles, Judge.</p> <p>Action by George Leavenworth, as executor of the estate of J. H. Leavenworth, deceased, against the W. D. Reeves Lumber Company and another, begun in state court, and removed to the federal court. There was a judgment for plaintiff, and defendant named brings error, while plaintiff assigns cross-error.</p>

Dyer, Judge. Action by the Altheimer & Rawlings Investment Company against E. B. Allen, Collector of Internal Revenue for the Eirst District of Missouri. There was a judgment for defendant (246 Fed. 270), and plaintiff brings error.

<p>Criminar Law <3=s>1236(1) — Habeas Corpus — Remase Penoino Appear — Effect.</p> <p>" "Where petitioners, pending appeal in habeas corpus proceedings, were on their own application released, though they failed to enter into tie recognizance required by court rule 33. subd. 3 (150 Fed. xxxvi, 79 O. O. A. xxxvi), sueli period cannot bo counted as part of the period of imprisonment, on the theory that, as they failed to give recognizance, they were subject to arrest at any time, for it was as much their duty to enter into the recognizance as for the court to require it.</p>

Action by Thomas D. Bonner, trustee in bankruptcy, against the First National Bank of Athens. There was a judgment for defendant, and plaintiff brings error.

Bill by Jacques Rousso against the Chicago Towel Company. There was a decree for complainant, and defendant appeals. The appeal here concerns United Ktates patent No. 1,157,046 to Rousso October 19, 1915, for improvements in towel cabinets designed for supplying in public places individual towels for successive users. The patent shows a device in which there is an elevated shelf on which towels are laid flat.

Dickinson, Judge. Suit in equity by Theresa S. Wendell, administratrix of Fred C. Wendell, deceased, and The Willey Company, Incorporated, against the American Laundry Machinery Company and the Locust Laundry Company. Decree for defendants, and complainants appeal.

Bean, Judge. Suit in equity by the Hassarn Paving Company arid the Oregon Has-sam Paving Company against the Reliance Construction Company, the city of Hood River, and the National Surety Company. From the final decree, defendants appeal,.

<p>1. Patents <§=328 — Validity and Infringement — Alloy of Iron.</p> <p>The Speer and Forster patent, No. 1,071,364, claim 1, for an alloy of iron named “Adamite,” covers a new article of manufacture, different from, but having characteristics of, both cast iron and steel. Such claim was not anticipated, is not invalid for insufficiency of description, and discloses novelty and patentable invention; the product being extremely valuable for the manufacture of rolls. Evidence considered, however, and held insufficient to establish infringement, but to show that defendant’s product, while having an approximate similarity of analysis and performance, possesses physical characteristics which distinguish it from Adamite, and in fact is not Adamite.</p> <p>2. Words and Phrases — “Combined Carbon.”</p> <p>The term “combined carbon,” as used in the metallurgy of iron and steel, means carbon in union with some one or more metallic constituents in the iron alloy.</p> <p>Buffington, Circuit Judge, dissenting in part.</p>

<p>In Equity. Suit by the Davey Tree Expert Company, John Davey, Martin R. Davey, James A. Davey, and Wellington E. Davey against Rue J. Van Billiard and S. C. Dunkelberger. On final hearing.</p>

<p>In Equity. Suit by the Motion Picture Patents Company against the Calehuff Supply Company, Incorporated. On final-hearing. Decree for defendant.</p>

<p>In Equity. Suit by Alberta E. Edmands against Henry Perlman, doing business as the Crown Electric Hot Pack Company. On final hearing. Decree for defendant.</p>

<p>In Equity. Suit by William H. Berry against the Fuel Economy Engineering Company, John J, Buckley, and J. F. Maclndoe. On final hearing. Decree for complainant.</p>

<p>In Equity. Suit by Jasper Blackburn against the Bonita Manufacturing Company. Oil final hearing. Decree for complainant.</p>

In Bankruptcy. In the matter of the bankruptcy of Hedley S. Best. On petition by the trustee in bankruptcy to review the order of the ref-ereé sustaining the priority of the claim of Albert D. Hanaw under a mortgage.

In Bankruptcy. In the matter of the bankruptcy of Jacob Grood-zinsky. On motion to set aside and vacate a discharge heretofore entered.

