Volume 250 — Federal Reporter

<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 the United States against the Houston Belt & Terminal Railway Company. There was a judgment for the United States, and defendant brings error.</p>

Petition to Superintend, and Revise Order of, and Appeal from, the District Court of the United States for the Eastern District of Louisiana ; Rufus E. Foster, Judge. In the matter of Albert Ee More and Ed. E. Carriere, bankrupts; Frederick Camors and others, trustees. On petition to revise and appeal by William Schall, Jr., and others, to review an order disallowing their claims. Petition to revise dismissed.

<p>1. Admiralty <&wkey;]06 — Appeal'—Parties.</p> <p>To an appeal by claimants in a suit in rom in admiralty, a surety company, which executed the stipulation for release of the libeled vessels, Is an indispensable party, and must either be joined or notified and a severance effected.</p> <p>2. Appeal and Error &wkey;>329 — Parties to Appeal — Bringing in by Amend-MElNT.</p> <p>The Circuit Court of Appeals may permit a party which has- been omitted from an appeal, and not summoned and severed, to be brought in by amendment, where it appears and waives citation.</p> <p>8. Collision <&wkey;71 — Tow and Moored Dredge in Canal — Fault.</p> <p>Libelant’s dredge, engaged in government work in the Sabine-Neehes Canal, was lying moored to the side of the canal on Sunday, when it was brought into collision with a barge, which was passing through the canal in tow of two tugs, and sunk. Held, on the evidence, that the dredge was not in fault; that it was moored in a proper place, and was kept as close to the bank as possible; that it was not in fault for assenting to the passage of the tow, for which there was room, the canal being 200 feet wide; that the tugs were in fault for improper navigation of the tow of which they were in full charge; and that the barge was also in fault for unnecessarily allowing her anchor to hang on her side partly below the water line, which struck the dredge and caused the sinking, which was the principal cause of injury.</p> <p>4. Collision <&wkey;132 — Damages—Elements.</p> <p>Proof of damages recoverable for the sinking of a dredge, consisting of evidence as to the cost of labor and materials used in raising the dredge, the cost of repairs, and demurrage during the time reasonably required for making the repairs, based on the -rental value of the dredge, held properly admitted, and sufficient to sustain the award made.</p> <p>5. Collision <&wkey;130 — Damages—Interest.</p> <p>While the allowance of interest on the award in collision cases, where the libelant is without fault, is discretionary, the general practice is, in cases where the amount of damages is uncertain and is matter for proof, to allow interest only from the date of liquidation by decree; and this rule is especially applicable where repairs were unnecessarily delayed by libelant, and where the repairs put the vessel in better condition than before collision. t</p>

Court of the United States for the Eastern District of Louisiana; Rufus E. Foster, Judge. Suit in admiralty by George W. Howe & Co. against the steamship Seguranca and Hiram Dixon, master, claimant. Decree for libelant, and claimant appeals.

Suit in equity by William B. Spencer against the Babylon Railroad Company. Cross-appeals by Henry Tuthill, as County Treasurer, and Arthur Carter Plume, receiver of- defendant, from certain orders.

<p>1. Mortgages <&wkey;310 — Partial Eelease — Interest.</p> <p>Where a vendor tools a deed of trust for the unpaid purchase money, which provided that the purchaser, his heirs or assigns, might obtain the release of portions of the land upon payment of the amount due thereon as prorated, the grantees of the purchaser, who delayed in demanding releases, are liable for the interest accruing during the period of delay, and cannot obtain releases on payment merely of the amount originally due.</p> <p>2. Mortgages <&wkey;310 — Partial Eelease.</p> <p>In the absence of any provision to the contrary, a mortgagee can gratuitously release any of the land mortgaged without impairing his right to enforce the mortgage against land not released; hence, where a deed of trust for unpaid purchase money provided for the release of portions on payment of the amount dud thereon as prorated, the fact that the vendor released some portions of the land on different terms does not deprive him of the right to demand the full amount due on other parcels.</p> <p>3. Mortgages <&wkey;581(2) — Foreclosure—Attorney’s Fees.</p> <p>Where notes for unpaid purchase money due on land and secured by a deed of trust provided for the payment of an attorney’s fee, if placed in the hands of an attorney or collected by suit, grantees of the purchaser, who made no tender before foreclosure suit of the amounts which they were required to pay to secure the release of their lands under the trust deed, are liable for the attorney's fee provided.</p> <p>4. Appeal and Error <&wkey;907(4) — Beview—Presumption—Evidence.</p> <p>Where the court did not approve the statement of the evidence found in the record, as required by equity rule 75 (198 Fed. xl, 115 O. O. A. xl), but it is certified by counsel to be correct, but it does not show that all evidence -or substance thereof is therein contained, it is to be presumed that the court’s findings were supported by evidence other than that which the record disclosed, though counsel had approved the statement of the evidence as correct.</p> <p>5. Appeal and Error <&wkey;1073(l) — Beversal—Complete Determination.</p> <p>Where three of the defendants to a suit to foreclose a 'deed of trust filed a cross-bill to remove a cloud from their title, and the sole defendant to such cross-bill disclaimed any interest and consented to the entry of any decree desired, the failure of the court to dispose of the cross-bill, which did not appear to have been called to its attention, does not warrant reversal of a decree of foreclosure.</p> <p>6. Mortgages &wkey;>579 — Foreclosure—Decree—Modification on Appeal.</p> <p>Where a vendor, who took back a deed of trust for the unpaid purchase price, providing that the purchaser or his heirs or assigns might obtain releases for any parcels not less than 640 acres upon payment of the amount due thereon.as prorated, foreclosed the deed of trust against unreleased lands, which had been disposed of, a modification of the decree on appeal, consented to by the vendor, so as to permit each defendant, by paying a sum bearing the same porportion to the amount decreed that his land might bear to the larger parcel foreclosed, to prevent the sale of his land, is proper.</p> <p>Batts, Circuit Judge, dissenting in part.</p>

Petition to Superintend and Revise and Appeal from the District Court of the United States for the Southern District of Mississippi; Henry C. Niles, Judge. In the matter of the bankruptcy of V. I,. Crawford. Prom a decree which permitted the Oscar Smith & Sons Company and others to foreclose a deed of trust given by the bankrupt, A. L. George, trustee, appeals, and likewise petitions to superintend and revise.

<p>Appeal from the 'District Court of the United States for the Eastern District of Louisiana; Rufus E. Foster, Judge.</p> <p>Libel by the Aktieselskabet Stavangeren against the Hubbard-Ze-murray Steamship Company, which filed a cross-libel. From a decree for libelant for the amount claimed, but for larger amount in favor of respondent on the cross-libel, libelant appeals.</p>

Warren Davis, Judge. Libel by the Atlantic Lighterage Corporation against the steam lighter Transit, her boilers, etc., claimed by Royal L. Sidnam. From a decree dismissing the libel, libelant appeals.

<p>1. Bankruptcy <&wkey;136(2) — Turnover Proceedings — Contempt Proceedings.</p> <p>In a turnover proceeding the issue is whether the bankrupt had property within his possession or control at the date of the bankruptcy, which he retained and concealed from his trustee; but in contempt proceedings for failure to comply with an order directing the bankrupt to turn over property to the trustee, the only question is whether the bankrupt is personally able to comply with the order previously made.</p> <p>2. Bankruptcy <&wkey;446 — Petition to Revise.</p> <p>Where disputed questions of fact were involved on the turnover proceeding, an order modifying the referee’s order cannot be reviewed on petition for revision in matters of law, under Bankruptcy Act July 1, 1898, c. 541, § 24b, 30 Stat. 553 (Comp. St. 1§46, § 9608).</p>

Action by the United States against the Republic Bag & Paper Company. Judgment for defendant, and plaintiff brings error. Writ of error to a judgment dismissing a complaint at law upon demurrer.

<p>Master and -Servant <@=3-193(3) — -Injuries to Servant — Fellow Servants.</p> <p>Where a railroad company transported rock from a cement company’s quarry to its plant, and employes of the railroad company who took loaded cars from and empty cars into the quarry pit oyer the tracks of the cement company worked in conjunction with that company’s servants in loading and removing the cars, and all were under the direction ol’ the cement company, such employes, though hired and paid by the railroad company, were servants of the cement company and fellow servants of the employe's of that company, for one who has the right to convrol the doing of the work is the “master.”</p> <p>LEd. Note.^ — For other definitions, see Words and Phrases, First and Second Series, Master.)</p>

<p>In Error to the District Court of the United States for the Eastern District of Oklahoma; Ralph E. Campbell, Judge.</p> <p>Edgar M. De Moss and another were convicted of introducing in-toxiqating liquor from outside the state of Oklahoma into that part of the state which was formerly Indian Territory, in violation of Act March 1, 1895, c. 145, and they bring error.</p>

In'Error to the District Court of the United States for the Eastern District of Oklahoma; Ralph E. Campbell, Judge. Robert K. Warren was convicted of introducing intoxicating liquor from outside of the state of Oklahoma into that part of the state which was formerly Indian Territory, in violation of Act March 1, 1895, and he brings error.

Mantón, Judge. Petition by the New York & Porto Rico Steamship Company, owner of the steamship San Juan, for a writ of mandamus against George T. Charlton and others, as Local Inspectors of Steam Vessels, etc. From an order granting the writ (241 Fed. 288), respondents appeal. Certiorari was denied by the Supreme Court. 247 U. S. -, 38 Sup. Ct. 582, 62 L. Ed.-.

Orr, Judge. On petition of the Fairmont Creamery Company and others the Eclipse Poultry Company and John M. Phillips and others were adjudicated bankrupts, and John M. Phillips and others appeal.

<p>Shipping <@=38 — Charters—Effect of War. '</p> <p>Where the charter of a British vessel gave the charterer the privilege of naming either one of three European ports for discharging, and he in good faith selected and advertised Hamburg as the destination, the subsequent declaration of war between Great Britain and Germany, and the prohibition of trading with enemy ports, justified the master in refusing to take his vessel to Hamburg, and such refusal released the charterer from his contract, since by its terms he could not be compelled to select another port.</p>

<p>In Error to the District Court of the United States for the Southern Division of the Southern District of Illinois.</p> <p>Action by the United States against the Chicago Sr Alton Railroad Company. Judgment for defendant, and the United States brings error.</p>

In the matter of the bankruptcy of Max J. Schultz. From an order denying his discharge, the bankrupt appeals. Appeal from an order of the District Court (Mantón, J., presiding), upon the report of the special master denying a discharge of the bankrupt. The bankrupt was adjudicated on May 3, 1915, and on April 1, 1916, filed his petition for a discharge.

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>(Action by the United States against the Chase National Bank. A judgment for defendant was entered on direction of verdict in its favor (241 Fed. 535), and the United States brings error.</p> <p>Lieutenant E. V. Sumner, United States Army, was quartermaster at Ft. Ethan Allen, Vt., and as such a disbursing officer having, authority to draw drafts or checks on the treasury of the United States. Sergeant Howard was his pay clerk, and as such known at a national bank, in the nearby city of Burlington. Howard drew, on the usual official blank, a draft on the Treasurer of the United States to the order of Lieutenant Sumner, apparently signed by Sumner as quartermaster, and by Mm indorsed in blank. In fact, Howard forged the name of Sumner both as maker and indorser, and then cashed his forgery over tho counter at the said bank in Burlington. That institution, in usual course, indorsed the draft to defendant (Its New York correspondent), which presented it and received payment from the Treasury. The forgery having been discovered, the United States brought this suit to recover the amount paid, as for a payment made under mistake as to facts. Verdict and judgment having been ordered for defendant on the whole case, this writ was taken.</p>

Petition to Revise an Order of the District Court of the United States for the Southern District of New York in Bankruptcy. .In the matter of the bankruptcy of William Horowitz and Moe Laid-hold, copartners trading under the name of the Moravian Woolen Company. On petition by the bankrupts to revise an order relieving the trustee from a stipulation relating to objections to the bankrupts’ discharge.

<p>Internal Revenue <@=347 — Offenses—Payment of Tax.</p> <p>In a prosecution for carrying on the business of a retail liquor dealer by selling and offering for sale distilled spirits, without having paid the special United States government tax as required by law, evidence held sufficient to sustain the conviction.</p>

At Raw. Assumpsit by the American Distributing Company, a corporation, against the Hayes Wheel Company, a corporation. There was a verdict for plaintiff, and defendant moves for judgment non obstante veredicto.

<p>1. Bankruptcy <@==>469 — Costs—Allowance.</p> <p>Bankruptcy Act July 1, 1898, c. 541, § 2, subd. 18, 30 Stat. 545 (Comp. St. 1916, § 9586), declaring that the bankruptcy court is authorized to tax costs whenever allowed by law, and render judgment against the unsuccessful party, etc., and against estates in proceedings in bankruptcy, and General .Order No. 34 (89 Fed. xiii, 32 C. O. A. xxxiii), declaring that when a debtor resists adjudication, and the court after hearing adjudges the debtor a bankrupt, the petitioning creditor shall recover and be paid out of the estate the same costs that are allowed to a party recovering in a suit in equity, should be read together, and are merely declaratory of the general powers of courts of equity, including bankruptcy courts, over the allowance and apportionment of costs.</p> <p>2. Bankruptcy <@=>474 — Courts—Costs—Petitioning Creditor.</p> <p>In view of the broad power of courts of equity over allowance of costs, a court of bankruptcy may allow costs against a creditor of the bankrupt, who comes in and. resists adjudication; the provisions of General Order No. 34, relating to allowance of costs out of the estate of a bankrupt resisting adjudication, hot restricting the power of the court to assess costs against a creditor resisting such adjudication.</p> <p>3. Bankruptcy <@=>474 — Costs—Creditor Resisting Adjudication.</p> <p>It is proper for the bankruptcy court to allow costs in favor of the petitioning creditors against a creditor who intervened and actively opposed adjudication until nearly the close of the hearing, when the creditor’s attorney withdrew; it appearing that the creditor had received a large payment shortly before the filing of the involuntary petition against its debtor, and that it was to its interest to defeat the adjudication.</p>

<p>In Equity. Bill by T. Gertrude All against Harry W. All and the National Bank of Savannah.</p>

<p>1. Principal and Surety <&wkey;152 — Construction Contracts — Bond—Joint Obligors.</p> <p>Where notice to bidders required a performance bond, and the written agreement made the bond and notice a part of the contract, the contractor and surety became jointly and severally liable for performance of all conditions in the contract, though the surety’s liability was limited to the penalty in the bond, so both at common law and under Gen. Code-Ohio, §§ 11256, 11258, a joint or separate action might be brought against the contractor and surety in case of a breach of the contract.</p> <p>2. Judgment &wkey;>241 — Joint Parties — 'Separate Judgments.</p> <p>Where a contract and bond for performance made the contractor end surety joint obligors, under Gen. Code Ohio, §§ 11589, 11584, separate judgments may ho rendered against the several defendants; the judgment against the surety being limited to the amount for which it might be obligated.</p> <p>3. Courts <&wkey;363 — Federal Courts — Conformity to Statf. Law.</p> <p>In an action in. the Federal District Court for Ohio, the question whether a claim is available as a counterclaim is controlled by the state laws.</p> <p>4. Set-Off and Counterclaim <&wkey;29(l) — Subject-Matter of “Counterclaim.”</p> <p>Under Gen. Code Ohio, § 11317, defining a “counterclaim” as a cause of action existing in favor of a defendant against a plaintiff or another defendant, or both, between whom a several judgment might be had in the action, and arising out of the contract or transaction set forth in the petition as the foundation of plaintiff’s claim, a municipality, sued for a balance alleged to be due on a construction contract, having made the surety on the contractor’s performance bond a party defendant, may counterclaim against the contractor and surety for damages for the contractor’s delay in completing the work and failure to complete it according to specifications.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Counterclaim.]</p>

At Law. Action by Avis Dooley against the Pennsylvania Railroad Company, in which the Chicago, St. Paul, Minneapolis & Omaha Railway Company and others were summoned as garnishees. On motion to quasli the garnishment proceedings and discharge the garnishees.

Petition in equity by William O. Smith, E. Faxon Bishop, Albert F. Judd, and Alfred W. Carter, as trustees under the will of Bernice P. Bishop, deceased, for confirmation of the appointment of William Williamson as a cotrustee. A decree holding such appointment invalid, and appointing Charles E. King trustee, was reversed by the Supreme Court of Hawaii, and King appeals. This caso comes here on appeal from the Supreme Court of the territory of Hawaii.

<p>L Wills <@=s>634(8) — Construction—Vested or Contingent Remainder.</p> <p>A testator devised land to a daughter, then unmarried, and her lawful issue. In case of her marriage he requested that she and her husband should lease or make such other disposition of the land as would produce the most certain and largest income, which he directed should be applied to the education and support of their children and of themselves during the natural life of the daughter, at her death the property “to be equally distributed among her lawful issue and the legal representative of any of her children that may have previously died, to be entitled to the same share that his or her parent would have been if then living.” If the daughter should die “without leaving any lawful issue,” tho land should descend to and be equally divided among her brothers and sisters and their lawful issue. Held, that the children of the daughter took no vested interest in the remainder at their birth; the remainder not being0 to her children, but directly to her “lawful issue” living at the time of her death, subject to the further limitation that grandchildren together took the share of a deceased parent, and that until the timo of her death it was contingent.</p> <p>2. Guardian and "Ward @^79 — Property Subject to Sale — Contingent Interest.</p> <p>Under the law of Illinois, as established by decision, a contingent interest in land is not subject to transfer, either at private or at guardian’s sale.</p> <p>3. Remainders <®=>16 — Sale of Property under Order of Court.</p> <p>A court of equity has power in a proper proceeding to order the sale of real estate, where it appears that unless such action is taken the property will be lost both to life tenant and remainderman, and to extinguish all . interests therein, whether vested or contingent, and in Illinois persons then in being and properly before the court will be deemed to represent the interests of those unborn members of the class whose interests are similar to theirs.</p> <p>4. Guardian and Ward <@=s»111 — Sark or Property under Order or Court— Interest Conveyed.</p> <p>A guardian, as such, brought a suit in a chancery court of Illinois, asking that land in which his ward had a contingent interest in remainder and also an equitable interest in the life estate, which was in her mother, be sold, and the proceeds reinvested where it would be more beneficial to the ward. The ward was alone made defendant, and answered by a guardian ad litem. A sale was decreed, and the guardian was directed to report reinvestments to the probato court. Held, that the only interests which the court had jurisdiction to sell in such proceeding were those of the ward, and that since, under the law of the state, a contingent interest was not subject to sale, the purchaser took only the ward’s equitable interest in tlie life estate, given her by the will of her grandfather, and which terminated, with the life estate.</p> <p>5. Adverse Possession í0=s>77 — Turn or Interest Acquired.</p> <p>The deed made pursuant to such decree, however, which purported to convey the entire interest, gave the grantee color of title, and, when followed by exclusive possession and payment of taxes for more than 20 years, divested the estate of the life tenant; but, under the law of the state', limitation did not begin to run against the contingent remaindermen until the death of the life tenant.</p> <p>6. Guardian and Ward ©=»103 — Bale oe Property — Title or Interest Acquired — Contingent Remaindermen — Notice op Rights.</p> <p>Notwithstanding the fact that the will of the record owner of the land, under which all interests were derived, was not properly recorded in the county where the land was situated, the grantee in the deed was chargeable with notice of its provisions, where the deed recited the decree, and both the decree and the petition on which it was based clearly referred to the will and its place of probate.</p> <p>7. Guardian and Ward <s=»88 — Sauk op Property — Interests Acquired— Contingent Remaindermen.</p> <p>In the proceeding by the guardian, the court acquired jurisdiction only to'sell the minor’s interest, and could not, as it did not purport to, give a construction to the will on which the purchaser had a right to rely.</p>

