Volume 249 — Federal Reporter

Whitaker Thompson, Judge. Bill by Archibald A. Alexander, Mary C. Alexander, and John S. Alexander against the Fidelity Trust Company, executor of the estate of John Alexander, to compel an accounting. Prom a decree in favor of Archibald A. Alexander, but denying relief to the other complainants, the trustee and Mary C. Alexander and John S. Alexander severally appeal, while Archibald A. Alexander appeals from an order supplemental to the decree, staying execution thereon.

<p>In Error to the District Court of the United States for the District of Porto Rico; Hamilton, Judge.</p> <p>Ejectment by the United States against the Porto Rico Railway, Light & Power Company. There was a judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the District Court of the Canal Zone; Wm. H. Jack-sou, Judge.</p> <p>Action by H. G. Moyers against the Panama Electric Railway Company. There was a judgment for plaintiff, and defendant brings error.</p>

<p>1. Courts <§=276 — United States Courts — District por Bringing Suit — Waiver op Objections by Appearance.</p> <p>Where a petition for the appointment of a receiver of a foreign corporation was filed in 'the federal District Court for the state wherein it was doing its principal business, the corporation’s, voluntary appearance and filing of an answer cured any objections on the ground of want of .jurisdiction of its person.</p> <p>2. Corporations <§=oó7(%) — Receiver—Appointment—Dismissal oe Bill.</p> <p>A bill seeking the appointment of a corporate receiver should he dismissed by the court on its own motion, when it appears that the court is without jurisdiction, regardless of how knowledge of that fact may be acquired.</p> <p>3. Courts <§=262(3) — United States Courts — Receiver—Appointment— Jurisdiction.</p> <p>A New Jersey corporation, which controlled many subsidiary public service corporations, continuously carried on its principal business in Pennsylvania. Its most important subsidiaries were chartered by that state, and their plants located therein. The New Jersey company became embarrassed and on petition by stockholders a'receiver was appointed by the district federal court for Pennsylvania, the appointment being consented to' by a majority of the stockholders and creditors. Nearly all of the creditors were residents of Pennsylvania. Held, in view of the power exercised by the Pennsylvania state courts, the district court had jurisdiction to appoint a temporary receiver for the purpose of protecting the corporation, its subsidiaries and the public.</p> <p>4. Courts <§=263 — United States Courts — Receiver—Order of Affointment — Jurisdiction.</p> <p>Where the federal District Court had jurisdiction of the subject-matter, warranting the appointment of a receiver of an embarrassed corporation, it had authority to decide all questions arising therein and its rulings could be questioned only by those properly parties. ^</p> <p>gssFor otter eases see same topic & KEY-NUMBSR in all Key-Numbered Digests & Indexes</p> <p>5. Corporations <@=^556 — Receiver—Intervention—Appointment.</p> <p>Where the court appointing a receiver of a financially embarrassed corporation had jurisdiction of the subject-matter and the corporation, a stockholder cannot, merely by virtue of his interest as such, intervene and attack the appointment.</p> <p><S=oFor other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the District of Colorado; Jacob Trieber, Judge.</p> <p>Action by the Camp Bird, Rimited, a corporation, against Frank W. Howbert, as Collector of Internal Revenue. There was a judgment for defendant, and plaintiff brings error.</p>

<p>1. Deeds <5=178 — Restrictions—Enforcement.</p> <p>Where a grantor subdivided his lands and disposed of them to numerous grantees, and the several deeds all contained a restrictive covenant in the nature of a condition subsequent, allowing the grantor to reenter in event of breach, the restriction must be deemed for the benefit of the several grantees, and can be enforced by them, though the grantor had lost his right of re-entry.</p> <p>2. Injunction <gs=62(.l) — Restrictive Covenants.</p> <p>Injunction is an ai>propriate remedy to enforce a restrictive covenant imposed on lands by the common grantor for the benefit of his several grantees.</p> <p>3. Deeds <3=176 — Restrictions-Enforcement.</p> <p>The running of limitations against the right of a grantor to enforce» a restrictive covenant in the nature of a condition subsequent does not show that tlie grantee had freed his property from the incumbrance of the restriction, where it was enforceable by other grantees of the same grantor, whose number exceeded 100, for limitations available against the grantor might well not be available against all the grantees or their successors.</p> <p>4. Vendor and Purchaser <3=138 — Title—Knowledge by Purchaser.</p> <p>Though the purchaser relied on its own title examination when it contracted, and there was no fraud or misleading by'the vendor, yet an action for damages on account of the vendor’s inability to convey title as agreed cannot be defeated, unless the purchaser knew of the particular defect when it contracted.</p> <p>5. Vendor and Purchaser <5=351(10) — 'Damages—Interest and Rental.</p> <p>Where a vendor’s title proved defective, the purchaser, who had been admitíed into possession, should not bo allowed to recover interest on purchase-money payments, without being charged with the rental value of the premises while it had possession.</p> <p>6. Appeal and Error <3=2G!>, 719(9) — Review—Assignment of Error.</p> <p>Where, in an action by a purchaser for damages on account of the vendor’s inability to convey title as agreed, there was an error in favor of the purchaser in the assessment of damage, such error, not having been assigned, will not be considered, under rule 11 (J98 Fed. xxii, 115 O. O. A. xxii); it appearing that it was more than counterbalanced by reason of the vendor’s forfeiture of improvements placed on the premises by the purchaser.</p> <p>@^>For other casos seo same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>7. Action <§=»53(2) — Splitting Cause of Action.</p> <p>Where a purchaser, after being admitted into possession, defaulted, and the vendor forfeited the contract, such purchaser, having recovered damages on account of the vendor’s inability to convey the title as agreed, cannot thereafter recover on account of improvements which it placed -on the premises, for a cause of action cannot he split.</p> <p>8. Equity <©=>65(2) — Equitable Relief — Right to.</p> <p>Where a purchaser of land, having been admitted into possession, defaulted in payment and allowed the vendor to forfeit the contract, without informing him as to the trouble with' the title, such purchaser is not entitled to equitable aid on account of improvements placed on the premises, which by reason of thé forfeiture became the property of the vendor.</p> <p><@z=aFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests <& Indexes'</p>

<p>In Error to' the District Court of the United States for the Eastern District of South Carolina, at Charleston; Henry A. Middleton Smith, Judge. . . „</p> <p>. . „ Criminal prosecution by the United States against F. L. Hendrikson and C. H. Hendrikson. Judgment of conviction, and defendants bring error.</p>

<p>1. Bankruptcy §=>303(3) — Voidable Preference — Evidence.</p> <p>Evidence considered, and held insufficient to support a finding that a bank, at the time it discounted the note of a bankrupt secured by collateral, from the proceeds of which note the bankrupt paid a prior unsecured note for a smaller amount, receiving the remainder in cash, had reasonable cause to believe that the bankrupt was insolvent, so as to render the transaction voidable as a preference.</p> <p>2. Bankruptcy §=>166(4) — Voidable Preference — Reasonable Cause to Believe Debtor Insolvent.</p> <p>The burden is upon a trustee to prove that a creditor had reasonable canse to believe, at the time of taking security from the bankrupt, that he was insolvent, and that the security would effect a preference; and it is not sufficient, under Bankruptcy Act July 1, 1898, c. 541, § 60, els. “b,” “c,” 30 Stat 562 (Comp. St. 1916, § 9644), that the creditor may have had a suspicion as to the debtor’s solvency, but he must have had knowledge of facts calculated to produce a belief of his insolvency in the mind of an ordinarily intelligent man.</p> <p><S=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Lewis, Judge. Action by John Roger against the City of Goldfield, Colo. There was a judgment for plaintiff for part only of the relief sought, and plaintiff brings error, and defendant likewise brings error.

<p>In Error to the District Court of the United States for the District of Minnesota; Page Morris, Judge.</p> <p>James O. Harris was convicted of wrongfully, unlawfully, and feloniously introducing and causing to be introduced into Indian territory intoxicating liquors in violation of Rev. St. § 2139, as amended by Act Feb. 27, 1877, and Act July 23, 1892, and he brings error.</p>

<p>1. Criminal Law <@=>130, 411 — Draft- -Registration — Evidence.</p> <p>In a prosecution for failing to register in accordance with Selective Draft Act May 38, 1917, c. 15, 40 Stat. 76, baptismal records and copies of applications for a. pension and for homestead, executed by defendant’s mother, wherein she set out his age, are admissible in evidence.</p> <p>2. Army and Navy Draft — Registration—Evidence.</p> <p>In a prosecution for failing to register under Selective Draft Act May 18, 1917, c. 15, where the baptismal record of defendant, made by a Roman Catholic priest, was introduced in evidence, it was competent for the priest to testify as to the tenets of his faith concerning the baptism of infants.</p> <p>3. Criminal Law <@=>430 — Evídence—Certified Copies. "</p> <p>Under Rev. St. § 882 (Comp. St. 1916, § 3494), providing for the admission of copies of records of executive departments, certified copies of pension applications, which are part of the records of the Pension Bureau, are admissible in evidence.</p> <p>4. Criminal Law <@=>730(1) — Trial—Improper Argument.</p> <p>Improper argument of the prosecutor is no ground for reversal, where the jury were explicitly directed to disregard it.</p> <p><®5s>Foi other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Foster, Judge. Suit in admiralty by the River Sand & Gravel Company against the steam dredge Dixie; the Board of Commissioners of the Port of New Orleans and others claimants. Decree for respondents (236 Fed. 607), and libelant appeals.

I. Grubb, Judge. Action by F. G. Brown, John Douglass, and Herman Blum, heretofore copartners doing business under the firm name of Brown, Douglass & Blum, for the use of Herman Blum, transferee, against F’. M. Warten, as surviving partner- of the firm of H. & F. M. Warten, who pleaded a set-off. There was a judgment for plaintiffs, and defendant brings error.

<p>Bankruptcy <S=»407(3) — Discharge—Grounds for Denial.</p> <p>That the bankrupt fraudulently transferred property more than four months prior to the filing of the petition is no ground for opposing his discharge.</p> <p>©=s>For other cases see Same topic & KEY-NUMBER In all Key-Numbered Digests & Indexes</p>

Petition to Review and Revise an Order of the District Court of tlie United States for the Eastern Division of the Northern District of Illinois. Petition by Eouis Santowsky against Frank M. McKey, trustee in bankruptcy, to revise a decree confirming an order of the referee, denying petitioner’s title to property.

<p>1. -Patents <@=>328 — Validity—Invention.</p> <p>Webster patent, No. 640,846, for a pencil sharpener containing a cutter with spiral blades, held valid.</p> <p>2. Patents <@=>81 — Invalidity—Subsequent Patent.</p> <p>A patent is not open to attack because the invention was disclosed in ■ a patent subsequently issued, where there was no clear showing of prior use of the device last patented.</p> <p>3. Patents <@=>328 — Infringement—What Constitutes.</p> <p>Webster patent, No. 640,846, for a pencil sharpener containing a cutter provided with spiral blades, held, infringed by defendant’s device.</p> <p>4. Patents <@=>328 — Infringement—What Constitutes.</p> <p>The Webster patent, No. 810,104, for a pencil sharpener provided with bearings at opposite ends of the frame, held not infringed by defendant’s device.</p> <p>5. Patents <@=>328 — Infringement—What Constitutes.</p> <p>The Baines patent, No. 839,806, for a pencil sharpener having an adjustable stop in the frame, held not infringed by defendant’s device.</p> <p>6. Trade-Marks and Trade-Names <©=>59(1) — Infringement—“Junior.”</p> <p>Though complainant registered a trade-mark “Junior” for a pencil sharpener, it was no infringement of the same for defendant, who previously sold pencil sharpeners under the name “Stewart,” to offer to the trade smaller pencil sharpeners under the name of “Stewart Junior,” for the word “Junior,” with respect to merchandise, signifies a more recent product, or a smaller type or model.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Junior.]</p> <p>(§=>For other cases see same topic & KEY-NUMBER in ail Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the South-1 ern District of Ohio; John E. Safer, Judge.</p> <p>Suit in equity, by the Russell Grader Manufacturing Company against the E. B. Zieg Manufacturing Company. Decree for complainant, and defendant appeals.</p>

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Ohio; John H. Clarke, Judge.</p> <p>Suit in equity hy the General Electric Company against the Cooper Hewitt Electric Company. Decree for defendant, and complainant appeals.</p>

<p>Patents <3=3.828 — Invention—Method oe Operating Vapor Lamps.</p> <p>The Knell patent, No. 883,725, lor a method of operating mercury vapor lamps, claim 1, held void for lack of invention, in that the process or method of the patent was previously known and used for some purposes where the cost was not considered, and tiiat the discovery of the patentee was only of its commercial utility when used under certain conditions.</p> <p><g=3Í’or other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Equity. Suit by Samuel M. Kintner and Halsey M. Barrett, receivers o¡f the National Electric Signaling Company, against the Atlantic Communication Company and others. On final hearing. Decree for complainants.

Appeals from and in Error to the District Court of the United States for the District of Nevada; Edward S. Farrington, Judge. Held: owned, occupied, and possessed by the defendant, his grantors, and predecessors, and with full knowledge, the plaintiffs and their grantors wrongfully and without authority entered upon said lode mining- claim, without the knowledge or consent of the said defendant or his grantors, and attempted to locate upon the ground embraced…

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>On petition of Charles S. Rieman, Edward W. Morrison was adjudicated a bankrupt, and he appeals.</p> <p>Appeal from order adjudicating Morrison a bankrupt. Morrison’s property consisted of real estate in Chicago valued at over $500,000. Rieman, having a claim in contract against Morrison, on March 22, 1916, recovered a judgment thereon in the municipal court of Chicago for $90,188.01, and execution on the judgment issued. By warranty deed of April 20, 1916, Morrison made absolute conveyance of all his real estate to James R. Ward, for a recited consideration of “$100,000 in hand paid and other consideration.” Morrison and Ward testified that the consideration for the conveyance was the cancellation of all then existing indebtedness of Morrison to Ward, and the assumption and payment by Ward of all Morrison’s then outstanding debts, except that to Rieman (to whom Morrison denied owing anything), and the undertaking by Ward to prosecute for Morrison appellate proceedings from the Rieman judgment, and secure requisite bond for staying collection of the judgment pending such determination of such proceedings. A writ of error was sued out in the Appellate Court of Illinois, and on June 7, 1910, a supersedeas bond in penal sum of $100,000, signed by Ward as surety, was approved by that court and filed, and supersedeas issued accordingly. The proceeding on error is still pending and undetermined. August 16, 1916, Rieman alone filed petition in bankruptcy, alleging the indebtedness to him from Morrison to be $90,206.76, upon a contract, the debt being evidenced by a judgment for that amount, and alleging Morrison’s insolvency, that his creditors were less than 12, and that he had committed acts of bankruptcy by conveyance of'his property within four months by way of preference to certain creditors, to Kioman’s detriment, and through such conveyance hindering, delaying, and defrauding his creditors other than those so preferred. Morrison filed his answer denying insolvency and the commission of the acts of bankruptcy charged, and asking for a jury trial of the issues. In his amended answer the demand for a jury trial was not renewed. On trial of the issues by a jury there was a verdict against Morrison, and November 15, 1916, he was adjudicated bankrupt.</p> <p>At the time of the adjudication there was produced in court, and was thereafter filed for record, a deed from Ward reconveying to Morrison a piece of the said real estate, known as the Sebor street property. It was testified by Ward and Morrison that this piece had been inadvertently included in the deed to Ward; that such fact was discovered during the proceedings for obtaining the supersedeas; that the deed back to Morrison was executed and delivered to Mm on the day of its date, July 17, 1916; and that it remained in Morrison’s possession unrecorded, Morrison continuing as There!ofore to collect the income from that property. There was sharp contrarieiy of evidence as to the value of this piece, the testimony of the expert witnesses ranging from 3130.000 to 311,000. After verdict, and before adjudication, petitioner by leave of court filed a verified amendment to Ms petition as follows: ‘‘That whatever lien or security your petitioner has or had at the time of the filing of the petition herein by reason of his said judgment, or by virtue of the execution issued thereon, the said petitioner does hereby release and waive as to any estate which the said alleged bankrupt possessed or owned at the time of the filing of the original petition herein, and does hereby surrender any such security or lien to the estate of the said alleged bankrupt. This petitioner further hereby releases and surrenders whatever lien or security he has or may have on any property or estate of the said alleged bankrupt, or which may hereafter come into the estate or be recovered for the estate of the said alleged bankrupt.”</p> <p>The assignment of errors challenges the finding of insolvency and of commission of acts of bankruptcy, the provability of Eieman’s claim, and his right to be a petitioning creditor, and the propriety of certain remarks of the court made in the presence of the jury, and of certain parts of the court’s charge to the jury.</p>

<p>1. Corporations <3=379 — Partnership—Inability.</p> <p>Whore corporations are by law authorized to form copartnerships, each corporate member of such a firm is liable as a partner to third persons.</p> <p>2. Joint-Stock Companies <3=8 — Partnership — Distinction — Tbansferabiuty or Shares.</p> <p>The changeability of membership or transferability of shares is often used as a determining criterion between ordinary partnerships and joint-stock companies.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases. First and Second Series, Joint-Stock Companies and Associations; Partnership.!</p> <p><g^For other cases see same topic & KEY-NUMBER in all Key-Numbered. Digests & Indexes</p> <p>3. Corporations @=>379 — Partnership—Management—Corporate Members.</p> <p>Where corporations are allowed by law to form ordinary partnerships with other corporations, it is an incident of such right that representatives of the corporate members can for convenience be selected to manage the firm.</p> <p>4. Joint-Stock Companies @=>10 — Partnership @=>224 — Distinction Be-</p> <p>tween Partnership and Joint-Stock Company.</p> <p>In a joint-stock company, the members have no right to decide what new members shall be admitted; on the other hand, the right of delectus personarum is an inherent quality of an ordinary partnership.</p> <p>3. Partnership @=>264 — Changeability in Membership — By-Laws.</p> <p>The provision in the by-laws of a partnership composed of corporations for existence of the association for 45 years, unless sooner terminated by mutual consent, does not show any plan for changeability in the membership, and dissolution would probably be effected through the transfer of any partner’s interest.</p> <p>6. Joint-Stock Companies @=>23 — Partnership @=>227 — Distinction.</p> <p>A joint stock company usually consists of a large number of persons between whom there is no special relation of confidence and the retirement or death of a member works no dissolution, while a partnership though it may consist of several is ordinarily made up of members who are drawn to each other by feelings of mutual confidence and no member is at liberty to retire and substitute another.</p> <p>7. Joint-Stock Companies @=>18 — Partnership @=>139 — Distinction.</p> <p>In a joint-stock company, the business is generally managed by directors or other designated officers of the association, and a shareholder as such is without power to contract for the company; whereas, in a partnership, any member may bind the partnership, this being true, though the partnership is composed of corporations.</p> <p>■8. Internal Revenue @=>7 — Income Taxes — Partnership.</p> <p>Under Sess. Laws Hawaii 1903, Act 51, § 1, permitting any two or more corporations organized under the laws of Hawaii to enter into partnership with each other for the transaction of any lawful business, several corporations, by an agreement dated October 30, 1903, formed a partnership, the by-laws of which provided for management by representatives selected by the several partners, who were to represent the partners according to their respective interests. There were no special partners, and there was no partnership capital stock. Held that, as the partnership was lawful under the laws of Hawaii, it could not be treated as a joint-stock company, and so subject to taxation under Income Tax Law Oct. 3, 1913, c. 16, 38 Stat. 114, which applies to every corporation, joint-stock company, or association, no matter how created or organized, not including partnerships ; but it must be treated as a partnership for purposes of collecting of income taxes.</p> <p>9. Statutes @=>245 — Taxation—Construction.</p> <p>In the interpretation of statutes levying taxep, it is the established rule not to extend their provisions by implication beyond the clear import of the language used, or to enlarge their operations so as to embrace matters not specifically pointed out, and in case of doubt they are to be construed most strongly against the government.</p> <p>10. Internal Revenue @=>38 — Income Tax — Illegal Exactions — Recovery —Interest.</p> <p>Where a collector of internal revenue, acting under Income Tax Law Oct. 3, 1913, illegally collected taxes from a partnership composed of corporations, the members of the firm are entitled to recover the exaction, ■ with interest and costs.</p> <p><§zssFor other cases see same tojDic & KEY-NUMBER, in all Key-Numbered Digests & Indexes</p>

<p>Appeal Irom the District Court of the United States for the Northern District of Mississippi; Henry C. Niles, Judge.</p> <p>Suit by Wells Fargo & Co. against Oscar G. Taylor. From a decree for complainant, defendant appeals.</p>

G. Haight, Judge. Appeal in equity by William E. D. Stokes from an order disallow-, ing his claim against the Standard Plunger Elevator Company, Howard H. Williams and Albert C. Wali, as receivers, and others.