<p>1. Estoppel @=83(1) — Contracts—False Representations.</p> <p>Officers of a corporation, wbo in contracting with, complainant falsely represented that they owned and controlled all of the stock and thereby induced action on the part of ihe complainant, who in good faith relied upon the truth of the same, were estopped to deny such ownership and control, or that, being a majority of the directors, they had power to secure a proposed amendment of the charter, and to cause to be done all other things to be done on the part of the company.</p> <p>2. Corporations @=>428(12) — Officers—Fraud—Notice—Imputing to Corporation.</p> <p>Where the vice president and The secretary and treasurer of a corporation were sons-in-law of the president, who was old, feeble,' and of impaired faculties, and the three officers, with the wife of one of them, owned all of the stock, and such tv.o officers conducted its business, it was chargeable with knowledge of the. fraud practiced by them on complainant in contracting with him to rema in in its employ.</p> <p>3. Corporations @=>426(1) — Liability for Fraud of Officers — Ratification.</p> <p>A contract by officers of a corporation respecting the amendment of its charter and salaries of its officers, the enlargement of its operations, and other matters affecting its interests, related to its business and affairs, and not to their private or individual interests, and it became liable with them for its consequences by ratifying and adopting the agreement with knowledge of fraud pr acticed by the officers on the other party to the contract.</p> <p>4. Corporations @=>306 — Officers—Ratification—Personal Liability.</p> <p>The ratification or adoption by a corporation of an agreement of its officers could not shield them from responsibility for the consequences of their own fraud in connection therewith.</p> <p>5. Corporations @=>420(6) — Contracts of Officers — Ratification—Necessity of Formal Action.</p> <p>If the continued course of a cm ion of a corporation, through its officers and agents, with knowledge of which it was chargeable, was consistent only with an adoption of an iwreement of its officer on its behalf, it ratified the agreement, though no ratification or adoption was disclosed by its minutes.</p> <p>6. Corporations @=319(7) — Contract —Fraud—Evidence—Sufficiency.</p> <p>Where officers of a corporation, who owned less than a majority of the stock, contracted with the complainant that he should remain in its employ, agreeing to have the amount of slock increased, and to give him the ownership of part of the stock on certain conditions, falsely representing that they owned and controlled .ill of the stock, evidence held to show that they made no bona fide attempt to have the charter amended.</p> <p>7. Contracts @=169 — Construction- -Surrounding Circumstances.</p> <p>To ascertain the real intention of the parties to a contract containing expressions reasonably susceptible of more than one interpretation, the situation and surrounding circumstances may be considered.</p> <p>8. Corporations @=319(7) — Contract with Manager — Breach—Presumptions.</p> <p>Where officers of a corporation in December, 1911, contracted with the complainant that he should remain in its employ, agreeing to increase the stock and place a part in es< row for him, but made no bona fide attempt to do so, it will be presumed, as against them and the company as wrongdoers, that but for their nonobservance of the agreement complainant would have been as contemplated in the agreement general manager of the company under an amended charter and entitled to dividends on the agreed part of the stock prior to July, 1912, when the agreement was modified.</p> <p>9. CORPORATIONS «=5016(1)-STOCK — CONTRACT WITH MANAGER — “I/IQUIDATED.”</p> <p>lTnder a modified contract, providing that, when the debts of a corporation for 1912, as shown on tne last day of that year, were liquidated, the stock would he increased, and one-third thereof placed in escrow for complainant, who was to be general manager, the word “liquidated” meant paid, and not merely ascertained, though generally it might have either meaning.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, liquidated.]</p> <p>10. Í CORPORATIONS <3=>310(1) StOCK — OONTEACT WITH MANAGER — “DEBTS OP the Company for 1912.-’</p> <p>The “debts of tho company for 1912,” within such contract, were tho debts incurred in that year in the course of its ordinary business, and not debts for thq erection, enlargement, or multiplication of the company's plants.</p> <p>11. Corporations <3=5316(1) — Stock—Contract with Manager — Performance.</p> <p>It was the duty of the company to pay the Indebtedness for 1912 before expending large amounts for the construction and enlargement of its plants, and, where those debts might have boon paid the failure to pay them was fraud on complainant, of which the corporation or its officers could not take advantage.</p> <p>12. Corporations <s=>316(1) — -Stock—Contract with Manager — “Debts for the Year 1912.”</p> <p>An indebtedness existing in the preceding year did not constitute “debts for the year 1912,” within the contract.</p> <p>13. Corporations @=>316(1) — Contract with Manager — Abandonment or Employment — Forfeiture of Rights.</p> <p>Where complainant was employed by a corporation under an agreement that the stock was to be increased and part placed in escrow for him on certain conditions, but the corporation and its officers fraudulently omitted to amend the charter or set apart stock for plaintiff, took business properly belonging to one in his position out of his hand's, made repeated efforts to induce him to surrender his -agreement and declared it valueless and failed to pay his salary, he was justified in leaving the company’s service, and forfeited none of his rights by -so doing.</p> <p>14. Evidence <3=5590 — Testimony of Party to Fraud.</p> <p>Fraud in fact is an acted, lie, and tho testimony of a party to the fraud touching the fraudulent transaction, when uncorroborated and given in his own interest, cannot avail against the inherent probabilities of the case.</p> <p>15. Corporations <3=5319(2) — Contract with Manager — Equitable Jurisdiction — Fraud.</p> <p>Officers of a corporation contracted with the complainant that he should remain in its employ, agreeing that stock would be increased and a part placed in escrow, to become complainant’s property wlien he had increased tho earnings to a specified amount, but falsely represented that they owned all of the then existing stock, and made no bona fide attempt to amend the charter to provide for such stock increase, and subsequently took out of his hands business properly belonging to one in his position, endeavored to induce him to surrender the agreement, declaring it valueless, failed to pay his salary, and later increased the stock under an arrangement with third parties, who were permitted to subscribe for the additional' stock, thereby depriving complainant of the opportunity of acquiring any portion of the stock, or of receiving the dividends on the agreed portion of the stock. Held,, that equity had jurisdiction of a suit for relief, especially in view of equity rule 23, prescribed by the Supreme Court.</p> <p>16. Damages <@=>163(1) — Evidence—Presumptions.</p> <p>Presumptions of damage or loss of gain are indulged as against wrongdoers ; but they must be reasonable, and have relation to loss or damage which there is a reasonable probability would1 not have occurred, had not the wrong been committed, and they do not exist with respect to purely speculative or remotely possible loss.</p> <p>17. Trusts <@=3334 — Establishment and Enforcement — Grounds.</p> <p>Where a contract provided that a corporation’s stock should be increased, and one-third placed in escrow for the complainant, who was to be the general manager, and to become owner of such stock when he had increased the earnings to a specified amount, but he was wrongfully deprived of the opportunity to earn the stock, a trust could not be impressed on one-third of the company’s stock, and its delivery decreed; it not appearing that the company had any treasury stock, and it being conjectural whether the complainant would have succeeded in increasing the profits.</p> <p>18. Injunction <@=>118(5) — Suits for Injunction — Pleading—Prater</p> <p>A prayer that the selling or incumbering of the corporation’s property, in violation of complainant’s rights be restrained, was too vague and indefinite to be enforced.</p> <p>19. Equity <@=>427(3) — Relief—Prayer for General Relief.</p> <p>Under the prayer for other and further relief, complainant was entitled to such relief as was consistent with the case as made by the pleadings and the evidence.</p> <p>20. Corporations <@=>319(%) — Stock—Breach of Contract — Damages.</p> <p>It being a reasonable presumption, founded upon a reasonable probability, that if the contract had been carried out one-third of the stock would have been placed in escrow the dividends on which were to be received and enjoyed by complainant, he was entitled' to recover the dividends which the failure to carry out the agreement prevented him from receiving.</p> <p>21. Corporations <@=>38 — Change of Identity — Amendment of Charter.</p> <p>An amendment of the charter of a corporation to provide for an increase of stock would not have affected the identity of the company.</p> <p>22. Fraud.<@=312 — Promise Without Intention of Performing.</p> <p>The signing of an agreement by officers of a corporation, providing for increasing the stock and placing part in escrow for complainant, amounted to a representation of fact that they then intended to do this, and such intention not existing; they were guilty of false representation of fact.</p> <p>23. Corporations <@=>316(1) — Stock—Contracts—Consideration.</p> <p>Where a contract, as modified, provided that the stock of a corporation should be increased, and equally divided between the complainant and officers of the corporation, complainant's stock to be placed in escrow until the earnings had been increased to a specified amount, and complainant had been working for the company under the original contract for six months prior to the making of the modification, which recognized the validity of the original agreement, the services rendered or to be rendered by complainant constituted amide consideration to support the agreement as modified.</p> <p>24. Corporations <@=>319(%) — Stock—Breach of Contract — Damages.</p> <p>Where a contract under which the complainant was employed by a corporation provided that the stock should be increased from $100,000 to $150,000, and that one-third should be placed in escrow for him, subject to certain conditions, and the corporation failed to make the increase, or to give him an opportunity to earn the stock, and subsequently increased the stock to $200,000, issuing the additional stock to third persons, one-third oE the original capital stock must he taken as the baste for the com putation of the dividends measuring- complainant’s damages.</p> <p>25. Witnesses <g=»130 — Competency—Transactions with Decedent.</p> <p>T'iidei' Rev, St. | 85S. amended by Act June 29, 1906, c. 3608, 34 Stat. 618 (Comp. St. 1916, § 1401), providing that the competency of a witness shall be determined by the laws of the state, and Rev. Code, Dei. 1915, ij 4212, providing that, in actions by or against executors in which judgment may bo rendered for or against: them, neither party shall be allowed to testify against the other as to any transaction with the testator, complainant could testify to a transaction with a deceased officer of a corporation as the basis, for & decree against the corporation, though the oiHeer’s estate owned stock, as a decree against it would not be a decree against the executrix.</p>