<p>1. Removal op Causes <§=>106 — Remand—Waiver op Right.</p> <p>If general federal jurisdiction exists, the want of local jurisdiction or venue in the particular federal court to which a cause has been removed is waived, where the plaintiff, after the removal, without challenging such' jurisdiction by motion to remand or otherwise, consents to and accepts such jurisdiction by affirmative acts in recognition thereof and invoking its exercise.</p> <p>2. Courts <§=>12(3) — Jurisdiction—Foreign Corporations — Subjection to State Process.</p> <p>A foreign corporation is not amenable to process in a court of another state, unless it is actually doing business in that state of such character and extent as to warrant the inference that it has subjected itself to the jurisdiction and laws of such state and the process is served on an authorized officer or agent.</p> <p>3. Removal op Causes <©=>112 — Jurisdiction op Parties Acquired — Validity op Service.</p> <p>The validity of the service of process in a state court may be questioned after removal to a federal court; the sheriff’s return not being corn^lu-■■sive, and the question of jurisdiction being one for the ultimate deter.mination of the federal court.</p> <p>4. Corporations <©=>642(4%) — Foreign Corporations — “Doing Business” in State.</p> <p>The New York Central & Hudson River Railroad Company, a New York corporation, owned no road and maintained no office or agent in Ohio, but its road was operated in connection with that of the Lake Shore & Michigan Southern Railway Company, which ran through that state; through trains over the two lines being run between New York and Chicago. Agents for both companies sold tickets good over either or both lines under the general name of “New York Central Lines”; the proceeds being divided at periodical settlements according to the service rendered by each company. IlelA, that the Central Company did not do business in Ohio, and that a court of that state did not obtain jurisdiction over it by service of process on an agent of the Lake Shore Company.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Doing Business.]</p> <p>5. Equity <§=>362 — Ground por Dismissal — Defects as to Parties.</p> <p>A court of equity cannot make a decree between the parties before it which necessarily affects the rights of an absent person, who is in such' case an indispensable party; but a bill is not to be dismissed in its entirety,' because of the absence of a person who is indispensable to granting all the relief prayed for, if there is any, separable matter as to which complete relief may be given, not affecting the rights of such absent person.</p> <p>6. Corporations <§=>201 — Suit to Enjoin Voting op Stock — Parties.</p> <p>A stockholder in a corporation is an indispensable party to a suit to enjoin him from voting his stock at a stockholders’ meeting.</p> <p>7. Corporations <©=>584 — Suit to Enjoin Merger — Parties.</p> <p>To a suit by a stockholder to enjoin the corporation from entering into an illegal merger with another corporation, such other corporation need not be made a party, where it has acquired, no vested contract right in the proposed consolidation, although it may own the majority of the stock of the first corporation.</p> <p>8. Corporations <8=3189(9) — Sara by Stockholder — Parties. .</p> <p>To a suit by a stockholder for the appointment of a receiver of stocks of subsidiary companies alleged to be bold illegally by tlie corporation, and for the disposition of such stocks another stockholder, although owning the majority interest, is not an indispensable party.</p> <p>9. Courts <8=3351% — Motion to Dismiss — Dismissal as to Part of Bill.</p> <p>A motion to dismiss made under equity rule 29 (198 Fed. xxvi, 115 0. C. A. xxvi), going to the entire bill, as in case of a demurrer under the old practice, must fail, if any part of the bill is good against it; blit where there is a defect of parties, which would prevent the court from granting a part of the relict prayed for, the court may properly dismiss so much of the bill as relates to that matter.</p> <p>10. Corporations <3=»189{11) — Suit by Stockholder— Sufeioienoy op Bill.</p> <p>A bill by a stockholder to enjoin the corporation from doing an illegal act held sufficient on its face against a motion to dismiss.</p> <p>11. CORPORATIONS <§=3189(11)-STOCKHOLDERS’ SUITS-SUMTIOIENCY 0E BILL.</p> <p>Equity rule 27 (198 Fed. xxv, 115 O. 0. A. xxv), prescribing the requisites of a stockholder’s bill, relates only to suits “founded on rights which may properly be asserted by the corporation,” and does not apply to a bill by a stockholder in his own right against the corporation to enjoin it from doing an illegal act.</p> <p>12. Oori'orations <§=>584 — Suits by Stockholder — Adequate Bemedy at Law.</p> <p>(Jen. Code Ohio, § 9034, providing the compensation which shall be paid for the stock of a stockholder who refuses to exchange his stock for that of a consolidated company, is intended to apply only to lawful consolidations, and does not afford an adequate remedy to a stockholder who socks in advance to restrain the corporation from entering into an illegal consolidation.</p> <p>13. Courts <8=3817 — Supplemental Bill-Change in Nature oe Suit.</p> <p>Under equity rule 34 (198 Fed. xxviii, 115 O. C. A. xxviii), providing that the court may permit a complainant to file a supplemental bill “alleging material facts occurring after his former pleading,” if a complainant’s original bill is sufficient to entitle him to one kind of relief and facts subsequently occur to entitle him to other and more extensive relief, he may have such relief by setting out the new matter in the form of a supplemental bill, even though the nature of the suit would in effect be thereby changed.</p> <p>14. Quieting Title @=>12(3) — Cloud on Title — Bight to Maintain Suit — ■ Possession.</p> <p>The general equity rule that a bill to remove cloud from title can only be filed by one in possession does not prevent the maintenance of such a hill by one not in possession, where there are other grounds for equitable i’ellef.</p> <p>15. Quieting Title @=>12(3) — Suit to Bemove Cloud — Possession.</p> <p>. Where the legal title to the property of a corporation and its possession liave passed from it to a consolidated company through an illegal consolidation, a stockholder is not debarred from maintaining a suit to have the proceedings by which the consolidation was effected set aside as a cloud upon the title of the corporation by the fact that neither he nor the corporation is in possession.</p> <p>16. Appeal and Error @=>959(2) — Equity <§=>297 — Supplemental Bill— Discretion oe Court — Heview.</p> <p>The granting or refusing of leave to file a supplemental hill rests in the discretion of the trial court, and is not reviewable by an appellate court, unless there has boon a gross abuse of discretion; and matters which would not have constituted such a want of equity as to prevent the maintenance of an original bill may properly be considered in de termining whether, in the exercise of sound judicial discretion, leave should have been granted to file a supplemental hill as a matter of grace.</p> <p>17. Equity <@=>297 — Leave to File Supplemental Bill — Discretion op Court.</p> <p>Complainant acquired 5 shares of stock of defendant railroad company, out of 499,961 shares outstanding, two months after the date of an agreement for consolidation between defendant and a number, of other companies, which agreement was afterwards approved by defendant’s stockholders; only 77 shares, besides complainant’s, being voted against it. Under the laws of the state, dissenting stockholders were entitled to receive for their stock its highest market value during the preceding two years. After the consolidation was effected, the consolidated company executed mortgages on its property, securing bonds to the amount of $365,000,009. A bill had previously been filed by complainant to enjoin the consolidation, and after it was effected complainant asked leave to file a supplemental bill to set it aside as a cloud on defendant’s title. The property within the jurisdiction of the court, and which would be affected by.its decree, was only a part of its line. Held that, under all the circumstances, the. court did not abuse its discretion in denying leave to file the supplemental bill.</p>

Suits in admiralty by John Hardy and others against the bark en-tine Windrush, the Shepard & Morse Lumber Company, claimant, and by Paul Neilson and others against the sailing ship Rhine, the -Rhine Shipping Company, claimant. Decree for libelants in each case, and claimants' appeal. Both the craft named are vessels of the United States, within the meaning of that phrase as used in the statutes affecting ships and seamen.

<p>1. Contracts @=>321(1) — Performance—Nonpayment.</p> <p>Wliile a contractor on the owner’s default in payment has tho right to abandon further performance and sue for damages or in quantum meruit for the value of the work done, he is not bound to do so, but has the right to keep the contract in force and refuse his assent to any repudiation or rescission and fully complete the work.</p> <p>2. Mechanics’ Kirns @=>279 — Abandonment-of Contract — Presumptions.</p> <p>A contractor’s abandonment of a contract will not, where a mechanic’s lien is asserted, be presumed, but must be established by evidence.</p> <p>3. Mechanics’ Dtens @=>92 — Abandonment of Contract — Filino of Claims.</p> <p>Where a contractor before he completed performance filed claims of lien, the filing of such claims did not amount to an election not to go on with tho contract, but were merely precautionary steps in the attempted protection of his rights.</p> <p>4. Estoppel @=>58 — Equitable Estoppel — Prejudice—Necessity.</p> <p>Where neither tho owner nor one holding a deed of trust on the property was misled by the contractor’s filing lien claims before he completed the work, no estoppel could ai*ise from the filing of such claims.</p> <p>5. Mechanics’ Keens @=>132(1) — Performance of Contract — Appointment of Trustee.</p> <p>Where a contractor, who had not abandoned the work and had not completed performance at the time receivers appointed in a creditor’s suit took charge of the owner’s property, finished the work thereafter and within four months of the date of the receivers’ appointment filed bis claim for a lien, tho lien must be allowed under Gen. Code Ohio, § 8314, allowing four months in which to perfect liens whether the work done after the appointment of tho receivers be considered unauthorized or not, for if unauthorized the appointment precluded performance and tho lien claiin was filed within four months after performance was rendered impossible.</p> <p>6. Mechanics’ Kirns @=>157(5) — Claim—Failure to Sustain One Claim.</p> <p>Under Gen. Code Ohio, § 8314, a failure to sustain one or more items in tho statement of account filed by mechanic’s lien claimant does not invalidate the claim where the statement gave notice of a valid claim.</p> <p>7. Mechanics’ Kiens '@=>152 — Claims—Statement.</p> <p>While ordinarily a mechanic’s lien statement under Gen. Code Ohio, § 8314, should give notice that it has been filed within the statutory period, and while if the contract has been completed this would necessitate some statement showing the date of completion to be within four months of filing, the same rule does not apply when completion has been prevented.</p> <p>8. Bankruptcy <@=>458 — Appeal—Preservation op Grounds op Review.</p> <p>Where claimant, who appealed from a decree of the District Court, which on petition to review filed by the trustee in bankruptcy and creditors disallowed his claim, took no steps in the District Court to review the finding of the referee and master disallowing a portion of his claim, that question is not reviewable by the Circuit Court of Appeals.</p> <p>9. Mortgages <@=>151(3) — Priority—Mechanics’ Liens.</p> <p>A mechanic’s lien takes priority over a deed of trust on the property given after the’ contract was entered into.</p> <p>10. Estoppel <@=>110 — Equitable Estoppel — Pleading.</p> <p>An estoppel to be relied on should be pleaded.</p> <p>11. Mortgages <@=>183 — Priority—Mechanic’s Lien — Estoppel.</p> <p>Though a contractor who received stock from a corporation for whom he was erecting a building voted for the resolution under which a trust deed was executed and the deed contained a covenant that the property was free from liens, such contractor is not estopped from asserting the priority of his mechanic’s lien over the deed of trust where it did not appear that any one knew of or acted on any representation or act of his.</p>

<p>BANKRUPTCY <&=>i'IO-“CONTEOVERIES ARISING IN BANKRUPTCY PROCEEDINGS” —Review.</p> <p>Where, on a petition by the trustee to sell the property o£ the bankrupt, a lien claimant filed an intervening petition asserting the priority ol his lien over a deed ol trust and the trustee under the trust decid filed an answer, the question ol priorities thus raised was a controversy arising in a proceeding- in bankruptcy and therefore reviewabie only by appeal under Bankr. Act July 1, 1898, c. 641, § 24a, 30 Stat. 653 (Comp. St. 1916, § 9608).</p> <p>|Ed. Note. — Eor other definitions, see Words and Phrases, Second Series, Controversy Arising in Bankruptcy Proceeding.]</p>

Western Division of the Northern District of Ohio; John M. Killjts, Judge. In the matter of the bankruptcy of the Sandusky Aiito Parts & Motor Truck Company. From a decree sustaining the validity of a mortgage securing certain notes held by the Union Savings Bank & Trust Company of Cincinnati and others, Edward S. Stephens, trustee in bankruptcy, appeals.

<p>In Error to the District Court of the United States for the Western Division of the Northern District of Ohio; John H. Killits, Judge.</p> <p>In the matter of the bankruptcy of the Sandusky Auto Parts & Motor Truck Company. On intervening petition of the Union Savings Bank & Trust Company of Cincinnati and others, the validity of a deed of trust was sustained, and Edward S. Stephens, trustee in bankruptcy, brings error.</p>

Dibel by the Universal Transportation Company, Incorporated, against the steamship Ada, her engines,, etc., claimed by the Rederiak-tiebolaget Amie. From a decree for libelant (239 Fed. 363), claimant appeals-.

Newman, Judge. Bill by the Western Union Telegraph Company against the Louisville & Nashville Railroad Company. From a decree striking an amendment from the bill, and dismissing the bill *as amended (243 Fed. 687), complainant appeals.

<p>Appeal from the District Court of the United States for the Northern District of Georgia. William T. Newman, Judge.</p> <p>Bill by 1:ho Western Union Telegraph Company against the Nashville, Chattanooga & St. Louis Railway. From the decree dismissing the bill (243 Fed. 094), complainant appeals.</p>

<p>Appeal from the District Court of the United States for the Northern District of Georgia; William/T. Newman, Judge.</p> <p>Bill by the Western Union Telegraph Company against the Atlanta & West Point Railroad Company. From a decree dismissing the bill (243 Fed. 685), complainant appeals.</p>

Campbell, Judge. Suit by Nellie David and others against J. H. Youngken, individually and as administrator of the estate of John D. Scott, deceased, and others. From a decree (235 Fed. 621) for defendants, plaintiffs appeal.

<p>1. Indians <s^>15(2) — Indian Bands — Allottees—Restrictions.</p> <p>Full-blood heirs of a deceased enrolled citizen of one of the Five Civilized Tribes, on whose account an allotment was selected after his death by an administrator or by the Dawes Commission, take subject to the restriction in Act April 26, 3906, c. 3876, 34 Stat. 145, § 22, declaring that all conveyances made thereunder by heirs who are full-blood Indians are subject to the approval of the Secretary of the Interior.</p> <p>2. Indians <3==>35(2) — Lands—Alienation by Heirs — Descent.</p> <p>Where, under Original Creek Agreement (Act March 1, 1901, c. 676) $ 28, 31 Stat. 869, 870, Supplemental Creek Agreement (Act June 30<, 1902, c. 1323) § 7, 32 Stat. 501, and Appropriation Act March 3, 1905, c. 1479, 33 Stat. 1048, an allotment was made by the Dawes Commission in the name of a full-blood Creek Indian, born iu 1903, enrolled on June 10, 1905, who died on Juno 22d of that year, the provisions of Act April 26, 1906, §§ 5, 19, imposing restrictions on alienations by allottees, do not apply; but section 22, declaring that all conveyances made by heirs who are fuli-blood Indians shall be subject to approval of the Secretary of the Interior, governs. •</p> <p>3. Indians <@=>15(2) — Lands—Alienation—Statutes—Construction.</p> <p>Act May 27, I90S, c. 199, § 9, 35 Stat. 315, declaring that the death ot any allottee of the Five Civilized Tribes shall operate to remove all restrictions upon the alienation of the allottee’s land, but that no conveyance of any interest of any full-blood Indian heir shall be valid, unless approved by the court having jurisdiction of the settlement of the estate of such allottee, has a prospective effect, and is inapplicable to convéyances made before its enactment; hence the Secretary of the Interior may, after the passage of Act May 27, 1908, approve, under Act April 26, 1906, § 22, a previously executed conveyance by a full-blood Indian heir.</p> <p>4. Statutes <@=>162 — Repeal oe Special by General Act.</p> <p>Specific legislation in relation to a particular class or subject is not affected by general legislation in regard to many classes or subjects, of which that covered by the specific legislation is one, unless the general legislation is so repugnant to the special that the legislators must be presumed to have intended thereby to modify or repeal it.</p> <p>5. Statutes <@=>181(2) — Construction.</p> <p>Every statute should have a reasonable, sensible construction, in preference to one which renders it,- or a substantial part of it, useless or deleterious.</p> <p>6. Statutes <@=>212 — Intent op Legislature — Presumption.</p> <p>The intention of the legislative body must be presumed to have been to benefit, not to injure, those interested in the subject of the law.</p> <p>7. Indians <@=>2S — Lands—Alienation by Heirs — Jurisdiction ”ob Courts.</p> <p>Act May 27, 1908, §) 6, declares that the persons and property of minor allottees of the Five Civilized Tribes shall, except as otherwise specifically provided by law, be subject to the jurisdiction of the probate courts of the state of Oblahoma, while section 9 declares that the death of any allottee of the Five Civilized Tribes shall operate to remove all restrictions upon the alienation of such allottee’s land, but that no conveyance by any full-blood Indian heir shall- be valid, unless approved by the court having jurisdiction of the settlement of the estate of the allottee. An Indian, in whose name an allotment was made after bis death, resided and died in that part of the Indian Territory which became, on creation of the state of Oblahoma, Wagoner county, -and after that date the county court of Wagoner county had power, under Comp. Laws Old. 1909, §, 5142, to acquire jurisdiction of the settlement of his estate. The land allotted was situated, and the minor heirs to whom it in part descended resided, in that part of the Indian Territory which, upon statehood, became Okmulgee county. Prior to statehood, the United States District Court, which had plenary jurisdiction of the settlement of the estate of the deceased and the guardianship of the minors, appointed an administrator of the estate and a guardian for the minors. Upon statehood, jurisdiction of the guardianship proceedings, of the subject-matter, and of the parties thereto passed to the county court of Okmulgee county, and that tribunal ordered and confirmed the sale and conveyance of the interests of the minor heirs. Held, that the sale and conveyance were valid without the concurrence of the county court'of Wagoner county.</p> <p>8. Indians <@=>15(1) — Conveyance.</p> <p>Where the conveyances by the several heirs of a deceased Indian, in whose name an allotment was made after his death, passed the entire interest of all of the heirs, none of the heirs have any interest which will allow them to attack the decision of the trial court as to the share descending to each heir.</p>

Campbell, Judge. Bill by the United States against J. W. Daw and others. From a decree dismissing the bill as to the named defendant, the United States appeals; its motion to dismiss without prejudice as to the other defendants being granted.

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Action at law by George N. Gardiner, Jr., Bentley Gardiner, and Mary Elsie Gardiner, as executors of the last will of George N. Gardiner,, deceased, against T. Coleman Du Pont. Judgment of dismissal, and plaintiffs bring error.</p>

<p>1. Appeal and Error <§=>173(1) — Review—Scope.</p> <p>The defense that respondent, who chartered a scow, was liable only for injuries resulting from negligence, the charter being a demise, cannot for the first time be raised on appeal from a decree for the owner.</p> <p>2. Appeal and Error <§=>750(1) — Assignments of Error — Waiver.</p> <p>On appeal by the charterer from a decree in favor of the owner for injuries to a scow where the charterer asserted that recovery should have been allowed only in so far as the owner was not insured, such contention was equivalent to an abandonment of any point except the question of insurance, and an assignment of error cannot be construed to raise the contention that the charterer was liable only for negligence.</p> <p>3. Shipping <g=s>54 — Charters—Injury to Vessel — Insurance.</p> <p>Where the parties to a charter agreed that' if the scow was sent out of the harbor limits.the charterer should pay the additional premium for insurance, and, the scow being sent out of the harbor limits, the owner took out additional insurance for which the charterer paid, such insurance cannot be deemed to have inured to the benefit of the charterer and to limit the owner’s recovery to compensation for injuries to the scow not covered by insurance.</p> <p>Ward, Circuit Judge, dissenting in part</p>

<p>1. Food New, vol. 15 Key-No. Series — Food and Deug Act — Violation.</p> <p>Under Food and Drug Act (Act June 30, 1908, c. 3915) §§ 2, 6, 9, 34 Stat. 768 (Coinp. St. .1916, §§ 8718, 8722, 8725), respectively declaring that the introduction into any state or territory from any other state or territory of any article of food or drugs which is adulterated and mis-branded is prohibited, that the term “food” shall include all articles used for food, drink, confectionery, or condiment by man or other animals, and that no dealer shall be prosecuted when he can establish a guaranty signed by the wholesaler, manufacturer, or other party residing in the United States, from whom he purchased such arScle, that the same was not adulterated or misbranded, a dairy company; which shipped from its receiving plant in Illinois to Missouri milk, which was adulterated by the addition of water and which contained decomposed animal matter, cannot defeat a prosecution on tlie ground that the milk was to be treated in Missouri, and was not an article of food until after treatment.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Food.]</p> <p>2. Food <g=>21 — “Adulteration”—Evidence—Judicial Notice.</p> <p>In view of (Food and Drug Act, § 7 (Comp. St 1916, § 8723), declaring that an article shall he deemed to be adulterated if any substance has been mixed with it, so as to reduce or lower or injuriously affect its quality or strength, it is unnecessary, in a prosecution for the interstate transportation of inilk adulterated with water, for the court to receive evi-dencé that the' addition of water injuriously affected the quality or strength of the milk.</p> <p>[Ed. Note. — ;For other definitions, see Words and Phrases, First and Second Series, Adulteration.]</p>

J. Cochran, Judge. Suit in equity by S. Thurston Ballard and others against the Federal Coal Company, T. R. Preston, C. M. Preston, F. B. Martin, W. A. Sadd, E. A. Powell, and others. From an order for preliminary injunction and receivers, defendants appeal.