<p>1. Maritime Liens <§=39 — Charters—Lien—Claim for Dead Freight.</p> <p>A claim of a charterer for dead freight, which is in the nature of one for loss of profits, is not enforceable in a suit in rem as a lien on the vessel.</p> <p>2. Towage <s=5>9- — Towage Service — Breach of Executory Contract — Lien.</p> <p>That a charterer accepted delivery of a barge at a point distant from the placo of loading, and had her towed there, did .not make such transfer the beginning of a voyage under the charter, and the unaccepted offer of services by tugs before she was ready to proceed on her voyage did not give them a lien on the barge.</p> <p>3. Admiralty <§sp(J6 — Pleading—Amendment of Liisel.</p> <p>The allowance of an amendment of the libel in a suit in personam, setting up an additional claim for damages growing out of the same alleged breach of charter, held within the discretion of the court.</p> <p>4. Shipping <§=»58(3) — Charter—Damages for Breach.</p> <p>Where the charterer of a coal barge for three months, with the privilege of renewal for another like term, surrendered the barge during the first term for unseaworthiness, and did not exercise its option for renewal, it could not recover in a suit for breach of charter for loss of prospective profits during the renewal term.</p> <p><®cs>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Eastern District of Virginia, at Richmond; Edmund Waddill, Jr., Judge.</p> <p>Action at law by Jennie C. Selden, administratrix of John R. Selden, deceased, against the Atlantic Coast Line Railroad Company. Judgment for-plaintiff, and defendant brings error.</p>

<p>1. Seamen <§=>29 (5) — Injury in Service — Liability or Vessel — Evidence.</p> <p>Libelant was hired as muleteer on a British steamship transporting mules for the Allies from Newport News to Salónica. His duties had to do only with the care of the mules, and were in no way connected with the navigation of the ship, but when within two days from Salónica he was called upon by the foreman to act as watchman, and upon objecting was told that he would be imprisoned and fined if he refused. He requested a lantern, but was not given one, although other watchmen had lanterns the same night. On going in the dark upon the roof of a temporary structure built for stalls on the main deck, for air, as was customary with the watchmen, as he testified without serious contradiction, he fell through an opening over a stall, from which the removable cover had been left off, and was seriously injured. He knew of the opening, but not that it was ever left uncovered at night, and the captain of the ship testified that it was not, and that it was not on the night in question ; but there was no testimony of an examination afterward to ascertain the fact. Libelant was not sent to a hospital in Greece, and received little, if any, medical attention until his return to the United States two months later, where he was discharged without any provision being made for his care. Held, that a finding by the trial court that libelant was injured through the negligence of those in authority on the ship, which also failed to give him proper care and attention, was fully supported by the evidence, and that under Seamen’s Act March 4, 1915,. c. 153, § 20, 38 Stat. 1185 (Gomp. St. 1916, | 8337a), which provides that, “in any suit to recover damages for any injury sustained on board vessel or in its service, seamen having command shall not be held to be fellow servants with those under their authority,” the ship was liable for the injury.</p> <p><§=»For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>2. Admibalty <§=>118 — Review on Appeal — Findings of Fact.</p> <p>While findings by an admiralty court on questions of fact are roviewaWe on appeal, wlien made on conflicting evidence they are entitled to and are given great weight, and will not be reversed, except for plain error.</p> <p><g^s>For other cases see saíne topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In the matter of the bankruptcy of J. W. Horner. From an order granting the bankrupt a discharge from all debts provable against him, excepting two claims of S. G. Hamner, trustee, the bankrupt appeals.

<p>In Error to the District Court of the United States for the Southern District of West Virginia, at Charleston; Chas. A. Woods, Judge.</p> <p>Ejectment action by the Provident Eife & Trust Company of Philadelphia and Edward R. Wood, Jr., executors and trustees of Stuart Wood, deceased, against David McCormick, the United Euel Gas Company, Rebecca C. Davis, Henrietta Daingerfield, and others. Judgment for plaintiffs, and defendants bring error.</p>

Cross-Appeals from the District''Court of the United States for the Northern District of West Virginia, at Parkersburg; Alston G. Dayton, Judge. Suit in equity by the Central Banking & Security Company against P. E. Wagner, receiver of the First National Bank of Sutton, W. Va., and another. From the decree, all parties appeal.

<p>Internal Revenue <§=>7 — Income Tax on Corporations — “Accruing” of Income.</p> <p>An annual dividend received by a corporation on tbe stock of another corporation is subject to the tax imposed by Income Tax Act Oct. 3, 1913, c. 16, § 2, G(a), 38 Stat. 172,for tbe calendar year in which it was declared and paid, as income “accruing” during such year, although half of the profits out of which the dividend was paid accrued prior to the passage of said Income Tax Act.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Seines, Accrue.]</p> <p><®=»Eor other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Mandamus @=^4(1) — Grounds—Remedy by Appeal.</p> <p>A writ of mandamus will not be granted to require a District Judge to correct alleged errors occurring on the trial of a cause, where they can be brought up for review by appeal.</p>

Trippet, Judge. Suits in equity by the Diamond Patent Company against Webster Bros., a corporation, and against C. F. Murray and others. Decrees, for defendants, and complainant appeals.

<p>Appeal from the District Court of the United States for the District of Massachusetts; Frederic Dodge, Judge.</p> <p>Bill by Charles D. Fuller and others against Philip U. Reed and others. From a decree dismissing the bill (229 Fed. 737), complainants appeal.</p>

In Admiralty. In the matter of the petition of the Pacific Coast Steamship Company, a corporation, owner .of the steamship Santa Rosa, for limitation of liability.

<p>In Admiralty. Libel by Cosmo Corrado against L- A. Pedersen, doing business under the name and style of the Bristol Bay Packing Company.</p>

<p>In, Equity. Suit by the United States against the Honolulu Consolidated Oil Company.</p>

<p>In Equity. - Bill by the Union Sulphur Company against Henry A. Reed, Tax Collector, and others.</p>

<p>Intoxicating Liquors <®=»138 — Intebstatb Transportation- —Statutes.</p> <p>Under Act March 3, 1917, c. 162, § 5, 39 Stat. 1009, declaring that whoever shall cause intoxicating liquors to be transported in interstate commerce except for scientific purposes, etc., into any state the laws of which prohibit the manufacture or sale therein of Intoxicating liquors for beverage purposes shall be punished, it is unlawful for an interstate carrier to transport for beverage purposes intoxicating liquors from without the state into a Texas county which had adopted prohibition, Rev. St. Tex. 1911, art. 5727, declaring the sale, etc., within prohibition territory of intoxicating liquors with intent to violate the law, to bo an oixense.</p> <p><§zs>Foí other cases see same topic & KEY-NUMBElt in all Key-Numbered Digests & Indexes</p>

Suit in equity by Edwin C. Day, trustee in bankruptcy of the Chicago Folding Box Company, against Charles H. Seegmiller. Decree for complainant, and defendant appeals.

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Action at law by the Clark Construction Company against Armanis F. Knotts. Judgment for plaintiff and defendant brings error.</p>

B. Witmer, Judge. In the matter of the Bankruptcy of Moses Mendelsohn and Samuel Mendelsohn, as individuals and copartners trading as Mendelsohn Bros. A rule issued, on petition of Charles H. Horton, trustee, requiring the bankrupts to show cause why they should not be attached for contempt for failure to comply .with an order directing them to turn over to their trustee funds found to have been concealed, was discharged, and the trustee appeals.

<p>Petition foe Revision of Proceedings of the District Court of the United States for the Northern District of Illinois; George A. Carpenter, judge.</p> <p>In the matter of Edward C. Waller, Jr., bankrupt. On petition of the National City Bank of Chicago to review an order permitting bankrupt to file application for discharge after the expiration of a year from the adjudication.</p> <p>Adjudication in bankruptcy was had in this cause on April 5, 1016. N« application for dL.charge was filed within the period of 12 mouths subsequent to adjudication. On April 20 1917, 12 days after the expiration of the 12 months’ period, (lie District Court entered an order allowing the bankrupt to file; instanter ills petition lor discharge, which he did. Afterwards, ami on May 19, 1917, the bankrupt filed, nunc pro tunc as of April 20, Í9I7, his lurcher verified petition for leave to file his petition for discharge, setting out the grounds. Vrom that petition it appears that bankrupt iustrucied his attorney to procure ids discharge as soon as it could be done, and ¡’'died wiiolly upon the attorney to secure it; that from time to time he consulted Ids attorney on the matter. and was assured by him that he would ,'ilond to the matron; ihai for the 3 month;; next preceding the last day for filing his application for discharge his said attorney was sick, and for about a month of that time in a sanitarium at Battle Creek, Mich.; tiiat owing to the situation, and to the bankrupt’s reliance upon his attorney’s promises aforesaid, together with the attorney’s said illness, the bankrupt was unavoidably prevented from filing his petition for discharge within the statutory period. The petition thereupon prays for an extension of time to tile the same. No new order was entered after the filing of the nunc pro tunc petition. 'Hie order extending the time and granting leave to file his application was entered without notice to any one.</p> <p>From the petition to review and revise it appears that at the time adjudication was had there was pending in the superior court of Cook county, 111., a suit brought by the petitioner herein against said bankrupt, in which the summons had been duly served, which was suspended by the filing of his voluntary petition in bankruptcy; that after the lapse of the 12 months succeeding his adjudication as a bankrupt, and on April 16, 1917, pi aintiff in that case, petitioner herein, proceeded to judgment in said cause by default, for the sum of $5,555.15. Thereafter, when the bankrupt sought to ascertain why judgment was entered notwithstanding the bankruptcy proceedings, he was advised by petitioner’s attorney that his (Waller’s) time in which to file his application for discharge had expired. On April 20, 1917, the bankrupt advised the attorney for the petitioner of the order obtained that day for an extension of time to file his application. The petition herein to review sets out, further, that on April SO, 1917, the petitioner presented to the District Court its motion to vacate the order entered on April 20, 1917, extending the time to apply for discharge and granting other relief, together with an affidavit in support thereof, which motion was duly postponed to May 12, 1917, and on that date denied; that the notices, petitions, motions, and orders are all the motions, petitions, notices, steps, papers, and orders filed in said cause having any bearing on or pértaining to said petition for discharge. This affidavit purports to enumerate what evidence was before the court on the hearing of the motion to vacate.</p> <p>The petition herein is brought to review and revise the order of May 12, 1917, overruling and denying said motion to vacate.</p>

On Petition to Revise an Order of the District Court of the United States for the Western District of Pennsylvania; Charles P. Orr, Judge. In the matter of the bankruptcy of the National Hog Company. Petition by T. M. Gealey, a receiver appointed by the state court to revise orders in favor of the South Side Trust Company, receiver in bankruptcy.

<p>In Error to the District. Court of the United States for the Western District of Wisconsin.</p> <p>Criminal prosecution by the United States against John M. Voves. Judgment of conviction, and defendant brings error.</p>

Appeals from the District Court of the United States for the Northern District of Texas; George W. Jack, Judge. Suit in equity by Emile K. Boisot, trustee, against the Amarillo Street Railway Company, in which the City of Amarillo intervened. Complainant and Guy W. Faller, receiver of defendant, separately appeal from a decree in favor of intervener.

<p>Bankruptcy <S=o345 — Priority op Lien — Trust Deed.</p> <p>A creditor of a bankrupt corporation, which obtained a trust deed upon its property, expressly subject to a prior trust deed executed to secure the claims of other creditors, and which’was delivered upon the condition and with the understanding that nothing was to be paid thereon until nil the claims of other creditors were satisfied, thereby made its lien subordinate to the claims of bankrupt’s other creditors, irrespective of the validity of the first trust deed.</p> <p>^s»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Suit in equity by the National Sweeper Company against the Bissell Carpet Sweeper Company; Decree for defendant, and complainant appeals. Appeal from a final decree dismissing a bill in equity for the infringement of United States letters patent to C. L. Baender, No. 1,138,437, issued May 4, 1915, for a carpet cleaning device. The court below held the patent void for want of invention a'nd the complainant appealed.

Suit in equity by the M. S- Wright Company against the Bissell Carpet Sweeper Company. Decree for defendant, and complainant appeals. Appeal from a judgment dismissing a decree in equity for the infringement of a patent to Harold M. Sturgeon dated July 4, 1911. The claims in suit, No. 1 and No. 2, are as follows: “1.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in equity by the Domestic Vacuum Cleaner Company against the Bissell Carpet Sweeper Company. Decree for complainant, and defendant appeals.</p> <p>This is an appeal from an interlocutory decree for infringement of reissued patent 13,508 to Quist & Blanch, granted, July 7, 1913. This patent is for an improvement upon vacuum cleaners of the carpet sweeper type and the suit involves claim 4, which is as follows:</p> <p>“A pneumatic cleaner comprising a casing opening at its front end, a dust receptacle in said casing detachably connected therewith, a nozzle head detachably connected with said casing and covering the open front thereof and the open end of said dust receptacle to hold the dust receptacle in position, said nozzle being provided with an opening therethrough connecting with said dust receptacle, a suctión creating device connected with said easing, and sustaining wheels connected with said casing and operatively connected with and operating said suction deVice by the backward and forward travel over any surface.”</p> <p>The essential novelty of the patent rests in the fact that the nozzle head is detachably connected with the casing and covers the'open front. In the defendant’s device the nozzle head and the screen or stiff bag within which the dust is drawn is all one piece. The screen is inserted into the dust chamber and the nozzle head fits closei to the case, making an air-tight joint. A question of infringement arises since the defendant’s dust receptacle is fixed to the nozzle head, while the defendant contends that the claim requires detaehability between the nozzle head and the dust receptacle. The District Court construed the claim as not requiring such detachability and held the patent valid over all references.</p> <p>Hatch & Goeser, 980,944, disclosed a vacuum cleaner which operated by an electric suction fan. The whole cleaner was compact in one piece and was rolled about the floor by the operator. It contained a small motor, which operated the fah, to which the current was brought by a wire attached to a socket in the room. At the end opposite to the wheels was a nozzle head fitted into the end of the dust chamber proper and within that chamber was the dust bag detachably connected with the nozzle. The nozzle was removable from the bag and from the end of the easing, and the front end of the machine rested upon the nozzle.</p>

<p>1. Patents <§=>328 — Validity and Inebingement — Jouenai, Box.</p> <p>The Woods patent. No. 904,665. for a composite journal box, was not anticipated in the prior art, and discloses invention in the feature oí corrugations extending continuously across the bottom and up the sides. Claim 2 held infringed, and claim 3 not infringed.</p> <p>2. Patents <®=>328 — Validity and Iniuiingement — Jottbnal Box.</p> <p>The Woods patent, No. 969,933, for a journal box, held not anticipated and infringed.</p>

<p>Appeal from the District Court of the United States for the District of Indiana.</p> <p>Suit in equity by Frank A. Bone against the Commissioners of Marion County. Decree for defendants dismissing the bill, and complainant appeals.</p>

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Suit in equity by the P & M Company against the Ajax Rail Anchor Company. Decree for defendant, and complainant appeals.</p>

Suit in equity by the Elaborated Ready Roofing Company and Mathias 13. Becker against the West Coast Roofing & Manufacturing Company and J. H. Hurd. Decree for complainants, and defendants appeal. Reversed. . Suit by the West Coast Roofing & Manufacturing Company and J. H. Hurd against the Elaborated Ready Roofing Company and Mathias B. Becker. Decree for defendants, and complainants appeal.

<p>Appeal from the District Court of the United States for the Southern Division of the Southern District of Illinois.</p> <p>Suit in equity by the Homer Brooke Glass Company against the Schram Glass Manufacturing Company. Decree for complainant, and defendant appeals.</p>

Suit in equity by the American Valve & Meter Company and Edward E. Johnson against Fairbanks, Morse & Co. and the Sheffield Car Company. Decree for defendants, and complainants appeal. Appellants failed in their suit to enjoin the alleged infringement of claims 1, 11, 21, and 38 of patent No. 818,968, issued April 24, 1906, ta Johnson, and claim 1 of patent No. 798,406, issued August 29, 1905, to Foster, hoth for improvements in railway water columns.

<p>1. Patents <§=>328 — Validity and Ini-bingement — Eye Shields.</p> <p>In the Malcom patent, No. 1,182,398, for an eye shield of transparent flexible material, having two colors extending horizontally, the darker .color above to shade the eyes, claims 5, 6, 7, 8, and 9, which claim the two-color feature broadly, are void for anticipation in the prior art. Claims 1, 2, 3, 4, and 10 held valid and infringed.</p> <p>2. Patents <§=>328 — Validity and Inebingement — Eye Shields.</p> <p>In the Rextrew patent, No. 1,123,376, for an eye shield, claim 4, which is for an elastic cord and hook for holding the shades in place, is void for lack of invention. Claims 1, 2, 3, 5, and 6 held not infringed.</p> <p><g^>E'or other cases see same topic & KEY- NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by William Sturm, Sr., against the William E- Dee Company.</p>

<p>1. Patents <§=»328 — Validity—-Infringement.</p> <p>The Van Berkel patents, No. 806,603 and No. 895,213, for meat-slicing machines with removable meat plates, held valid and infringed, as to claim 2 of the earlier patent and claims 8, 9, and 10 of the later.</p> <p>2. Patents <3==>237 — Construction—Equivalents.</p> <p>Any patent, however narrow, has some range of equivalents, unless form Is made the indispensable thing, and this rule is particularly applicable when the infringer takes the whole gist of the invention, though not all the mechanical details; this being so, though all the combination elements are old.</p> <p>^ssFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>8. Patents <©=289 — Actions for Infringement — Laches.</p> <p>Complainant’s failure to sue for "infringement of its patents for some years after it was begun does not amount to laebes, barring recovery, where it appears that an officer of complainant notified defendant that it was infringing and threatened suit, and defendant made no outlay and did not change its position in reliance on any act of complainant.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Admiralty. Libel by William McDonough against the International Navigation Company, Limited, and another. Decree against the named respondent, and in favor of the other respondent.

<p>In Bankruptcy. In the matter of the bankruptcy of Sidney A. Amster. On exceptions to the special master’s report.</p>

In Bankruptcy. In the matter of the Russell Falls Company, bankrupt. Certain property and the proceeds thereof was claimed by the Worcester Trust Company, which claim was opposed by the trustee. On certificate of the referee.