In. Admiralty. Suit and cross-suit for collision between the steamships City of Norfolk and Hawkhead. Decree in favor of the Hawk-head.

In Admiralty. Libel and cross-libel for collision between the steamships Powhatan and Telena, and petition for limitation of liability by the owners of the Powhatan. Decree in favor of the Telena.

<p>In Equity. Suit by the Chestnut Ridge Railway Company against the United States, in which the Interstate Commerce Commission intervened. Conditional decree for complainant.</p>

<p>1. SHIPPING <&wkey;141(l) — Damage to Cargo — Liability op Vessel.</p> <p>Under a bill of lading providing tliat lighterage in discharging the cargo shall bo at the “risk and expense of the cargo,” any loss or damage suffered by the cargo during the lighterage without fault on the part; of the ship must be borne by the cargo; but it does not relieve the ship from liability for such loss or damage through the culpable, negligence of the ship or her owner.</p> <p>2. Shjippijn'g &wkey;>126 — Damage to Cargo — Liability op Vessel.</p> <p>Respondent steamship received a shipment of phosphate rock, to be delivered at libelant’s wharf in Philadelphia. As the vessel could not reach the wharf, owing to insufficient depth of water, it was agreed that the cargo should bo lightered, lighterage to be “at the risk and expense of the cargo.” Libelant was to unload the lighters and be paid for the service. On arrival, the vessel employed two open or deck lighters, on which it discharged the cargo. The second lighter reached the wharf too late on Saturday to be unloaded that clay, and during the delay the cargo, which was insufficiently protected, was damaged by rain. Held, that the carrier’s responsibility did not end until proper delivery of the cargo on the wharf, and that in failing to provide lighters or coverings that would protect it from injury until that time it was culpably negligent, and was liable for the damage.</p> <p>8. Admiralty <&wkey;59l — Plead itntg.</p> <p>To prevent surprise and promote the due administration of* justice, parties are held in admiralty, as in other branches of jurisprudence, to the-positions respectively taken by them in their pleadings.</p>

In Admiralty. Suit for demurrage by George Mikkelsen, master of the steamship Olaf, against a cargo of sugar; the Franklin Sugar Refining Company, claimant. Decree for libelant.

In Admiralty. Suit by Charles E. Wood against the steamship Frances L. Skinner, formerly called Sesostris; D. E. Skinner, claimant. On motion by claimant for additional security for costs.