<p>1. Patents <§=328 — Validity and Infringement — Stoke Front Construction.</p> <p>Patent No. 852,450, for store front construction, held valid and infringed.</p> <p>,2. Patents <§=238 — Infringement—Uniting Two Parts in One.</p> <p>While infringement is not avoided hy forming in one part two elements of a patented device, if the part thus formed secures the same results in substantially the same way as the two elements, a combination claim is not infringed, where one of its elements is. omitted, without the substitution of an equivalent.</p> <p>8. Patents <©=5328 — Infringement—■ Ornamental Connection Between Glass Plates.</p> <p>The Plym patent, Ko. 860,150, relating not only to. store front but to showcase construction, and designed to provide a simple, strong, durable, inexpensive, and ornamental connection between glass plates, held not infringed.</p> <p>4. Courts <©=>290 — Federal Courts — Jurisdiction.</p> <p>"Where a patent has been held valid and infringed, the unfair competition feature arising out of that infringement may be included in an accounting for profits and damages, though the parties are citizens of the same state.</p> <p>5. Trade-Marks and Trade-Names <©=>7ü(1) — Unfair Competition — Wiiat Constitutes.</p> <p>Defendant, which appropriated plaintiff’s patent Cor sash rail construction, is not liable for unfair competition, where there was no closer imitation of plaintiff’s product than would naturally result from the appropriation.</p> <p>6. Trade-Marks and Trade-Names <©=a73(l) — Unfair Competition — Protection.</p> <p>Where a word is descriptive of the article sold, it is not the subject of a trade-mark, and it will not receive protection, unless it has been so used as to have acquired a secondary meaning.</p> <p>7. Trade-Marks and Trade-Names <©=>93(3) — Unfair Competition — Evidence.</p> <p>Evidence held insufficient to show that plaintiff had a trade-mark in the term ‘almetal,” under which it sold its metallic sash rails, etc., so that defendant’s use of that word to describe its own metallic sash rail construction was not unfair competition.</p> <p>8. Trade-Marks and . Trade-Names <©=>71 — Unfair Competition — Validity of Trade-Mark.</p> <p>The existence of a valid trade-mark is not essential to a right of action for unfair competition, where defendant palmed off i,ts products as those of plaintiff.</p> <p>9. Courts @=5290 — Federal Courts — Jurisdiction.</p> <p>Where a patent was found not to have been infringed, and the parties to the suit were citizens of the same state, the federal court h¡eld, under the facts presented, without jurisdiction over a cause of action for unfair competition arising out of defendant's sale of the alleged infringing articles.</p>

Suit by the Minerals Separation, Limited, and others, against the Butte & Superior Mining Company. From a decree for complainants (245 Fed. 577), defendant appeals. This is an appeal from the decree of the United States District Court foi the district of Montana, sustáining letters patent No. 835,120, issued to Sul-man, Picard and Ballot on November 6, 3906, for a process of ore concentration, and adjudging the appellant herein to have infringed the same.

Suit in equity by Meccano, Dimited, against John Wanamaker, New York. From an order granting a preliminary injunction, defendant appeals. On motion of complainant for decree on the merits.

<p>Patents &wkey;>328 — Infringement—Rubber Heel Attachment.</p> <p>The Ferguson patent, No. 638,228, for a rubber heel attachment for boot and shoe heels, has for an essential element and controlling feature a raised marginal portion on the upper side of the tip, leaving a substantial depression in the center. As so construed, held not infringed.</p>

<p>1. Patents <&wkey;53 — Anticipation—Prior Use.</p> <p>Where the defendant in an infringement suit relied on the defense of anticipation, he must show that the alleged prior use was more than mere experimentation.</p> <p>2. Patents <&wkey;328 — Infringement—-Disclosure.</p> <p>The Willis and Felix patent, No. 1,04-5,234, for a process for rubber sponges, held invalid; the disclosure of the patent not being sufficient to enable one skilled in the art to manufacture sponges with commercial success.</p>

In Admiralty. Libel by the Cleveland & Buffalo Transit Company, a corporation, against the steamship Belgium, owned by the Great Lakes .Steamship Company; and the steam tugs Dunkirk and Gillmore, owned by the Great Lakes Towing Company, a corporation, with a cross-libel by the Great Lakes Steamship Company against the City of Erie, owned by libelant. The City of Erie and the Belgium condemned, and the damages divided, and the tugs Dunkirk and Gillmore exonerated.

<p>1. Bankruptcy <&wkey;140(%) — Trustees—Rights op.</p> <p>Where a bankrupt, who had purchased fixtures under a retained title contract, joined to them other fixtures, title to which was in him, the trustee, the act of the bankrupt, having been unauthorized, cannot sever the fixtures without-paying the seller such sum as would actually restore his fixtures to their original condition, and the amount to be paid cannot he computed by deducting from the secondhand value of the fixtures, if restored, their original value, less the expense of restoration, for that would work an injustice to the seller.</p> <p>2. Accession <&wkey;l — Tule.</p> <p>In such case the seller did not acquire title by accession to the fixtures joined to those to which it had title.</p>

<p>In Admiralty. Eibel by the Edwards Construction Company against the steam tug Edgar E. Coney; Philip Shore, claimant.</p>

<p>1. Removal of Causes <&wkey;112 — Effect—Objections to Jurisdiction.</p> <p>All jurisdictional objections may be made alter removal to tiie federal court of a cause begun in the state court.</p> <p>2. CORPORATIONS <&wkey;642(l) — FOREIGN CORPORATIONS-“DOING BUSINESS” IN State.</p> <p>A foreign corporation which bad formerly maintained an office in New York where it solicited business cannot be deemed “doing business” in that state during the period when it was dismantling the office and preparing to abandon the same, pursuant to order of the United States Director General of Railroads.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Doing Business.]</p> <p>3. CORPORATIONS &wkey;(U2(.4)A) — Foreign Corporations — “Doing Business” in State.</p> <p>Where a ARrginia railroad comiiany which maintained no lines in New York solicited passenger and freight business in New York, it was not thereby “doing business,” as the solicitors merely sought to obtain business, received no money for freight, and issued no tickets for transportation of passengers; hence service of process on one of the company’s Now York solicitors would not give the New York court jurisdiction.</p>

At Law. Action by Moore & Tierney, Incorporated, against the Roxford Knitting Company, which counterclaimed. Action to recover $14,090.08, purchase price of knit goods sold and delivered. Defendant counterclaims for alleged damages for nonperformance of balance of contract.

<p>At Law. Action by the William Moore Knitting Company against the Rox-ford Knitting Company.</p>

<p>Bankruptcy <&wkey;143(12) — Insurance Policies — Right of Trustee.</p> <p>Under Bankruptcy Act July 1, 1898, c. 541, 30 Stat. 544, vesting the trustee with the title of the bankrupt to documents relating to his property, powers which he might exercise for his own benefit, property transferred in fraud of creditors, and property the title to which he could have passed, or which was subject to execution process at the instance of his creditors, with the proviso that the bankrupt might reclaim any insurance policy having a cash surrender value payable to himself or estate, and hold the same clear of any claims of creditors, by payment of the cash surrender value to the trustee, insurance policies on the life of the bankrupt, which were fully paid and which yielded annual dividends, did not pass to the trustee, where they had all been borrowed upon to their full loan value, and the interest on the loans exceeded the dividends, for the trustee, if he offered the policies for cancellation, would receive nothing, and in view ol the nature of the contract of insurance, arid the purposes of the proviso, he should not be allowed to thus forfeit any advantage which the bankrupt or his beneficiaries might derive from continuing the policies.</p>

In Equity. Bill by Joseph H. Brandt against the Pennsylvania Steel Company of New Jersey and others, in which Clarence H. Venner was permitted to intervene as complainant. Pursuant to the prayer of a supplemental bill filed by the intervener, the Bethlehem Steel Company, a corporation of the state of Pennsylvania, was made a party defendant. On motion to quash service of subpoena.

<p>Condemnation proceedings by the United States against the First National Bank and others, against John C. Carter and others, and against A. G. Forbes and others.</p>

In Equity. Bill by the Water Company of Tonopah against the Public Service Commission of Nevada and H. E. Bartine'and others, as members -thereof. On application for temporary injunction. Restraining order discharged and application denied.

<p>In Equity. Suit by H. Lyle, trustee in bankruptcy of G. S. Baxter & Co., bankrupt, against C. J. Perry, Sheriff of St. Johns County, Fla.,</p> <p>and others. On motion for preliminary injunction.</p>

<p>Thomas Welsh was charged with a violation of Act Oct. 6, 1917, known as the “Trading with the Enemy Act.” On demurrer to the indictment.</p>

<p>1. War <s=»15~jTrading with tub Enemy Act — Violations.</p> <p>It is not a violation of Trading with the Enemy Act Oct. 6, 1917, c. 100, § 3, subd. (c), 10 Stat 412, declaring it unlawful for any person other than a person in the service of the United States government, or of the government of any nation, except that of an enemy or ally of an enemy nation, and other than persons or classes of persons exempted by the President, to send or take out of or bring into the United States any letter or other writing or tangible form of communication, except in ' the regular course of the mail, for one not falling within the excepted classes to bring into the United States a coupon gold note issued by an American corporation, which bore no communications other than its proper printed contents, for the purpose of the act is only to prevent all communications between the enemy and persons within the United States.</p> <p>2. War @^>15 — Trading with the Enemy Act — Violations.</p> <p>Yet it is a violation to bring into the United States coupons for interest due on bond of a friendly power, where on the back of the coupon was stamped “O L ” and below it likewise “Lille,” as well as certain figures, for, the purpose of such writings not being disclosed, they might well contain a communication which it was the purpose of the act to exclude.</p>

At Law. In the matter of condemnation of lands by the government for temporary use for military purposes. Instructions for guidance of jury stated.

<p>In the matter of the naturalization of aliens in the service of the Army or Navy of the United States.</p>

<p>Bankruptcy <@=-182(1) — Attorney's Fees — Additional Compensation.</p> <p>Additional compensation to attorneys for the trustee, and petitioning creditors is allowed only in peculiar cases, where it is shown to the satisfaction of the court that the services rendered have been unusual and extraordinary, and the bankrupt estate has been materially increased through the diligent efforts of the attorneys in discovering assets, or whore thoir duties have been onerous and burdensome, with litigation incident to the winding up of the bankrupt estate; and hence, where a bankrupt estate consisted entirely of a stock of goods, which was disposed of in bulk, and there was no litigation which placed additional burdens upon thcr attorneys, additional compensation should not be allowed.</p>

In Bankruptcy. In the matter of the bankruptcy of the Bonner Mc-Craw Company. Petition by the International Agricultural Corporation to compel J. R. Sparks, as trustee of the bankrupt, to turn over accounts.

<p>Iu Admiralty. Ribel hy William A. Piner against an unnamed dredge, two barges, and the tugboat Bud -III; the attachment being served on the dredge, the property of Boyd & Cox. Ribel dismissed.</p>

<p>Appeal from the District Court of the United States for the District of New Jersey; Thos. G. Haight, Judge.</p>

<p>1. Railroads <§=>154 — Contracts—Construction.</p> <p>A contract in which two railroad companies (afterward becoming by merger the defendant company which assumed tlieir liabilities) were parties of the first part, another railroad company controlled by them party of the second part, and the trustee in a mortgage executed by the latter as part of the same transaction party of the third part, construed, and-held to amount to an unconditional guaranty by the first parties of payment of the interest on the mortgage bonds of the second party.</p> <p>2. Railroads <§^154 — Contracts—Construction and Operation.</p> <p>The foreclosure of the mortgage by the trustee under its terms, the sale of the property, and the repudiation by the purchaser of other provisions of the contract, held to have been fully anticipated and provided for therein; it being expressly provided that none of those things should affect the liability of defendant, and not to discharge defendant from liability for interest except to the extent -that the bonds wore paid from the proceeds of the foreclosure.</p> <p>3. Railroads <§=>18 — Contracts—Validity-—Ultra Vires.</p> <p>Under the settled rule that a corporation may, within the boundaries of legal action, make any contract for its corporate benefit upon proper consideration and that the lawful end to be obtained may be the test of legal power, a railroad company having statutory authority to purchase the obligations of another company may, when it owns the controlling interest in such company and its continued maintenance and operation is for its own benefit, lawfully contract to buy the notes of the subsidiary company at stated intervals through a series of years in such amounts as may be required to make up the amount necessary to pay the accruing interest on the subsidiary company’s bonds until such bonds shall bo paid, and it is not discharged from such obligation, made directly to the trustee for the bondholders, by the-subsequent insolvency of the subsidiary company.</p> <p>4. Railroads <^=154 — Guaranty—Breach—Measure oe Damages.</p> <p>Where a railroad company entered into a binding contract with the trustee for the bondholders of another company to furnish sufficient money to insure payment of tlie interest on tlie bonds until tliey should be paid, independently of the mortgage securing the same, its action in publicly declaring that it would no longer continue to observe such contract and refusing to pay coupons on their maturity was a repudiation of the contract which entitled the trustee to recover for a total breach, and the measure of damages was the present value of the continuing obligation, limited to the principal of the debt, diminished by a partial payment realized from foreclosure of the mortgage.</p> <p>5. Appeal and Error <@=>1149 — Correction of Errors — Transfer of Cause to Law Side.</p> <p>Where a suit was brought in a federal court as one in equity and tried as such without objection but no ground of equitable jurisdiction was established by the' proofs and the result was a money judgment for breach of contract, the appellate court has power to, and should, under Equity Rule 22 (198 Fed. xxiv, 115 C. C. A. xxiv), order the cause transferred to the law side of the court and the judgment made to conform to legal procedure by the vacation of any injunction issued in the cause.</p>

<p>1. International Daw <@=^>10 — Sovereignty—Immunity of Sovereign from Suit.</p> <p>The bringing of an action by a foreign nation in a court of the United, States to recover a deposit placed to its credit in a bank is not a waiver of its immunity as a sovereign from suit by other partios, and the court is without jurisdiction to permit the defendant by interpleader to substitute as defendant another party claiming a lien on the deposit as a creditor of the plaintiff, but who alleges no facts which would make it a trust fund.</p> <p>2. International Raw —Sovereign—Immunity from Suit — Waiver.</p> <p>A foreign nation at war which makes contracts in the United States for supplies or equipment for its armies does not thereby divest itself of its sovereign character and become subject to suit as a private individual.</p>

Action by the Succession of Miguel Criado y Bias against Angel Martinez Caballero and others. From a judgment of the Supreme Court of Porto Rico, reversing the judgment of a district court, defendants bring error.

Action by Joseph O. A. Devost, by next friend, against the Twin State Gas & Electric Company and others and the City of Berlin. There was a judgment for plaintiff against the City of Berlin and in favor of the other defendants, and both the municipality and plaintiff bring error.

<p>1. Courts ©=269 — District in Which Suit Must be Brought — Transitory Actions.</p> <p>An action under a Virginia statute (Code 1904, § 2902) giving a right of action for death resulting from wrongful act, neglect, or default, where, had not death ensued, the deceased might have recovered, is transitory; and, the statute being remedial, such action can be maintained in a federal District Court sitting for a district other than that of Virginia.</p> <p>2. Death ©=23 — Actions—Contributory Negligence.</p> <p>Where deceased, while operating a coal-carrying car at defendant’s plant in Virginia, stood up and was killed when his head came in contact with steam pipes over the track in the boiler house he was guilty of contributory negligence, having been warned of the danger 1’rom the pipes, which he could plainly see; and hence there can be no recovery for Ms death under a Virginia statute giving a right of action for death resulting from negligence, where deceased might have recovered, had death not ensued.</p> <p>3. Master and Servant ©=5227(1), 203(1) — Contributory Negligence — Assumption or Risk.</p> <p>The defenses of contributory negligence and 'assumption of risk by a servant are distinct.</p> <p>4. Master and Servant <S=219(1)- -Assumption op Risk.</p> <p>A servant assumes the risk of dangers wMch are patent and of which he has been warned.</p> <p>5. Courts ©=>352 — Direction op Verdict — Power op Federal Courts.</p> <p>Although juries are recognized triers of fact, the federal court in a civil case may direct0 a verdict, when the evidence, with all the inferences that the jury could properly draw, would be insufficient to support a contrary verdict, and it would be necessary to set such a verdict aside, if rendered.</p>

In the matter of M. S. Fersko, Incorporated, alleged bankrupt. From a decree dismissing the petition, L,: Newman and others, petitioners, appeal. Appeal from a decr'ee of the District Court for the Southern District of New Vork (A. N. Hand, J., presiding), dismissing a petition for the adjudication of the respondent as a bankrupt.

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Action at law by John R. Lyttle, trustee in bankruptcy of the Wills & Marvin Company, against the Fifth National Bank of the City of New York. Judgment for plaintiff, and defendant brings error.</p> <p>This is a suit by a trustee in bankruptcy to recover a preferential payment of $30,500. The defendant is a corporation organized and existing under the laws of the United States of America. The bankrupt is a corporation organized and existing under the laws of the state of New York. The order of adjudication in bankruptcy was entered on November 17, 1913; an involuntary petition having been filed on October 23, 1913. A meeting of the creditors was held on January 17, 1914, and at that time complainant was duly appointed trustee in bankruptcy and has ever-since acted as such. Two causes of action are stated.</p> <p>The first cause o'f action declares that on September 20, 1913-, the bankrupt was indebted to defendant in the sum of $30,500, for which indebtedness the bank held notes made by the bankrupt, which notes fell due at various dates in September, October, and November, which notes were totally unsecured at the opening of business on the day aforesaid. The last day named the bankrupt paid to defendant $19,500 in payment of six separate notes of varying amounts, aggregating $19,500, which notes matured after October 17, 1913. On September 26, 1913, the bankrupt also paid to defendant $5,000, and on October 2, 1913, $3,500, and on October 17, 1913, $2,500, all of which amounts were in payment of various notes held by the bank on October 17th. All the aforesaid payments are alleged to have been made with the intent of giving a preference to defendant; and it is also averred that the bankrupt was at the time insolvent, and that defendant had reasonable cause to believe that he was insolvent, and that a preference was intended. The liabilities of the bankrupt amounted to $190,648.88, and the amount of the assets which reached the complainant’s hands amounted to $17,581.99. Judgment is demanded in the sum of $30,500, with interest.</p> <p>The second cause of action- declares the same facts stated in the first cause of action. But the first cause of action proceeds upon the theory that a preference was received by defendant by payment of the notes held by it on September 20th. And the second cause of action goes upon the theory that a preference was received by payment of the notes held by defendant on October 17th. It is conceded that only one recovery is sought. The decision was in favor of the trustee on his second cause of action, and judgment has been entered in his favor in the sum of $3S,269.06. The cause was by stipulation of the parties and the order of the court referred to David'Beventritt as sole referee to hoar and determine. The judgment above referred to was entered in accordance with his findings of fact and conclusions of law.</p>

Suit in equity by Hrskine Hewitt against James Speyer, Henry Ruhl-ender, Richard Schuster, and Eduard Beit Von Speyer, individually and as copartners composing the firm of Speyer & Co., and the United States Mortgage & Trust Company, as trustee under the mortgage of the Guayaquil & Quito Railway Company. Decree1 for defendants, and complainant appeals. This cause comes here on appeal from a decree entered on October 19, 1917.

Wade, Judge. Action by Theodore Olson against the Chicago, Burlington & Quincy Railroad Company and others. There was a judgment for defendants, and plaintiff brings error.