<p>Contracts <@^>258 — Claim for Salary — Cancellation oe Contract — “Public Calamity or Casualty” — European War.</p> <p>In the spring of 3.914 bankrupt, an opera company, contracted for the services of claimant as a musician for the ensuing opera season in Boston, commencing in the following December. The contract contained a provision that “in case of riot, fire, railroad accident, public calamity, or other casualties, over which the party of the first part has no control, this contract may be canceled at the option of the party of the first part.” In November bankrupt notified claimant of the cancellation of the contract, on the ground that the general state of war existing in Europe made it impossible to maintain opera in Boston during the season. Held, that such war, although the United States was not then a party to it, was a public calamity and casualty over which bankrupt had no control, within the meaning of the contract, and so affected the performance of opera in Boston as to justify its abandonment and the cancellation of the contract.</p> <p><§=5>lTor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexos</p>

<p>In Bankruptcy. In the matter of Boston Opera Company, bankrupt. On review of referee’s order disallowing claim of Edwardo FerrariFontana.</p>

Jackson, Judge. Suit by J. A. Corrigan and others against J. Budd Smith. From a decree for complainants, defendant appeals. Reversed, and suit dismissed. Proceeding by the Government of the Canal Zone, on rule of J. A. Corrigan and others, on J. Budd Smith, for contempt. There was a judgment punishing defendant for contempt, and he brings error.

<p>1. Courts <£=>37 — Jurisdiction of Federal Courts — Action under Employers’ Liability Act.</p> <p>Whether a federal court has jurisdiction of an action by a railroad employ-é for an injury received in the course of his employment, as one arising under Employers’ Liability Act April 22, 1908, c. 149, 35 Stat. 65 (Com.p. St. 1916, §§ 8657-8665), depends upon whether the employé at the time of his injury was engaged in interstate transportation, or in work so closely related to it as to be practically a part of it, and this is a question of fact. Jurisdiction cannot be conferred on the court by a. stipulation or admission by defendant that plaintiff was so engaged, irrespective of the facts.</p> <p>2. Appeal and Error i®=j117S(6) — Circuit Court op Appeals — Review—Jurisdiction.</p> <p>A general verdict, returned on trial of an action which was without reversible error, may be permitted to stand pending an inquiry and determination by the trial court on the question of' its jurisdiction.</p> <p>(gacjFor other cases see same topic £ KEY-NUMBER in all Key-Numbered Digests £ Indexes.</p>

Action by the Cowen Company against the Houck Manufacturing Company, Incorporated. Plaintiff brought error to judgment on a verdict for much less than was sued for. Plaintiff here and below sued to recover the asserted cost and value of doing certain advertising for defendant. The complaint set forth what plaintiff had expended on said advertising, averred that defendant had agreed to pay the same, plus 15 per cent., and demanded judgment accordingly.

Action by the Continental Specialty Company of Baltimore, Md., Incorporated, against the American Druggists’ Syndicate. There was a judgment for plaintiff, and defendant brings error. Writ of error from a judgment for $45,056.17. The jurisdiction of the District Court depended upon diverse citizenship.

Action at law by Harry Wronkow Keatley against the United States Trust Company and Morgan J. O’Brien, as executors of the will of Herman Wronkow. Judgment for defendants, and plaintiff brings error.

In the matter of Charles Salmon, bankrupt. From an order (239 Fed. 413) sustaining an order of the referee, expunging the claim, the estate of Hamilton H. Salmon appeals. This cause comes here on appeal from, an order made by the District Court of the United States for the Southern District of New York.

<p>In Error jto the District Court'of the.United States for the Eastern District of Michigan; Arthur J. Tuttle, Judge.</p> <p>Petition by George E. Barbarin and O. A. Beach, doing business as Barbarin & Beach, against Paul H. King and Dudley E. Waters, receivers of the Pere Marquette Railroad Company. There was an order allowing petitioners’ claim, and the receivers bring error.</p>

In Error, to the District Court of the United States for the Southern District of Mississippi; Henry C. Niles, Judge. Action by the American Cotton Oil Company against Alabama & Vicksburg Railway Company and another. There was a judgment for plaintiff, and defendants bring error.

<p>In Error to the District Court of the United States for the Southern District of Mississippi; Henry C. Niles, Judge.</p> <p>Action by Morris & Co. against the Alabama Great Southern Railroad Company.. Judgment for plaintiff, and defendant brings error.</p>

Whitaker Thompson, Judge. Action by John R. Matkley and Isaiah B. Miller, to the use of E. Kirby-Smith, against the International Dumber & Development Company, whose receiver, John O. Sheatz, was afterwards substituted as defendant. There was a judgment for plaintiffs, and defendant brings error.

Petitions to Revise Orders of the District Court of the United States for the Southern District of New York. In the matter of the bankruptcy of Louis Jarmulowsky and Harry Jarmulowsky, doing business under the firm name and style of S. Jarmulowsky’s Bank. The petitions of L. M. Wilson and Benjamin Bortz, which were opposed by Eugene Lamb Richards, as receiver in bankruptcy, were granted (243 Eed. 632), and the receiver petitions to revise.

Wade, Judge. Intervention by J. P. Dings and another in a suit by the United States, for the use and benefit of the American Radiator Company, against Bartlett & Kling, a corporation, and the Fidelity & Deposit Company of Maryland, a corporation, wherein interveners set up claims against defendants. From a judgment for interveners, defendants appeal.

Action by Jake Thomas and wife against the Southwestern Gas & Electric Company. There was a judgment for plaintiffs, and defendant brings error.

Joseph H. Pilson was convicted of violation of Cidminal Code, § 211, by depositing in the mails a letter and circular giving information where; how, and from whom, and by what means, might be obtained articles intended for the prevention of conception, and he brings error.

<p>1. Criminal Law <§=274, 1149 — Pleas—Withdrawal. .</p> <p>Granting leave to withdraw pleas of guilty and enter pleas of not guilty to an Indictment Is discretionary with the trial court, and its discretion is not reviowable.</p> <p>2. Conspiracy <§=28 — Oeeenbe—Overt Act.</p> <p>The offense of conspiracy to compiit a crime may bo consummated by the doing of some overt act to effectuate the purpose, although the crime be not actually committed.</p> <p>3. Criminal Law <g=59(l) — “Principal.”</p> <p>In view of Pen. Code (Act March 4, 1909, c. 321) § 332, 35 Stat. 1152 (Comp. St. 1916, § 1,0506), declaring that any one who aids, abets, counsels, or procures the commission of an offense is a principal, defendants, where they conspired with agents of a common carrief to violate section 238 (Comp. St. 1916, § 10108), making it an offense to knowingly deliver certain interstate shipments of intoxicants to any one other than the consignee, are indictable as principals, though they were not agents or employes of'any railroad or common carrier.</p> <p><§=Eor other cases sec same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Petitions to1 Revise Order of the District Court of the United States for the Eastern District of New York. In the matter of the Franklin Brewing Company, bankrupt. On petitions of the People’s Trust Company to review two orders of the District Court.

Riley C. Hammer was convicted -iinder the Harrison Act of an illegal sale of narcotics, and he brings error.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Libel by the West India Steamship Company against the Chicago House Wrecking Company. From a decree for respondent, libelant appeals.</p>

<p>1. Bankruptcy <§=>414(3) — Discharge — Concealment of Property — Evidence.</p> <p>Evidence held insufficient to show that a bankrupt’s wife held in trust for him, a lease delivered to her by a corporation in which the bankrupt was a stockholder, and so a discharge could not be denied on' the ground the bankrupt had concealed and failed to turn over to his trustee such lease.</p> <p>2, Bankruptcy <§=>413(7) — Discharge—Denial.</p> <p>Discharge is a statutory matter, and the court, as well as an objecting creditor, is confined to the specifications of objection.</p> <p>^5»For other cases see same topic & KEY-NUMBEB in all Key-Numbered Digests & Indexes</p>

<p>1. Bankruptcy @=^303(2) — Proceeding by Trustee to Require Surrender op Property — Evidence—Financial Statement.</p> <p>On the bearing of the petition of a trustee to require bankrupts, who were partners, to turn ovér property not scheduled, a written financial statement, signed by one of the firm, made a short time before the bankruptcy to a creditor as a basis of credit, and purporting to show a surplus of assets over liabilities, is admissible in evidence, and, although not conclusive, may be persuasive.</p> <p>2. Bankruptcy @=^303(1) — Proceeding to Require Bankrupt to Turn over Property — Burden oe Proof.</p> <p>When a trustee lays a foundation by any competent evidence, including the claims of bankrupts themselves, that they had unscheduled assets within a reasonable time before the filing of the petition, the bankrupts must then account for the property, or rebut the trustee’s' prima facie case by credible evidence.</p> <p><®=»For other oases sae same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>3. Bankruptcy @=303.(3) — Order Requiring Bankrupts to Turn over Property — Petition to Review.</p> <p>An order requiring bankrupts to turn over property held supported by evidence, on a petition to revise such order in matter of law.</p> <p><gE5>l‘1or other cases see same topic & KEY-NUMBER in ail Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Eastern District of Oklahoma; Ralph E. Campbell, Judge.</p> <p>Suit by Emma P. Williams, née Canary, against James D. Canary. From a decree dismissing the petition, plaintiff appeals.</p>

<p>Master and Servant <@=>285(7) — Evidence—Presumptions—Jury Question.</p> <p>Where railroad employé was injured, while bending over, inserting stuffing and grease in journal boxes of cars, and there was testimony that at the time of the injury cars were sent down the adjoining track with doors hanging or sticking out, the question whether he was struck by such an obstruction was properly submitted to the jury, and a verdict for plaintiff could not be attacked on the theory that presumption was built upon presumption.</p> <p>igo^For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Courts <§=>356 — Taking Appeal — Fees—Prepayment.</p> <p>• Act June 12, 1917, c. 27, § 1, 40 Stat. 1571, which, under the caption “United States Courts,” makes an appropriation for fees of clerks, provided that courts of the United States shall be open to seamen without furnishing bond, or prepayment of or making deposit to secure fees or costs, does not apply to the prosecution of appeals in the Circuit Court of Appeals; the clerk of that tribunal having a stated salary, appropriation for which was made by Act March 3, 1917, c. 163, § 1, 39 Stat. 1119.</p> <p><@xsoFar other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Death <§^3.1(3) — Actions—Right of Personal Representative.</p> <p>Where no provision of law of the Canal Zone gave a right of action to the personal representatives of a deceased person, the personal representative can maintain no action for wrongful death.</p>

<p>Admiralty <§x»318 — Review—Findings.of Fact.</p> <p>An appellate court is reluctant to disturb a finding of fact in an admiralty ease by tbe trial judge, who had the advantage of seeing and hearing the witnesses.</p> <p><gzs>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Municipal Corporations @=>232 — Contracts—Period.</p> <p>Where the charter of a city authorized the mayor and council to provide by ordinance or contract with any competent party for the supplying and furnishing of gas, a contract extending for reasonable period is valid, and the authority of the mayor and council is not impliedly limited to the official life of the council enacting the ordinance.</p> <p>2. Gas @=>14(2) — Contracts—Charter.</p> <p>Omaha City Charter (Comp. St. Neb. 1891, c. 12a) §§ 50, 61, declare that the mayor and council shall have power to provide for the lighting of streets, laying down of gas pipes, and to regulate the sale and use of gas and electric lights, and fix the price of gas, and that the mayor and council shall have power to erect, construct, and maintain waterworks, and to make all needful rules and regulations concerning the use for the water supply. By Laws Neb. 1893, c. 3, § 9, the latter section of the charter was amended, so as to authorize the mayor and city council to erect, construct, purchase, maintain, and operate subways or conduits, waterworks, gasworks, and electric light plants, and to provide by ordinance or contract.with any competent party for the supplying and furnishing of water, gas, or electric light, and to fix the rates. Held, that section 61, as amended, though construed with section 50, did not limit the power of the mayor and council to grant a franchise for a fixed period and a contract with a gas company fixing rates for 25 years was valid, for, while the surrender of the public power to fix rates must clearly appear, the language should receive its ordinary construction.</p> <p>3. Statutes @=>112 — Amendment—Title.</p> <p>The title of Laws Neb. 1893, c. 3, purported to amend, among others, section 61 of the previous charter, which related only to the water supply for the city. Const. Neb. art. 3, § 11, declares that no bill shall contain more than one subject, and the same shall be clearly expressed in its title. Held that, as the supplying of water, gas, and electricity, all dealt with in the amendatory act, were germane to the thought of the original act, which was the supplying of the inhabitants of the city with a convenience of modern urban life, the title was broad enough to include the amendment.</p> <p><§=>For other oases see same topic, & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>4. Statutes <§=>112, 139, 141(1) — Amendment—Title.</p> <p>Laws Neb. 1893, c. 3, § 9, amending section 61 of the Omaha city charter, is not invalid as amending section 50, though expressing no such , intention in the title, nor invalid as failing to set out section 50 as amended, and failing to repeal it; the amendatory act not encroaching on the powers of the city as expressed in section 50.</p> <p>5. Gas <©=>12 — Supply to Municipality — Contracts—Validity.</p> <p>Though the act under which a city contracted with complainant for the furnishing of gas for 25 years at a fixed rate was invalid, yet, where the validity of the contract was for many years recognized by municipal authorities after Hie enactment of a new charter, under which it would have been valid, the city cannot thereafter question the contract.</p> <p>c§S5>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Bankruptcy <@=»311(4) — Claims—Individual Creditors.</p> <p>Where a creditor of a corporation knew of the insolvency of the corporation, as well as of the insolvency of its controlling stockholder, a note given such creditor by the stockholders for the amount of its claim against the corporation constituted a legal fraud against the individual creditors of the stockholders, and was not provable against them individually.</p> <p>«S^jFoc other caséis see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Bill by Jerusha Crabb and John Crabb, wife and husband, against Homer I. Watts and others. Decree for complainants.</p>

<p>1. Carriers <3=32(2) — Transportation Charges — Discrimination.</p> <p>At a point south of Richmond three railroad companies were competitors for traffic to and from that city. Each road had switching facilities at Richmond, connecting with each other, and each delivered traffic from competitive points to industries on its own tracks in Richmond at its tariff rate to that point, without extra charge for switching; also each road absorbed the switching charge of a competitor on freight to be hauled by it to industries on the competitors’ tracks at Richmond. Other railroad companies, not competitors of those for the Southern business, entered Richmond and had switching facilities connecting with those of the competing roads. Such roads, however, did not absorb tbe switching charges on freight to he delivered to industries on the. lines of the roads with which they were not in competition. Interstate Commerce Act Feb. 4, 1887, c. 104, § 2, 24 Stat. 379 (Comp. St. 1916, § 8564), declares that, if any common carrier subject to the provisions of the act shall directly or indirectly, by any special rate, rebate, drawback, or other device, charge, demand, collect, or receive from any person or persons a greater or less compensation for any service rendered or to be rendered than it charges, demands, or receives from any other person, it shall be guilty of unjust discrimination. Held, that the industries located at Richmond on the several railroads should be considered a group of industries, and it was unjust and discriminatory for the competing railroad companies to make deliveries on their tracks without switching charges in case of competitive business, and to absorb same as to industries located on tbe competing lines, but to decline to furnish tbe same service with respect to industries located on noucompeting lines.</p> <p>2. Carriers <3=32(2) — Discrimination—Defense.</p> <p>In such case the competing carriers cannot escape the charge of discrimination because the delivery of the competitive shipments was wholly by rail connections.</p> <p>3. Carriers <3=32(1) — Interstate Commerce Commission — Authority.</p> <p>The Interstate Commerce Act does not define the particular acts which constitute unlawful discrimination, and that question is left to the interstate Commerce Commission.</p> <p>4. Commerce <3=95 — Interstate Commerce — Authority.</p> <p>Findings of fact by the Interstate Commerce Commission in connection with unlawful discrimination are conclusive.</p> <p>Woods, Circuit Judge, dissenting.</p> <p><g=aFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In. Bankruptcy. In the matter of the bankruptcy of George I,. Nash. On petition to dismiss the bankruptcy proceedings and revoke the adjudication. Adjudication of the bankrupt, and the bankruptcy proceedings, revoked, vacated, and set aside.

<p>1. Marriage <@=>3 — What Law Governs.</p> <p>The lex loci governs with respect to the matrimonial capacity of the parties, as well as with respect to the manner or form of solemnization or annulment of marriages.</p> <p>2. Courts <@=>260 — Federal Courts — Jurisdiction.</p> <p>Federal courts have no jurisdiction over the subjects of divorce and alimony.</p> <p>3. Courts <@=>260 — Federal Court — Jurisdiction.</p> <p>The federal courts have no probate jurisdiction and cannot undertake the administration of estates of decedents; that matter being vested in the state courts.</p> <p>4. Marriage <@=»60(1) — AnnulmenTt—Rights. of Heirs.</p> <p>Code Va. 1860, c. 109, § 1, in force at the time of the formation of West Virginia, declared that all marriages between a white person and a negro, and ail marriages prohibited by law on account of either of the parties having a former wife or husband living, should be absolutely void without any decree .of divorce, and that all other marriages prohibited on account of consanguinity or affinity, etc.,' should be void-from the time they should be so declared by a decree of divorce or nullity. Code W. Va. 1868, c. 64, § 1, which has been continued in force, declares that all marriages prohibited by law or solemnized when either party was. incapable, etc., shall be void from the time they shall be so declared by decree of divorce or nullity. Code W. Va. 1913, c. 64, § 4 (sec. 3639), declares that when a marrjage is supposed to' he void, or any doubt exists as to its validity, either party may institute suit for affirming or annulling the same, and the court shall render a decree affirming or annulling the marriage. Held that, after the death of a husband, his heirs at law could not, under the West Virginia laws, assail the marriage 'contract,, so as to deprive the widow of her legal interest in his estate, on the ground thatl the husband was mentally incapable at the time he contracted the marriage.</p> <p>5. Courts <@=>307(1) — Federal Courts — West Virginia.</p> <p>Under Acts W. Va. 1915, c. 73, requiring plaintiff, assailing a marriage, to be a bona fide resident of the state, the federal District Court for West Virginia is without jurisdiction of a suit by the nonresident heirs of a West Virginia decedent, assailing his marriage with a resident of that state, for if they be treated as nonresidents, they do not fall within the terms of the statute, and if the heirs were treated as representatives of the decedent, so that his citizenship would control, there would be no diversity of citizenship.</p> <p>6. Courts <@=>262(3) — Federal Courts — Jurisdiction.</p> <p>Where diversity of citizenship exists, the federal courts have jurisdiction to entertain suits for partition of the real estate of a decedent.</p> <p>7. Courts <@=>307(1) — Federal Courts — Jurisdiction.</p> <p>Where nonresident heirs of a West Virginia decedent, all of whom were residents of the same state, sued in the federal District Court for West Virginia- to annul his marriage with defendant, a resident of the state, and for partition of his real estate, the District Court cannot entertain jurisdiction of the proceedings, unless such heirs disclaim any right to assail the marriage, and acknowledge defendant’s interest in the estate of the decedent, for, if her marital rights were destroyed, there would be no diversity of citizenship.</p> <p><g=>For otüer cases see same topic & KEY-NUMBER in ail Key-Numbered Digests & Indexes</p>

Petition by the Western Union Telegraph Company against the Louisville & Nashville Railroad Company. There was a judgment of condemnation, assessing damages, and defendant brings error.