<p>1. Salvase <&wkey;39 — Lien .FOR Salvage — Nature of Service.</p> <p>In order to give a maritime lien for salvage service, it must have been performed in salving property in peril on navigable waters, which might otherwise be destroyed, and must also have' contributed immediately to the preservation or rescue of the property. It is a further condition that the lien claimant must have held in actual possession or kept near- the imperiled property with the means at command and actually employed to preserve and save it.</p> <p>2. Admiralty <&wkey;10 — Salvage <&wkey;3(i — Jurisdiction—Maritime Contract.</p> <p>In 1907 an ocean steamship was cast on shore in a heavy storm on the coast of Guatamala, and was left on the land 100 feet from high-water mark. Five years afterward libelant and others on request of the owner, undertook to float the steamer in accordance with a plan of,libel-ant, by excavating around it and making a canal to the sea. The machinery and .appliances used were all placed on the land. After proceeding for a time with the work, it was temporarily suspended to permit libelant to go for further appliances, and on his return the owner refused, to permit him to proceed or to remove his machinery. Some four years afterward the vessel was finally floated by another contractor, using, as alleged, the plan of libelant, who thereupon brought a suit in rem against the vessel, which had passed into other hatids. Held that, the vessel having ceased for years to be engaged in commerce and navigation, and resting on dry land, the contract was not maritime, but was of the same nature as a contract to build a vessel, and was not within the jurisdiction of a court of admiralty. Held, further, that there was not such a continuity of service, or of offer and readiness to perform service, - as would support a lien for salvage.</p>

In Admiralty. 'Libel by Lillie Wilkins, administratrix of the estate of Alexander Wilkins, deceased, against the New York, Philadelphia & Norfolk barge No. 4, and the steam tug Delmar, to recover for loss of life caused by collision, in which the administrators of Edward Bishop and others intervened. Decree for libelant and petitioners.

<p>Petition for habeas corpus and certiorari by James Summertime against Rocal Board, Division No. 10, and others.</p>

<p>.in Admiralty. Suit by Albert Uastorf against the Leonhard Michel Brewing Company. Decree for respondent.</p>

<p>' In Equity. Bill by Leander J. De Bekker against the Frederick A. Stokes Company and another.</p>

In Bankruptcy. In the matter of the bankruptcy of I,oeb Schwartz. On petition for dismissal of the voluntary petition and to enjoin the bankrupt from filing further petitions or applications for discharge.

<p>1. Fraudulent Conveyances <@=3241(2) — Setting Aside — Federal Courts— J UBISDICTrON — SUBETJES.</p> <p>Though complainant recovered a decree in the state court against the executor of his father’s estate for a devastavit committed by such executor, that decree does not establish the liability of the sureties on the executor’s bond, so as to warrant complainant in maintaining a suit in the federal court to. enjoiB such sureties from disposing of their property until the decree should be satisfied, for a federal court of equity is without jurisdiction to intervene to set aside fraudulent conveyances of a debtor at the instance of a creditor whose debt is not acknowledged or established by a judgment rendered, accompanied by a right to the appropriation of the property to payment, and the sureties, though the decree established the devastavit, might defend on the ground that the bond was a forgery, etc.</p> <p>2. Injunction <@==>44 — Jurisdiction—Adequate Remedy.</p> <p>In such case, could the judgment against the executor alone be held as giving complainant a right to the appropriation of the property of the sureties, such judgment would necessarily carry with it a vested and superior right in the court rendering the same to at once take possession and dispose of the property under execution against the executor, and hence a suit in equity in the federal court to enjoin disposition thereof should be dismissed, being unnecessary, complainant already having an adequate remedy.</p> <p>3. Constitutional Raw <@=3315 — Due Process of Law — Deprivation of Property.</p> <p>Could & decree against an executor for a devastavit committed by him as such be deemed to give complainant the right to appropriate the property of the sureties under execution against the executor, the exercise of such right would be in violation of the due process of law clause of Const. U. S. Amend. 14.</p>

<p>Maritime Dtens <@=365 — Evidence—Negligence—Boat Breaking from Anchorage.</p> <p>Tile breaking away from her anchor of a motorboat and her consequent injury hold, on the evidence, noc due to any fault of libelant, which was making repairs on her, but was not charged with her care, but to the insufficiency of her anchor and cable, of which the owner had previously been advised.</p>

Hamilton, Judge. Bill by Antonio Franceschi y Franceschi against Walter McK. Jones and others. From a decree of the District Court of the United States for the District of Porto Rico, dismissing the bill, complainant appeals.

Action by the Vulcan Metals Company, Incorporated, against the Simmons Manufacturing Company, begun in the state court and removed to the federal court, together with an action by the Simmons Manufacturing Company against the Vulcan Metals Company, Incorporated, and Albert Freeman, who counterclaimed.

<p>1. Taxation <@=>249 —Irrigation Districts — -Exclusion of Lands.</p> <p>While Rev. St. Colo. 1908, § 3438, declares that in no case shall any land be taxed for irrigation purposes which from any natural cause cannot be irrigated or is incapable of cultivation, yet, as the exemption provided by section 3440 wiih respect to lands already irrigated is lost, unless claimed, the exemption contained in section 3458 is waived, where ontrymen on public lands, instead of objecting to the inclusion of their lands within an irrigation district, petitioned for inclusion as soon as they should acquire a freehold title.</p> <p>2. Waters and Water Courses <@=>226 — Irrigation Districts — Exclusion of Land.</p> <p>The provision for payments on inclusion of lands in an irrigation district, contained in Rev. St. Colo. 1908, § 3474, is for the "benefit of the district, and may be waived; hence lands, having been included within a district, cannot be excluded therefrom because compliance with the provision was not required.</p> <p>3. Waters and Water Courses <@=226 — Irrigation Districts — Exclusion.</p> <p>Under Rev. St. Colo. 1908, § 3484, the hoard of directors of an irrigation district cannot exclude lands therefrom on petition of the owners, where there are outstanding bonds.</p>

Dyer, Judge. Petition by Robert Henry Eranke for writ of habeas corpus against Col. Cunliif H. Murray. From, a judgment discharging the writ and remanding petitioner to custody, he appeals.

Pritchard, Judge. Suit in equity by Margaret Corwin Radcliffe Gooch against Annie Wayne Suhor and George Suhor, her husband, the Old Dominion Trust Company,- as trustee; the Old Dominion Trust' Company, as curator of the estate of W. H. Gooch, deceased, and the Old Dominion Trust Company. Decree for complainant, which on appeal of defendants was reversed. 244 Fed. 361, 156 C. C. A.. 647. On petition for leave to file bill of review.