Pollock, Judge. Suit in equity by the United States & Mexican Trust Company, Trustee, and others, against the Kansas City, Mexico & Orient Railway Company and others. The United States & Mexican Trust Company, petitioner and intervener, and Mary E. Watson and others, interveners, separately appeal from certain orders of the District Court.

<p>1. Master and Servant <&wkey;13 — Hours oe Service Act — Periods oe Best.</p> <p>Two periods, one of 3 hours 7 minutes, and one of 2 hours 24 minutes, during which a telegraph operator in a railroad station, who lived in the building, was off duty, and during which it was his practice to sleep, field substantial periods for rest, and not to be counted as periods of labor, under Hours of Service Act March 4, 1907, c. 2939, § 2, 34 Stat'. 1410 (Comp. St 1916, § 8678). . •</p> <p>2. Master and Servant &wkey;>13 — Hours of Service Act — Telegraph Opera- . tors — Daytime Offices — “Operated Only During the Daytime.”</p> <p>A railroad office, in which the regular hours of the telegraph operator, who is also station agent, are from 7 a. ni. to 6 p. m. daily, with an intermission of an hour at noon for dinner, and in which he is required to serve ordinarily from 30 to 40 minutes at 12:35 a. m. and from 30 to 40 minutes at 4:20 a. m., in order to meet trains, but in which the aggregate of his túne on duty does not exceed 13 hours in any 24-hour period, is an office “operated onlv during the daytime,” within the meaning of Hours of Service Act March 4, 1907, c. 2939, § 2, 34 Stat. 1416 (Oomp. St. 1916, § 8678).</p>

<p>X. Carriers &wkey;320(l) — Action ron Injury ' to Passenger — Questions for Jury.</p> <p>In an action by a passenger against a street railroad company to recover for a personal injury received when the car in which he was riding struck an automobile at a crossing, the case held properly submitted to the jury, where there was evidence tending to show that the car was running 25 or 30 miles an hour in a city, that, it was equipped with a hand brake only, and that it struck the automobile, which with its occupants weighed 3,700 pounds, with such force as to shove it along the pavement sidewise for 100 feet.</p> <p>2. Carriers <&wkey;315(l) — Action for Injury to Passenger — Pleading and Proof.</p> <p>In an action to recover for an injury to a passenger in a street car, an allegation that the car was negligently operated was sufficient, in the absence of motion for more specific statement, to permit the introduction of evidence of excessive speed.</p> <p>3. Evidence <&wkey;492 — Opinion of Witnesses — Speed of Street Oar.</p> <p>In an action to recover for an injury to a passenger in a street car when it struck an automobile at a crossing, the admission in evidence of the opinions of witnesses as to the speed of the car at the time of collision held within the discretion of the court.</p> <p>4. Carriers &wkey;>321(l) — Action for Injury to Passenger — Instructions.</p> <p>The charge of the court, in an action to recover for an injury to a passenger in a street car in collision with an automobile, held correct and sufficient, and the refusal of further requested instructions not error.</p>

<p>1. Judgment <&wkey;683 — Persons Concluded — Privies in Estate. .</p> <p>Where a fraternal. benefit association, pursuant to judgments rendered against it, issued benefit certificates to the plaintiffs in the suits, a succeeding foreign society, which took over its property and assumed its obligations, in a suit by the holders of the certificates to sequester certain of the property transferred to secure performance of the obligations thereby created, cannot contest the validity of the certificates on grounds which existed prior to the judgments, being privy in estate to its assignor and bound by such judgments.</p> <p>2. Insurance <&wkey;728 — Mutual Benefit Insurance — Assignment of Certificates.</p> <p>Assignments of certificates of a fraternal beneficiary society by the insured, where the assignee was the husband of one and a brother of the other assignor, and had paid practically all of the dues on such certificates, held, valid, and not to have terminated the membership of the assignors, in the absence of any contrary provision in the charter or by-laws of the society.</p>

<p>Specific Performance <&wkey;>68 — Personal Property — Adequate Remedy at Law.</p> <p>A federal court of equity is without jurisdiction of a suit by a railroad company for specific enforcement of a contract for the sale and delivery of the coal required in the operation of its road during a specific time, in. the absence of allegation of the insolvency of defendant, or that the coal cannot be obtained from others; there being a plain and adequate remedy at law by an action for breach of the contract.</p>

<p>1. Shipping <&wkey;49(2) — Charter—Hire Monet — Tender—Sufficiency.</p> <p>A charter party gave the charterer an option to purchase the vessel for the amount of the hire. After plaintiff, the charterer, had exercised the option, an attachment was levied on all moneys in its hands owing the owner. The order vacating the attachment was not entered until the day after an installment of the charter hire or purchase price was due. On the morning following, plaintiff tendered the installment, but it was refused by the bank to which it was tendered; that institution’s authority having been withdrawn without notice. Held that, though an attorney from the owner verbally asserted authority to receive the installment, the tender was sufficient, and the owner was not authorized to withdraw the vescel.</p> <p>2. Shipping <&wkey;51 — Breach of Charter — Excuse.</p> <p>Where a charter party, giving the charterer, an American corporation, an option of acquiring the vessel, required the Swedish owner to deposit the bill of sale as soon as possible, the owner’s nonperformance cannot be excused, on the ground of action of the Swedish government, where there was no exception in the agreement, like that common in charter parties and bills of lading, of arrests, and restraints of princes.</p> <p>3. Shipping <&wkey;51 — Breach oe Charter — Waiver.</p> <p>Where defendant, the owner of a vessel, wrongfully withdrew the same from the charterer, which had exercised an option of purchase, the fact that the charterer, after withdrawal, gave directions as to unloading, and continued the name of the vessel on its advertised schedules of sailings for some days after its directions had been repudiated, was not a waiver of the owner’s breach of contract, which would render an action, brought a few days after the final breach of contract, and after the name of the vessel had been withdrawn from the selling lists, premature.</p> <p>4. Continuance <&wkey;10 — Pendency oe Another Action — Demurrer.</p> <p>In an action in a federal District Court for New York for breach of a contract to sell a vessel, where the pendency of an admiralty suit appeared on the face of the complaint, that objection was waived, unless taken advantage of by demurrer, in accordance with Code Civ. Proc. N. Y. § 499, and, not having been so taken advantage of, a motion for continuance pending the appeal in the admiralty cause was properly denied.</p> <p>5. Shipping <&wkey;27 — Interest as Element of Damages — Breach oe Contract.</p> <p>In an action for damages resulting from breach of a contract to sell a vessel, interest was properly allowed upon the value of the vessel, fixed by the jury with reference to market rates.</p> <p>6. Appeal and Error <&wkey;1140(l) — Review-Remittitur.</p> <p>In an action for damages for breach of contract to sell a vessel, where an unpaid installment was not deducted from the value of the vessel as fixed by the jury, because it had been deducted in an admiralty suit growing out of the same transaction, such unpaid installment must be remitted if a judgment for plaintiff be allowed to stand; the decree in the admiralty suit having been vacated for want of jurisdiction.</p>

<p>Appeal from the District Court of the United States for the District of Massachusetts; Jas. M. Morton, Judge.</p> <p>Libel by James P. Cowin against the steamship Bolton Castle, claimed by John Wylde. Prom a decree for libelant, claimant appeals.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in admiralty by the Midland Linseed Products Company against the steamship Saturnus; the Koninklije Nederlandsche Stoomboot Maatschappji, claimant. Decree for claimant, and libelant appeals.</p> <p>The libel alleges that the Midland Company sold to certain persons a large quantity of oil cake, deliveries to extend over several months. The cake was to he put on shipboard at New York, and the purchasers agreed in writing to pay for it against hills of lading, to give three weeks’ notice of readiness of steamers, and that the Dutch government would “tender you (Midland Company) steamers to load full cargoes according to the terms of the Baltimore charter party Form G., with the exception of demurrage,” which • was to he much higher than the rate of the printed form. While not so pleaded, it is admitted that the cake was bought for and belonged to the government of Holland.</p> <p>The libel alleges that libelants were “advised by the agents of S. S. Satur-nus” that that steamer “was tendered * * * under the contract of sale” for loading a full cargo of cake. Thereupon libelants ordered her to a certain pier to load, hut she wrongfully refused to go there, although by the custom of the port of New York “and under said Baltimore charter party Form O” she was bound so to do. The steamer’s agents then notified libelant that she would receive cargo at another pier several miles distant from the one chosen by Midland Company, and to that pier libelants under protest transported the cake, incurring therefor an expense of §1,287. These charges were for lighters and tugs, and arose necessarily before any cake went aboard the Saturnus, or came into the possession, custody, or control of any agent of the vessel.</p> <p>No charter party of Saturnus, either in the Baltimore form or otherwise, was ever made to libelant; that form relates solely to “heavy grain” cargoes, and is in many respects wholly unsuited to the present venture. It does contain provisions as to loading, and expressly provides for demurrage for delay in loading, but neither expressly nor by implication of words requires steamer to go to such safe pier at the loading port as might be chosen by shipper or charterer. The plain inference from the exhibits attached to' the libel is that the Saturnus was under the complete control of the Dutch government, and, whether formally chartered or not, looked for remuneration to that sovereign. The bills1 of lading specifically called only for freight “according to agreement” between that government and owners of ship.</p> <p>Peremptory exception was filed to a libel in rein, by claimant, a private corporation owning the steamship, as follows: “The breach of contract alleged does not give a maritime or other lien against the Saturnus” — which exception was sustained and libel 'dismissed. Libelants appeal.</p>

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Action at law hy John ‘Downs against the Erie Railroad Company. Judgment for plaintiff, and defendant brings error.</p> <p>The plaintiff in error will be hereinafter referred to as defendant, and the defendant in error as plaintiff. The plaintiff is a citizen of New Jersey. The defendant is a corporation organized and existing under the laws of the state of New York. The plaintiff brought an action under the federal Employers’ Liability Act to recover damages for personal injuries sustained by him while in the employ of defendant. He obtained a verdict from a jury for if!22,5()0, which the trial court reduced to 820,000.</p> <p>The plaintiff was a yard brakeman, and was struck down and run over by a car in the defendants yard at Jersey City, as a result of which he lost hi's right arm. It is claimed the accident occurred by reason of the defendant permitting cars to move about its yard while it was dark, without providing lights on the cars or brakemen to coni,rol the movement of the cars or to warn of their approach. The plaintiff had been employed in the yards for 19 years. The yard was divided into various subyards, and tile accident occurred in what is known as “Yard A,” and the cars in that yard are sent over what is called the North Hump.” This hump is 10 feet high, and it descends sharply for a distance of 300 feet at a grade of 3.S, and then tapers gradually for about 500 feet to a level grade. The ears come from a receiving yard (yard D) into yard A, which is a classification yard, and as they reach the top of the hump they are cut off in “cuts” of from 1 to 20 cars, and are permitted to roll down the hump by gravity into some one of the 21 tracks' which that yard contains, where they are made up into trains for different points.</p> <p>The plaintiff had served as brakeman, conductor, and yardmaster. On the day in question he was serving as a freight brakeman in a crew engaged in switching cars. He testified that just previous to the injury he had been engaged with his engine in an operation consisting of moving about 50 or 60 cars from yard A into yard E, and was protecting the rear end of the string of cars so moved. That operation being concluded, he left that string of cars to return and-pick up his engine in yard A; the engine being about 50 cars away from him. To regain his engine he had to cross a number of tracks, and as he approached the track on which he was injured he looked, he said, to the east and to the west. He saw a car standing to the east and some to the west, with an open space of 15 or IS feet between. He could see nothing coming on the track from either direction and started to cross. As he took one step beyond the first rail he heard a crash, and was knocked down and run over. A car had come down the hurap1 and crashed into the stationary car, which knocked him down and ran over him. The force of the impact was such as to drive the car collided with over 90 feet, even against the resistance afforded by the weight of the cars standing 9 or 10 feet to the west of the plaintiff. There was no one on the colliding ear at the time to control its speed or give warning. The practice was for the conductor in charge of a switching crew to have brakemen varying in number mount the cars as they were cut off at the top of the hump and ride them down the hump into the classification tracks, so as to control their speed and that no damage would be done. It sometimes happened, even at night, that a conductor would drop 2 or 3 empty cars down the hump, without a brakeman in charge and without lights, when he knew that there was a long, clear space on the track along which the cars could run gradually until they came to a stop.</p> <p>The accident happened on November 23, 1916, a little after 5 o’clock in the afternoon. It was raining and getting dark, and the plaintiff and the other members of his crew had their lamps lighted.</p>

<p>In Error to the District Court of the United States for the Eastern District of Oklahoma; Ralph E. Campbell, Judge. ■</p> <p>Criminal prosecution by the United States against E. Hodson. Judgment of conviction, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the Northern District of Texas; Edward R. Meek, Judge.</p> <p>Action by Floyd R. Hodges against W. W. Simmons and others. There was a judgment for plaintiff, and defendants bring error.</p>

Foster, Judge. Gee Woe was convicted of receiving and concealing three tins of smoking opium after importation, knowing the same to have been imported in violation of Act Feb. 9, 1909, c. 100, as amended hy Act Jan. 17, 1914, c. 9, and of being a dealer in opium without having registered and paid the tax required by Act Dec. 17, 1914, c. 1, and defendant brings error.

<p>In Error to the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge.</p> <p>Action by Mary J. Ivins against Joseph P. Jacob and another, trading as Jacob Bros. There was a judgment for plaintiff, defendants’ motion for new trial was denied (245 Eed. 892), and defendants bring error.</p>

<p>1. Trial <g=>109 — Grounds por Direction op Verdict — Insufficiency op Opening Statement to Jury.</p> <p>If, after considering the statement to the Jury hy his counsel of plaintiff’s cause of action, and after giving counsel an opportunity to explain or modify it, the court is of opinion that the statement does not set forth facts sufficient to constitute a cause of action, It has the power to dismiss the case without prejudice, or to direct a verdict for defendant.</p> <p>2. Dismissal and Nonsuit <S=»7, 30 — Right to Dismiss Without Prejudice— Condition of Cause.</p> <p>A plaintiff may not dismiss without prejudice after a motion for a directed verdict has heen made and submitted, or after such a motion has been argued and the court has expressed its opinion upon it</p> <p>3. Dismissal and Nonsuit <S=>30 — Right to Dismiss Without Prejudice— Statutory Provision.</p> <p>Under Rev. St. Neb. 1913, § 7654, which provides that a plaintiff may dismiss an action without prejudice to a future action “before the iinal submission of the ease to the jury or to the court where the trial is by the court,” a plaintiff had the right to dismiss without prejudice, where the court had stated its opinion that the opening statement of counsel did not state facts sufficient to constitute a cause of action, but before any motion or suggestion for a directed verdict had been made.</p>

<p>1. Collision @=100(1) — Liability—Vessel in Tow.</p> <p>A ferryboat, which in a fog collided with a barge In the last tier of a tow, held wholly at fault; the tug towing the barges having given the required signals, which were heard by the ferryboat, and the faulty navigation of the tug prior to the accident not having contributed thereto.</p> <p>2. Collision @=100(1) — Tows—Anticipation.</p> <p>So long as 500-foot tows are not illegal in New York Harbor, they must be reckoned with by vessels navigating in a fog, after hearing signals indicating the presence of a tow.</p> <p>3. Collision @==100(2) — Fog Signals — Negligence.</p> <p>Where a tug in charge of a tow gave the whistle signal provided by Navigation Rules, art. 15 (Act June 7, 1897, c. 4, § 1, 30 Stat. 99 [Comp. St. 1916, § 7888]), a barge being towed, which could not whistle, is not guilty of negligence in failing to give other signals in a fog; the prescribed signal excluding all others.</p>

Newman, Judge. In the matter of the bankruptcy of the Georgia Steel Company. Petition by the Georgia Iron & Coal Company to enjoin the collection of taxes assessed against the property of the bankrupt. The propriety of the assessment having been submitted to arbitrators, W. H. Cross, Sheriff of Dade County, petitioned for an order that taxes he paid on the assessment made by the arbitrators.

<p>Jury @=»31(3) —Right to Trial by Jury — Lesal ob Equitable Issues.</p> <p>The action of a trial court in transferring from tie law to the equity side an action at law brought by a building contractor for breach of contract, in which defendant denied the breach and pleaded a counterclaim, and where no accounting was required and the issues were clearly at law and triable to a jury, held, error.</p>

<p>Carriers <®=37 — Twenty-Eight Hour Law — Violation.</p> <p>That the initial carrier kept live stock continuously confined in cars for a longer period than 28 hours, without request of the shipper, is no defense to an action against a connecting carrier to recover the penalty for violation of the Twenty-Eight Hour Law (Act June 29, 1906, c. 3594, 34 Stat. 607 [Comp. St. 1916, § 8651]) § 1, by receiving the stock and continuing the carriage with knowledge of such prior confinement; the statute expressly declaring that “in estimating such confinement. * * * the time during which the animals have been confined * * * on connecting roads shall be included.”</p>

<p>1. Courts <©=>405(11) — Federal Courts — Jurisdiction of Circuit Court of Appeals.</p> <p>Under Comp. St. 1916, § 10045, declaring that the Circuit Court of Appeals of the Fifth Circuit shall have jurisdiction to review final judgments and decrees of the District Court of the Canal Zone in cases in which the value in controversy exceeds $1,000, etc., the Circuit Court of Appeals of the Fifth Circuit has jurisdiction to review a judgment of the District Court of the Canal Zone, where the aggregate amount of the judgment in favor of plaintiff and of the counterclaim made by defendant and disallowed exceeds $1,000.</p> <p>2. Master and Servant <©=>185(18) — Injury to Servant — Negligence of Fellow Servant.</p> <p>Where plaintiff, a member of one of several gangs engaged in loading cargo in a vessel, was injured by the fall of a hatch cover, which had been placed in position by some of the laborers engaged with him in that work, and the fall resulted, not from the breaking of the supporting beam, but from the failure of those placing it in position to make it firm by the use of wedges or blocks, the negligence was that of plaintiff’s fellow servants, for which the owner of the vessel on which the accident occurred was not liable.</p>

Petition to Revise Order of the District Court of the United States for the District of Minnesota; Charles F. Amidon, Judge. . In the matter of the bankruptcy of William Aaron Rosenstein. Petition by John P. Galbraith, trustee in bankruptcy, to revise an order of the District Court, dismissing a rule to show cause why the bankrupt should not be adjudged in contempt.

<p>Appeal from the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge.</p> <p>Suit in equity by Gertrude L- Moore and others against the Norris-town Trust Company. Decree for defendant, and complainants appeal.</p>

<p>Mastee and Servant <S=j332(1) — Action for Negligence — Sufetctencx of Evidence.</p> <p>In an action for an injury to plain!iff while working as a plasterer in an unfinished elevator shaft, caused l>y the alleged negligent dropping o! a brick by employes of defendant working above the shaft, evidence held sufficient to require submission of the case to the jury.</p>

<p>Homicide @=^>92 — “Threats Against President.”</p> <p>A statement by accused, after applying vile epithets to President Wilson, that he wished the President was in hell, and that if.he had the power he would put him there, must be deemed a threat against the President, in violation of Act Feb. 11, 1917, c. 64, 39 Stat. 919.</p>

B. Sheppard, Judge. Henry Blackman was convicted of carrying on the business of a retail liquor dealer without having paid the special tax therefor as required by law, and sentenced to imprisonment in the county jail. Thereafter he was sentenced to imprisonment in the federal penitentiary, and, his motion to set aside the last-mentioned sentence having been overruled, he brings error.