<p>1. Exceptions, Bilí, of <3=>43(1) — Time foe Presentation and Allowance.</p> <p>A bill of exceptions may be allowed by consent after the time fixed by order or rule of the District; Court, and after tile expiration of the term at which the case was decided.</p> <p>2. Exceptions, Bill of <8=»43(1) — Failure to Present Within Time Given— Waiver.</p> <p>On the entry of judgment for the plaintiff, the court made an order allowing defendant 30 days in which to present a bill of exceptions; there being no standing rnie on the subject. The bill was not presented until after the 30 days, and after the term of court had expired, when it was signed by the judge; plaintiff making no objection, hut signing a stipulation as to what should constitute the record in the appellate court. The writ of error was signed on the same day. JUM that, under such, facts, the writ of error would not he dismissed on the ground that the hill was not signed within the time fixed by the order.</p> <p>3. Appeal and Error <S^>780(1) — Grounds for Dismissal — Inadvertence of Counsel.</p> <p>The extreme penalty of dismissal of a cause by an appellate court without a hearing on the merits should not be imposed upon a litigant because of tlie inadvertence of ills counsel, except In cases of flagrant; neglect, or where the court is compelled by statute or clearly established practice to do so.</p> <p>Pritchard, Circuit Judge, dissenting.</p> <p><2z£»For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Corporations <§=>89(1) — Stockholders—Liability.</p> <p>Where corporate stock was issued without subscription, the stockholders are liable to assessment, just as if they had been subscribers.</p> <p>2. Corporations <@=>228 — Unpaid Subscriptions — Liability.</p> <p>A corporation’s unpaid subscriptions are a trust fund for the benefit of the general creditors of the corporation, and may be reached on the insolvency of the corporation.</p> <p>3. Corporations <@=>232(1) — Stockholders—Liability.</p> <p>Organizers of a corporation, who delivered to it a stock of goods and in exchange received the capital stock of the corporation, are, the valué of the stock of goods being very much less than the par value of the capital stock, liable to general corporate creditors for the difference, though the transaction as between themselves and the corporation could not be questioned.</p> <p>4. Corporations <S=>268(5) — Petition to Assess Stock.</p> <p>Where the petition of the trustee of a bankrupt corporation, seeking to assess the outstanding capital stock on the theory that it had not been fully paid in, alleged 'that the holders were subscribers, and the proof showed that the stock was issued without subscription, the variance was immaterial; the liability of the stockholders being the same in each case.</p> <p>5. Limitation of Actions <@=>66(4) — Runninu of Statute — Balances Due</p> <p>on Unpaid Capital Stock.</p> <p>Balances due upon unpaid capital stock of a corporation do not become payable, so as to start tbe running of limitation, until there has been a call or assessment.</p> <p>6. Corporations <@=>246 — Stockholders—Liability.</p> <p>The liability of a subscriber for the capital stock of a corporation is several, and not joint.</p> <p>(gz^Foc other cases see sanio topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Equity . <®=220, 362 — Trial <3=11(3) — Bills—Grounds for Demurrer— Adequate IIemedy at Law.</p> <p>Under equity rule 22 (198 Fed. xxiv. 115 C. C. A. xxiv). the fact that there is a complete and adequate remedy at law is no ground for demurrer or motion to dismiss a bill, but the proper procedure is to move to transfer it to the law side.</p> <p>2. Trial <3=11(3) — Transfer—-Waiver.</p> <p>Failure to move to transfer a bill to the law side on the ground that, there Is a complete and adequate remedy at law, and proceeding to a hearing, is a waiver of the objection.</p> <p>3. Appeal and Error <3=1046(1) — Fail orb to Transfer Equity Case — Harmless Error.</p> <p>Where a bill, to cancel a contract of a sale, on which the buyer had already begun an action, at least, stated an equitable defense, it was immaterial that the bill was not transferred from the equity side, for, had it been transferred and treated as an answer to the action at law, it would have been disposed of by the court sitting as a chancellor before the trial of the action at law to the jury.</p> <p>4. Trial <3=1 — Equitable Defense — Disposition.</p> <p>Where an equitable defense is interposed in an action at law, It will have to be disposed of by the court sitting as a chancellor before the Trial of the action at law to the jury.</p> <p>5. Cancellation of Instruments <3=32 — .Turisdiction of Equity.</p> <p>A bill seeking to cancel a contract of sale on the ground that it was obtained by fraud and deception, and that the minds of the parties had never mot, states a case for equitable relief.</p> <p>6. Appeal and Error <3=1009(1, 4) — Bisvinw—Equity Cases — Findings of Fact.</p> <p>In an equity case, findings of fact of the trial judge, who beard the testimony, are entitled to high consideration, and unless clearly against the weight of the evidence, or induced by mistaken view of the law, will not be disturbed by the appellate court.</p> <p>7. Sales <3=45 — Fraud—Wiiat Constitutes.</p> <p>As misrepresentations may bo as well by artifices to mislead or concealment as by positive assertions, an individual, who for speculative purposes attempted to buy linseed oil for future delivery over a long period of time, must be deemed guilty of fraud, warranting cancellation of ■ the contract, where he was insolvent and transacted his business under a purported corporate name, indicating a capital and commercial rating.</p> <p>8. Sales <3=36 — Meeting of Minds.</p> <p>Where through telograpnic correspondence an individual acting under a purported corporate name bought linseed oil in large quantities for future delivery, and the seller, though diligent in making inquiry, acted under the mistaken belief that the buyer was a corporation of resource's, there was no meeting of the minds, and the seller, having been diligent, was entitled to rescind the contract.</p> <p>¡Qs^For other cases see same topic & KJUy-NUMBTQR in all Key-Numbered Digests & Indexes</p> <p>'9. Equity @=>13 — Grounds—Hardship.</p> <p>When hardship amounting to injustice would be inflicted on a party by holding him to his apparent bargain, it is within the jurisdiction of equity to relieve him.</p> <p>.10. Sales @=>418(4) — Breach—Damages.</p> <p>A purchaser of linseed oil for future delivery cannot, the seller having canceled the contract, recover damages in an action at law, where at the time of the cancellation the market price of the oil was less than the contract price.</p> <p>11. Equity @=>39(1) — Jurisdiction—Scope.</p> <p>A court of equity, having obtained jurisdiction of a suit wherein cancellation of contract of sale was sought, will.retain the jurisdiction to dispose of all controversies between the parties arising out of the transaction.</p> <p>Sanborn, Circuit Judge, dissenting.</p> <p>•@=>For other cases see same topic & KEY-NUMBER in all Key-NumberedDigests & Indexes</p>

<p>In Error to the District Court of the United States for the District of North Dakota; Thomas C. Hunger, Judge.</p> <p>Action by the Stockyards National Bank of St. Paul, Minn., against the First National Bank of Towner, N. D1. There was a judgment for defendant, and plaintiff brings error.</p>

<p>1. Evidence <@=>314(1) — Hjeahsay.</p> <p>Where a witness stated that he was not in the secrets of the grand jury room, cross-examination as to his knowledge whether certain property generally described in the indictment was produced before the grand jury was properly excluded, for it would be mere inference or hearsay.</p> <p>2. Witnesses <@=>209(2) — Cboss-Examination—Scope.</p> <p>Where a witness for the prosecution gave no testimony on direct examination upon the subject of his knowledge regarding the grand jury proceedings, the exclusion of cross-examination as to his knowledge whether property generally described in the indictment was produced before the grand jury was proper, despite defendant’s contention that there was a variance between the description in the indictment and the grand jury’s knowledge.</p> <p>3. Witnesses <@=>209(2) — Cross-Examination—Scope.</p> <p>Where defendants coni ended there was a variance between the description in the indictment of certain property and the grand jury's knowledge, cross-examination of a witness for the prosecution for the purpose of discovering witnesses who knew what testimony the grand, jury had before them is properly excluded, where the matter was in no way raised on the direct examination of the witness.</p> <p>4. Indictment and Information <@=^1(>{5 — Variance.</p> <p>Where an indictment described property generally, averring that a more particular description was to the grand jury unknown, the prosecution must show that the grand jurors were in fact ignorant of a more particular description as to a substantial portion of the property, or acquittal must be had because of the variance between the indictment and the grand jury’s knowledge.</p> <p><g=sEor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Burns, Judge. Action by E. Marroquin & Co. against Wormser. Bros, and the Earedo National Bank, in which Wormser Bros, filed a cross-action. There was a judgment for plaintiffs, defendants Wormser Bros, also recovering on their cross-action, and defendants bring error.

<p>1. Appeal and Error <®=781(6)-tDismissal — Moot Case — Settlement.</p> <p>Where, pending an appeal from an order enjoining the sale of land under a statutory foreclosure proceeding in the state court, a purchaser from the mortgagor and his grantee contracted for an extension with the mortgagees, who recognized such purchaser as obligor in the entire transaction, the appeal will be dismissed; all questions other than costs having become moot.</p> <p>2. Costs @=232 — Dismissal—Moot Case.</p> <p>Where by reason of a settlement the questions involved in an appeal from an injunction order have become moot, costs must be assessed against the appellant in sustaining a motion to dismiss.</p> <p>3. Injunction @=235 — Dismissal—Moot Case.</p> <p>Where, pending appeal from an order enjoining mortgage foreclosure sale under statutory proceedings In state court, a settlement of the question involved was effected, appellants cannot, the appeal being dismissed, assert any rights for damages or costs on the injunction bond.</p> <p>4. Costs @=197 — Dismissal—Moot Case.</p> <p>Where, pending appeal from an order enjoining a sale under statutory' foreclosure proceedings in a state court, a settlement was effected, the question of costs in the state court will be left for that tribunal on dismissal of the appeal.</p> <p><®c»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

M. Morton, Jr., Judge. In the matter of Ringrose & Draper, bankrupts; Lawrence G. Morris and others, petitioners. The Houghton Wool Company, objecting creditor, appeals from an order of adjudication.

Suit in admiralty by William D. Dittmar, owner of the scow John J., against the Frederick Starr Contracting Company, with the Elliott C. Brown Company impleaded. Decree for libelant, from which the Brown Company appeals.

Dyer, Judge. Action by the Skinner Brothers Manufacturing Company against the East St. Louis Cotton Oil Company, which counterclaimed. There was a judgment for plaintiff, and defendant brings error.

<p>1. Witnesses <§=>275(6) — Cross-Examination of Party — Irrelevant Matter.</p> <p>In an action for injuries received by a servant as a result of an explosion, the question whether a superior employe had previously accused the servant of negligence in using explosives was irrelevant, and properly excluded on the servant’s cross-examination.</p> <p>2. Witnesses <§=>275(2) — Cross-Examination of Party.</p> <p>In an action for injuries received by plaintiff, a servant, In an explosion, it was proper to exclude on his cross-examination a question as to whether his superior had told plaintiff that, during the superior’s absence, he would not be required to use explosives, for, while the master could show previous warnings to plaintiff, the question was not framed so as to elicit that information, and the superior could not know what plaintiff would be required to do under the direction of another.</p> <p>3. Trial <@=>203(1) — Instructions—Issues.</p> <p>In an action by a servant, injured by the explosion of caps used to detonate dynamite, but which contained a dangerous high explosive other than dynamite, the refusal of a cautionary instruction, requested by the master, that the question whether dynamite is dangerous is not in issue was proper; the trial court-not being bound to negative issues in no way involved, and nothing having occurred to lead jury to believe that such question was in issue.</p> <p><@zxoFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to tlie District Court of the United States for the District of Nebraska; Joseph W. Woodrottgh, Judge.</p> <p>Action by Joseph Pechenka against Morris &' Co., a corporation. There was a judgment for plaintiff, and defendant brings error.</p>

Action by Harry Polasky and another, trading as the New Process Gas Mantle Company, against Euerst Bros. & Có., Incorporated. There was a judgment for plaintiffs, and defendant brings error. Writ of error to a judgment of the District Court for the Southern District of New York for $3,986.75 in an action at law upon the verdict of a jury. The jurisdiction of the District Court depended upon diversity of citizenship and the amount in controversy.

<p>In Error to the District Court of the United States for the District of Massachusetts; James M. Morton, Judge.</p> <p>Action at law by Ida Francis against the Boston & Yarmouth Steamship Company, Limited. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeals from the District Court of the United States for the Southern District of .New York.</p> <p>Libel by Howard Carroll and another, executors of the estate of John II. Starin, deceased owner of the steamboat Haven, against the City of New York, together with a libel by such .respondent against, such libelants. From decrees for the City of New York, Howard Carroll and another appeal.</p> <p>A few only of the facts regarding this collision need statement as a basis for legal ruling:</p> <p>On a dark clear night, in the East River, with the tide strong flood, and a norihwosterly gale, the ferryboat Queens, bound from her slip near the foot of Whitehall street to Staten Island, came in collision with the propeller Haven, bound from a North River pier into the Sound and so on to New Haven. The blow (nearly axnidship) was by the bow of the Haven on the starboard side of the Queens, and not over three points (probably less) off a right angle: contact occurred about 800 feet off the end of the ferry racks, in a line between one of the Whitehall slips and the nearest wharf on Governor’s Island, a distance of between 2,200 and 2,300 feet. Before collision the Queens had probably been carried by tide and wind broadside, or nearly so, somewhat to her own port hand.</p> <p>On getting under way and blowing her slip whistle, the Queens noticed three lows, all on her port bow, all going out of the East River, and all on the Manhattan side of the channel. The estimated distance of the outside tow from the rack or pier ends was 600 feet. While such estimates are not at all reliable, it is found and admitted that all those tows wore inside of or nearer Manhattan than the course of the Haven, which as found by the court below was to keep substantially the same distance; i. e., about 800 feet off the Battery, as she rounded into the East River.</p> <p>The Queens blew one whistle, at least twice, to the tows on her port bow, and received assenting answers. She denies (and we so assume) that she ever blew any passing signal to the Haven, which vessel, however, gave one whistle, on the assumption that one of the Queens’ signal blasts was Intended for her.</p> <p>The Haven had seen the Queens in, or just leaving, her slip, and when the propeller was passing the Atjuarium, a distance of about 2,000 feet; the Queens did not notice the Haven until she was distant no more (by the ferryboat’s testimony) than 1,000 feet. Again accuracy is not to be expected in this matter of distance;, hut we find as a fact, on the Queens’ own evidence, that she paid no attention to the Haven, if indeed she saw her, until after the Queens had cleared the tows to lier own port, and she was then almost across the Haven’s path, although the red light of that vessel must have been plainly visible from the time she was about off the Aquarium. On this point no finding was made below.</p> <p>The Haven was found at fault for violating the East River statute, both as to speed and proximity to the shore, and no contributing error was discovered in the Queens. Decrees accordingly having been entered, the owners of the Haven appealed.</p>

<p>1. Bankruptcy <@=>334 — Claims—Proof—Secured Claim — Deficiency.</p> <p>Where a trustee in bankruptcy was not a party to proceedings of a creditor to foreclose his fourth mortgage under which sale was liad resulting in a deficiency .judgment, the deficiency judgment did not constitute a liquidation of the claim under the mortgage, within Bankruptcy Act July 1, 1898, c. 541, § 57h, 30 Stat. 560 (Comp. St. 1916, § 9641), so as to be provable.</p> <p>2. Mortgages <@=>127(1) — Foreclosure—Equity of Redemption.</p> <p>The mortgagor, or, if he has conveyed before suit Brought, Ms grantee, is a necessary party to an action to foreclose, and, if not made a party, Ms equity of redemption is not foreclosed.</p> <p>3. Bankruptcy <@=>213 — Trustee—Rights op.</p> <p>Under Bankruptcy Act, § 70 (Comp. St. 1916, § 9654), a trustee, when elected, is by operation of law vested with the bankrupt’s title as of the date of adjudication, and where the trustee was not made a party to a suit to foreclose a mortgage on the bankrupt’s property, begun after'bankruptcy, though before election of the trustee, the equity of redemption, which passed to him, was not foreclosed by the judgment.</p> <p>4. Mortgages <@=>567(1) — Foreclosure!—'Purchaser.</p> <p>Where the mortgagor was not a party to a suit to foreclose, nor was his trustee in bankruptcy made a party, a purchaser at such foreclosure sale becomes an assignee of the mortgage, and if he enters into possession becomes a mortgagee in possession, so that if, upon sale thereafter of the premises under a prior mortgage, a surplus be paid into court, the purchaser will be entitled to it, and if a surplus still remains it will go to the trustee as owner of the equity of redemption.</p> <p><@=>For other eases see same topic & KEY-NUMBER, in all Key-Numbered Digests & Indexes</p> <p>5. Bankruptcy @=3334 — Claims—Liquidation.</p> <p>Where the trustee in bankruptcy was not a party to a suit to foreclose fourth mortgage, and the mortgagee recovered a deficiency judgment, which he attempted to prove against the bankrupt’s estate, the sole question for determination, the claim not having been liquidated, was whether the amount bid at the foreclosure sale represented the fair value of the premises, and, the referee having found that the value of the land was ample to secure the whole of the mortgagee’s claim, he was not obliged to fix its exact value.</p> <p>6. Bankruptcy @=3334 — Claims—Liquidation.</p> <p>Where a trustee in bankruptcy was not a party to a suit to foreclose a fourth mortgage, so that the deficiency judgment recovered by the mortgagee was not a liquidation of his claim, the judgment roll was admissible as some evidence of the value of the property.</p> <p>7. Appeal and Error @=544(3) — Beview—Determination.</p> <p>Appeals are decided on the record sent up whenever possible, and a decree will not be reversed where, from the record, the appellate court could determine the nature of evidénce improperly excluded, and that it would not have affected the result.</p> <p><§z5>Foi other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Railroads <©=>301 — Mutual Rights and Duties at Highway Crossings.</p> <p>The driver of a railway motorcar had the right of way at a highway crossing over an automobile on the highway.</p> <p>2. Master and Servant <@=j137(3) — Railroads <©=3327(1) — Liability for Injuries — Accidents at Crossings.</p> <p>It was the primary duty of the driver of an automobile, approaching a railroad crossing, to look and listen for engines, cars, motorcars, and other vehicles on the railroad, and to stop before colliding with any of them, and the driver of a railway motorcar had the right to rely upon the legal presumption that the automobile driver would faithfully discharge this duty, and would have been guilty of no breach of duty, or negligence towards a fellow employé riding on the motorcar, if he had seen the automobile approaching, and had driven steadily on until the collision occurred, in the faith that the automobile driver would stop, unless he perceived that the driver would not stop in time to prevent the collision, 'and thereafter failed to exercise reasonable care to stop the motorcar, so as to avoid the collision.</p> <p>3. Master and Servant <©=3265(3,12) — Actions for Injuries — Burden of Proof.</p> <p>A railway employé, suing for injuries sustained while riding on a motorcar which collided with an automobile, had the burden of proving his allegations as to the negligence of the driver of the motorcar, and that such negligence caused or directly contributed to the collision.</p> <p>4. Master and Servant <©=3285(1), 287(4) — Actions for Injuries — Direction of Verdict.</p> <p>Where there ,was no substantial evidence that the driver of the motor-ear perceived, in time to stop and prevent the accident, that the driver of the automobile would not discharge his primary duty of stopping-and preventing the collision, and that his failure to exercise reasonable care to stop the motorcar after so perceiving directly contributed to the injury, defendant’s motion for a directed verdict should have been granted.</p> <p>g-,!»!. other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Shipping <@=84(3) — Liability of Vessels — Injury to Stevedores.</p> <p>A ship is liable in rem for au injury to a stevedore resulting from a dangerously defective hatch cover furnished by it to the stevedores for their use.</p> <p>2. Shipping <S=>86(2> — Liability of Vessel — Injury to Stevedore.</p> <p>A finding by the trial court that the injury of a stevedore by the falling of a hatch cover on which he stood while helping .to cover the hatch at night by artificial light wasi due to the fact that the covers had become worn until they were too short hold supported by the evidence.</p> <p>3. Evidence <@=>75 — Shipping—Suit for Injury to Stevedore — Defective . Equipment.</p> <p>In a suit to recover for injury to a stevedore by the falling of a hatch cover, alleged to have been too short, which was marked and measured by one of the ship’s officers the next morning, the failure of respondent to produce the cover or measurements hold to justify the inference that such evidence would have shown it to be defective.</p> <p><@z^>For otlier cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Bankruptcy <@=»314(3) — Intoxicating Liquors <@=»147 — Sales — Where Made.</p> <p>Where a brewing company located in Illinois gave to the bankrupt the exclusive right to sell its beer at wholesale, the same to be delivered f. o. b. at Omaha, Neb., the sales must be deemed to have occurred in Illinois, where the brewing company was licensed, so the company was entitled to have allowed- its claim against the bankrupt, based on sales made under the contract, though it was not licensed in Nebraska to sell intoxicating liquors.</p> <p><gs5>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Lewis, Judge. Action by the United States against the Denver & Rio Grande Railroad Company to recover a penalty for violation of the Hours of Service Act. There was a judgment for defendant, dismissing the action, and plaintiff brings error.