Criminal prosecution by the United States against John W. Roberts. Judgment of conviction, and defendant brings error. The plaintiff in error was indicted jointly with one Leo E. Coyne on Septem-oer 8, 1916, in the United States District Court for the Western Division of Washington, Northern Division, for violation of sections 37, 32, and 145 of the Penal Code of the United States. The indictment contained eight counts.

Bean, Judge. Suit in. admiralty by the Compagnie Maritime Francaise, owner o^ the French bark Due D’Aumale, against Hermann L. E. Meyer, George H. C. Meyer, Hermann L. E. Meyer, Jr., J. W. Wilson, and John M. Quaile, partners under the style of Meyer, Wilson & Co., and cross-libel against the vessel. ' Decree for respondents on cross-libel, and libelant appeals.

Newman, Judge. In the matter of the bankruptcy of the Georgia Steel Company. On petition of the Georgia Iron & Coal Company and others against O. T. Peeples, as trustee in bankruptcy, to review an order of the referee disallowing petitioner’s claims against the estate, the order was reversed, and the claim allowed (240 Fed. 473), and the trustee appeals.

<p>1. Shipping <&wkey;54 — Charters—Demise op Scow- — -Liability op Charterer.</p> <p>A charterer of a scow, under a charter which is a demise, is a bailee, and prima facie responsible for any failure to return the boat in good order, reasonable wear excepted; and this liability is not discharged by showing that, the vessel had been intrusted to the care of another, and injured by that other’s negligence, or while in his charge.</p> <p>B. Towage <&wkey;ll(5) — Injury to Tow — Liability op Tug.</p> <p>A motorboat, which contracted to tow a scow over a bar upon which the water was of sufficient depth at the proper state of the tide, held liable for injury to the scow by stranding on the bar in the daytime in fine weather, either due to a miscalculation of the tide dr to the swell which caused her to pound when in the trough.</p> <p>S. Shipping <&wkey;58(l) — -Charters—Enforcement op Charterer's Liability by Insurer.</p> <p>The owner chartered a scow hy a charter of demise, to be ordinarily employed within the limits of New York harbor. The owner maintained insurance in the form common for harbor traffic; the policy providing that it should he void if the scow was taken beyond the harbor limits. It was agreed, however, between owner and charterer, that it might be taken outside of such limits, if the charterer paid for the additional temporary insurance required, which the charterer did by procuring a rider to be attached to the owner’s policy, and subject to its conditions extending the insurance for the particular trip named therein. On ono of such trips the scow was injured, and the insurer paid the loss to the owner. Held, that the insurance was for the benefit of the owner, and not of the charterer, and that the insurer, as assignee of the owner, could maintain a suit to enforce the liability of the charterer under the charter party for failure to return the scow in good condition.</p>

Bill by Shepard N. Edmonds against Joseph W. Stern and Edward B. Marks for infringement of copyright. From the decree, issuing an injunction, without damages, and granting plaintiff’s attorney a small fee, both parlies appeal. Plaintiff composed the words and music of a certain song, which he sold to defendants, who copyrighted it in 1903, under a royalty agreement.

<p>1. Master asd Servant &wkey;>862 — Master’s Liability for Injury to Servant —Woiusmen’s Compensation Act — Construction—“Casual Employment.”</p> <p>Gilder the Workmen’s Compensation Act of West Virginia (Acts 1915, c. 9, as amended by Acts 1915 [Ex. Sess.] c. 1), which exempts from its operation persons in “casual employment,” the exemption depends, not on the nature of the work performed, but on the nature of the contract of employment, and one hired for a limited and temporary purpose, though within the scope of the master’s business, is within the exception.</p> <p>3. Master and Servant <&wkey;28!>(21) — Master’s Liability eor Injury to Servant’ — Contributory Negligence.</p> <p>Where plaintiff, temporarily employed by defendant telegraph company to assist in repairing a portion of its. line, was injured by the falling of a pole upon which he had climbed in the course of duty, which was caused by the breaking of the pole where it had become decayed below the suri'a ce of the ground, the defect not being apparent by inspection above the ground, plaintiff was not chargeable as matter of law with contributory negligence or assumption of the risk.</p>

Campbell, Judge. Bill Dosset was convicted of the offense of carrying liquor from a point outside the state of Oklahoma into that part of the state which prior to statehood was part- of the Indian Territory, and he brings error.

Tuttle, Judge. Action by the United States against the Grand Trunk Western Railway Company for a violation of the Twenty-Eight Hour Eaw. There was a judgment for the United States, and defendant brings error.

Application to the District Court of the United States for the District of Indiana. Application by the Federal Fife Insurance Company for an alternative writ of mandamus to com cel the settlement of a bill of exceptions. The real controversy herein arisen over the inability of counsel to agree upon what constitutes a presentation to the court of the bill of exceptions.

Suit by Charles W. M ayer against A. & H. G. Mutschler and others. From a decree (237 Fed. 654) for complainant, defendants appeal.

<p>Patents <&wkey;328 — Infringement—Distributing Apparatus.</p> <p>The Stebler patent, No. 948,799, for a distributing apparatus for distributing into different bins fruit as it comes from a grader, as limited by the prior art, and especially by the Strain patent, No. 775,015, held not infringed.</p>

<p>Appeal from the District Court of the United States for the Second Division of the Northern District of California; Frank H. Rudkin, Judge. _</p> <p>_ Suit in equity by the Simplex Window Company against the Hauser Reversible Window Company, Frederick Hauser, and Jessie Hauser. Decree for defendants, and complainant appeals.</p>

Suit by Fred Stebler against the Porterville Citrus Association, for an. injunction restraining an infringement of complainant’s patent and a decree for profits realized and damages sustained by reason of the infringement. From a decree for defendant, complainant appeals. The complainant, Stebler (appellant), is the owner of United States letters pal cut numbered 775,015, for a new and' useful fruit grader, granted to Thomas Strain on November 15', 1904.