<p>1. Patents @=»328 — Validity—Infringement—Mechanical Toy.</p> <p>Patent No. 1,079,245, for perforated plates used for constructing working models in toys, 7ield, invalid.</p> <p>. 2. Trade-Marks and Trade-Names <§=>95(1) — Infringement Suit — Preliminary Injunction.</p> <p>Where, in a suit for infringement of a patent for perforated plates for mechanical toys and for infringement of copyrighted manuals of instruction for making toys as well as for unfair competition, the patent was found to be invalid, the case must be very clear to justify a preliminary injunction on other grounds.</p> <p>3. Trade-Marks and Trade-Names <g^9i)(l) — Unfair Competition — Injunction.</p> <p>Where.complainant’s patent for one feature of a mechanical toy outfit was invalid, it is not entitled to a preliminary injunction, restraining defendant from selling similar outfits under a different name and in packages which did not simulate those of complainant, though the manuals of instruction for making the toys furnished with the outfit sold by defendant were, in the very nature of things, more or less like those of complainant, which were copyrighted.</p> <p>4. Trade-Marks and Trade-Names <S=»75 — Unfair Competition — What Constitutes.</p> <p>Where complainant’s patent for one feature of a mechanical toy outfit was invalid, a merchant may urge the sale of a competing outfit on which ho derived more profit, so long as he does not sell it to purchasers as complainant’s outfit.</p> <p>Learned Hand, District Judge, dissenting.</p> <p>ig=5>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests 6 Indexes</p>

<p>1. Patents <©==>177 — Construction—Claims.</p> <p>While it is improper to import into any combination an element not found therein, the court is justified, when the intention is clear, in giving to modifying words and phrases a significance ascertainable only by reference to the description.</p> <p>2. Patents <©=>328 — Validity—Mux Refuse Cutter.</p> <p>The Dittbenner patent, No. 777,779, for a mill refuse cutter or mill hog, for cutting up slabs and edgings and other refuse from mills and furniture factories in fine wood for burning, held valid as to claims 3, 4, and 6.</p> <p>3. Patents <§==>328 — Infringement—Mill Refuse Cutter.</p> <p>The Dittbenner patent, No. 777,779, claims 3, 4, and 6, for a mill refuse cutter or mill hog, held infringed; the differences in defendant’s device being of form merely.</p>

In Equity. Bill by the Auto Vacuum Freezer Company, Incorporated, against William A. Sexton Company, Incorporated. Hearing on report of master.

<p>1. Patents <§=>78 — Date of Invention — Prior Foreign Patent.</p> <p>As against a claim of anticipation or an infringer, the effective date of invention of a device first made and patented in a foreign country and afterward patented in the United States is the date of the foreign application.</p> <p>2. Patents <§=>328 — Validity and Infringement — Vacuum Tanks fob Automobiles.</p> <p>The Higginson and Arundel patent, No. 1,067,814, and the Jay palents, No. 1,132,273 and No. 1,134,1.17, each for a vacuum tank for automobiles, cover improvements and disclose invention, but none is for a wholly successful structure, and all must be narrowly construed. As so construed, held, not infringed.</p> <p>3. Patents <©=>9 — Improvement Patents — Construction and Scope.</p> <p>Where an art has been advanced step by step by a series of inventions so that no one inventor can claim the complete whole, each inventor is entitled to the specific form of device which he produces so far as it differs from those of his competitors.</p> <p><§s»For other cases see same topic & KEY-NXJMBBR in all Key-Numbered Digests & Indexes</p>

<p>1. Collision <&wkey;71(3) — Vessels at Anchor — Liability.</p> <p>A steamer, which dragged her single anchor in a gale, and after the second anchor was dropped swung so that she collided with a barge, held solely in fault; the second anchor, which the pilot had ordered dropped, having been taken up by one of the ship’s officers without orders from the pilot.</p> <p>2. Collision <&wkey;71(3) — Liability—Fault of Vessel.</p> <p>A barge anchored in a harbor, which saw that a steamer’s anchor was not holding and noticed that the steamer was drifting down upon her, held not at fault for failure to raise her own anchor and drift to leeward, where it would have taken some time to raise the anchor, and heaving in would have brought the barge nearer to the steamer, particularly as the barge, if set adrift, might have gotten into other difficulties.</p> <p>3. Collision <&wkey;71(3) — Liability—Fault or Vessel.</p> <p>Where a steamer’s single anchor did not hold, and she drifted toward a barge, with which she collided, held, that the barge was not at fault in failing to further slacken her anchor cable; it not appearing the slack would have been taken up.</p> <p>4. Collision <&wkey;72(l) — Liability—Gross Fault or One Vessel.</p> <p>Where a steamer’s fault was gross, and was the underlying cause of a collision with a barge, the latter vessel cannot be held to blame unless her contributing fault was clearly established.</p>

<p>At Law. Action by Mary F. Preston against the Western Union Telegraph Company. Sur motion and reasons of defendant for new trial.</p>

<p>At Law. Action by Harriet F. Voorhees against the 2Etna Rife Insurance Company, begun in state court and removed to the federal court. On motion to remand for want of jurisdictional amount in controversy.</p>

<p>In Admiralty. Petition of the Erie Railroad Company, as owner of a lighter, known as Erie Fighter. 108, for limitation of liability. On final hearing.</p>

Condemnation proceeding by the United States against Graham & Irvine and others, in which J. W. Dudley and another, citizens of West Virginia, appeared specially, filing objections to the jurisdiction.

In Bankruptcy. In the matter of the bankruptcy of the Prudential Outfitting Company of Delaware, Incorporated. On motion by the Corn Exchange Bank to set aside a sale by the referee. This is a motion to sot aside a sale made by a referee in bankruptcy and confirmed by the referee in the above-entitled case.

At Haw. Action by Albert H. Calder and H. Anson Richmond, copartners doing business as Calder & Richmond, against E. W. Ros-enthal and E. B- Hac.kburn, composing the firm of E. W. Rosenthal & Co. The first-named defendant, who alone was served, appeared and moved to dismiss on the ground of want of jurisdiction.

<p>1. Trusts &wkey;>147(2) — Estate of Cestui Que Trust — Power to Transfer.</p> <p>A testatrix beaucathed property to her daughter, “in trust for- herself and her children, born and to be born.” Held that, while the trust was executory during the life of the daughter, she and her living children were vested with an equitable interest in the property, which, although the amount was contingent on the birth of other children, they could assign or pledge, subject to the contingency.</p> <p>2. Trusts <&wkey;151(l) — Rights and Remedies of Creditors of7j Cestui Que Trust.</p> <p>An absolute equitable estate in property held in trust is chargeable with the debts of the owner, and may be subjected in equitáble proceed-* ings and sold to pay a debt, and it is no objection that the quantum of the interest is to some extent dependent on a contingency.</p>

Cross-Appeals from the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge. Suit by Alice Frances Brown and others against the Pennsylvania Railroad Company and"others. From the decree (244 Fed. 980), complainants appeal, as does the named defendant.

<p>Appeals from the District Court of the United States for the District of Massachusetts; George H. Bingham, Judge.</p> <p>Suit by John L. Bates, receiver of the National City Bank of Cambridge, Mass., against George W. Gale, Clarence Alfred Bunker and others, and Edwin Dresser, who died after suit was begun, but before final decree; the suit being revived against his administrator. From a decree for complainant (229. Fed. 772) for $283,218.20 against all of the defendants, the defendants appeal.</p>

Action by Ignatz Petrowsky, an infant, by Ona Roder, his guardian ad litem, against the Delaware, Eackawanna & Western Railroad Company. There was a judgment for plaintiff, and defendant brings error. This cause comes here on writ of error to the United States District Court for the Eastern District of New York. The plaintiff alleges that he is a resident and citizen of the state of New York in the Eastern district.

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Paul Daeche was convicted under separate indictments under Criminal Code, § 37, of conspiracy to violate section 298, and of a violation of section 296, and he brings error.</p> <p>Writ of error to a judgment of conviction, entered on the 9th day of May,' 1916, upon the verdict of a jury rendered on the previous day upon two indictments.</p> <p>The first indictment alleged that the defendant, with certain others, to wit, Fay, Scholz, Bronkhorst, Breitung, and Kniezle, between the 1st day of June and the 21st day of October, 1915, entered into a conspiracy maliciously to attack and set upon certain vessels within the waters of the United States by surprise and open force, with intent unlawfully to depoil the owners thereof of certain shells, ammunition, and other munitions of war by contriving certain bombs to be secretly fastened to the sterns of the said vessels in such wise that they should explode and destroy them or so disable them as to render them unable to proceed to their respective destinations by which the owners of the munitions should be despoiled thereof. The indictment therein set forth various overt acts in pursuance of the conspiracy.</p> <p>The second indictment alleged that the defendant and the same persons entered into a conspiracy to destroy vessels about to sail from the port of New York with intent to injure those persons who should have underwritten policies of insurance upon the same and upon their cargo, and that the said conspiracy was to be effectuated by use of the same bombs.</p> <p>Upon the trial it appeared that the defendants Fay and Scholz had been engaged in a plan to prepare metal boxes to be filled with high explosives and attached to the sterns of ships which should leave the port of New York loaded with munitions for the Allies in the Great War. The bombs contained a mechanism by which, as the rudder of the ship moved from side to side, it would compress a spring. When the spring had been enough compressed, it would be released, and the release would explode the bomb, blowing off the stem of the ship, or at least doing great damage to the after part, and either rendering her helpless or sinking her. This scheme was frustrated by discovery of the police and all the defendants were arrested. At the time of their arrest and under circumstances which permitted the confessions to be used, they each confessed before the police officers their share in the plan. The defendant, whose confession alone is material here, said that he was a German, who had been here several years to learn a trade and was about to leave for his country at the outbreak of the war. Fay, who was an officer in the German army and had come over here to do what he could for the assistance of his country, told him that he had a plan by which he could blow off the stern of ships of the Allies carrying munitions to Europe. The chief purpose was to make the insurance rates higher. Fay told the defendant that for this purpose he needed a high explosive and deputed him to try to get the necessary dynamite, for this purpose giving him seventeen dollars. It was proved independently that the defendant had gone first to New Haven and afterwards to Bridgeport and there inquired of one Zinkernagel where he could .obtain some explosives. Zinkernagel told him that he did not know where he could get any, that New York would be the best place. At the end of this, interview the defendant sent a telegram to Scholz, one of the defendants, making an appointment with him in New York that night. Defendant went to New York and the next day appeared at the office of one Liebau. There he met Scholz, the defendant, and on Lauter. Meanwhile, Zinkernagel had sent to the defendant as he had promised, an article by one Vatterrodt upon the production of trinitrotoluol and on a subsequent interview at Lie-bau’s the defendant asked Liebau for the address of Vatterrodt. There was other proof showing interviews between Scholz and Fay and the defendant, but aside from the foregoing there was substantially no corroboration outside of the confession. There was ample evidence, however, to justify the conclusion of the jury that Fay and Scholz were concerned in such a plan as was set forth in the indictment.</p> <p>It was not shown that any of the ships to be blown up were in fact themselves insured, or that the defendants’ purpose was other than to raise the insurance rates by generally increasing the danger to all shipping leaving the port of New York. The jury returned a verdict of guilty upon each indictment and the defendant was sentenced upon each verdict concurrently.</p> <p>The points raised by the defendants on this writ of error were: That the proof did not support either indictment; second, £hat there was not sufficient corroboration' of the defendant’s confession to justify a case to the jury; and, third, that the court had committed error in its charge and in its refusal to charge. That part of the charge complained of was as follows: “It” (the conspiracy) “may be proved by direct evidence, such as the confessions of the defendant or by the proof of facts from which you can fairly infer the existence of the conspiracy which is called ‘circumstantial evidence.’ ” The request refused was as follows: “I also except to your honor’s charge where your honor said that the conspiracy may be proved by direct evidence, such as the confession of the defendant, and ask your honor to charge that if the proof of the conspiracy rests solely on the confession there can be no conviction'unless there is independent evidence of the fact of the conspiracy outside of the confessions.”</p> <p>The first indictment was laid under section 37 of the Criminal Code, forbidding any conspiracy to commit any offense against the United States. The offense contemplated in this indictment was under section 298 of the Criminal Code, as follows:</p> <p>“Whoever, upon the high seas or on any other waters within the admiralty and maritime jurisdiction of the United States, by surprise or by open force, maliciously attacks or sets upon any vessel belonging to another, with an intent unlawfully to plunder the same, or to despoil any owner thereof of any moneys, goods, or merchandise laden on board thereof, shall be fined not more than five thousand dollars and imprisoned not more than ten years.”</p> <p>The second indictment was laid under section 296 of the Criminal Code, as follows:</p> <p>“Whoever, on the high seas, or within the United States, willfully and corruptly conspires, combines, and confederates with any other persons, such other person being either within or without the United States, to cast away or otherwise destroy any vessel, with intent to injure any person that may have underwritten or may thereafter underwrite any policy of insurance thereon or on goods on board thereof, or with intent to injure any person that he has lent or advanced, or may lend or advance, any money on such vessel on bottomry or respondentia; or whoever, within the United States, builds, or fits out, or aids in building or fitting out, any vessel with intent that the same he cast away or destroyed, with the intent hereinbefore mentioned, shall be fined not more than ten thousand dollars and imprisoned not more than ten years.”</p>

District of Texas; Waller T. Burns, Judge. Suit by the Houston Oil Company of Texas and its receiver against the Thompson & Ford Dumber Company, in which the State of Texas filed an ancillary bill. From a judgment for the State, the Houston Oil Company of Texas and its receiver appeal.

<p>Appeal from the District Court of the United States for the Southern District of Alabama: Robert T. Érvin, Judge.</p> <p>Rihel by the Ollinger ’& Bruce Dry Dock Company against the tug Gulfport, claimed by the Gulfport Towing Company. Erom a decree for the libelant (243 Eed. 676), claimant appeals.</p>

In Ert;or to the District Court of the United States for the Middle District of Pennsylvania; Chas. B. Witmer, Judge. Action by Jessie G. Darrow, a citizen and resident of the state of Pennsylvania, against the Postal Telegraph-Cable Company, a citizen and resident of the state of New York. There was a judgment for plaintiff (229 Fed. 314), and defendant brings error.'

Brown, Judge. Action by the United States against the River Spinning Company to recover a penalty for violation of Immigration Act 1907, §§ 4, 5. A demurrer was sustained to the declaration (243 Fed. 759), and plaintiff brings error.

<p>Appeal from the District Court of the United States for the District of Montana; Geo. M. Bourquin, Judge.</p> <p>Suit by the United States against the Ash Sheep Company. From a decree for the United States for injunction and nominal damages (229 Fed. 479), defendant appeals.</p>

<p>1. Statutes <&wkey;241(lV — Penal Statutes — Construction.</p> <p>Because a statute is penal in its nature is no reason for giving it a narrow and technical construction, which will defeat the-purpose for which it was enacted.</p> <p>2. Indians <&wkey;19 — Lands—Trespass—“Cattle.”</p> <p>• Rev. St. § 2117 (Comp. St. 1916, § 4107), providing a penalty of $1 a head for grazing horses, mules, or cattle on the land of any Indian or Indian tribe, applies to sheep; such animals being within the intent of the statute and included in the general term “cattle.”</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Cattle.]</p> <p>3. Equity i&wkey;39'(l) — Courts—Jurisdiction.</p> <p>When a court of equity obtains jurisdiction for equitable purposes, it will reiain it to give full relief, whether legal or equitable, as to all purposes relating to the subject-matter of the bill.</p> <p>4. Judgment <&wkey;73i) — Conclusiveness--—Matters Concluded.</p> <p>In a suit to enjoin trespass on lands ceded by Indians to the United States, a decree denying damages claimed under Rev. St. § 2117 (Comp. St. 1916, § 4107), on the ground of want of jurisdiction, is in no way conclusive against the right of the United States to recover such damages, though the court in that proceeding expressed its opinion that they were not recoverable.</p>

J. Cochran, Judge- Petition by Woo jan for writ of habeas corpus. From an order (228 Fed. 927) granting the writ, the United States and another appeal.

<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>Petition by Woo Shing for writ of naoeas corpus against J. Arthur Muekey, United States immigration inspector. From an order denying the writ, petitioner appeals.</p>

<p>Appeal from the District Court of the United States for the District of Massachusetts; Jas. M. Morton, Jr., Judge.</p> <p>Suit in equity by George I. Cohen, trustee in bankruptcy of Israel Sternburg, against Dew Goldman. Decree dismissing bill, and complainant appeals.</p>

Appeal'from the District Court of the United States for the Eastern District of New York. Libel by Frederick Bouchard and others against the schooner George W. Elzey, her tackle, etc., claimed by George W. Elzey. From a decree for libelants (242 Fed. 318)-, claimant appeals. The action is for salvage services rendered the schooner by the tug C. Gallagher on the morning of July SO, 1916, by tailing her away from a fire at “Black Tom,” New York Harbor.

Killits, Judge. Petition by Daniel R. Tripplehorn, trustee in bankruptcy, against Pauline Cambrón and others. Prom a decree for defendants, petitioner appeals.

<p>Brokers <3=5o6(3) — Right to Commission — Construction or Contract.</p> <p>Plaintiffs, as brokers, sought a contract with defendants to assist in ■bringing about the purchase by defendants of the stock oí a light company, for a commission of 5 per cent No contract was then made, but some tirao later defendants told plaintiffs that, if they bought the stock, they would pay plaintiffs the commission. Ueld, that such agreement must be construed as one to pay a commission for the usual brokers’ services resulting in a purchase, otherwise it would he without consideration, and that where plaintiffs wholly failed to bring about a salo and purchase, or even an interview between the parties, and abandoned the negotiations, they could not recover the commission where, several months afterward, defendants purchased the stock through independent negotiations of their own.</p>

<p>In Error to the District Court of the United States for the District of South Dakota; James D. Elliott, Judge.</p> <p>Criminal prosecution by the United States against A. E. Lockhart. Judgment of conviction, and defendant brings error.</p>

the Supreme Court of the Territory of Hawaii. Suit by Meleana Kalehua against Henry Clark. A decree for defendant was affirmed by the Supreme Court of the territory of Hawaii, and plaintiff brings error.

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Illinois.'</p> <p>Action’by the Augusta-Savannah Navigation Company against the Chicago Bonding & Surety Company. There was a judgment for plaintiff, and defendant brings error.</p> <p>Plaintiff in error, herein called the surety company, executed a bond in the sum of $40,000 for the faithful performance by the Racine Truscott Shell Lake Boat Company, herein called the boat company, of its contract with plaintiff, for the construction and delivery of two twin barges on or before' September 1, 1914. One barge was completed and delivered by the boat company and accepted by the plaintiff; the other barge was never completed. Questions arising on this record pertain to fa) the rule of damages applicable, to the present case for the failure to deliver the second barge; and (b) admission and rejection of evidence bearing upon defenses arising out of the subsequent modification of the surety contract.</p> <p>On or about the 2d of September, 1914, this contract was modified at the request of the boat company, and after its default, and after (50 per cent, of the total contract price had been paid. The chief modification required plaintiff to pay creditors “for the account of the boat company for all bills for materials, labor, and freight charges by it ordered,” and was for the purpose of providing the boat company with cash with which to complete the construction of the barges. The surety company gave its written consent to this modification. Thereafter plaintiff advanced money upon orders of the boat company for labor and materials furnished, until the total amount thus advanced, together with sums previously paid, aggregated $84,00.1.43, or approximately $5,000'more than the contract price for both barges. The boat company again defaulted, and refused to go on with the construction of the second barge, and plaintiff called upon the defendant to exercise its right of sublotting or completing the work. Defendant failed either to complete the contract or proceed in the premises in any manner. Thereafter plaintiff brought this action, with the result that the court directed the jury to find in favor of the plaintiff for the sum of $43,463.05, which amount included, interest, for which sum judgment was rendered.</p>

<p>Appeal and Error <@=544(1) — Record—Necessity or Bill of Exceptions.</p> <p>A writ of error, which is accompanied by neither the Judgment roll nor a bill of exceptions, presents no matter which can be reviewed by the appellate court;</p>

Appeals from the District Court of the United States for the Southern and Eastern Districts of New York. Suit in equity by the Individual Drinking Cup Company and others against the Public Service Cup Company. From the decree, both parties appeal. Suits by the Individual Drinking Cup Company against Charles Frrett and against the Pludson River Day Dine. From the decrees (226 Fed. 465; 234 Fed. 653; 237 Fed. 400), complainant appeal^.

<p>1. Courts <@=>332 — Equity—Procedure—Rums.</p> <p>While former equity rule 90, which provided that practice in equity when the rules did not apply should be governed by the then present practice of the High Court of Chancery in England, was not included in the new equity rules, the established practice approved by the Supreme Court must be considered to have remained in force, except as changed by the new rules, or by District Court rules adopted under authority of new rule 79 (198 Fed. xli, 115 C. C. A. xli).</p> <p>2. Patents <@=>313— Discontinuance Without Prejudice — Refusal of Leave.</p> <p>Where a complainant had obtained a favorable adjudication on its patent in one district, which entitled it, on application to a preliminary injunction as of course in a pending suit in another district, it was not error for the court to refuse permission to discontinue the second suit without prejudice.</p>

Suit in equity by the Oriental Tissue Company against Louis De-jonge & Co. Cross-appeals from final decree. Appeals from final decree, in suit on patent to Gregory, No. 848,301, modifying a master’s report awarding to plaintiff the profits found to have accrued to defendants, by the sale of articles infringing claim 2 of said patent.