<p>In Error to the District Court of the Canal Zone; William H. Jackson, Judge.</p> <p>Action by William E. Shaw against the Bergen Point Iron Works. There was a judgment for plaintiff, and defendant brings error.</p>

Petition to Revise an Order of the District Court of the United States for the Eastern District of Michigan, in Bankruptcy; Arthur J. Tuttle, Judge. In the matter of the bankruptcy of Joseph Greenbauni. Petition by Harry C. Moulthrop, trustee in bankruptcy, to revise an order of .he District Court.

Iii Error to.the District Court of the United States for the Eastern District of Louisiana; Rufus E. Foster, Judge. Josef Domeuick Gregorat was convicted of violating Act June 29, 1906, § 23, in that he knowingly did give, in a naturalization proceeding, false testimony as to a material fact, and brings error.

Petition in admiralty by the Keansburg Steamboat Company, as owner of the steamboat Keansburg, for limitation of liability. From a decree holding the boat liable for an injury to passengers, petitioner appeals.

<p>1. Railroads @==>346(5) — Crossing Accidents — Contributory Negligence— Burden of Proof.</p> <p>In a crossing accident case, a railroad company, asserting the traveler’s contributory negligence, has the burden of proof.</p> <p>2. Appeal and Error @=>927(7) — Review—Directed Verdict.</p> <p>Where the denial of defendant’s motion for directed verdict was assigned as error, the testimony must by the appellate court be taken most strongly against defendant; the jury having found for plaintiff.</p> <p>3. Railroads @=350(15) — Crossing Accident — Jury Question — Contributory Negligence.</p> <p>In an action by plaintiff, who was struck by a train while crossing defendant’s tracks on foot about 8:30 on a May evening, the question whether, plaintiff, who with her companions walked around the front end of a standing yard engine, which had been obstructing the crossing for longer than allowed, was guilty of contributory negligence, the view being obstructed by smoke, held, under the evidence, for the jury.</p> <p><Szs>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Action by Annie Farley, as administratrix, etc., against the Carey Show Print Company, Incorporated. There was a judgment for defendant, dismissing the complaint, and plaintiff brings error.

<p>In Error to the District Court of the United States for the Eastern District of Eouisiana; Rufus E. Foster, Judge.</p> <p>Action by Ruffin B. Paine against the Cumberland Telephone & Telegraph Company. There was judgment for defendant, and plaintiff brings error.</p>

<p>1. Patents <©=15 — Validity—Double Patenting.</p> <p>Where an inventor at the same time devises a container for electric lights of pleasing design and a mechanical contrivance conveniently united with an aesthetic cover, he has made two inventions, and, though he at first secures only a mechanical patent, he may within the two-year period procure a design patent, without violating the rule against double patenting.</p> <p>2. Patents @=>15' — Design Patents — Consideration.</p> <p>A design patent for an ornamental electric light fixture must be viewed in its entirety; its effect being optical.</p> <p>3. Patents <@=^328 — Validity—Anticipation.</p> <p>Design patent, No. 49,593, for an ornamental electric lighting fixture, comprising a bell-shaped canopy having a straight lower edge, below which is suspended in close proximity a hemispherical bowl, having a straight upper edge, helé invalid for lack of invention.</p> <p>¡g=s>Foi other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by the T. F. Smith Company, the Jaeger Machine Company, and the Waterloo Ceitient & Machinery Company against the Cement Tile Machinery Company, now known as the Stewart Manufacturing Company.. On final hearing. Decree for complainants on one cause of action, and for defendant on the second cause of action.</p> <p>Suit for alleged infringement by defendant of United States letters patent No. 803,721, issued to the T. L.-Smith Company, as assignee of Thomas I,. Smith, November 7, 1905, for improvement in mixing machines, for an accounting of damages and profits, and injunction restraining the defendant from further infringing said patent.</p>

In the matter of the bankruptcy of Harry C. Jones, trading- as H. C. Jones & Co. On petition of the trustee to compel the bankrupt to surrender a certain life policy or pay the surrender value thereof.

In Bankruptcy. Action by Julius T. A. Doolittle, as trustee in bankruptcy of George A. Reynolds, against the Mutual Life Insurance Company of New York, Richard S. Reynolds, as executor of the last will and testament of George A. Reynolds, deceased, and another. On application for an order staying defendants from further prosecuting an action in the state court.

In Equity. Bill by one .Williams, executrix, against R. B. Miller, which was removed from the state court. On motion to dismiss. The complainant, a citizen of Virginia, filed her bill in equity in the circuit court of Bland county, Va., and thereupon sued out an attachment, which was duly levied on land belonging to the defendant in that county.

<p>Pleading <®=»8(13) — Fhapd—General Allegation.</p> <p>General allegations of fraudulent representations and of threats and •promises are insufficient, unless accompanied by a statement of the representations, threats, and promises, or at least the substance thereof.</p> <p><@£5>Foi other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Equity. Suit by the St. Louis Car Company against the J. G. Brill Company and Henry K. S. Williams, trustee. Sur motion for a further and better statement of the nature of plaintiff’s claim. Motion dismissed, with leave to defendants to renew it upon ground shown.

<p>Habeas Corpus. In the matter of the application of Aniello De Genaro for a writ of habeas corpus against Evan M. Johnson, Brigadier General, Commander of the 77th Division, U. S. A., at Camp Upton, N. Y.</p>

At Law. Libel by the United States for the condemnation of 402 Boxes of Oranges on the ground that they were adulterated, in violation of the Food and Drugs Act, which were claimed by Ivan C. Mclndoo.

<p>1. Copyrights <8=05 — Infringement.</p> <p>The scene of plaintiff's play, which was duly copyrighted, was laid in the north woods, and one of its supposed merits consisted in the fact that it contained an atmosphere-of local color. The plot, which was trite and conventional in the extreme and, revolved around the hero, a simplehearted poeiic north woods guide, a so-called society girl, and the villain, a rich person from the city, made much of an incident whereby the hero and the society girl lost their way and were compelled to spend the night in the woods together. Defendant’s motion picture play contained the same characters, and the scene was laid also in the woods, while the plot revolved around a similar Incident. Meld, that plaintiff’s copyright was infringed.</p> <p>2. Copyrights <§=75 — Infringement—Defenses.</p> <p>Where defendant copied plaintiff’s play in its entirety, it cannot defeat a suit for infringement of copyright on the ground that an earlier novel contained similar incidents; for, while an author, who reworks an old plot, is not entitled to protection as to the plot, he is entitled to be protected in his treatment of the same.</p> <p>3. Copyrights <3=75 — Validity—Title.</p> <p>Though the title of a copyrighted play was old, the entire copyright cannot be treated as invalid, and a suit for infringement, wherein the play was practically copied, defeated.</p> <p>4. Brokers <3=91 — Authority to Sell.</p> <p>The mere possession of the manuscript of a play by a play broker is not of itself sufficient to give the broker authority to contract for the sale of the copyright.</p> <p>5. Copyrights <3=90 — Infringement—Attorney's Fees.</p> <p>Where there was a preliminary injunction, motion touching interrogatories in a suit for infringement of a copyright, and a trial of one day in the District Court, the attorney for the plaintiff, who was successful and recovered damages for the infringement, should be allowed a fee of $300.</p> <p>Supplemental Opinion.</p> <p>6. Copyrights <3=83 — Sale—Burden of Proof.</p> <p>Where defendant, who was sued for infringement; of a copyrighted play, asserted the validity of its purchase of the play from a broker, who luid possession of the manuscript, defendant has the burden of proving that issue.</p> <p><g=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>7. Brokers <§=>94 — Sales—Power of Sale.</p> <p>Where a play broker, who was given possession of the manuscript of a copyrighted play, was required to submit to the author any offers for the motion picture rights, the broker had no authority to sell the copyright, for authority to sell implies a right under some conditions to close" the bargain unconditionally.</p> <p>8. Brokers <§=>103 — Acts—Ratification. '</p> <p>Where an author, after delivering to a play broker the manuscript of a copyrighted play, with directions to submit to him any offers for the motion picture rights, took no action for two months after learning of a notice in a magazine concerning defendant’s production of a motion picture play with similar incidents, but which bore a different title and' was stated to have been written by another, such delay cannot be deemed a .ratification of the broker’s unauthorized disposal of the play.</p> <p><gz3>For other cases see same topic & KEY-NUMBER in all Key-Numhered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Bill by Robert Stodart against the Mutual Film Corporation and the American Film Company, Incorporated. From a decree for complainant, defendants appeal.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Texas; Gordon Russell, Judge.</p> <p>In the matter of the bankruptcy of the Alliance Milling Company. The York Engineering & Supply Company filed proof of claim, alleging a constitutional and statutory lien, and on the same day it filed a petition, setting up the facts of the transaction out of which the claim arose. J. H. Reeves, trustee in bankruptcy, filed a protest, and, the judgment of the referee allowing the claim and lien having been affirmed by the District Court, he appeals.</p>

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

<p>1. Wills <e=860 — Title and Rights of Legatees — Stockholders’ Suit— “Devolve.”</p> <p>By his will a testator empowered his executors to convert all his property into cash at any time, except certain stock in a corporation, which they were to hold in trust for the benefit of his wife until her death, when it was to become a part of his residuary estate, which, after payment of special bequests, was to be equally divided between his children or their representatives, taking into account advances made them. Hold, that the legatees did not by devolution take title to the stock on the death of the wife while it remained in the hands of the executors, who had power to sell the same, and that they could not maintain a stockholders’ suit against the corporation and others (quoting Words and Fhrases, Devolve).</p> <p>2. CORPORATIONS <§=211 (6)-STOCKHOLDERS’ SUIT-SUFFICIENCY OF BjT.L.</p> <p>A bill filed by complainants as stockholders against the corporation and others, considered in the light of the corporate records produced in response to complainants’ prayer for discovery, held to state no cause of action.</p> <p>¡5. Corporations <§=209 — Stockholders’ Suit — Laches.</p> <p>Minority stockholders, seeking redress for alleged fraud, must’ act promptly, and a bill filed at least 12 years after the transactions alleged to have been fraudulent, with no excuse given for the delay, shows such laches on its face as to warrant its dismissal.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digeste & Indexes</p>

<p>1. Corporations <©=>211(6) — Stockholder’s Suit — Sufficiency of Bill— Jurisdictional Allegations.</p> <p>Equity rule 27 (198 Fed. xxv, 115 C. C. A. xxv), prescribing the jurisdictional requisites of a stockholder's bill, as bas been stated by tbe Supreme Court, which framed it, “is intended to have a practical operation, and to have that it must as to its requirements be given such play as to fit tbe requirements of different cases.” If tbe allegations of tbe bill are deemed too general by defendants, their remedy is by motion for further and better particulars under rule 20 (198 Fed. xxiv, 115 C. C. A. xxiv); but tbe requirement that the bill set forth with particularity the efforts of plaintiff to secure such action as he desires does not apply, where the allegations clearly show that by reason of antagonistic control of the corporation such efforts would have been futile.</p> <p>2. Corporations <©=>211(6) — Stockholder’s Suit — Sufficiency of Bill.</p> <p>A stockholder’s bill held to state facts sufficient to entitle complainants, as minority stockholders, to invoke the jurisdiction of a court of • equity.</p> <p>3. Corporations <©=>210 — Stockholder’s Suit — Parties.</p> <p>A suit in a federal court by minority stockholders against tbe corporation, which is a corporation of tho state, having its property and business therein, and the managing director, who is also a citizen and ■ resident of the state, in which the hill alleges transactions by tbe directors, who are also tbe principal stockholders, by which tbe corporation has been defrauded of property for their individual benefit; should not be dismissed on motion because the other directors are not parties, where by reason of their being out of the jurisdiction they cannot be served, and if brought in their joinder would oust the jurisdiction of the court. In such case, such directors, while proper, are hot indispensable, parties, even though full relief as to all the transactions alleged cannot be granted without their presence, and the court, having jurisdiction over the corporation and its property, may and should, under equity rule 39 (198 Fed. xxix, 115 O. O. A. xxix), and Judicial Code (Act March 3, 1911, c. 231) § 50, 36 Stat. 1101 (Comp. St. 1910, § 1032), proceed without them, and grant such relief as the proofs may warrant and as is within its power.</p> <p>4. Courts <©=>347 — United States Courts — Procedure—Motion to Dismiss Bill.</p> <p>While it is within the discretion of the court to entertain a motion to dismiss a bill for want of equity apparent upon its face, made under equity rule 29 (198 Fed.- xxvi, 115 C. C. A. xxvi), at any time before the hearing, the rule contemplates that it be made before the answer is filed, and if made afterward it must be determined on tbe allegations of the bill, without aid from tbe denials or allegations of tbe answer.</p> <p><@cs>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Cross-Appeals from the District- Court of the United States for the Eastern District of South Carolina, at Charleston; Henry A. Middleton Smith, Judge.</p> <p>Suit in equity by El. K. Rogers against E. E. Elincl-de, as trustee. E'rom the decree, both parties appeal.</p> <p>The opinion of the District Judge was as follows:</p> <p>The complaint in tills case appears to have been originally filed in the court of common pleas for the county of Florence about the 6th of January, 1917. Thereafter, on the ground of diversity of citizenship, the cause was duly removed to this court. The defendant, having been duly served with process, has appeared and answered. The case, being at issue, came on to be heard. The testimony has been taken, and counsel for both plaintiff and defendant have been heard. The facts of the case appear to be that the plaintiff, II. K. Rogers, was heavily indebted upon certain mortgages to J. F. Muldrow and Mrs. Emma Lee Muldrow. He seems to have purchased from them, or one of Ihem, three tracts of land in Florence county (the largest tract being a tract partly in Florence and partly in Darlington county), for which he agreed to pay the sum of $40,000. He seems to have paid no cash, but paid the $40,000 by three bonds secured by mortgages: One bond dated December 16, 1912, conditioned for the payment of $20,000 to J. F. Muldrow, secured by a mortgage of 585 acres, partly in Florence and partly In Darlington counties, with certain personal property; one bond of the samo date to Emma Lee Muldrow, conditioned for the payment of $15-,000, secured by a mortgage upon two tracts of land in Florence county, one tract containing 178 acres and the other tract containing 10.30 acres. These two bonds together made $35,000, and the other $5,000 he paid by a bond of the same date for $5,000 to J. F. Muldrow secured by a mortgage on 143 acres of land in Darlington county, sometimes referred to as the home place of H. K. Rogers. It will be seen, therefore, that the properly purchased by H. K. Rogers comprised three tracts of land, of 585 acres, 373 acres, and 10.36 acres, for which, with the personal property referred to in the mortgage, he agreed to give the price of $40,000, and which $30,000 was i>aid by a mortgage of $35,000 on the purchased premises, and a mortgage for $5,000 on a separate piece of property in the county of Darling-ton, which belonged to Rogers personally, and which he did not purchase from Muldrow. For convenience hereafter in this decree this last property, which belonged to Rogers personally, will ho referred to as the Darlington property, and the other three pieces of property, which were purchased from J. F. Muldrow and Emma Lee Muldrow, will he referred to as the Florence property, although the largest of the three pieces is also partly in Darlington county.</p> <p>These mortgages were all on the 8th day of January, 1913, assigned by the Muldrows to one John Tinker. Thereafter a concern called J. F. Muldrow Company became bankrupt, and in pursuance of some settlement of ihe indebtedness oi Ihe Muldrows, either directly or through the said J. F. Muldrow Company, these three mortgages given by H. K. Rogers to J. F. Muldrow and Emma Lee Muldrow were assigned to the defendant, E. E. Hinckle, as trustee for certain creditors, subject to the prior assignments made to John Kuker. E. E. Hinckle thus owning as trustee all the three mortgages, negotiations were had between himself and the plaintiff, H. K. Rogers, to put the matter in a shape which might obviate the necessity and expense of a foreclosure, and after the negotiations an agreement was entered into, on or about the 7th day of January, 1936, to the effect that If. K. Rogers would convey to E. E. Hinckle, as trustee, the three tracts of land, with the personal property thereon, so as to vest the title to the property absolutely in B. B. Hinckle, subject only to the payment of the prior mortgages assigned to John Kuker, and then that Hinckle would agree that the property might be repurchased by H. K. Rogers for the sum of $35,000, and that, if Rogers 'paid the sum of $35,000, which was $5,000 less than he owed on his three mortgages, he would receive the property in Florence county and also have his outstanding mortgage on the property in Darlington satisfied and the mortgage returned to him; it being distinctly understood that the agreement was to the effect that he was to get a concession of $5,000 on his purchase price — that is to say, in lieu of paying $40,000; he was to pay only $35,000, and thereupon have the Florence property and his original own individual property in Darlington free from mortgage.</p> <p>In pursuance of this agreement Rogers on the 7th day of January, 1916, executed a deed of conveyance to E. E. Hinckle of the three tracts of land in Florence county, purporting to be for the sum of $35,000, and in the conveyance declared that the property conveyed was subject to the mortgages given to secure an indebtedness which was then larger in amount than the consideration stated, to wit, $35,000, which mortgages were to be kept open as muniments of title. On the same day, January 7, 1916, Hinckle, as trustee, executed a lease to Rogers of all the three tracts of land in Florence county, with the personal property, to run as to the 31st of December, 1918, for the annual rent of $2,250, to be paid on the 15th of October in each year; and on the same day Hinckle executed an agreement in writing that in consideration of the conveyance to him of the property by Rogers and of the lease of the same from him by Rogers he granted to Rogers the right and privilege of purchasing the three tracts in Florence county and the personal property leased “at such price and on such terms as shall be acceptable to me and offered by a bona fide purchaser therefor at any time previous to the 1st day of October, 1918,” or “if no such bona fide offer shall be made for the purbhase of tile property during the period mentioned, then at and for the sum of thirty-five hundred dollars ($3,500.00).” The agreement further stipulated that Hinckle would within the time above mentioned, on demand of Rogers, convey to him the three described tracts free of incumbrances upon Rogers complying with the terms of the option by the payment of the stipulated purchase price. No mention is made in this agreement or option as written of the tract of land in Darlington county or the mortgage for $5,000 thereon. Thereafter, on or about the 15th of December, 1916, one D. T. McKeithan, a bona fide-purchaser, made an offer to Hinckle to buy the three tracts land in Florence county with the personal property thereon included in the lease, for the sum of $25,000. Nothing in this offer covered or referred to the mortgage for $5,000 on the Darlington property held by Hinckle by assignment from Kuker; so that the effect of McKeithan’s offer was to pay Hinckle $25,000 for the Florence tracts and personal property and leave Hinckle still holding the $5,000 mortgage on the Darlington pi'operty. McKeithan was informed by Hinckle that, under the latter’s agreement with Rogers, Rogers was entitled to the privilege of first making the purchase at the price offered. On the submission of this offer to Rogers he purported to accept and then required that on the payment by him of $25,000 Hinckle should execute to him a conveyance of the three tracts of land in Florence county free of all incumbrances and at the same time deliver to him duly satisfied the $5,000 mortgage on the Darlington property.</p> <p>This Hinckle declined to do, and thereupon H. K. Rogers instituted these proceedings, first, to have the option or agreement of 7th January, 1917, reformed and corrected, by therein distinctly stating that upon Rogers complying with the terms of the option the outstanding mortgage for $5,000 on the Darlington property should also be delivered to him by Hinckle duly satisfied ; and, second, for a specific performance of the option so reformed, by requiring Hinckle on the payment of $25,000 to convey to Rogers the three tracts with the personal property in Florence county free from all incumbrances and also to deliver to him fully satisfied his mortgage for $5,000 on the tract in Darlington county.</p> <p>Tho defendant by his answer denies that the option or agreement of January 7, 191-7, ever covered or was intended to cover tho mortgage for $5,000 on the Darlington property, and denies that defendant ever agreed that, if Rogers eompUed with the terms of that option, that mortgage would be paid and delivered up to him. The defendant further, by way of a counterclaim for affirmative relief, sots up the mortgage for $5,000 on the Darlington property and prays a foreclosure and sale of it.</p> <p>[1] The first question to be determined under the pleadings is as to whether or not the option or agreement of the 7th of January, 1916, should be reformed and corrected. After hearing all the testimony tho court is satisfied that this option or agreement as written failed to correctly express the agreement or undersnmtling of the parties in two particulars: First, In that the words thirty-live hundred dollars as the price to be paid by Rogers was evidently a mistake or typographical error and that it should read thirty five thousand dollars. Next, under the testimony and admissions of defendant it clearly appears that the understanding and agreement of the parties was that Rogers should have a concession of $5,000 on the price; of $40,000 at which to repurchase the properly, and that if he paid the $35,000, or if he paid such a price as should be acceplabie to Hinekle, and offered by a bona fide purchaser at any time previous to the 1st day of October, 1918, the mortgage 1'or $5,000 on his Darlington property was to be part of the properly purchased or acquired by the payment of tho purchase price; otherwise, he could not have been suri' of obtaining the concession of $5,000.</p> <p>It is therefore ordered, adjudged, and decreed that tho option or agreement herein executed by E. E. Hinekle, trustee;, on the 7th day of January, 1910 (according to the instrument put in evidence in this case), be and the same is hereby reformed and corrected ns follows: First, by striking out the words “thirty-five hundred dollars ($3,500.00)” in letters and figures on the line next above the last line of tho first page, and inserting in lien thereof “thirty-five thousand ($35,000.00) dollars”; second, by inserting between the words “deed” and “upon,” in the third line of the second page the following words: "And to deliver up to him the mortgage for $5,000 on the 143 acres in Darlington county duly satisfied.”</p> <p>[2] The next question is: Is the plaintiff entitled in these proceedings 1o a specific performance of this option or contract as reformed? The plaintiff’s construction of the contract is that, the offer made by McKeithan as a bona fide purchaser being $25,000, he, the plaintiff, was entitled, on payment of the same amount, to have a conveyance of the three tracts of land and personal property in Florence county freo of incumbrances, and also to have the mortgage for $5,000 satisfied upon tho Darlington property. This construction and claim of the plaintiff is, however, in effect $5,000 less than the offer made by McKeithan, and, if allowed, would result in Rogers, obtaining-, not only the concession of $5,000 on his original purchase price of $40,000, but of obtaining a concession of $15,000 on that purchase price, for he would thus obtain for $25,000 what he had originally agreed to pay $40,000 for. In the opinion of the court Rogers is not entitled to specific performance upon any such construction of the contract as contended by him. The offer purporting to be accepted, by Rogers is slot the offer made by McKeithan. The offer made by McKeithan was $25,000 for the three tracts of land in Florence and the personal property alone, and this left Hinekle free to hold and enforce his mortgage for $5,000 on the Darlington property, and therefore, in effect, the offer of McKeilhan was 830,000, and not $25.000. This would have given Rogers a concession of $10,000, or $5,000 more than he was entitled to by Ms own understanding of the agreement. Yet Rogers’ attempt, is to obtain a concession of $15,000, on the ground that his tender of the $25,000, being the amount offered by MoKeitlian for a part of the property, should, under the wording of the option, cover the whole of’ the property therein mentioned, and entitle Rogers, not only to that property that McKeithan was to get, but to the $5,000 mortgage. This the court finds that he is not entitled to; that the true option was to allow Mm to acquire the property, including his $5.000 mortgage, only by an offer and a payment equivalent to the bona fide offer received by Hinekle. This he has failed to comply with.</p> <p>The plaintiff, however, submits to the court that, if the court reforms the agreement, he should be allowed, on compliance with the agreement in accordance with the construction of the contract now made by the court, to require specific performance on the part of Hinckle; that is to say, that if Rogers will now pay the sum of $25,000, with interest from the date of tender, say the 16th day of December, 1916, and will recognize as valid and outstanding the mortgage upon his property in Darlington, and leave Hinckle free .to foreclose or enforce it, he should have specific performance of the contract. The defendant insists that Rogers is not entitled at this stage to any such decree; that he is not entitled to a specific performance until he should have tendered the amount, the full payment under the option; and that, having been notified of the offer made by McKeithan and having failed to tender 1 an amount equal to it, he has lost his right to a specific performance. The agreement or option in the present case and under all the circumstances is not one in which time would so appear to be of the essence of the contract as to defeat the right of the court to relieve against a forfeiture. It does not appear that the rights of any third parties have intervened, such as would make it inequitable to allow Rogers the opportunity now to comply with his option. One of the earliest acts of the Court of Chancery, in a case of mortgage by way of conditional .sale, was to refuse to allow the forfeiture, but to decree a time for redemption, under what was called the equity of redemption. This present option is not dissimilar, and if the court could relieve upon the positive terms of a sale under which the title became absolute in the mortgagee upon the failure of the mortgagors to perform, it can certainly relieve under the circumstances of the present agreement. -</p> <p>It is to be borne in mind that this agreement is not a mere option, but an express understanding for valuable consideration, and that Rogers has already executed his entire part of it. He was under no obligation to execute the conveyance of the land to Hinckle, thus yielding up his equity of redemption; yet he did so. He conveyed to Hinckle his title to the land, which would, if he had retained, have insured him an opportunity to exercise his equity of redemption under any proceedings for foreclosure. He also accepted a lease of the property, which is expressly made one of the considerations for the option. This lease seems to have secured under the name of rent what in effect paid the interest on the price of $35,000. And, furthermore, the defendant himself does not stand on the option as written, for it is necessary to reform the option also to protect the defendant Hinckle. If the option was in force as it read for $3,500 only, and not $35,000, the tender made by Rogers would have been ample to cover all his obligations. It is not a case in which counter equities should be overlooked. Both plaintiff and defendant have come into court, setting up and seeking affirmative equitable relief. The maxim. “He who seeks equity must do equity,” is as appropriate to the conduct of the defendant as that of the complainant. Brown v. Lake Superior Iron Co., 134 U. S. 535, 10 Sup. Ct. 604, 33 L. Ed. 1021. Rogers has already parted with all the consideration he was to give for the option. The defendant, having received it, is not discharged on his part by the mere signing of the option; he must perform its stipulations as required by its terms' in the same conformity to equity as is required of the complainant.</p> <p>It is therefore ordered, adjudged, and decreed that the plaintiff, H. K. Rogers, do, within 30 days from the date of this decree, pay to the defendant, E. E. Hinckle, trustee, the sum of $25,000, with interest thereon at the rate ■of 7 per cent, per annum from the 16th day of December, 1916, together with the sum of $5,350, with interest thereon at the rate of 7 per cent, from the 8th day of Februarjq 1916, together with the sum of $250, which is allowed by this court as a reasonable counsel fee to be paid under the terms of the mortgage for the recovery of the said sum of $5,350, with interest in these proceedings, and that upon the payment of all the same the defendant, E. E. Hinckle, as trustee, do execute and deliver contemporaneously with such payment to the plaintiff, H. K. Rogers, a deed of conveyance in good and sufficient form of all the three tracts of land in Florence and Darlington counties described in the agreement or option contract of the 7th of January, 1916, free of incumbrances, with all the other property that day leased to said H. K. Rogers, which shall he on hand at the time of compliance by the said H. K. Rogers with this decree, and do at the same time deliver up to the said H. K. Rogers his bond and mortgage to J. I'. Muldrow, dated the 10th day of December, 1012, to secure the sum of $5,000, on the tract of land in Darlington county containing 143 acres, duly satisfied in form to have such satisfaction duly recorded on the record of the said mortgage.</p> <p>It is further ordered and decreed that on tile failure of the plaintiff to comply with this decree by the payment of the sums above mentioned within the time limited he shall be debarred of any further right, title,'or privilege in and to the lands and premises described in the option or agreement dated January 7, 1916, and of any right, title, or privilege under said agreement, and Unit the defendant may apply to this court for an order of foreclosure and sale of the 143 acres in Darlington county, or for such other decree to enable him to foreclose and realize thereon as may be meet and proper. It is further ordered that the cost of these proceedings to the date of this decree, including the entry thereof, shall be divided; each party paying his own costs where the samo are severable, and one-half where the costs are incurred in the cause generally.</p>