<p>Appeal from the District Court of the United States for the District of New Jersey; Charles P. Orr, Judge.</p> <p>Suit in equity by Claude A. P. Turner against the Lauter Piano Company and the American Concrete Steel Company. Decree for defendants, and complainant appeals.</p>

<p>Appeal from the District Court of the United States for the Western ’District of Michigan; Clarence W. Sessions, Judge.</p> <p>Suit in equity by William Vanmanen against George Leonard and Nicholas Bouma. From the final decree, complainant appeals.</p>

<p>In Admiralty. Suit by Olat Olsen against the steamship Thor; Ole Hansen, claimant. Decree for respondent.</p>

<p>In Equity. Bill by Roger Foster against Callaghan & Co. On motions to dismiss bill and to strike out paragraphs thereof.</p>

<p>1. Shipping <3=3104 — Contracts—Construction.</p> <p>Words used in a mercantile contract lor affreightment by water of a designated cargo should be given a meaning as used in the mercantile sense.</p> <p>2. Shipping <@=5108 — Contracts—Brisach—“Liberty to Caul.” .</p> <p>Where a contract for affreightment of a designated cargo from Florida to England, by reference to the ocean bill of lading of the vessel, gave the vessel the liberty to call at any port or ports in or out of the customary route, the carrier’s refusal to accept the cargo, except with the understanding that it reserved the option of forwarding the same via a continental port, should it prove necessary, was a breach, for the “liberty to cull” is restricted to ports lying in or near the usual and direct course of the voyage, and there was an attempt on the part of the carrier to ingraft on the contract an additional term.</p> <p>3. Shipping <@=5l0L — Contracts—Modification.</p> <p>The terms of a contract for affreightment by water cannot be changed, save by evidence of a general custom or usage, which by implication must bo deemed to have entered into the contract.</p> <p>4. Shipping <3=5101 — Contracts—Breach.</p> <p>Where a carrier by water breached its contract of affreightment, libel-ant is entitled to recover the increased cost of freight, the expense of storage, and the cost of fire protection until a bottom could be procured.</p>

<p>1. Shipping <g=51 — Charters—Right op Owner to Cancel — Effect of War.</p> <p>The existence of a state of war between United States and Germany did not operate to relieve a shipowner from its obligation to fulfill a prior charter, by which it undertook to carry a stated quantity of nitrates from Chile to ports of the United States, under the “restraint of princes” clause of the charter party, even conceding that nitrates are contraband of war, in the absence of any actual arrest of any of the vessels engaged in carry - ing out the contract, or imminent danger of their capture.</p> <p>2. Siru’PrNG <@=>51 — Corporate Entity — Liability fob Contracts of Auxiliary Corporation.</p> <p>A corporation which leased a number of ships, of which it was owner, for a term of years, for operating purposes to another corporation, which was practically the same, having the same stockholders, president, and directors, held liable for a breach of charter by its lessee.</p>

In Admiralty. Ribel by the Rockland & Rockport Rime Company, owner of the steamship Fred E- Richards, against the owners of the schooners Mary R. Crosby and Henry R. Tilton, with citation against Fields S. Pendleton. On motion by F. S. and E. S. Pendleton, claimants, to set aside and vacate a decree entered pro confesso.

In Equity. Suit by Nathan Gregg and others against Roy C. Me-gargel, doing business under the firm name of R. C. Megargel & Co. On motion for preliminary injunction.

In Admiralty. Suit for salvage by Maurice Bowden and others against the steamship Rosalie Mahoney, with the Cummer Rumber Company and the Jacksonville Forwarding Company as intervening libelants. Decree for libelants.

In. Equity. Bill by the Atchison, Topeka & Santa Fé Railway Company against J. F. Weeks and others for an injunction. This suit is brought by the complainant, the Atchison, Topeka & Santa Fé Railway Company, against the defendants J. B. Roberts, temporary administrator of the estate of O. L. Kelso, deceased, J. F. Weeks, Charles Owen, and Seth B. Orndorff, sheriff of 131 Paso county, to restrain them by injunction from the collection of a judgment of a state court.

Information was filed against Leo Simon and Fanny Brunhild, trading as Brunhild, Simon & Co., alleging shipment in violation of the Food and Drugs Act of adulterated and misbranded brandy. On motion to quash the information.

In the matter of the wrages and effects of J. T. MacDonald, a deceased seaman, late of the steamship Notano. On question of allowance of fees to shipping commissioner.

<p>In Admiralty. Suit by M. S. Arrue against the Consolidation Coal Company, with the United Dine, Incorporated, impleaded. Decree for libelant against the Coal Company alone.</p>

In Bankruptcy. * In the matte)" of A. Corbitt, bankrupt. On exceptions to the report of the referee, sustaining the claim of the mortgagee to the proceeds of certain property.