<p>Appeal from the District Court of the United States for the Southern Division of the Southern District of California; Benj. F. Bledsoe, Judge.</p> <p>Bill by Rouis M. Cole against the Ed. G. Hookstratten Cigar Company. From a decree for defendant, complainant appeals.</p>

<p>At Law. Action by Robert C. Light and others against Gray & Davis, Incorporated. On demurrer to declaration.</p>

Timothy Sullivan was convicted of violating Act Feb. 13, 1913, § 1, by having in-his possession goods, knowing them to have been stolen while in interstate commerce.

<p>In Bankruptcy. In the matter of the bankruptcy of the Rayford Truck & Tractor Company, Incorporated. Sur certificate of referee for review.</p>

<p>At Raw. In the matter of the application of Leon Charles West-brook and George Lee for writ of habeas corpus.</p>

<p>In Admiralty. Libel by Serafín Sanchez against the Atlantic Coast Line Railroad Company.</p>

<p>1. Abatement and Revival <§=>49 — Anti-Tbttst Law — Right of Action fob Damages.</p> <p>Whether a right of action to recover damages under Sherman AntiTrust Act July 2, 1890, c. G47, 26 Stat. 210, survives the death of the person injured, in the absence of any federal statute on the subject, is to be determined by the common law, regardless of the law of the state.</p> <p>2. Abatement, and Revival ®=>52 — -Anti-Tbust Act — Right of Action fob Damages.</p> <p>A right of action to recover triple damages under the Sherman AntiTrust Act July 2, 1890, c. 647, is one sounding in tort, and under the rule of tlie common law does not survive the death of the person injured.</p>

<p>1. BANKRUPTCY <S=»145(4) — PROPERTY PASSING TO TRUSTEE-RIGHT OF ACTION for Violation of Anti-Trust Laws.</p> <p>The right of action oí a plaintiff in an action to recover threefold damages under Act Aug. 27, 1894, c. 349, § 77, 28 Stat. 570 (Comp. St. 1910, § 8835), for violation of the anti-trust laws, is one sounding in tort, is not assignable, and does not pass to the plaintiff’s trustee in bankruptcy.</p> <p>2. Bankruptcy <g=al5@ — Rights and Remedies Vesting in Trustee — Recovery of Property Assigned by Bankrupt.</p> <p>Where moro than four months prior to his bankruptcy a bankrupt for value assigned his interest in a pending suit in which he was plaintiff and did not schedule such interest in the bankruptcy proceedings, notice of the assignment given to the defendant in the suit, required under the state statute to complete it as to third parties, although not given until after the bankruptcy, made it effective as against the bankrupt’s trustee who had taken no steps to reduce the cause of action to possession, and he acquired no right therein by a subsequent intervention in the suit.</p> <p>At Law. Action by Arthur A. Bonvillain against the American Sugar Refining Company and others. On motion of defendants to determine the right to a fund deposited in court on a compromise settlement.</p> <p>In November, 1913, Arthur A. Bonvillain, a sugar planter, filed a suit against the American Sugar Refining Company and Jackson T. Witherspoon to recover triple damages under the Sherman Law. The theory of the case was that the defendants by fraudulent and fictitious sales and other fraudulent practices had unlawfully depressed the sugar market, in pursuance of a conspiracy to monopolize the sugar industry, and had caused him to sell his crop at the unnatural market price, for many years, for less than he would have otherwise received, whereby he had lost $456,000.</p> <p>In March, 1914, together with other property, he transferred all his rights in the suit to the Home Place Planting & Manufacturing Company, hereafter called the “planting company,” and received a note of $4,085 in payment for same. This no1e he subsequently transferred to his wife by notarial dation en paiement. In July, 1915, Bonvillain was adjudicated a bankrupt. He did not surrender his interest in the pending suit. In due course II. B. Howell was elected trustee. In April, 1917, and not before that date, defendants in the suit were given notice of the assignment by Bonvillain to the planting company. On June 30, 1917, on his own motion, the trustee was substituted as party plaintiff by ex parte order of court.</p> <p>After that the suit was compromised, pursuant to an agreement between Bonvillain and the defendants, for $5,674.91, and the defendants filed a motion in the nature of an interpleader, calling upon the trustee, Bonvillain, and the planting company to show their respective interests in the fund, if any, and the amount was deposited in the registry of the court. The awarding of the fund to the proper party is the matter before the court. The case is submitted on an agreed statement of facts. Those necessary to its decision are as above set out.</p>

In Bankruptcy. In the matter of the bankruptcy of Edward W. French. Petition by the trustee to review an order of the referee allowing the bankrupt certain exemptions in wages.

<p>In the matter of the petition of Varían Cuthbert Scott, a citizen of the British West Indies, to be granted naturalization.</p>

<p>Courts <&wkey;282(:>)— Federal Jurisdiction — Due Process of Law.</p> <p>A citizen of Pennsylvania refused to have his children of school age vaccinated, whereupon they were denied admission to school. After every opportunity to present his defense, he was convicted of violating the school law requiring parents to send their children to school. II old that, as Const. Amend. 11, prohibiting states from depriving citizens of life, liberty, or property without duo process of law does not guarantee a citizen, who is allowed to present his defense, against errors of judicial judgment, proceedings for a subsequent violation of the school law cannot be enjoined by a federal court, on the theory that the stale decisions were erroneous, and thus denied the citizen due process of law.</p>

<p>At Law. Action by Edgar J. Oliver, administrator of Bud Hall, against the Seaboard Air Line Railway. On demurrer to the petition.</p>

<p>At Law. Action by W. Kaye, to use of Rees & Maloy, against the Eddystone Ammunition Corporation. On motion by plaintiff for new trial.</p>

<p>3. Bankruptcy <&wkey;144 — Property op Estate — Custody op State Court.</p> <p>Where petitioner, which delivered property to the bankrupt under a trust receipt, demanded the same from the receiver appointed by the state court to take possession of the bankrupt’s property, as well as the receiver in bankruptcy, petitioner’s rights were not affected by its consent to sale of the property by the receiver, in bankruptcy.</p> <p>2. Bankruptcy <&wkey;140(3) — Property oe Estate — Trust Receipts — Effect.</p> <p>Trust receipts, whereby bankers, who advance funds to enable merchants and manufacturers of limited means to acquire property, retain title to the property purchased, when founded in good faith, should be upheld against general creditors of the manufacturers, etc., unless contrary to some local rule.</p> <p>8. Sales <&wkey;450 — Conditional Sales — Recording.</p> <p>Gen. Code Ohio, § 8568, as to sales of personal property on condition, applies to a transaction where a bunker advanced fundís to purchase personal property and delivered (he same to a manufacturer, under a trust receipt even though the amount was not to be repaid in installments.</p> <p>4. .Bankruptcy <&wkey;9(2) — State Laws — Rights of Property.</p> <p>The rights of a banker, who advanced funds to purchase property and delivered the same to a manufacturer under a trust receipt, are, on bankruptcy of the manufacturer, governed by the state laws.</p> <p>5. Sai.es <&wkey;461 — Conditional Sales — Nature of Contract.</p> <p>Regardless of the stipulations of a contract, or how much the conditional character of a sale may be disguised, the courts will inquire into the real nalure of the transaction, so that the purchaser and his creditors may not be deprived of the benefit of the provisions of Gen. Code Ohio, § 8568, with respect to conditional sales.</p> <p>6. Sales &wkey;>474(2) — Conditional Sams — Statutes.</p> <p>Gen. Code Ohio, § 8570, providing for restitution of sums paid, etc., in case a seller retakes property sold under a conditional sale contract, is not exclusive; hence a banker, having advanced funds to purchase property and delivered the same to a manufacturer under a trust receipt that was not recorded as required by section 8568, cannot, though no payment had been made, retake the property as against the creditors of tho manufacturer.</p> <p>7. Salks &wkey;>479(16) — Conditional Sales — Remedy of Vendor.</p> <p>In case of a conditional sale, a seller may recover a judgment at law on tho unpaid installments of the purchase price, and cause the goods or any property of the buyer to be sold under execution, without resorting to tho remedy of retaking the property, as provided by Gen. Code Ohio, § 8570.</p> <p>8. Sales <&wkey;479(ll) — Conditional Sales — Remedies of Seller.</p> <p>A seller under a conditional hale contract, instead of following the remedy of retaking the property dealt with by Gen. Code Ohio, § 8570, may resume possession, perfect the buyer’s title for the purpose of increasing his security, resell the property on account of the buyer, -and recover any amount still unpaid.</p> <p>9. Sales <&wkey;479(17) — Conditional Sales — Remedy of Seller.</p> <p>Where property is sold under a conditional sale contract, the seller, in addition to the right of retaking the property dealt with by Gen. Code Ohio, § 8570, may foreclose his equitable lien.</p> <p>10. Sales &wkey;472(l) — Conditional Sales — Bights of Buyer.</p> <p>Gen. Code Ohio, § 8570, relating to conditional sales changed the earlier rule, and gives a buyer, who has paid part of the contract price, an interest in the property, which may be sold or mortgaged, and which the seller is bound to respect.</p> <p>11. Sales <&wkey; 174(2) — Conditional Sales — Validity.</p> <p>Contracts oí conditional sales are good as between the parties, though not recorded; but, unless Gen. Code Ohio, § S568, is complied with, the rights of the seller are inferior to those of creditors, who have fastened upon the property by some specific lien.</p> <p>12. Receivers <&wkey;67 — Property Vesting in Receiver — Title of Debtor.</p> <p>The appointment of a receiver, who took charge of the property of an Ohio manufacturer, including that which had been delivered under a trust receipt, which was neither verified nor filed as required by Gen. Code Ohio, § 8568, fastens the claims of creditors upon it as effectually as though the creditors had seized the same under attachment or levy of execution.</p> <p>13. Bankruptcy &wkey;>340(3) — Trustees—Rights of.</p> <p>Under Bankruptcy Act duly 1, 1898, § 47a (2), as amended by Act June 25, 1910, § 8, a trustee in bankruptcy has the rights of an execution creditor, and where the appointment of a receiver in the state court fastened the claims of creditors upon property received by the bankrupt under a trust receipt, the trustee in bankruptcy may assert such claims against the one holding the trust receipt.</p>

C. Westenhaver, Judge. Petition by E. E. Carpenter and others against the Wheeling & Lake Erie Railroad Company, which was in the hands of a receiver. From a decree for petitioner, the New York Trust Company, as trustee of the Wheeling & Lake Erie Railroad Company, and W. M. Duncan, as receiver thereof, appeal.

Ribel in personam by Michael Conley against the Consolidation Coastwise Company. From a decree for libelant for part of the damages claimed (242 Fed. 591), respondent appeals.

<p>1. Malicious Prosecution <3==>15 — Probable Cause — Necessity.</p> <p>To sustain an action for malicious prosecution, plaintiff must establish, that the defendant had no probable cause for instituting the prosecution independent of any question of malice.</p> <p>2. Malicious Prosecution ®=»T1(2) — Probable Cause — Evidence—Jury Question.</p> <p>In an action for damages for malicious prosecution, evidence held Insufficient to carry to the jury the question of want of probable cause, but to establish that defendant had probable cause for instituting the prosecution.</p> <p>3. Malicious Prosecution <®í»24(3) — Want of Probable Cause — Presumption.</p> <p>The mere fact that a criminal prosecution against plaintiff instituted by defendant was dismissed because of the failure of defendant, the prosecutor therein, to appear at trial, raises no presumption of want of prohable causo which will relieve plaintiff of the burden of establishing want of probable cause in an action for malicious prosecution.</p> <p>4. Malicious Prosecution <&~»23 — Want of Probable Cause — Malice.</p> <p>Proof of malice, express or implied, actuating defendant’s representative to institute a criminal, prosecution against plaintiff, will not establish want of probable cause.</p>

<p>Appeal from the District Court of the United States for the District of New Jersey; Thos. G. Haight, Judge.</p> <p>Application by the United States, on the relation of Max Pascher, for writ of habeas corpus againát Eugene F. Kinlcead and others, acting as Local Board, etc. From a judgment discharging the writ and remanding relator (248 Fed. 141), relator appeals.</p>

hi Error to the District Court of the United States for the Eastern District of Missouri; David P. Dyer, judge. i(ce .Mow I,in and Lee Ring were convicted of manufacturing opium [or smoking purposes, and they bring error.

Action by the Guaranty Trust Company of New York, as substituted trustee of S. H. P. Pell & Co., a partnership, against W. Gordon McCabe, Jr., and another, which was begun in the state court and removed to the federal court. There was a judgment for defendants, and plaintiff brings error. Writ of error to review a judgment in favor of defendants entered on a directed verdict. Plaintiff in error was plaintiff below and defendants in error defendants below.

In the matter of the Prospect Leasing Company, bankrupt. Prom, an order confirming an order of the referee expunging her claim, Mary Meyer appeals. This cause comes here on appeal from the United States District Court for the Southern District of New York. The facts appear in the opinion.

<p>In Error to the District Court of the United States for the Western District of Tennessee; John E. McCall, Judge.</p> <p>Action by James Sloan against the .Buckeye Cotton Oil Company. There was a judgment for plaintiff, and defendant brings error.</p>

Tuttle, Judge. Action by Charles Perna, administrator of the estate of Salvatore-Perna, deceased, against the Rapid Railway Company. There was-a judgment for defendant, and plaintiff'brings error. Reversed, with, directions to award new trial.

<p>Appeal from the District Court of the United States for the 'District of Massachusetts; Frederic Dodge, Judge.</p> <p>Intervening petition by Mary E. Fleming against John Noble, receiver of the Associated Trust, and others. From the decree, petitioner appeals.</p>

J. Cochran, Judge. Suit by W. S. Lougee against James M. Pickrell, in which Mrs. James M. Pickrell, as executrix, was substituted as defendant, and John T. Buckley and others. From a decree dismissing the bill, complainant appeals. The following is the opinion of Cochran, District Judge, in the court below: This canso is before me for final decree.

<p>Appeal from the District Court of the United States for the Southern District of Texas; Waller T. Bums, Judge.</p> <p>Bill by the Central. Trust Company of New York against the International & Great Northern Railway Company and others, in which the Texas Company intervened. From the decree on its intervening petition, intervener appeals.</p>