<p>1. Cancellation of Instruments <§=>58 — Incidental Relief.</p> <p>Equity having jurisdiction of a suit to cancel a contract between complainant and defendant, giving defendant a percentage of the profits which were expected to result from complainant’s acquisition of a leasehold, in which transaction defendant was interested, on the ground that defendant concealed a profit received from the owner, may, for the purpose of doing complete justice between the parties, decree a recovery of the sum concealed by defendant.</p> <p>2. Principal and Agent <§s=48 — Duty of Agent.</p> <p>Absolute faithfulness and loyalty are required of an agent in whom confidence is placed, and personal benefit to him secretly obtained is' incompatible with relation to agency.</p> <p>3. Fraud <3=>11(2) — Misrepresentations—Opinton.</p> <p>Where defendant, when he interested complainant in the acquisition of a leasehold, stated that it could bo obtained for $60,000, but when the negotiations wore actually entered into the owner demanded 865,000, defendant’s statements concerning tile $60,000 were a mere expression of opinion only.</p> <p>4. Partnership <§=>5 — Relation—Intention.</p> <p>The relation of the parties is determined by their intention, and mere participation in profits will not alone establish a partnership.</p> <p><®=alTor other cases seo same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes-</p> <p>5. -Contracts <@=>147(3) — Construction.</p> <p>In construing a contract, the intent of the parties Is to be gathered from the entire contract and all the circumstances of the case.</p> <p>6. Joint Adventures <§=>4(1) — Good Faith — Duty of Associates.</p> <p>Where parties engage in a common enterprise by way of joint adventure, each has the right to demand and expect from his associates good faith in all that relates to their common interests.</p> <p>7. Joint Adventures <@=>1, 4(1) — What are — Concealment of Profits.</p> <p>Defendant interested complainant in the acquisition of a leasehold, stating that it could be bought for $60,000. The owner, who was selling the lease, to buy out his partners in the dry goods business, demanded $65,000. Complainant, after an independent investigation, agreed to pay the amount demanded, and he and defendant entered into a contract providing that for compensation for his services defendant should receive a certain percentage of the expected profits of the transaction. When the transaction was closed the owner was able to buy out his associates for $60,000, instead of $65,000, as he expected, and on defendant’s demand the owner paid him the extra $5,000, which profit defendant concealed. Held, that the parties, regardless of the form of the contract, were joint adventurers, there being no sharing in the losses, so as to make them partners, and, while defendant was bound to exercise good faith . towards complainant' and to account for the profits, his concealment of the profit under the circumstances, as it was unexpected, should not work a forfeiture of his rights in the whole enterprise.</p> <p>8. Joint Adventures <@=>5(1) — Actions Between Associates — Bemedy.</p> <p>While assumpsit is the proper remedy for the recovery of a liquidated sum withheld by one joint adventurer from his associates in the transaction, recourse may be had to equity, where the amount is unliquidated and there is also a prayer for cancellation of the written contract between the parties relating to the transaction.</p>

Bill of complaint by William B. Edwards against Patrick H. Bodkin, to have defendant declared a trustee holding title to certain lands for the benefit of plaintiff. From a decree dismissing the bill, without leave to amend, plaintiff appeals.

Ira H. Stubbs was convicted under count 1 of an indictment charging conspiracy to devise a scheme to defraud by using the mails of the United States (sections 37 and 215 of the Criminal Code of the United States [Comp. St. 1916, _§■§ 10201, 10385]), and under count 2, which charged violation of section 215, and he brings error.

<p>1. Appeal and Error ¡§=>1008(1) — Review—Findings of Trial Court.</p> <p>Findings by the trial judge, who heard the evidence and saw the witnesses when testifying, will not be disturbed, unless clearly against the weight of the evidence, or induced by a mistaken view of the law.</p> <p>2. Bankruptcy <§=>163 — Preferences—What Constitutes.</p> <p>Where, wiibin four months of adjudication, a bankrupt whose indebtedness to -a bank was overdue, gave a bill of sale conveying certain property to the bank's attorney, who transferred to the bankrupt funds lent by the bank on security of the bill of sale, and the bank thereupon applied to its indebtedness such funds, which were deposited to the credit of the bankrupt, the transaction must be deemed a scheme to prefer the bank, and the application of such moneys cannot be justified as a banking transaction.</p> <p>other eases see same topic & KBY^NTIMBKlt in all Key-Numbered Di&esis & indexes</p> <p>3. Bankruptcy <@=>303(3) — Preferences—Insolvency—Evidence.</p> <p>In a suit to ser aside an alleged preferential payment to a bank, evidence held to show that at the time of the payment the Corporate debtor, which was subsequently adjudicated bankrupt, was insolvent.</p> <p>4. Bankruptcy <@=>166(5) — Preferential Payment — Knowledge of Attorney.</p> <p>Knowledge of an attorney, who acted in the transaction which culminated in a preferential payment to his client, a creditor of the bankrupt, is imputable to the client.</p> <p>5. Bankruptcy <@=>166(4) — Preferential Payment — Knowledge.</p> <p>Under Bankruptcy Act July 1, 1898, c. 541, § 60b, 30 Stafc 562 (Comp-St. 1916, § 9644), declaring that, if a transfer, etc., shall operate as a preference, and the person receiving it or to be benefited thereby, or his agent, shall have reasonable cause to believe that the transfer would effect a preference, it shall be voidable, notice of facts which would invite a person of reasonable prudence to inquiry is notice of all the facts which a reasonably diligent inquiry would develop.</p> <p><@s»For other cases see same topic & KEY-NUMBER, in all Key-Numbered Digests & Indexes</p>

Cotteral, Judge. Eibel by the United States against one automobile in which the Shawnee National Bank filed an interplea, asserting its ownership of the machine under a chattel mortgage. The lien of the bank was held inferior to the claim of the United States under the forfeiture proceedings, and the Bank brings error.

<p>Appeals from the District Court of the United States for the Southern District of New York.</p> <p>Ribel by Jacob A. Kirsch against the steamship Sa.n Guglielmo, etc., claimed by Pierce Bros., Incorporated, together with libels by Nathan Kronman & Co. and P. Pastene & Co., Incorporated, against the .same vessel. From decrees for libelants (241 Fed. 969), claimant appeals.</p>

<p>Appeal from the District Coui-t of the United States for tire Eastern District of Oklahoma; Ralph E. Campbell, Judge.</p> <p>Suit by George E. Bowling against the Oklahoma, Kansas &. Missouri Interurban Railway Company. Erom an order of temporary injunction, defendant appeals.</p>

<p>In Error to the District Court of the United States for the Western District of Missouri; Arba S. Van Valkenburgh, Judge.</p> <p>James F. Couts was found guilty of contempt under Judicial Code, § 268, on an information filed by the United States attorney upon leave granted, and brings error.</p>

<p>Injunction @=>56 — Subjects or Protection — Use or Trade Secrets.</p> <p>A complainant held entitled on the evidence to an injunction to re’ strain defendant, a competing manufacturer of invert sugar, from using in his business the secret process of complainant, disclosed to him by a former employé of complainant in violation of bis contract of employment.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Shipping <§=>101 — Charters—Common or “Private Carrier.”</p> <p>A scow, contracting to carry a cargo to her full capacity, is not a common, but a private, carrier, and is bound only to the exercise of ordinary care and skill.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Private Carrier.]</p> <p>2. Shipping <§=>120 — Charter op Scow — Liability for Injury to Caroo.</p> <p>A scow contracted to carry a cargo of brick to be delivered in shallow waters, in which she was liable to lie aground at low tide, but where, as a rule, the bottom was reasonably level and soft. She was shown to be in good condition and seaworthy, and had previously discharged cargoes in the same vicinity without injury. On the trip in question, owing to a gale, the water was at least two feet lower than usual, and where she discharged there was some obstruction, on which she settled, and which brokfe a hole in her bottom, causing her to fill and injure the cargo. Held, that such fact did not establish negligence which rendered her liable for' the damage.</p> <p><@=s>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Southern District of Texas; Waller T. Burns, Judge.</p> <p>Action by A., L. Moller against F. E. Herring. There was a judgment for defendant, and plaintiff brings error.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Arkansas; Jacob Trieber, Judge.</p> <p>Suit by C. H. Odell and Arnold Kleiner against W. W. Barton and another. From a decree dismissing the complaint,- plaintiffs appeal.</p>

Petition to Revise from the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge. In the matter of the bankruptcy of Frederick Dittmar. On petition by Howard M. Schultz to revise an order setting aside certain corporate stock to the bankrupt as part of his exemptions.

<p>Corporations <@=487(2) — Ultra Vires Note — Right to Urge Defense.</p> <p>in an action by a bank on a note of a corporation indorsed by another, where it was contended that the note was ultra vires, the corporation, having received from the original and primary debtors, who used the note, full satisfaction of the amount, is not entitled to urge the defense of ultra vires. .</p> <p>other eases sec same topic & KEY-NUMBER, in all Key-Numbered Digests & Indexes</p>

In Equity. Suit by the United States, as trustee for the Osage Tribe of Indians and for itself, against the Brewer-Elliott Oil '& Gas Company and others, in which the State of Oklahoma intervened. On final hearing. Decree for complainant, and cause retained for further proceeding.

C. Van Fleet, Judge. Lawrence De Lacey and others were convicted under Criminal Code, § 141, of conspiracy to aid and abet enemy aliens to escape from custody, and they bring error.

Reed, Judge. Action by the Barth Manufacturing Company against the Hart-Parr Company, which counterclaimed. There was a judgment for plaintiff, and defendant brings error.

Killitts, Judge. In the matter of the bankruptcy of the Huffman Traction Engine Company. Edward Veler appeals from, and files sundry petitions to revise, orders of the District Court. The Huffman Traction Engine Company was an Ohio corporation, located at Kenton, organized and managed by Mr. Huffman, and its purpose was to manufacture and sell farm tractors containing a certain invention by Mm. It raised a scanty capital by selling stock.

<p>In Error to the District Court of the United States for the Northern Division of the Eastern District of Michigan; Arthur J. Tuttle, Judge.</p> <p>Action by the United States against the Grand Rapids & Indiana Railway Company. There was a judgment for the United States, and defendant brings error.</p>

<p>1. Railroads <@=>229 — Operation—Safety Appliance Act.</p> <p>The main purpose of Safety Appliance Act March 2, 1893, c. 196, 27 Stat. 531 (Comp. St. 1916, §§ 8605-8612), requiring the equipment of freight trains with power and train brakes, was to protect brakemen, who theretofore had been required to go on the tops of moving trains to set the hand brakes.</p> <p>2. Master and Servant <@=>142 — Railroads—Operation—Safety Appliance Aot.</p> <p>In view of the purpose of the Safety Appliance Act to protect brakemen ■by obviating the necessity of their going on the top of trains to use hand brakes, the fact that it was necessary to manipulate levers on top of • trains for retainers, which were part of the power brake mechanism, does not justify an order of the railroad company requiring freight brakemen to use hand, brakes on the descent of a long grade; it appearing that the railroad company directed that all trains should be brought to a full stop before commencement of the descent of the grade, at which time the levers on the retainers could be set.</p> <p>3. Master and Servant <@=>142 — Railroads—Operation—Safety Appliance Act.</p> <p>As Hand Brake Act April 14, 1910, c. 160, § 5, 36 Stat. 298 (Comp. St. 1916, § 8622), declares that nothing therein shall be held or construed to relieve any common carrier from.any of the provisions of the original Safety Appliance Act, as amended by Act April 1, 1890, c. 87, 29 Stat. 85, and Act Starch 2, 1903, e. 976, 32 Stat. 9-13 (Oomp. St. 3916, §§ 8605-8615), the requirement that freight cars should be equipped with hand brakes does not justify railroad company in directing brakemen to use the same on the descent of a long grade.</p> <p><§=>For other.oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Sater, Judge. Actions by Wellmore B. Turner, as trustee in bankruptcy of Joseph E. Lowes, against Harry E. Schaeffer and the City National Bank, against Harry F. Schaeffer and the Third" National Bank, and against Harry F. Schaeffer and the First Savings & Banking Company.