<p>1. Aliens <&wkey;71%, New, vol. 7 Key-No. Series — Naturalization—Cancellation of Certificate.</p> <p>A certificate of naturalization is not subject to cancellation because tbe applicant, in bis declaration of intention and petition, misstated tbe year of bis birth; there being nothing to indicate that such misstatement was intended as a willful misstatement of a material fact.</p> <p>2. Aliens &wkey;>69 — Naturalization—Change of Record.</p> <p>While an order admitting a person to citizenship is treated as a judgment, and cannot be subsequently changed or amended at a later term, purely clerical mistakes can be corrected; and hence an additional paper may be ordered filed, to show the correct age of the alien, misstated in his declaration of intention and petition.</p> <p>3. Citizens &wkey;>9 — Children—Naturalization of Parent.</p> <p>Under Rev. St. § 2172, re-enacted by Act March 2, 1907, c. 2534 (Comp. St. 1916, § 4367), declaring that minor children dwelling in the United States become citizens on naturalization of their parents, where an alien father, on naturalization, omitted the name of a minor child residing‘in the United States from his papers, such child, though his name did not appear on the certificate, became a citizen, for the omission of his name did not affect the validity of his father’s naturalization.</p> <p>4. Aliens <&wkey;69 — Naturalization—Change of Certificate.</p> <p>Where an alien father, on naturalization, omitted the name of a minor child, and such child became a citizen under Rev. St. § 2172, additional papers, showing the existence of the child, can thereafter be ordered filed, and a new certificate of naturalization, showing the true facts, issued on surrender of the old.</p>

<p>1. Constitutional Law <&wkey;83(2) — Involuntary Servitude.</p> <p>Selective Draft Act May 18, 3917, c. 15, 40 Stat. 76, both as respects citizens and declarent aliens, is not in violation of Const. U. S. Amend. 13, as imposing involuntary servitude.</p> <p>2. Constitutional Law <&wkey;190 — Ex Post Eaoto Laws — What are.</p> <p>As the Selective Draft Act is not an ex post facto law as • to citizens, it cannot he deemed ex post facto legislation as to aliens; for, while Congress could not affect an alien’s right to come into the country by a change thereafter in the requirements of admission, nevertheless in all other respects his status after entry is just the same as that of a citizen.</p> <p>3. Treaties <§=>11 — Repeal—Conflicting Statutes.</p> <p>While Const, art. 6, cl. 2, declares that the laws of Congress and treaties are the supreme law of the land, treaties give way to a subsequent statute; hence treaties with foreign nations are repealed in so far as they are in conflict with the express provisions of the Selective Draft Act.</p> <p>4. Aliens <&wkey;l — Naturalization—Declaration.</p> <p>A foreigner, holding only a declaration of intention, is still a subject of the foreign country.</p> <p>5. CONSTITUTIONAL LAW <&wkey;70'(3)-SEPARATION OP L’OWKRS-AUTHORITY OP Courts — Validity.</p> <p>U10 Selectivo Draft Act cannot be declared. Invalid In its operation as to declarant aliens who are still foreign subjects, on the theory that it is contrary to the public policy of the United States to recognize the right of any nation to impress into military service subjects of another nation, for the courts have no power to declare a law unconstitutional because it is in contravention with the so-called law of nations.</p> <p>6. Habeas Corpus <&wkey;16 — Hemedy—Scope.</p> <p>A declarant alien, certified into military service under the Selective Draft Act, may hy habeas corpus raise the question of the propriety of his certification.</p>

<p>Habeas Cobp us &wkey;>i(> — Exemptions—PResentation of Olaih.</p> <p>Under Selective Service Act May 18, 1917, c. 15, §§ 2, 4, 5, 40 Stat. 7G, exempting nondeclarant aliens, providing for local and district boards to dispose of exemption claims, but requiring all malo persons between 21 and 30 to register, a nondeclarant alien,, who did not present Ills claim for exemption to the local or district boards, and failed thereafter to apply for a reopening of his case pursuant to the regulations, and who has been certified into military service, is not entitled to exemption on writ of habeas corpus, for the act does not of itself excuse nondeclarant aliens, tout require:; that their exemption claims be presented to the hoards for allowance.</p>

Habeas Corpus. Petition by the United States, on the relation of Omero Bartalini, for a writ of habeas corpus against Capt. Cornelius Von E. Mitchell, of Battery F, 305lh Field Artillery, or any person in charge of said Battery, Camp Upton, Suffolk County, Bong Island.

<p>1. Aijens <g=^>G8 — Naturalization—Good Moral Character — Reapplioation.</p> <p>While admission to citizenship may be denied, if the applicant does not show that he has behaved as a person of good moral character and attached to the principles of the United States for more than live years preceding his application, the denial of an applicant’s petition for admission to citizenship on the ground of an illegal sale of. intoxicating liquor does not preclude him from thereafter reapplying for admission.</p> <p>2. Army and Navy <S^>2() — Selective Draft— Declarant Aliens.</p> <p>An alien, who had filed declaration .of intention more than seven years ago, and whose petition for admission t,o citizenship was denied on the ground that he illegally sold intoxicating liquor, is still a de-clarant, within Selective Draft Act May 18, 1917, c. 15, 40 Stat. 76, for he might renew his declaration of intention, and the fact that he made an illegal sale of liquor would not preclude a subsequent petition for admission.</p>

<p>Habeas Corpus. Application by the United States, on the relation of Abraham Warm, for writ of habeas corpus against J. Franklin Bell, Commander of the National Army at Camp Upton, N. Y.</p>

<p>Habeas Corpus. In the matter of the application of Bernard I,. Halpern for writ of habeas corpus against the Commanding Officer of the National Army at Camp Upton, N. Y.</p>

Habeas Corpus. In the matter of the application of Salvatore Traína for writ of habeas corpus directed to the commanding officer at Camp Upton, N. Y.

Habeas Corpus. Petition by the United States, on the relation of Irwin F. Brown, for a writ of habeas corpus against the Commanding Officer of the Seventy-Seventh Division of the National Army of the United States at Camp Upton, Yaphank, Dong Island, N. Y.