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>The Hamburg-American Steam Packet Company, otherwise known as the Hamburg-Americana Line, and Karl Bunz and others, were convicted, under Criminal Code, §' 37, of conspiring to defraud tire United States, and they bring error.</p> <p>The plaintiffs in error are hereinafter referred to as defendants. Hamburg-Amerikanische-Packetfahrt-Aektiengesellschaft is a German corporation engaged in maintaining and operating steamship lines throughout the waters of the globe. At the time of the trial Karl Bunz was the managing director of the above company for the United States. Among other positions he has occupied he has been German consul in Chicago, and from 1899 until 1908 consul general in New York. He then became German minister to Mexico, and still later was one of the counsel for his government before the tribunal at the Hague in the Venezuela arbitration. And at one time he was one of the controllers of an international board which managed the finances of Turkey. George Hotter was superintending engineer of the Hamburg-American Line, had been employed by that company for 26 years, and has been a resident of the United States for 9 years. Adolph Hachmeister had been in the service of the same company since 1884, and during the last 15 years had been, its purchasing agent. Joseph Poppenhouse, indicted as “Walter" Pop-penhouse, had been in the service of the company for 7 years and was a second officer of the Line, and engaged in the company’s West India .trade.</p> <p>The defendants are all subjects of the German emperor. They are charged in two indictments with having conspired to defraud the United States. The gist of the offenses charged is that by false manifests, filed with the collectors of customs at various ports of the United States, they succeeded in having cleared from the ports where such false manifests were filed certain vessels laden with coal, engine room supplies, and provisions, which were to be transshipped at sea to German warships. It was charged, and so found by the jury, that the manifests were not complete, that they contained false points of destination, that it was never intended that the vessels should reach the points for which they respectively cleared, and that thereby, and by reason of the incomplete manifests, inaccurate and incomplete records were made by the collectors of customs at the ports from which said vessels sailed, and that a consequent fraud was committed upon the United States.</p> <p>The jury returned a general verdict of guilty against each defendant. The Hamburg-American Company was sentenced to pay a fine of $1. Bunz, Hotter, and Hachmeister were sentenced to an imprisonment ,of one year and a half in the federal prison at Atlanta, Ga. Poppenhouse was sentenced to imprisonment in the same institution for one year and one day. Prom the judgment rendered, the defendants jointly and severally sued out writs of error, and the matter is thus in this court for review.</p> <p>It appears that the German government and the Hamburg-American Line, considered by some to have been at that time the greatest ship line in the world, had an understanding some time in the winter of 1914 that the Hamburg-American Line would see that in case of war the German warships, which might be in the northern or southern part of the Atlantic, when in need of coal or provisions, would have them supplied in such quantities and at such times and places as should be indicated, and that the German government would communicate with Karl Bunz, one of the defendants, and the general representative of the Line in this country, with' headquarters in New York City. On July 31, 1914, Bunz received a cable from his home office iw Hamburg and at ones conferred with Kottor, another defendant, as to securing neutral steamers to carry coal. Upon Kotter’s suggestion it was agreed to call in one Cans, since deceased, who was asked whether he had any neutral steamers that would be available for their purposes, and he agreed to furnish nine such vessels, which Bunz agreed to charter. As he could not get from Cans all the steamers he needed, Bunz took three additional vessels from among those owned by the German-Ameriean Bine. Gang brought the charter parties to Bunz, who signed them. In the case of one or two of the ships which Gans furnished the owners were fearful of war risks and wanted bonds of indemnity, and Bunz signed the bonds. He testified that he did this very unwillingly. “I did it,” he said, “very unwillingly. I did not like it at all, but I did it. I liad to, because X had no other ships to take.” The ships having been secured, it was necessary to load them with the coal and other supplies needed, and Bunz intrusted to Kotter the responsibility of obtaining and loading the coal. Haehmeister, another defendant, agreed to become responsible in like maimer for necessary provisions and supplies. The German government from time to time cabled Bunz where his vessels could meet the German warships, and this information Bunz communicated to Kotter. Bunz testified that either Kotter or Gans called his attention to the fact that, in order to get tile ships out of the harbor of New York and start them on their voyage, it would be necessary to have a port of destination agreed upon. They therefore got out their maps and_ found what was a convenient port of destination for those points on the Atlantic where the ships were to meet. “So that,” as Bunz testified, “the ships we sent out would be on their way to those ports when met, if they fortunately were, by the German ships out there at sea, to our best judgment. * * * I intended that they should land and dispose of their cargoes there (the designated ports of destination), unless in the meantime my government had requisitioned them upon the high seas.” There was some talk as to clearing the ships, and when that question was raised Bunz said that “it certainly ought not to be done by the liamburg-Anierican Line.” He believed “that, 3f we cleared the ships in our name, they would be captured or destroyed by our enemies, and that they would not get very far before they were captured or destroyed.”</p> <p>On the cross-examination of Bunz questions were asked and answered as follows: “Q. Mr. Bunz, as a matter of fact, you intended to send those boats loaded to meet the German warships, no matter what happened, didn’t you? A. To meet the German warships or any merchant vessel that was in need of something of that kind. Q. It did not make any difference what happened, you wanted those boats to go there and reprovision and recoal those ship^ didn’t you? A. That was my intention, if 1 could, to send them to those boats.” He also testified that, having met and reprovisioned and recoaled the German vessels, it was his intention that the ships which had thus unloaded their cargoes should proceed empty to the ports of destination for which they were cleared.</p> <p>The defendant Kotter testified that, when they sent the ships out, they did hot send bills of lading for the cargo to any one in the ports designated in the clearance papers.</p> <p>Haehmeister, another defendant, had been, as already stated, the purchasing agent of the Hamburg-Ainerican Line for 15 years, and when one of the ships of that Line was about to start on a voyage had ordered provisions and supplies needed for the voyage, sometimes amounting to ,SS50,000 or $60,000 a ship. Ho admitted on the stand that on July 31, 1914, he had been summoned to Bunz’s office, where he met Bunz and Kottor, and was “told that war had been declared and that wo were to perform certain duties.” Bunz, he said, gave him a list of the provisions and engine room supplies, showing what each ship that was to be sent out would need, telling him “to buy these articles for the ships as they would be sent'.” “He [Bunz] told me the ships were going to take coal and provisions and supplies.” Haehmeister admitted that he bought the provisions and supplies that were put ou board the ships. He admitted that the prolusions and supplies, amounting to $3,500 or $4,000, which were put on the Thor, did not appear in the shipper’s manifest. His explanation of this omission was as follows: “The brokers who were clearing did not ask me for a list of the provisions. No one told me that provisions had to be listed. I did not believe that it was my duty to give to the brokers who were clearing the ships a list of the provisions and supplies I was putting on board. The matter did not occur to me at all.” He gave the same explanation concerning like omissions in the manifest of some of the other ships. But on August 7tli iu the case of the Heina he says he learned for the first time that it was necessary to furnish a list of supplies for the manifest, and that after that he al.ways furnished a correct list. On cross-examination he admitted that he knew that manifests had to be made out for cargoes, and that he had known it for many years, and that he had known for years that every item, of cargo had to be made out on a manifest and sent to the custom house; and hb explained his earlier statements by saying that he had considered the provisions and supplies he had furnished and not listed as ship’s stores, which do not have to' be listed. He admitted that he knew from the beginning that what he bought was intended to be delivered to the German ships at sea. He was then asked, “How could they be ship’s stores?” and replied, “Well, I never gave it a thought.”</p> <p>Poppenhouse, another of the defendants, took the stand in his own defense, and testified that Hotter informed him that he was to go as supercargo on the Berwind, and. gave him a letter of introduction to the captain of that V9ssel, informing the latter that Poppenhouse was to take the vessel to a certain position, which was marked and was about 40 miles north of the Island of Trinidad, off the coast of Brazil, and was to cruise up and down there for some time, and that he very likely would meet some German merchants or navy ships, and, if they needed coal or supplies, that he was to give them all they needed, and after he had done that he was to proceed to his port of destination, which wás Buenos Ayres, and then report for orders. This letter was in German and typewritten. After he got to sea, he testified, “I marked down the position I was to go to, or I made a memorandum of it, and then tore up and threw overboard the letter of instructions. I knew what would happen if a British boarding officer of a man-of-war came on the ship and found me with that letter of instructions in the German language. I was sure that I would be taken out; in case the ship should be searched by a hostile one, I should have been taken off as a prisoner of war.” This man was authorized to give even the captain orders as to the course of his navigation. The captain testified that he had never before had a supercargo on his vessel who directed the course of his navigation. On cross-examination Poppenhouse testified as follows: “I had no papers at all. If I was forced to, I would certainly have directed the captain to show him the ship papers. I knew the value of a'good, clean clearance. I knew that a clearance with the seal of the United States on it was a very valuable paper, in the event that we were boarded by an officer of a foreign belligerent ship. I knew that, when I showed the officer that boarded my ship a clearance issued under the seal of the United States that I was bound for Buenos Ayres with a cargo, he would pay great attention to that paper.”</p> <p>On August 5, 1914, one Kulenkampf, a German subject and a member of a •commission firm in New York doing an extensive business with South America, was summoned to the office of the Hamburg-Ameriean Line, where he met Bunz, Hotter, and Hachmeister. They informed him that they were anxious to clear the cargo on two steamers, the Lorenzo and the Berwind, which they wanted to have sail that night. They told him that the Hamburg-Ameriean Line did not like' to appear as the shippers of the cargoes, and they requested that he clear the cargo for them. They impressed on him the necessity of quick action, as the custom house closed at 4 o’clock and it was then half past 3. At first he objected, but was told “that it had to be done, and-he agreed to do it,” saying that his firm was doing business all the time with South America, and that it would appear to be in the natural course of business for him to be making shipments to Buenos Ayres. They told him that the manifests which he was to swear to were ready, and that the vessels were to go, one to Buenos Ayres and the other to La Guayra. lie was informed that the vessels would carry coal, and nothing was said as to provisions or supplies, although provisions to the value of $9,687.80 went on the Berwind, and engine room supplies to the amount of $2,632.27 went on the Lorenzo. He was thus induced to swear to manifests which named ports to which it was not intended the cargoes should be carried, and which did not disclose any of the cargo except the coal.</p> <p>Tlie captain of the Berwind testified that on the day the vessel was started on her voyage he was instructed to go over to the custom house to see about her clearance. When he arrived at the custom house an official of the Hnm-Imrg-American Line presented him with a manifest, which he was to sign, which showed only 2,000 tons of coal. His testimony is as follows: “I objected to signing it, knowing that we would have about 2,700 or 2,800 tons of coal, and there were some additional provisions to go on board, in the neighborhood of about 40 tons, more or less. I was informed that a supplemental manifest could be made later on, and it was all right for me to sign it and clear on that manifest, as it was after 5 o’clock when we cleared, * * * and they were anxious ~ * * to have the steamer sail that night.” The Berwind proceeded to sea about 9 o’clock that night, flying the American flag.</p> <p>The Berwind never got to Buenos Ayres. After it reached Trinidad it cruised around for 36 hours. It turned back and steered north on the same course it had come for 50 miles, and then turned around again and steamed back south 50 miles, and then north 50 miles, and then back south 50 miles when five German ships were met, and the Berwind discharged her entire cargo, and started, not for Buenos Ayres, the port cleared for, but for Rio Janeiro; and after she arrived at the latter port the captain received no further instructions from Poppenhouse, except that the latter advised him to try and get a cargo and return to New York.</p> <p>Bnnz testified that he had no intention of defrauding the United States or of violating the laws of this country. He was asked whether he had any intention of obtaining clearances by means of false manifests, and 'so deceiving the collectors of customs. To which he replied, “Oh, why should I? No.” Then followed: “Q. Had you any intention of causing the United States to keep and transmit false records of the quantities and values of merchandise shipped from its ports? A. I am sorry; I never gave that any attention, as I perhaps should; I do not know. Q. Did you believe that whatever custom house formalities might be necessary to get these ships on the high seas would be fully met and complied with? A. I took it for granted that that would be done. I knew that by the rules of international law 1 had a perfect right to send out these ships to meet the warships of my country. 1 believed that in everything that I did in this matter I was acting strictly within the law, both of nations and of the United States. I had no doubt about it, even for a moment. It was no part of my purpose to violate any law of the United States, whatever.”</p> <p>Kotter testified that he had no intention of injuring or defrauding the United States in any way, and had no intention of obtaining from collectors clearances by false manifests. To the same effect was the testimony of Haeiuneister and Poppenhouse. The latter testified that he had nothing to do with the clearance papers, and never saw them.</p> <p>One of the steamships chartered in this enterprise was the Unita, at the time at Newport Nows. She was brought to Philadelphia, and ihe captain, a Norwegian by birth, was then informed that he was to load coal and provisions for Cadiz, Spain. He went to the custom house, in Philadelphia, and swore to the manifest, stating Cadiz as his port of destination. The day after he got to sea he hail a talk with the supercargo, about which lie testified as follows: “I met the supercargo on the bridge, and he said to me, ‘Do you know where you are going, Captain:’ I says, ‘Yes, I am going to Cadiz.’ He says, ‘No; you have got to go down where the men-oi’-war are’ — down to where some of the German men-of-war are, off the western island. I says. ‘There is nothing doing.’ T did not say anything more that day, before the next day; then he commenced to offer me money. That day he did not offer me more than $600. I said I would not do it for money. He wanted me to go down to the German men-of-war with this cargo of mine. It would not be far off my course, 200 miles. He ne.ver said anything more. Yes, a couple or three days afterwards, I think it was, he promised me $10,000 if I would go. I said ‘No.’ I did not say anything more. This was in the morning. In the evening' I told him I was an English citizen, and I showed him my papers, and he never said a word. My officers said that the supercargo spoke to them. I did not hear it.. When he offered me $10,000, I said I was going to -Cadiz, as I cleared out for. I did go to Cadiz. When I got to Cadiz, I did not find any bills of lading there for goods.” He lay in Cadiz for 27 days, the cargo finally being sold to the Spanish Trans-Atlantic Steamship Company. The ship had on board $18,830 worth of coal, $8,843 worth of provisions, and $2,000 worth of engine room supplies. This .man on his cross-examination stated that he became a British subject in 1014, and that when the supercargo asked him to go out and supply German warships with coal and( provisions he picked the wrong man.</p> <p>Another of the vessels chartered was the Norwegian steamer Heina. The captain was requested to follow the orders of a- supercargo, and the supercargo was instructed to allow him liberal gratuities “for attending to their interests.” The' captain testified that he swore to the manifest before the collector in Philadelphia, the port of destination named being Ea Guayra, .and that when he swore to it he had no knowledge he was not going there. He had a cargo of approximately 4,400 tons of coal, the cost price being $3 a ton, and provisions' to the value of $5,187.64, and supplies to the value of $3,680.22, as stated in the manifest. Instead of proceeding to his port of destination he was directed to go out of his course about 200 miles to the vicinity of Testigos Islands, and after cruising around there for 9 or 10 days, and failing to meet the German ships, the. supercargo wanted the captain to go to a place in Venezuela called Grumpaho ■, but he refused to go, and declared he was going to his port of destination, and he proceeded to Ea Guayra, but did not discharge his cargo at that port. He started from there for St. Thomas, West Indies, being told by the supercargo to do so. He never got there, however, being captured by a French cruiser, and the cafgo was confiscated by the French government.</p> <p>The Fram and the Sommerstad, which were among the vessels defendants chartered for the enterprise they were engaged in, never sailed because of objections raised by the attorney for the owners of the vessel, who mistrusted the purpose of the charterers, and did not believe that the ships were intended to go to the designated ports, one to Pernambuco, and the other to Cadiz, Spain. When the attorney for the owners of these two vessels stated his suspicions and his fears, he was told by the defendant Hachmeister that the true mission of the vessels was to supply German warships off the Brazilian coast, and that the cargoes were not to be delivered at the ports set forth in the clearance. Bunz and Hachmeister then entered into certain written stipulations for the payment of indemnities for the ships in case of-seizure, and they agreed to a waiver of the presence of supercargoes on board, although supercargoes for these two vessels had been previously selected and introduced to the masters. Hachmeister asked that the agreements should be put into a safe and not shown to the masters. But, notwithstanding these agreements, the attorney would not consent to the sailing of the vessels.</p> <p>At the opening of the trial counsel for defendants asked to be permitted* to make a statement for the purpose of saving time in the matter of proof. The following is an excerpt from his statement: “On or about August 1, 1914, Karl Bunz received directions by cable from the home office in Hamburg to send ships laden with coal, provisions, and supplies to various parts of the Atlantic Ocean, there to await for a reasonable time the possible appearance of German ships of war or merchantmen, to which, upon orders of their commanders, the coal, provisions, and supplies were to be delivered in such quantities as might be required. Karl Bunz undertook to comply with these instructions, and, with that end in view, issued the necessary orders to George Kotter and to Hachmeister, who obeyed them. The Hamburg-American Line owned, or chartered upon time charters, a number of steamships, bought coal, provisions, and supplies, which were loaded upon these steamships, and caused, or attempted to cause, these steamships to sail from the ports of Newport News, New York, Philadelphia, New Orleans, and Pensacola, with the above-described object. * * * That is intended * * * to save the necessity of calling people who were on the ships to show that they cruised up and down waiting for German cruisers, or that they tried to escape from English or French cruisers, because it is freely admitted. Our hope was that these ships would meet German ships and enable them to keep the seas by giving them coal and supplies.”</p> <p>The German-American Túne, according to the testimony of both Bunz and Kotter, spent about $1,500,000 in this enterprise, the money being received through a New York banking house.</p> <p>The jury was instructed as follows: “One or more of the following frauds must have been intended in order to find the defendants guilty: First, to procure a clearance; that is, by making a false manifest it would be a fraud, first, to procure a clearance; second, to procure a clearance which falsely stated the destination; third, to cause the collector of customs to make a false record of destination; fourth, to cause him to make false reports of the destination.”</p>

Suit in equity by the Gould Mines Company against Bertha D. Baur, administratrix with the will annexed of Jacob Baur, deceased. ' Decree for defendant, and complainant appeals.

<p>In Error to the District Court of the United States for the District of Minnesota; Page Morris, Judge.</p> <p>Action by E. E. Nadeau against Clarence Griggs and William W. Nash. There was a judgment for plaintiff, and defendants bring error.</p>

Petition to Superintend and Revise and Appeal from the District Court of the United States for the Eastern District of Louisiana; Rufus T. Foster, Judge. In the matter of the bankruptcy of the Globe Packing Box Company.

<p>In Error to the District Court of the United States for the District of Nevada; Wm. C. Van Fleet, Judge.</p> <p>Action by Matilda C. Neasham against the New York Rife Insurance Company. There was a judgment for plaintiff (244 Fed. 556), and defendant brings error.</p>

Ribel by A. J. & J. J. McCollum, Incorporated, and Christopher Fitzpatrick against the steamship Californie, her engines, etc., claimed by the Compagnie Générale Transatlantique, in which the steam tug John E. McAllister, her engines, etc., claimed by the McAllister Bros., was impleaded. From a decree in favor of libelant, which exonerated the steamship Californie, the claimants of the steam tug John E. Mc-Allister appeal.

Tn Error to the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge. Abraham Graboyes and Philip Eischer were separately tried, convicted, and sentenced on indictments charging conspiracy to commit an offense under Bankruptcy Act July 1, 1898, c. 541, 30 Stat. 544, and also with joint violation of Act March 4, 1909, c. 231, §'§ 37, 215, 35 Stat. 1088 (Comp.

Libel by Maurice Bowden and others against the steamship Rosalie Mahoney and cargo, etc., claimed by Walter E. Donovan, master of the vessel and bailee of her cargo, etc. From the decree (248 Fed. 965), awarding $5,000 as salvage, libelants appeal.

Suit in admiralty for collision by the George M. Morrell Company against the steamer Washington Irving, the Hudson River Day Dine, claimant, with the steam tug Ellen M. Ronan, the Cornell Steamboat Company, claimant, impleaded. Decree for libelant against both vessels, and claimant of the Ronan appeals. Libelant owns the barge Percy, which was the after boat in a tandem tow of two, in charge oT the tug Ronan, and bound up the Hudson river.

In Bankruptcy. In the matter of A. M. Gordon, bankrupt. On rule to show cause why respondent, M. H. Brown, should not be punished for contempt.

At Law. Application by the United States, on the relation of Louis N. Vause and others, for a writ of habeas corpus against Thomas D. McCarthy, Marshal. lia boas corpus to the marshal of the Southern district of New York, who returned that he hold the relators under the warrant of a commissioner of the District Court issued in a removal proceeding under Revised Statutes, § 1011.

<p>In Equity. Suit by E. Gouge and others against John M. Hart, Collector of Internal Revenue, W. H. Osborne, Commissioner of Internal Revenue, and another.’ On motion to dismiss bill'.</p>

<p>1. Abhy and Navy <&wkey;20 — Selective Service Law — Classification of Registrants.</p> <p>Under section 72, rule 5, of tlie presidential regulations for enforcement of Selective Service Law May 18, 1917, e. 15, 40 Stat. 76, which, requires draft boards to scrutinize marriages by registrants made since tbe passage of the act, to determine whether their primary purpose was to evade military service, and authorizes them, “unless such is found not to be the case,” to disregard the relationship as a ground for deferred classification, if the circumstances disclosed by the record are such as to induce a belief that a marriage was contracted for such purpose, the registrant must show that such was not the case.</p> <p>2. Army and Navy. <&wkey;20 — Selective Service Law — Classification of Registrants — Review by Courts.</p> <p>The decision of a district draft board as to the classification of registrants, being made final by' the act, is reviewable by the courts only where the registrant has been denied a fair hearing, or the action of the board was manifestly unfair.</p>

<p>In the matter of the application of Savina Lamachia for writ of ha-beas corpus.</p>

Bingham, Judge. Action by Alvah Crocker and others, trustees, against John E. Mal-ley, Internal Revenue Collector. There was a judgment for plaintiffs for part only of the relief sought, and defendant brings error, and plaintiffs likewise bring error.

Dyer, Judge. The Easer Grain Company, a corporation, was convicted of violating the Act to Regulate Commerce, as amended by Act March 2, 1889, and by Act June 18, 1910, relating to claims by shippers, and defendant brings error.

Action by the Northwest Auto Company, a corporation, against G. II. Harmon, There was a judgment for defendant, and plaintiff brings error.

<p>1. Municipal Corporations <§=>705(4) — Law op the Road — Overtaking and Passing.</p> <p>Under Highway Law N. Y. (Consol. Laws, e. 25) § 332, which provides that overtaking vehicles shall j iss to the left and those overtaken shall turn to the right, if requested, the driver of an overtaken vehicle, who is on the left side of the road, is required to exercise greater care than if he was on the other side, and if an accident occurs the presumption is against him, especially if it is after dark.</p> <p>2. Action <§==>38(8) — Causes op Action — In joky to Person and Property.</p> <p>An injury to the person and one to property, though resulting from the same tortious act, constitute different causes of action.</p>

Suit for collision by the Cornell Steamboat Company against the steam tug Bronx, the Delaware, Lackawanna & Western Railroad Company, claimant, with the ferryboat Queens, the City of New York, claimant, impleaded. Decree for libelant against both respondents, and the City appeals. Reversed as to appellant, and decree directed against the Bronx alone.

<p>Towage &wkey;>15(2) — Injuries—Evidence.</p> <p>On libel for injuries to a scow while in tow, evidence held to warrant a decree for libelant, showing that a collision causing the injury occurred substantially as claimed by libelant, and that the tug in charge of the tow was in fault.</p>

Dibel by Daniel Allard against the steam tug Madison, her engines, etc., claimed by the Delaware, Uaclrawanna & Western Railroad Company, which impleaded the steam tug Patchogue, her engines, etc., claimed by the l,ong Island Railroad Company. There was a decree against the Patchogue, and the Pong Island Railroad Company, claimant, appeals.

Action by Annie E. Drew and others against R. C. Conn and others. There was a judgment for plaintiffs and defendants Conn and Wagner bring error.

<p>Interna tionat, Law &wkey;>10 — Relation Between States.</p> <p>Bullion seized and sold in Mexico by direction of tbe Carranza government for tlie benefit of its army cannot be recovered from the purchaser by the prior owner in the courts of the United States.</p>

Suit in admiralty for collision by the Goodwin-Gallagher Sand & Gravel Corporation, owner of steam tug No. 14 against the steam tug Beatrice Bush; Bush Terminal Company, claimant. Decree dividing damages, and claimant appeals. The libel was brought by the steam tug No. 14 against the steam tug Beatrice Bush for a collision on February 14, 1916, at about 1 p. m., off the float bridge at'Fifty-Second street, Brooklyn.