Action at law by the Missouri Phonograph Company against John C. Tomlinson and Millard P. Tompkins. Judgment for defendants, and plaintiff brings error. Before the occurrences directly involved in this suit, and about 1890, nu- ' merous corporations were formed in divers parts of the United States for the purpose of exploiting the phonograph, then still a novelty.

Action at law by Edward T. Mills against the Third Avenue Railway Company. Judgment for plaintiff, and defendant brings error. The action is to recover for personal injuries received by plaintiff below while a passenger on one of defendant’s street cars, which collided with a motor truck on Third avenue, between Twenty-Third and Twenty-Second streets.

<p>Telegraphs and Telephones <§=>11 — Contract Between Railroad and Telegraph Companies — “Exchange” op Services.</p> <p>In 18S8, complainant, a railroad company, and defendant, a telegraph company, entered into an elaborate contract to continue for 50 years, with the privilege of renewals for like successive terms by either party, for the joint operation and maintenance of telegraph lines along the railroad right of way and the exchange of services, which provided, inter alia, that defendant should transmit over its lines on the railroad line all messages relating to railroad business free, and all such messages over its lines off the railroad line free to an amount not exceeding $10,000 per year, at its regular rates, and all messages over that amount at half rates. A corresponding provision required complainant to transport men and materials for defendant for use on its line of road free, and for use off its line of road to an amount not exceeding $10,000 per year free, and above that amount at half rates. The Interstate Commerce Commission having ruled that such contracts with respect to exchange of “off line” services were in violation of the Interstate Commerce Acts, Congress by the amendatory act of June 18, 1910 (36 Stat. 5-14, c. 309, § 7 [Comp. St. 1916, § 8563]), extended the act to telegraph, telephone, and cable companies, and made it unlawful to charge unjust or unreasonable rates, but provided that “nothing in this act shall be construed to prevent telegraph, telephone and cable compánies from entering into contracts with common carriers for the exchange of services,” and further that it should not be construed to prevent the exchange of passes and franks between telegraph, telephone, and cable companies and other common carriers for the use of their officers, agents, and employés. Held: (1) That such legislation was enacted in the light of public history, showing the interdependent relations between railroads and telegraphs as commercial agencies, and that similar contracts, covering practically all of the railroads in the country, had been in force almost from the beginning, and with intent to legalize the same; (2) that “exchange” of services did not mean that services rendered must be equal in value to those received at established rates, otherwise the provisions were unnecessary and without practical meaning; (3) that there is no basis for distinction between “on line” and “off line” services, especially in view of the fact that cable companies, as to which there could be no exchange of “on line” services, were expressly included.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Exchange.]</p> <p><§=For other cases see same topic & KEY-NUMBEE in all Key-Numbered Digests & Indexes</p>

Foster, Judge. Action by the Pittsburgh & Southern Coal Company against the Otis Manufacturing Company. There was a judgment for defend=ant, dismissing the petition, and plaintiff brings error.

Dickinson, Judge. Action by Sidney U. Krauss, as trustee in bankruptcy, against William J. Campbell. There was a judgment for the trustee, and defendant brings error.

Pollock, Judge. In the matter of the bankruptcy of Prank A. and Ella Flaherty. From an order awarding Charles R. Kurt a secured claim on the proceeds of a stock of merchandise by virtue of a chattel mortgage given him by the bankrupt, M. E. Garrison, trustee in bankruptcy, appeals, and also petitions to revise.

<p>1. Mines and Minebals @=>58 — On, and Gas Lease — Validity.</p> <p>An oil and gas lease, granted in consideration of $3 actually paid, under which ihe lessee covenanted to complete a well within one year or to pay 10 cents per acre yearly in advance for each additional year that such completion was delayed, and further covenanted to pay the lessor one-eighth of all oil produced, is not invalid, during the first year or within a reasonable time during which an implied covenant to commence operations under penalty of forfeiture may be enforced, either toy reason of the smallness of tho consideration or the reservation of a right to the lessee to surrender the lease for cancellation on payment of 83.</p> <p>2. Deeds C=>49 — Execution—-Validity.</p> <p>A deed calling for execution by three persons as grantors, and deposited, together with the purchase price, with a third party, after its execution by two of them, to await ihe other signature, is incomplete as to all, and a later deed to another person, executed and delivered toy tho three grantors, will have priority.</p> <p>3. Deeds @=>49 — Execution—Validity—Waives oe Condition.</p> <p>Whore the condition that a deed should be executed by three persons as grantors was imposed, not merely by the grantee, but by the two grantors who executed the instrument, the grantee cannot complete his title by waiving execuGon by the third grantor or taking possession of the land, though such third grantor had no legal interest in the property.</p> <p>oilier cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Carriers <5=3202 — Unreasonable Rates — Damages.</p> <p>Where a shipper has paid a rate afterwards declared by the Interstate Commerce Commission to be excessive, he may recover as damages the difference between the excessive rate and the rate declared to be just and reasonable by the Commission, without proof of actual injury.</p> <p>®=»Fot other eases see same topic & KEY-NUMBER in ail Key-Numbered Digests & Indexes</p>

Court of the United States for the Middle District of Tennessee; Edward T. Sanford, Judge. Action by the United States against the Nashville, Chattanooga & St. Eotiis Railway. A demurrer to the declaration was sustained, and the actions dismissed, and plaintiff brings error.

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Ohio; John M. Kill its, Judge.</p> <p>Herbert E. Edwards was convicted of using the mails to defraud in violation of Criminal Code, § 215, and he brings error.</p>

Safer, Judge. Action by Leo IVIanheimer against Adolph Ulman. Held: as collateral security for such debts, plaintiff's stock in the Ulman Company, a corporation; that in foreclosure of the collateral security, the defendant sold tho stock and realized from it and from dividends about $8,700; that thereupon there became due to plaintiff the difference, about $4,900, for the recovery of which the…

<p>Appeal from the District Court of the United States for the Southern Division of the Western District of Michigan; Clarence W. Sessions, Judge.</p> <p>Bill by the Safe-Cabinet Company against Peter M. Wege. Prom a decree for complainant, defendant appeals.</p>

Niles, Judge. Bill by E. E. Bolin, trustee for William Schild, and another, against Mrs-. K. E. Wilkes and others. Erom a decree dismissing the bill, complainants appeal. Held: from 1906 to 1912, Schild paid the taxes and was in possession of the property, collecting the rents therefrom.

Suit in admiralty by the Kinsman Transit Company, owner of the steamer Mathew Andrews, against the steam tugs Mason and Cascade; the Hand & Johnson Tow Dine, claimant. From the decree, both parties appeal. libelant's steamboat Mathew Andrews had lain up in Buffalo Harbor during the winter of 1908-09. On March 13, 1909, the tugs above named were employed to remove her from her anchorage to a loading berth.

Action at law by Adolfo Grimwood and Eernando Cavallo, copartners doing business as A. Grimwood & Co., against the Munson Steamship Dine. Judgment for plaintiffs, and defendant brings error. The defendants in error (hereinafter called Grimwood) had for a number of years before 1912 an established coal business in Vera Cruz, and perhaps other Mexican ports.

<p>1. Novation —What Constitutes.</p> <p>A “novation” is a substitution of one debtor in place of another; the old debt being extinguished.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Novation.]</p> <p>2. Internal Revenue <®=»7 — Income Taxes — “Income.”</p> <p>Income Tax Act Oct. 3, 1913, c. 16, § 2, G(a), 38 Stat. 172, declares that the normal tax hereinbefore imposed upon individuals shall likewise be levied upon the entire net income arising or accruing from all sources during the preceding year to every corporation. Long prior to the passage of the act, plaintiff railroad company had leased its line to a second company, which agreed to pay the interest upon bonds issued by plaintiff, and to pay direct to each stockholder dividends at the rate of 8 per cent, per annum. Under the agreement, plaintiff received 81,000 yearly from the lessee to enable it to maintain its corporate existence. Held, in view of the fact that the agreement provided that the lessee should not pay any income tax that might thereafter be imposed on the dividends and interest, and that, if required by law to pay the same, it might deduct the amount from such interest and dividends, the dividends paid direct to the stockholders as rent must be treated as corporate “income” subject to taxation, for the provision for payment directly by the lessee was a mere labor-saving device.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Income.]</p> <p>3. Internal Revenue <@=>7 — Income Taxes — Liability.</p> <p>A corporation is liable under Income Tax Act Oct. 3, 1913, § 2, G(a), imposing taxes on corporate income arising or accruing from all sources, even though it was not engaged in business and derived all its income as rent from its property.</p> <p>Hough, Circuit Judge, dissenting.</p> <p>cgz^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Cushman, Judge. Suit in equity by the Union Tool Company, Edward Double,_ Rosa Eichenhofer, as administratrix of the estate of Frederick Eichenhofer, deceased, and George Chadderdon, against the Wilson & Willard Manufacturing Company. Decree for complainants, and defendant appeals.

<p>1. Patents @=>328 — Validity and Infringement — Underheameb.</p> <p>The Wilson patent, No. 827,595, for an underreamer, held not anticipated and valid, and claims 9 and 19 infringed.</p> <p>2. Patents @=>238 — Infringement—Omission of Parts.</p> <p>That an alleged infringer does not use all the features of the patented device does not negative infringement.</p> <p>3. Patents @=>314 — Suits fob Infringement — Consolidation.</p> <p>Under equity rules 19 (Í98 Fed. xxiii, 115 C. C. A. xxiii) and 26 (201 Fed. v, 118 C. O. A. v), a District Court has power to consolidate for trial patent causes which involve the same patent, where the parties are the same, although it effected a broadening out of the charge of infringement over a prior election in the record.</p> <p>c§zs>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Second Division of the Northern District of California; Wm. C. Van Fleet, Judge.</p> <p>Suit by Alexander E. Block and the Wizard Eoot Appliance Company, a corporation, against the Wonder Manufacturing Company, a corporation. From a decree for injunction and order directing an account of profits and damages for infringement of trade-marks and patents, defendant appeals.</p>

<p>Appeal from the District Court of the United States for the District of Minnesota; Wilbur F. Booth, Judge.</p> <p>Suit by Claude A. P. Turner against the Deere & Webber Building Company and another. From a decree for defendants (238 Fed. 377), complainant appeals.</p>

Suit in equity, by T. A. Willson & Co., Incorporated, against the Hudson Products Company. Decree for defendant, and complainant appeals. The following is the opinion of Mantón, District Judge, in the court below: Plaintiff sues for infringement of a design patent. Plaintiff is the present owner by assignment of letters patent No. 43,514, which were issued to Walter G. Bachman on February 11, 1913, for design for a goggle frame.

Walter I,. Schwartz was convicted of a violation of the White Slave Traffic Act. On motion to tax against defendant the costs upon the commissioner’s hearing in the preliminary examination. The defendant was indicted for a violation of the White Slave Traffic Act (Act June 25, 1910, c. 395, 36 Stat. 825 [Comp. St. 1916, §§ 8812-8819]), and upon arraignment pleaded guilty thereto and was sentenced to Imprisonment for 2y2 years and to pay the costs of the prosecution.

In Equity. Suit by R. A. Flanders, trustee of M. C. Coleman, bankrupt, against F. J. Coleman. Dismissed, without prejudice, in event that the parties agree as to the proportionate amount of rent notes fo which the trustee was entitled on account of the bankrupt’s demise of his own land, with land the record title to which was in defendant, but,'in event of failure, the suit retained as to such question, and otherwise dismissed.

<p>•In Admiralty. Suit by John Conley against the steamship Montcalm.</p>

<p>In Equity. Bill by tlie Coca-Cola Company against Benjamin Duberstein, doing business as the Dayton Mineral Water Company, and others.</p>

In Bankruptcy. In the matter of the bankruptcy of the McNeil Corporation. On petition of the referee for allowance and payment of expenses.

At Law. Proceeding by the United States for the deportation of Moy Nom and others, Chinese persons. From an order of deportation of a United States commissioner, defendant Moy Nom appeals. The defendant Moy Nom, a Chinese, person, appeals from an order of a United States commissioner directing that he be deported to China.

<p>'Salvage <®^34 — Amount op Compensation — Towing. Ship Disabled at Sea.</p> <p>The steamship Melderskin, a vessel of nearly 4,000 tons gross, while on a voyage from Santos to New York with a cargo of coffee, lost her propeller. On account of the value of the cargo, the master was unwilling to jettison it, and after drifting westward for 9 days, while trying unsuccessfully to ship an extra propeller, and when 180 knots to the eastward of San Salvador, the vessel fell in with the steamship Hesperides, also a large vessel, with a valuable cargo. She took the Melderskin in tow, and after about 10 days, having towed 819 knots,- landed her and her cargo safely at Tybeé Roads, which was agreed upon as the first available port where repairs could be made. During most of the time heavy seas rendered the towing excessively difficult, although not especially dangerous. No hurricanes were encountered, although it was September and there was always the risk of them. The value of the Melderskin and cargo, with pending freight, was $1,450',000. The value of the Hesperides and freight.at risk was $328,000. Held, that the Melderskin was in a position of great danger, being helpless, and her cargo in even greater, because subject to the additional danger of being jettisoned, that the service was efficiently rendered, and that the Hesperides and crew were entitled to a salvage award of $45,000 in addition to her actual expenditures for coal, etc.</p> <p><§zaFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Admiralty <S=>0¡5 — Exceptions to Libel — Admission.</p> <p>Where claimant excepted to a libel on the ground that no admiralty lien was in existence or had been created, the allegations of the libel are for the purpose of the exceptions admitted.</p> <p>2. Maritime Liens Building of Vessels — Bepairs—“Maritime Contract.”</p> <p>While the building of a vessel before it is launched is not an admiralty contract, because done wholly on land, the repair of a vessel,_ to enable a continuation of her voyage and for the purpose of obtaining a new registry, where not equivalent to the building of a new vessel, is a “maritime contract,” and gives a lien.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Maritime Contract.]</p> <p>3. Maritime Liens <§s^>25 — Statutory Liens — Bepairs.</p> <p>Under Act dune 23, 1910, c. 373, § 1, 36 Stat. <504 (Comp. St. 1916, § 7783), declaring that any person furnishing repairs, supplies, or other necessaries, including the use of dry dock or marine railway, to a vessel upon the order of the owner, shall have a maritime lien on the vessel, which may be enforced by a proceeding in rom, architects, who prepared plans for repairs to the hull of a vessel, her engines, boilers, and machinery, are entitled to a lien Cor their' services, for undoubtedly, if the person who did the work of repair should include a charge for drawing plans, ho would have a lien therefor, and the rule should be the same where the plans were prepared independently by architects.</p> <p><jE=>For other cases see same topic & KIAY-NITMBER in all Key-Numbered Digests & Indexes</p>

<p>In Admiralty. Libel by the Savannah Towing & Wrecking Company against the bark Holthe. On motion to dismiss.</p>

<p>Appeal from the District Court of the United States for the Southern District of the Northern Division of California; Robert S. Bean, Judge.</p> <p>Bill by the United States of America against the Southern Pacific Company, a corporation, and others. Prom a decree for complainant, defendants appeal.</p>

J. Cochran, Judge. Two actions by the United States of America against the Chesapeake & Ohio Railway Company. There were judgments for plaintiff, demurrers being sustained to the answers (242 Fed. 161), and defendant brings error.

<p>In Error to the District Court of the United States for the Northern Division of the District of Idaho; Frank S. Dietrich, Judge.</p> <p>Action by Olga Sundin and others, widow and minor children of Alex Sundin, deceased, against the Edward Rutledge Timber Com-, pany, a corporation. There was a judgment for defendant, and plaintiffs bring error.</p> <p>The widow and children of Alex Sundin brought an action in the court below to recover damages for his death, which occurred while he was in the employment of the defendant in error, herein to be named the defendant. The defendant was conducting a large sawmill, with lumber yards, tracks, and cars. The lumber was carried from the mill by means of an endless chain conveyor to a point where it was taken and loaded upon mill cars. This was done by a gang known as the chain men. After the cars were loaded, another gang, known as the transfer gang, shoved, the cars by hand power out along and upon short tracks a distance of 22 feet, where they ran them upon another car, carrying two sets of transverse tracks and standing upon a track at right angles with the short transfer tracks. Thereafter the transfer car, carrying Hie loaded mill cars, would be conveyed out into the yards of the company, whore the lumber was stacked by another gang. Sundin was, and for six weeks prior to the accident had been, a member of the, transfer gang. That gang performed no work other than to take the mill cars, after they had been loaded by the chain men, out into the yards as described, and. it had nothing to do with loading the lumber on the mill cars. There was a foreman in control of the chain men, the transfer gang, and the lumber pilers. The mill ears were 8 feet long, 4 feet wide, and the platform, thereof stood 2 feet above the track. The death of Sundin was caused by a load of lumber falling upon him while ho was assisting in moving- along one of the short tracks a mill car which had been loaded by the chain men. That load consisted of 8 tiers of about 50 boards, each 6 inc-lies wide, about an inch thick, and .16 feet long. In loading the lumber upon the mill cars, the custom was, and the defendant so ordered, to place between the layers of lumber, crosspieces of lath to bind the load and prevent any part thereof from falling off while the same was being moved out to and upon the transfer car and into the yards. The load of lumber which fell and caused Sundin’s death was provided with no crosspieces or binders, the chain men having omitted to comply with their duty in that respect. The movement of each mill car required the services of four men. Sundín was working with three others. There were 68 of the short tracks extending out to the transfer car track. Other cars stood on either side of the track on which Sundin was working when the accident occurred. There was not room for four men to push the car from the rear end. There was evidence that it was customary and proper for one of the four to take hold of the side of the car, with his back to it, as soon as the car emerged from between the cars which stood on either side thereof. Sundin did this, and all four men continued moving the car until it reached the rails of the transfer car. Owing to the sinking of the short track, so that it was about an inch and a half lower than the rails on the transfer car, the men were unable to move the mill car onto the transfer1 car, and were obliged at least twice to bring their loaded car back a few feet, so as to get increased momentum. While doing this the load collapsed, and about- 100 boards fell upon Sundin. The court below instructed the jury to return a verdict for the defendant, on the ground that the negligence complained of was the act of a fellow servant, and on the further ground that the deceased assumed the risk of the accident which caused his death.</p>

• In Error to the District Court of the United States for the Northern District of Mississippi; Henry C. Niles, Judge. Action by Mrs. A. L. Berry against the Pullman Company. There was a judgment for defendant, and plaintiff brings error.

Johnson, Judge. Two actions by the United States against the Denver & Rio Grande Railroad Company, which were tried together on an agreed statement of facts. There were judgments for plaintiff, and defendant brings error.

Munger, Judge. Acfton by the Omaha Elevator Company against the Union Pacific Railroad Company. There was a judgment for plaintiff for part only of the amount claimed, and plaintiff brings error, while defendant also brings error.