<p>1. Seamen @=29(5) — Action eoe Wucngeuc Death — Pleading-.</p> <p>A libel against a foreign steamship, to recover damages under a state statute for a wrongful death, alleged to have been caused by the negligence of respondent, held to siulieiently allege that the injury occurred within the territorial waters of the state.</p> <p>2. Admiralty @=65 — Pleading—Exceptions to Libel.</p> <p>Under the liberal rules of pleading in admiralty, exceptions to the libel may be taken in the answer, although the better practice is to except before answering.</p>

<p>1. Towage <s=»ll(5i — Stranding of '^ow — Evidence of Fault.</p> <p>That a tug, before tbe stranding of ber tow, bad been using long bavtsers in inland waters in violation of "he statute, does not prove faulty navigation in matters which could m>t be affected by'the length of the tow.</p> <p>2. Towage @=>12(2) — S-tranding of 'Cow — Fault.</p> <p>A tug with three barges in tov coming into New York Harbor, stopped in the Main Ship Channel to shorten the hawsers at a place which was unusual and at the time unsafe, because the tide created a side drift. The middle barge, which was of I he greatest draft, had an apparatus for shortening her hawsers, which she proceeded to do, taking more time than was necessary. The tug, obseivmg that the tide was setting the tow toward shallow water, signaled the barge to make fast, with the intention of towing ahead; but the barge paid no attention to the signal, and when it was repeated 10 minutes lato she was aground and suffered injury. Held, that both vessels were in fault; the tug for not stopping in a safer place, and the barge for taking unnecessary time, and for not obeying the first signal.</p>

<p>In Admiralty. Ribel by G. W. Frazier against Edgar E. Ruckenbach and the estate of Edgar Ruckenbach.</p>

<p>In Admiralty. Ribel by H. R. Moss & Co. against the steamer Florence H. On objections to the jurisdiction of the court.</p> <p>H. E. Moss & Co., the owners of the British vessel Mirlo, hied a libel in rein against the steamer Florence H., alleging a collision on the high seas, for which the libel claimed damages. The stipulation upon whieb the suggestion of record was hoard stated that the Florence H. np to August 3, 3917, was under construction at one of the private shipyards of the United States. On that day the United States Shipping Board Emergency Fleet Corporation, under the Urgent Deficiency Act of June 15, 1917 (40 Stat. 182, e. 29), requisitioned the Florence H. for national purposes connected with the war and took title by executive order of the President under powers conferred on him by that act. After her completion, the Florence H. was delivered by the Fleet Corporation to the United States Shipping Board, a governmental agency of the United States, and was registered in the name of the United States by the Shipping Board on the 19th day of November, 1917. Subsequently the board chartered the Florence H. to the French government for one round trip voyage from the United States to France. The charter was a demise, and she was manned by a French crew and carried a cargo of food Cor the French government. Returning from France in ballast, and while still in the possession and control of her French crew, she came into collision with the British steamer Mirlo, owned by the libelants. On her arrival in New York the French government redelivered her to the Shipping Board, which in turn redelivered her to the United States Shipping Board Emergency Fleet Corporation under a charter which likewise constituted a demise. After this delivery she was berthed in the port of New York for a cargo belonging to the French government, which was to be transported from that port to France on behalf of the French government. She remained, however, still in the possession of the Fleet Corporation under the aforesaid charter. 'The Fleet Corporation was organized under the laws of the District of Columbia in pursuance of section 31 of the Shipping Act, passed September 7, 191(1 (Act Sept. 7, 3Old, c. 451, 39 Stat. 728 [Comp. St. 1910, §§ 8346a~8146r]). All the stock is held by the United States Shipping Board, except one share each held by the six trustees of the Shipping Board by virtue of their title.</p> <p>In accordance with I lie prayer of the libel, process was issued from the District Court to the marshal for the Southern district of New York, who, in pursuance of the said process, arrested the steamship Florence H. and .put Ms custodian in charge of her, and ¡hereafter, at the request of the United States Shipping Board Emergency Meet Corporation, the custodian was withdrawn in consideration of a lett er by the counsel for the United States Shipping Board Emergency Fleet Corporation, agreeing to give a bond to cover the claim of the libelant in the ovent that the court should sustain jurisdiction against the Florence H. The case in its present aspect, therefore, is to be dealt with upon the assumption that the marshal is now in actual custody of the ship. The United States Shipping Board and the Emergency Fleet Corporation appear by admirr 1 ':.y counsel and suggest upon the record that the ship may not be subject to arrest as in ordinary civil cases. The district attorney for the' Southern district of New York likewise appears specially on behalf of the United States and objects to the jurisdiction of the court. Mr. James K. Symmers appears as amicus curiae on behalf of the French government.</p>

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

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

Sheppard, Judge. Libel by the Bay Point Mill Company against the gasoline launch Helmar, claimed by L. L. Aymard and another. From a decree for libelant, claimants appeal.

<p>Appeal from the District Court of the United States for the Southern Division of the Southern District of Illinois. Bill by Charles M. Caldwell against Dell D. Nichols. From a decree dismissing the bill, complainant appeals.</p>

<p>In Error to the District Court of the United States for the Southern Division oí the Southern District of California</p>

<p>In Error to the District Court of the United States for the Western District of Michigan; Clarence W. Sessions, Judge.</p>

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

<p>Appeal from the District Court of the United States for the District of New Jersey, Thos. G. Haight, Judge. Suit in admiralty by the Franklin Transportation •Company against the Great Lakes Towing Company. Decree for respondent, and libelant appeals.</p>

<p>Appeal from the District Court of the United States for the Western District of Kentucky, in Bankruptcy: Walter Evans, Judge.</p>

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

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

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

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

In B-'ror to the District Court of the United States for the District of Connecticut. Nelson Judd, alias Googie Watson, was convicted of violating the law with respect to narcotics, and he brings error.

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

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

<p>Appeal from the District Court of tbe United States for the Northern District of Ohio, in Equity.</p>

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

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

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

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

<p>In Error to the District Com-t of the United States for the Eastern District of Tennessee; John E. McCall, Judge. Action by Walter N. Kriminger against, the. Southern Railway Company. There was a judgment for plaintiff, and defendant brings error.</p>

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

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

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

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

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

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

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

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

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