<p>1. Master and Servant <§=3103(1) — Injuries to Servant — Durr of Master.</p> <p>It is the nondelegable duty of an employer to furnish sufficient and safe materials, machinery, or other means by which service is to be performed, and to keep them in repair and order.</p> <p>2. Master and Servant <§=3209(1) — Injury to Servant — Assumption os Risk.</p> <p>A servant does not assume the risks attendant upon the use of defective machinery, or other instruments with which to do Ms work, unless reasonable care and precaution have been exercised by the master in supplying such as aro safe for the purpose.</p> <p>8. Master and Servant <§3=188, 190(9) — Injuries to Servant — “Fellow Servants”- — “Vice Principal.”</p> <p>Whether one servant is a fellow servant of another does not depend upon the particular rank he sustains to that other in the service, but 1he specific character of the act performed, so a servant discharging the nondelegable duty of the master to furnish safe appliances is a “vice principal” instead of a “fellow servant.”</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Fellow Servant; Vice Principal.)</p> <p>4. Master and Servant <§=>190(14) — Injuries to Servant- — “Vice Principal” —Safe Appijanoes.</p> <p>Where a cable used in mining hoist was removed and uncoiled on account of its kinking, the duty of tightening the screw or clutch-bolt for properly adjusting the clutch-hand to tlie drum, so that the hoist could be safely operated, was a nondelegable duty of the master, and a negligent failure of the ho-istman, who was under the charge of the master mechanic, to tighten tlie same, must be deemed the negligence of the master and such lioistman a “vice principal,” warranting recovery for the death of a servant resulting from an attempt to use the hoist without tightening the clutch-band.</p> <p><@=sFor other cases! see same topic & KEY-NUMBEÍI in all Key-Numbered Digests & Indexes</p> <p>5. Master and Servant <@=>285(10), 286(19) — Injury to Servant — Jury Questions.</p> <p>Whether the omission to adjust the clutch-band of a hoist in a mine before attempting to use the same was negligent, and whether the omission was the proximate cause of the death of a servant, held under the evidence for the jury.</p> <p>6. Aubeal and Error <@=>263(1) — Exceptions—Necessity.</p> <p>Where raised by motion for an instructed verdict for defendant when the case was finally rested, the question whether negligence asserted was that of the defendant master may be reviewed on writ of error, though no exceptions were reserved to instructions presenting such issue.</p> <p>7. Appeal and Error <@=>1078(1) — Failure to Urge Objections.</p> <p>Assignments of error not pressed in the brief by appellant need not be considered by the appellate court.</p> <p>8. Master and Servant <@=>289(38) — Injuries to Servant — Jury Question.</p> <p>In an action for the death of a miner, who, when the hoist on which he was being lowered commenced to fall, grasped a projecting beam in the shaft, from which he slipped and fell, the question of such miner’s contributory negligence held for the jury.</p> <p>cgr='For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Eastern District of Kentucky; Andrew M. J. Cochran, Judge.</p> <p>Suit in equity by J. W. Sewell, A. W. Sewell, and Hattie E. Sewell against the Kentucky Block Canuel Coal Company and others. Decree for complainants, and defendants appeal.</p>

Sanford, Judge. Actions by George Wescott Beyer and by William J. Clemens against the City of Athens, Tenn., which were heard together. There were judgments in each case for defendant, and plaintiffs bring separate writs of error.

<p>Cross-Appeals from the District Court of the United States for the Eastern District of South Carolina, at Charleston; Henry A. M. Smith, Judge.</p> <p>Suit in equity by the Harriman National Bank against Lucy C. Huiet, Katharine R. Huiet, the Franklin Sugar Refining Company, the Southeastern Life- Insurance Company, and the Dime Savings Bank and George H. Moffett, administrators d. b. n. of Caleb B. Huiet, detíeasecl. From the decree, complainant appeals, and defendant Lucy C. Huiet files cross-appeal.</p>

<p>In Error to the District Court of the Uijited States for the Eastern Division of the Northern District of Ohio; John 1VL Killits, Judge.</p> <p>Action at law by Cora H. Harper against E. C. Pierce. Judgment for plaintiff, and defendant brings error.</p> <p>Suit toy Cora H. Harper against If. C. Pierce upon a promissory note. Defendant Pierce purchased from E. L. Hart an interest in the firm, of Dart & Co., of Cleveland, Ohio, and agreed to pay for such interest the sum of §10,000 “ouc of the profits of the business of Hart & Co.” He gave his promissory note for §10,000, payable to E. E. Hart “out of the profits of Hart & Co.” The sum of §1,500 was paid upon the note, leaving a balance of principal owing thereon of §8,500. E. L. Hart died, leaving a last will and testament, in which plaintiff’s brother, P. W. Hart, was named as executor. The will directed that the estafo of the testator should be converted info cash and so distributed. Plaintiff, Cora A. Harper, was entitled to a distributive share of the estate. At the solicitation of the executor, Pierce executed two notes to take the place, of the original note belonging to the estate of E. 1j. Hart. One of the new notes was for $4,500, dated November 1, 1905, and payable to Cora A. Harper one year after its date. This note was in thei usual form, and did not recite that it was to be paid “out of the profits of Hart & Co.”; but the executor promised to inform' Mrs. Harper that it was to be so paid. The executor sent tho note to Mrs. Harper, without giving her such information, and without any previous agreement on her part that she would accept the same. However, she did accept it, and had no knowledge or information as to its origin, or of the agreement between Pierce and E. D. Hart for the payment of the original note out of firm profits. After the note was given to Mrs. Harper, the firm of Hart &,Co. became insolvent and was dissolved. None of the partners received anything from the sale ol the firm’s assets. Defendant paid interest to Mrs. Harper for two years, but paid nothing upon the principal of the note. The declaration in tills suit was the usual one upon a promissory note. -The answer admitted the execution of the note, set forth many of the facts above stated, alleged knowledge on the part of plaintiff at the time of the acceptance of the note of the agreement for its payment out of firm profits, and averred want of consideration. The reply denied such knowledge.</p> <p>At the trial, the note was offered and received in evidence. Plaintiff testified that she was its owner, that she received it by mail from her brother, the executor, about the time of its execution, and that, until long after its maturity, she did not learn that the note, or any prior note of which it was a renewal, was payable out of the profits of Hart & Co. Defendant admitted “that he was unable to prove that plaintiff was not the original owner of said note, and had no proof of the allegation in defendant’s answer that plaintiff accepted and took the note with knowledge that defendant had an agreement with E. L. Hart, or with Prank W. Hart, as executor of the estate of E. L. Hart, that said note was payable only out of the profits of Hart i& Co.” He offered proof of the other allegations in his answer. The trial court held that the proofs so offered, if received, would not constitute a defense, and directed judgment to be entered in favor of plaintiff for the amount of the note, both principal and interest.</p>

C. Van Fleet, Judge. Petition by Chew Hoy Quong, on behalf of his wife, Quok Shee, for writ of habeas corpus against Edward White, Commissioner of Immigration at the Port of San Francisco, Cal. From a judgment denying the writ, petitioner appeals. The appellant, a Chinese merchant domiciled in the United States, appeals from an order of the court, below denying his petition for a writ of habeas corpus on behalf of Quote Shee, whom he alleged to be Ms wife.

Suit in equity by the Atlantic Eruit Company against a cargo of sugar and Edward M. Rapliel & Co., Incorporated. Decree for libel-ant, and respondents appeal.

<p>1. Patents <£=328 — Validity—Invention.</p> <p>The Gibbs improvement patent, No. 797,054; describing an improved assembling of mechanical means for more securely holding in place terminal plates connected with electric fuse wires, which serve to break circuits under abnormal conditions, held valid, showing invention.</p> <p>2. Patents <£=178 — Range of Equivalents.</p> <p>Where all a patentee did was to invent a way in which old mechanical means could be assembled for the purpose of doing something that had previously been done through different mechanical means, the patent should be narrowly construed; that is the inventor is entitled only to a range of equivalents commensurate with the scope of his invention.</p> <p>3. Patents <£=328 — Infringement.</p> <p>The Gibbs improvement patent, No. 797,054, for improved method of assembling mechanical means for more securely holding in place terminal plates connected with electric fuse wires, on fusible strips, held not'infringed by defendant’s device, as the patent should receive a narrow construction.</p> <p>c§r=For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>(.. Patents <@=>36, 45 — Validity—Invention.</p> <p>Where a device in an art crowded with a multitude of similar forms secures an immediate and notable success, that in itself is sufficient evidence of invention and conclusive evidence of novelty.</p> <p>2. Patents <@=>328 — Infringement—What Constitutes.</p> <p>The Guth patent, No. 1,076,418, for an improved electric lamp for semi-indirect illumination, held, infringed as to claim 1 by a device manufactured under the subsequent Adams patent, No. 1,121,577; the device therein described, while differing slightly in means used, accomplishing the same result.</p> <p>3. Patents <@=>120 — Double Patenting — Application. .</p> <p>The rule of double patenting, under which a subsequently issued patent for a device already patented is void, although application for the latter was first filed, applies to an earlier design patent and a later mechanical patent; and the rule is the same, though the patents he granted to the same or different persons.</p> <p>4. Patents <@=>120 — Double Patenting — Effect.</p> <p>Where a design patent for a lighting fixture similar in appearance to the drawing of the mechanical patent asserted to be infringed was issued first, and plaintiff, which acquired the design as well as the mechanical patent, was defeated in a suit against defendants, wherein infringement of the design patent was charged, the rule of double patenting, cannot he invoked as an. estoppel- against plaintiff's asserting an infringement of the mechanical patent; it appearing that the application for the mechanical patent was first in- point of time, and that the patentee of the design patent had no conception whatever of the discovery set forth in the mechanical patent.</p> <p><§z=»For.other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Bankruptcy. In the matter of the bankruptcy of Henry Steiner, trading as Henry Steiner & Son. The chattel mortgage under which the mortgagee claimed the proceeds of the sale of certain property of the bankrupt held invalid as a lien.

<p>In Equity. Suit by J. W. Rowe and Hannah Rowe against Pinkie Kidd and others.</p>

<p>In Equity. Petition by the United States to cancel the certificate of citizenship of Frederick W. Wursterbarth.</p>

<p>In Error to the District Court of the United States for the Southern District of Ohio; Howard C. Hollister, Judge.</p> <p>Action at law by the Baltimore & Ohio Southwestern Railroad Company against W. H. Settle and George W. Clephane, partners as W. H. Settle & Co. Judgment for plaintiff, and defendants bring error.</p>

<p>In Error to- the District Court of the United States for the District of New Jersey; J. Warren Davis, Judge.</p> <p>Criminal prosecution by the United States against Frederick Krafft. Judgment of conviction, and defendant brings error.</p>

Tuttle, Judge. Milton V. Breitraayer was convicted of willful failure and refusal to present himself for or submit to registration, as required by Selective Draft Act, § 5, and the presidential proclamation thereunder, and he brings error.

Sessions, Judge. Harry Young, Cornelius O’Sullivan, and Charles Ea Chapelle were severally convicted of selling liquor to soldiers in uniform, in violation of Act May 18, 1917, c. 15, § 12, and each defendant brings error; the cases being heard together.

<p>i. Towage <§=»15(2) — Libel—Burden of Proof.</p> <p>Where a canal boat, being towed by a tug through a presumably safe and well-marked channel, was grounded and sunk, the tug has the burden of excusing failure in performance of her undertaking.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>2. Towage <§=>11(8) — Negligence—Duty or Towing Vessel.</p> <p>Where a channel was dredged In a river, marked and opened hy the federal authorities, it is the duty of a tug, towing a vessel, to keep it in the channel;, hut, where the vessel was grounded in the channel on a hidden obstruction, the tug is not liable.</p> <p>3. Towage <@=>15(2) — ‘libel—Evidence.</p> <p>In a proceeding against a tug for the grounding of a canal boat in a channel dredged and opened by the federal authorities, a finding of the trial court that the canal boat grounded while in the main channel upon a hidden obstruction held warranted by the evidence.</p> <p><3^i-f'or oilier cases sec same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Bankruptcy <@=>317 — Estoppel—Equitable Estoppel — What Constitutes. ' o</p> <p>Where creditors, who signed an agreement that the debtor’s property should be operated by a trustee, who was to make advances, assumed that the agreement had been signed by the requisite number, and the trustee operated the property for more than five months, making advances, those creditors who signed the agreement are estopped, on the debtor’s subsequent bankruptcy, to assert that the agreement had not been executed by the requisite number.</p> <p>2. Bankruptcy <@=>357 — Courts—Jurisdiction.</p> <p>In view of the broad powers conferred by Bankruptcy Act July 1, 1898, c. 541, § 2, 30 Stat. 545 (Comp. St. 1916, § 95S6), a court of bankruptcy, where an agreement between a majority of the creditors of the bankrupt and a trustee, who took possession of the bankrupt’s property and made advances', gave the trustee an equitable lien on the interest of such creditors, has jurisdiction to order that dividends due and payable to such creditors be first applied to the satisfaction of the trustee’s claim before any payment be made to the creditors.</p> <p>3. Bankruptcy <@=>347 — Preferences—Creation.</p> <p>In such case, where the trustee did not make the advances from its own funds, but obtained the same from a bank with which it was affiliated, and all parties to the transaction knew that the money was advanced with the understanding that a lien would be created, both upon the trust property and upon the interests of the consenting creditors, those creditors, who were parties to the agreement, cannot attack the preference lien of the trust company, which the bank prayed should be allowed, because the trustee did not advance its own funds.</p> <p>4. Bankruptcy <@=>52 — Courts—Distribution of Property.</p> <p>The administration and distribution of estates in bankruptcy is a proceeding in equity, the property in the custody of the court being held in trust for those to whom it rightfully belongs, and its distribution should be conducted on equitable principles.</p> <p><§^5>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the District of Montana; Geo. M. Bourquin, Judge.</p> <p>Suit by Laura A. Boomer against James H. Rowe. Erom a decree dismissing the bill (244 Eed. 307), complainant appeals.</p> <p>The Salmon Laud Company is a Montana corporation. Rowe, the appellee, was one of the directors and was secretary. In 1910 the corporation became indebted in a sum in excess of its capital stock. Rowe, with other directors, executed and delivered to Mrs. Boomer, appellant, a promissory note for §20,520.73, and interest, and gave a mortgage to secure the note. Thereafter foreclosure of the mortgage was had, and a deficiency judgment of §4,9(33.10 remained unpaid after all of: the property of the corporation was exhausted. Appellant owns this judgment, and alleges that the land company became insolvent on January 30, 1914, when the property was sold under foreclosure; that the corporation has no property; “that it has entirely ceased to do business. It is thereby dissolved.” Appellant asked for judgment against the defendant for the amount of the deficiency judgment with interest. Rowe, the defendant, denied that the corporation was ever dissolved. It was proved that the note was signed by Rowe as secretary of the corporation, and that the transaction with Mrs. Boomer had been authorized by the board of directors of the corporation. The annual reports of the corporation, required by the statutes of Montana to be filed between the 1st and 20th of January of each year, showed, in January, 1915, an existing Indebtedness of §5,075; and the January, 1916, report signed by Rowe, after giving the t xisfing debts as §0,500, contained these words: “This corporation has ceased to bo an acting concern and has ceased to voluntarily incur financial obligations because of its insolvency.” The District Court dismissed the suit, and the plaintiff appeals.</p>

A. Youmans, Judge. Petition by the State of Arkansas against R. C. Bright and J. E. Pclker, as receivers of the Kansas City & Memphis Railway Company appointed in the case of Riley v. Kansas City and Memphis Railway Company. From a decree directing the receivers to pay.certain taxes, with penalties, they appeal.

A. Youmans, Judge. Petitions by the State of Arkansas and others against R. C. Bright and J. F- Felker, receivers of the Kansas City & Memphis Railway Company, appointed in the case of Riley v. Kansas City & Memphis Railway Company. From a decree directing the receivers to pay certain taxes, with penalties, they appeal.

Wolverton, Judge. Libel by the Columbia Contract Company against the steamship George W. Elder, her engines, etc., claimed by Charles P. Doe, who filed a stipulation, with the United States Fidelity & Guaranty Company as surety, upon which the vessel was delivered. There was a decree for libelant, and claimant appeals.

<p>1. Injunction <§=>230(1) — Contempt Proceeding — Criminal oh Civil.</p> <p>A proceeding in a civil suit, instituted by an affidavit and an order requiring the defendant to show cause why it should not be punished for contempt, for violation of an injunction previously issued therein, is one for civil and not criminal contempt.</p> <p>2. Injunction <§=230(1) — Contempt Proceedings — Measure op Relief.</p> <p>Where the defendant in a civil suit in fact appears in response to an order to show cause why it should not be punished for contempt for violation of an injunction, tho court is not limited in granting relief by the prayer of complainant.</p> <p><@s»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>3. Injunction <S^228(1) — Acts Constituting Violation.</p> <p>An injunction restraining a defendant from using the name “Bradstreet’s” in its corporate name, or from otherwise representing that its business was connected with complainant, was violated by the continued use by defendant of such name on its office door and in the telephone directory.</p> <p>4. Injunction <g=»280(4) — Pbockedings fob Punishment — Effect of Order.</p> <p>An order made in a civil suit, declaring certain acts of defendant to bo a contempt, as in violation of an injunction previously issued therein, held in fact a decree upon a contempt.</p> <p>@s»For other casos sao samo topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Petition by Charles W. Penfield to vacate the discharge in bankruptcy of Harry W. Gage, who was adjudicated a bankrupt on his voluntary petition. From an order vacating the discharge, the bankrupt appeals.

<p>In Error to the District Court of the United States for the. Southern District of New York.</p> <p>Action at law by Minnie Rosenfeld against the Pennsylvania Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the District'Court of the United States for the Northern Division of the Western District of Washington; Jeremiah Neterer, Judge.</p> <p>Action by the Puget Mill Company against Skagit County. There was a judgment for plaintiff (242 Eed. 333), and defendant brings error.</p>

<p>On rehearing. Former decision, reported at 245 Fed. 697, 158 C. C. A. 99, adhered to.</p>

Bill by the Electric Welding Company and another against Balance & Grosjean Manufacturing Company. A preliminary injunction was denied, and the bill was dismissed for want of jurisdiction, and plaintiffs appeal.

<p>1. Patents <S=528 — Designs—-Invention.</p> <p>The test of invention in design patents is precisely like that in mechanical ; the question being whether the design was beyond the powers . of the ordinary designer.</p> <p>2. Patents fe>328 — Invention—Design fob Automobile Radiator and Hood.</p> <p>The Cavalli design patent, No. 18,219, for design for automobile radiator and hood, held void for lack of invention, in view of the prior art.</p> <p>®=»For other cases see sanio topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Admiralty. Libel by Henry H. Lee against the steamer Deli, claimed by Richard J. Barrett, in which the tug Robert Palmer was impleaded.</p>

<p>Bankruptcy <@=>188(1) — Creditors—Traders’ Debts.</p> <p>As the New York Lien Law (Conspl. Laws, c. 33) and Personal Property Law (Consol. Laws, c. 41) do not extend to choses in action, and as the doctrine of reputed assets does not apply to traders’ debts, a creditor of a New York bankrupt, which sold on credit, taking back chattel mortgages on the goods sold, and to secure loans, etc., assigned such accounts and chattel mortgages, on its books marking the accounts as assigned, is entitled to the proceeds of such accounts, collected within four months by the bankrupt and used in its business.</p> <p><gs»For other cases see same topic & KEY-NUMBER in all Key-Numh«jred Digests & Indexes</p>

<p>In Bankruptcy. In the' matter of the bankruptcy of Israel Stern-burg. On specifications of objections to discharge.</p>

<p>Application of Victor Larrucea and three others for writs of habeas corpus.</p>

<p>Criminal prosecution by the United States against Oscar Samuel Miller. On demurrer to indictment.</p>

<p>Auens New, vol. 7 Key-No. Series — Natueauzation-—Suit to Cancel Certificate.</p> <p>A petition for cancellation of the certificate of citizenship of a former German subject, onthe ground that he made a false oath of allegiance, and of renunciation of all allegiance to Germany and the German emperor, held sufficient on motion to dismiss, where it alleged that defendant, when asked to buy a Liberty Bond, emphatically refused on the ground that he was of German descent, and made other statements indicating allegiance and loyalty to Germany, rather than to the United States.</p> <p><©=^For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Inde,xes</p>

In Bankruptcy. In the matter of the bankruptcy of Eindo Tassinari. On certificate of referee concerning right of creditor to malee proof of claim.