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Action by John B. Lowe, Jr., Collector of Internal Revenue, against the Northern Railroad Company of New Jersey. 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>Suit by the United States Metal Cap & Seal Company against the American Keyless Kap Corporation and another, together with a suit by the named defendant against the complainant. There were decrees for the complainant in the first case, and defendants appeal.</p> <p>Appeals from decrees in equity, in two cases, tried together and consolidated upon the record for this court. The action by United States Metal Cap & Seal Company is upon all the claims of patent to Spengler, No. 3,071,907, applied for June 5-, 1911, and issued October 7, 1913. After this suit began, the defendant therein, American Keyless Kap Corporation, brought against the United States Metal Cap & Seal Corporation the second action, on claims 4, 5, and 6 of patent No. 755,275, and all the claims of No. 755,276, both issued to Clay on March 22, 1904, but the earlier number rests on an application antedating the later by six months.</p> <p>The subject-matter common to all these patents is the closure of bottles, jars, and the like by caps of resilient metal, that can be repeatedly applied, removed, and reapplied, as does the “Crown cork and seal,” so well known and in extensive use before either Clay or Spengler made their applications. The United States Metal Cap & Seal Company put out commercially the Spongier device; the American Keyless Kap Corporation acquired the Clay patents, which had had no commercial development, and before date of first suit were making and selling an article which confessedly imitates Spengler.</p> <p>The contest below and in this court may be thus stated; United States Metal Cap & Seal Company asserts that Clay neither anticipates nor narrows Spengler, and that the American Keyless Kap Corporation's product is a plain ami willful infringement; the latter corporation replies that Spengler is invalidated by Olay, but, if not, his specification discloses nothing more than a variant of Clay’s fundamental and basic concept, so that the later patentee must pay tribute to the earlier. The lower court upheld the Spengler patent and cleelai'ed it infringed, and found no infring-ment of Clay’s patents. From both decrees, the American Keyless Kap Corporation appealed.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit by the Ruud Manufacturing Company against the Long-Lan-dreth-Schneider Company and others. From a decree for complainant, defendants appeal.</p> <p>A decree was entered in the District Court, finding valid and infringed claim 1 of patent 853,738 to plaintiff’s assignor, Ruud. That claim is as follows:</p> <p>“In a storage water heater system, the combination of a water heater, a reservoir, connections between the same, a valve to control the supply of fuel to said heater, a thermostat in said reservoir, a lost motion connection between said thermostat and valve, and means to cause said valve to remain either . entirely closed or completely open.”</p>

<p>1. PATENTS &wkey;>37 — SüBJJKCT-MATTEB—NOVELTY.</p> <p>A product which successfully imitates another is not necessarily a patentable novelty, the patent law being connected with the means, for, if a successful imitation were per se patentable, a natural product for that purpose would be within the act.</p> <p>2. Patents <&wkey;>328 — •Inebingement—What .Constitutes.</p> <p>The Stenz patent, No. 1,017.849, for sample cards on which were embossed a replica in paper of tlxo cloth advertised, held limited to the process of embossing or striking up portions of cardboard, and, as limited not infringed.</p>

In Equity. Bill by the Manton-Gaulin Manufacturing Company against the American Bottle Cap Company; the Cherry-Bassett Company being made a codefendant on supplemental bill. On motion for temporary injunctions.

In Admiralty. Suit for collision by Arthur Lloyd Hughes, master of the steamship Dorset, against the steam tugs Crisfield and Pocahontas and the New York, Philadelphia & Norfolk Railroad Company Carfloat No. 18, with cross-libels.

<p>At Law. In the matter of the applications of John T. Dunn, Theodore Hiller, and Adolph T. Yanyar for writs of habeas corpus.</p>

<p>1. Taxation <&wkey;G08(9)~-Con.EciioN or Tax — Injunction-Adequate Remedy at Law.</p> <p>A suit to enjoin the collection of income taxes levied against a nonresident under Oklahoma Income Tax (Laws 1915, c. 1(54), cannot he dismissed on the ground that section 9 made applicable provisions of Laws 1915, c. 107, relating to ad valorem taxes, and thus furnished a complete and adequate remedy at law, the provisions of chapter 107 in any event giving no relief against the liens created, by the income tax statute.</p> <p>2. Taxation &wkey;>54—State Income Taxes—Validity.</p> <p>In view of the several federal income tax acts, Okl. Laws 1915, c. 164, § 1, declaring that each and every person in the state shall be liable to an annual tax on the entire net income of such person arising and accruing from all sources, and that a like tax shall be levied, assessed, and collected and paid upon the entire net income from all property owned, and of every business, trade, or profession carried on in the state by person's residing elsewhere, is not invalid as to a nonresident who received an income from Oklahoma oil wells operated under a lease, on the ground that the income is made up from two inseparable elements, the property and the owner’s management or intelligence.</p> <p>Campbell, District Judge, dissenting in part</p>

<p>In Equity. Suit by the Kroger Grocery & Baking Company against the Retail Clerks’ International Protective Association, Eocal No. 424-, and others. On motion for preliminary injunction.</p>

<p>In the matter of the Phcenix, Planing Mill, bankrupt. Oni rule of W. A. Fuller, trustee, against G. B. Everroad.</p>

<p>Bankruptcy <&wkey;139(3) — Liens—Eights Vested m Tbustee.</p> <p>Under Park’s Ann. Civ. Code Ga. §§ 6037-6039, as construed; by the Supreme Court of (lie state, the holder of a bond for title on which part of the purchase money has been paid has no leviable interest in the land, and. his trustee in bankruptcy, under Bankruptcy Act July 1, 1898, § 47a(2), as amended by Act June 25, 1910, § 8 (Comp. St. 1916, § 9631), which vests him with “all the rights, remedies and powers of a creditor holding a lien by legal or equitable proceedings thereon,” has no lien upon the laud as against the holder of the bond as security under a valid assignment, although not recorded, there being no statute requiring such recording.</p>

<p>Petition for habeas corpus by William J. Keliher against John J. Mitchell, United States Marshal.</p>

,At Law. Carl C. King and others were indicted for combination or conspiracy in restraint of trade. On demurrer to the indictment. Demurrer overruled.

At I,aw. Proceeding by David W. Meadow for the probate of the will of James M. Smith, deceased, to which Mrs. Nancy E. Nash filed a caveat. Motion to remove the case to the federal District Court was denied, and the will was propounded. Thereafter the caveator filed the record in the federal court.

<p>Aliens <@=>56 — Immigrants Excluded — “Contract Laborers.”</p> <p>A Dutch steamship company, having branch offices in New York and Dutch Guiana, sent a clerk, who had been in its employ in Amsterdam for three years, to New York to be employed in its office there temporarily, as claimed, and afterward sent to Dutch Guiana, paying his transportation expenses. Held, that the case was not within Immigration Act Eeb. 5, 1917, c. 29, § 3, 39 Stat. S76, which defines contract laborers thereby excluded as including “persons * * * who have been induced, assisted, encouraged or solicited to migrate to this country * * « in consequence of agreements * * * to perform labor in this country of any kind, skilled or unskilled”; the contract of employment, made long previously, not having been the inducing cause of the migration, which, so far as appears, was not then contemplated.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, Second Series, Contract Laborer.]</p>

<p>In Admiralty. Petition by the Great Rakes Dredge & Dock Company for limitation of liability, as owner of drill boat No. 4. Decision on commissioner’s report.</p>

<p>In Admiralty. Libel by the Gulf Refining Company against the Motor Boat Bud III.</p>

<p>1. Monopolies <@==>30 — Actions for Penalty — Essentials to Recovery.</p> <p>It is essential, in civil actions for penalties under the Sherman Act (Comp. St. 1916, §§ 8820-8S28,'8S27-8830), that the restraint of trade intended or accomplished shall be unreasonable in extent or directly aimed at interstate traffic.</p> <p>2. Monopolies <@=>30 — Complaint—Sufficiency.</p> <p>Complaint seeking threefold damages under the Sherman Act (Comp.. St. 1916, §§ 8820-8823, 8827-8830) for alleged conspiracy in restraint of interstate trade in certain potatoes is defective, where not containing any allegations as to extent of interstate trade in such potatoes, either actually or relatively.</p> <p>3. Monopolies <@=>30 — Action for Penalty — Parties.</p> <p>Where members of the listing committee of an association set in motion against plaintiffs organized action illegal under the Sherman Act (Comp. St. 1916, §§ 8820-S823, 8827-S830), an action for threefold damages may be maintained against defendants alone, without joinder of the association or members.</p> <p>4. Monopolies <@=>30 — Complaint—Sufficiency.</p> <p>A complaint seeking penalty under the Sherman Act (Comp. St. 1916, §§ 8820-8823, 8827-8830) for a conspiracy in restraint of trade is not bad for duplicity or uncertainty, because it set out the conspiracy and an actual restraint of trade resulting therefrom, for, while the conspiracy was-the gist of the action, its results should be alleged.</p>

<p>1. Admiralty <@=>58 — Trustees—Security.</p> <p>Under admiralty rule 53 (29 Sup. Ct. klv), security for costs and. for damages claimed by respondents in their cross-libels will not be required, where libelant is a receiver or trustee in bankruptcy.</p> <p>2. Admiralty <@=>58 — Security—Assignment of Claims.</p> <p>That libelant had assigned his claims to third persons is no ground for requiring him to give security for costs or for damages claimed by the respondents in their cross-libels, where such security would not otherwise be required.</p> <p>3. Admiralty <@=>58 — Security—Assignment of Claims.</p> <p>Where a libelant assigned his claims, the assignees cannot be required to give security for libelant’s payment of claims asserted'in cross-libels by the respondents, where such claims were of a distinctly different character from that on which libels were founded.</p> <p>4. Admiralty <@=>58 — Security—Costs—Delay.</p> <p>Delay on part of cross-libelants, which continued for several years, in demanding that libelant furnish security for costs and damages claimed, warrants denial of the motion.</p>

<p>1, Goulisioh <©=»i>5(8)~-Injuries — Liabtuty.</p> <p>A tug and. her tow held responsible, where a launch in the darkness collided In New river with the tow, which was not lighted; it appearing that the launch was correctly navigated, and that it -was too dark to see the tow into which the launch ran.</p> <p>2. Ooij.ision <©=>138 — Personae Injuries — Measure oe Damage.</p> <p>In proceeding to limit the liability of the owner of a tug and barge for collision with a. launch, claimant, passenger on launch, who suffered contusion of thigh and dislocation of four ribs, held entitled to $1,500 damages, to be paid from fund representing value of vessels at fault.</p>

<p>At Raw. The Natura Company was charged with a violation of the Food and Drugs Act.</p> <p>On August 5, .1916, the United States attorney for the Northern district of California, acting upon a report by the Secretary of Agriculture, filed in the District Court of the United States for said district an information against the Natura Company, a corporation. San Francisco, Cal., alleging shipment by said defendant, in violation of the Food and Drugs Act, as amended, on or about June 29, 1914, and December 17, 1914, from the state of California info the state of Utah, of quantities of an article labeled in part “Akoz,” which was misbranded.</p> <p>Analysis of samples of the article by the Bureau of Chemistry of this department showed the product to be a gray powder, essentially a clay. For use the contents of a small package are to be added to one-half gallon of water as per directions. The clear solution contains total solids equal to 200 parts per million, consisting essentially of calcium sulphate.</p> <p>It was alleged in substance in the information that the article in each shipment was misbranded for the reason that certain statements appearing omits labels falsely and fraudulently represented It as a remedy for stomach troubles, indigestion, dyspepsia, kidney troubles, and rheumatism, when, in truth and in fact, it was not. It was alleged in substance that the article in eacli shipment was misbranded for the further reason that certain statements included in the circular accompanying the. article falsely and fraudulently represented it as a treatment for Bright's disease and diabetes, pyorrhea, inflammation of the bladder, frequent urination, and cystitis, and as a remedy for toothache, when, in truth and in fact, it was not.</p> <p>On April 5, 1917, the case came on for trial before the court, a jury having been waived, and, after the submission of evidence and arguments by counsel, the case was submitted to the court and taken under advisement. On May 9, 1917, it was ordered that judgment be entered finding the defendant not guilty.</p>

<p>1. Criminal Daw <§=»293 — Plea oe Former .Jeopardy — Demurrer.</p> <p>If a plea of former jeopardy or former acquittal is on its face insufficient, a demurrer lies.</p> <p>2. Criminal Daw <3=>1S6 — Former Jeopardy — Tartan of,.</p> <p>An acquittal by reason of a variance is not a bar to further prosecution of crime attempted to be described, but not accurately described, in first indictment.</p> <p>3. Courts ©=3337 — Federal Courts — -What Daw Governs.</p> <p>Bey. Daws Mass. c. 218, § 22, declaring that a misdescription of a written instrument is not a variance, has no application to a criminal’prosecution in the federal courts for such state.</p> <p>4. Criminal Daw ©=3293 — Pleading—Demurrer.</p> <p>On demurrer to pleas of former jeopardy, facts alleged should be accepted as true.</p>

<p>Trade-Marks and Trade-Names <®=>16 — Subjects of Trade-Mark — Package or Container.</p> <p>The shape and appearance of a package or container cannot he made the subject of a trade-mark.</p>

lyt. Morton, Judge. Action by Charles J. Bjornquist, by next friend against the Boston & .Albany .Railroad Company. Held: as matter of law, that the plaintiff was not entitled to recover, that a verdict should, have been ordered for the defendant, and sustained the defendant’s exceptions. No further proceedings were had in the state court. See Bjomquist v. Boston & Albany R, B. Co., 185 Mass. 130, 70 N. E. 53» 102 Am. St. Bep. 332.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Dibel by the Aktieselskabet Korn-og Foderstof Kompagniet against the Rederiaktiebolaget Atlanten. From a decree for-libelant (232 Fed. 403), respondent appeals.</p>

Appeals from the District Court of -the United States for the Southern District of New York. Libels by the United States of America, on the relation of the Pressprich & Son Company, against James W. Elwell & Co. and another. From decrees, for libelant, respondents appeal. Appeals from two decrees in admiralty entered on the 28th day of August, 1917, each adjudging the respondents liable in the sum of $2,000 and costs as a 'penalty for violation of section 5 of the Harter Act.

H. Sawtelle, Judge. Suit by the United States against Ralph H. Cameron and others. From a decree for the United States, defendants appeal.

<p>In Error to the District Court of the United States for the District of Montana; Geo. M. Bourquin, Judge.</p> <p>Daniel M. Kelly and Albert J. Galen were convicted and adjudged guilty of contempt (243 Fed. 696), and they separately bring error.Judgments affirmed;</p>

<p>1. Bankruptcy &wkey;>306 — Appeal by Trustee — -Supersedeas Bond.</p> <p>Under Bankruptcy Act, § 25c (Comp. St.'l916, § 9609), where a trustee in bankruptcy appeals from or brings error to review a decree or judgment, the same will be considered, though no supersedeas bond is given.</p> <p>2. Bankruptcy <&wkey;306 — Appeal by Trustee — Suebsedeas Bond — Enforcement. ,</p> <p>Bankruptcy Act, § 25c (Comp. St. 1916, § 9609), relieving a trustee in bankruptcy from giving bond on appeal or writ of error, does not relieve him of the-obligation to give a supersedeas bond, as required by Itev. St. §§ 1000, 1007 (Comp. St: 1916, §§ 1660, 1666), and if the trustee secures a supersedeas, giving bond, it is enforceable.</p> <p>3. Appeal and Error <&wkey;458(l) — Supersedeas—Provision for.</p> <p>Where a trustee in bankruptcy desires a supersedeas, he may obtain the same upon giving a bond in compliance with Rev. St. §§ 1000, 1007 (Comp. St. 1916, §§ 1660, 1666), though the order allowing the appeal imposed no condition with respect to the appeal.</p> <p>4. Appeal and Error &wkey;>1224 — Supersedeas Bond — Enforcement.</p> <p>Where a trustee in bankruptcy appealed to the Supreme Court from a decision of the Circuit Court of Appeals reversing a judgment in his favor, giving a supersedeas bond, held, that, as the decree appealed from awarded costs, etc., enforcement of the bond cannot be denied, on the ground that there was no judgment or decree on which execution could issue.</p> <p>5. Appeal and Error <&wkey;1224 — Supersedeas Bond — Enforcement.</p> <p>In view of Supreme Court rule 29 (33 Sup. Ct. xxvi), enforcement of a supersedeas bond given on appeal from a decree of the Circuit Court of Appeals, reversing a decree of the District Court, cannot be denied on the theory that such intermediate decree could embrace nothing to be superseded, where it awarded costs in favor of the successful party ana was affirmed by the Supreme Court.</p> <p>6. Appeal and Error <&wkey;1224 — Supersedeas Bond — Taxation of Costs.</p> <p>The enforcement,, of a supersedeas bond given on appeal to the Supreme Court from a decision of the Circuit Court of Appeals, which awarded costs in favor of the successful party, is not affected by the fact that at the time the bond was given the costs had not been taxed, .for that was part of the proceedings stayed.</p> <p>7. Appeal and Error &wkey;>1224 — Supersedeas Bond — Estoppel.</p> <p>Where a supersedeas bond recited the rendition and entry of the decree, the sureties are estopped in a proceeding thereon from questioning the bond by collaterally attacking the decree.</p> <p>8. Appeal and Error i@=ol23i(5) — Supersedeas . Bond — Construction.</p> <p>In view of Supreme Court rule 29 (33 Sup. Ct. xxvi) and Circuit Court of Appeals rule 13 (198 Fed. xxii, 1.15 C. C. A. xxii), a supersedeas bond covers any money not otherwise secured, awarded by the judgment or decree appealed from, as well as costs or damages on appeal, and so includes costs in the lo-wer court.</p>

<p>Appeal from the District Court of the United States for the Southern Division of the Western District of Washington; Edward E. Cushman, Judge.</p> <p>Eibel by R. Petersen against the Gray’s Harbor Tugboat Company, a corporation. From a decree for libelant, respondent appeals.</p>

Suit in equity by the Shredded Wheat Company against the Humphrey Cornell Company and Frederick H. Towne. Decree for complainant, añd defendants appeal. Appeal by the defendants from a decree enjoining them from soiling any sln-odded wheat biscuit without distinctly marking upon each biscuit that it was made by the defendant and was not the product of the plaintiff, and from using any cartons having a picture of such biscuit without similar marking.

Tuttle, Judge. Suit in equity by the M. Werk Company against' Charles Grosberg and John A. Reuter, doing business as Grosberg & Reuter. From an order denying a preliminary injunction, complainant appeals.

Appeals from the District Court of the United States for the Middle District of Alabama; Henry D. Clayton, Judge. In the matter of the bankruptcy of George Manegold. On objections of George Stuart, trustee in bankruptcy, the claims of Estelle Manegold Beaven were disallowed, and from such decrees claimant appeals.

Libel by the Southern Transportation Company against the barge Joseph F. Clinton, her tackle, etc., claimed by Smith & Terry, Incorporated. From a decree for libelant, claimant appeals. The action is for salvage sendees rendered to the barge hy libelant’s tug Henrico, and on a valuation of hull, cargo, and freight of $33,400, an award was given of $6,850.

Suit in equity by the Triangle Film Corporation against the Art-craft Pictures Corporation. From an order denying a preliminary injunction, complainant appeals. Appeal from an order denying the plaintiff’s motion for an injunction pendente lite. The jurisdiction of the court depended upon diverse citizenship.

Petition to Superintend and Revise from the District Court of the United States for the Southern District of Florida; Rhydon M. Call, Judge. In the matter of Dennis F. Tong, bankrupt. Petition by C. C. Reed, trustee, to- revise an order dismissing his petition against the Barnett National Bank of Jacksonville.

<p>Set-Off and Counterclaim &wkey;>29(l) — Subject of Counterclaim.</p> <p>In a suit in equity ill a federal court by an assignee of notes to foreclose a lion securing the same on real estate in Mississippi, a claim by defendant to a forfeiture under Code Miss. 190Ü, § 2795, which provides that, if an assignee of an indebtedness secured by a lien of record shall fail to have tile assignment entered on the margin of the record or acknowledgment, and recorded within 30 days, “he shall forfeit to the debtor 10 per cent, of the amount of said indebtedness,” cannot be pleaded as a counterclaim under equity rule 30 (198 Fed. xxvi, 115 C. C. A. xxvi), since the claim is not one which could be the subject of an independent suit in equity, but is enforceable only at law, nor one arising out of the transaction which is the subject-matter of the suit.</p>

Call, j udge. Action at law by Collins Denny and others, executors, against J ames U. Giles. Judgment for defendant, and plaintiffs bring error.

<p>In Error to the District Court of the Canal Zone; William H. Jack - son, Judge.</p> <p>Action at law by Joseph T. Toppin against the Panama Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

Rudkin, Judge. In the matter of bankruptcy of the Realty Union. The claim of Hattie Hardesty Chapman to a vendor’s lien on property conveyed to bankrupt, which was opposed by R. M. Sims, trustee in bankruptcy, was disallowed by the referee. From an order of the District Court, affirming the referee’s order, claimant appeals.

In the matter of William Kerner, alleged bankrupt. From an order confirming the report of a special master recommending the creditor's objections to an offer of composition made before adjudication be sustained (245 Fed. 807), the bankrupt appeals.

<p>Appeal from the District Court of the United States for the Southern District of Texas; Waller T. Burns, Judge. ,</p> <p>Suit in equity by the Mississippi Valley Trust Company and T. M. Pierce against Harris Masterson. Decree for complainants, and defendant appeals.</p>

Petition to Revise Order of the District Court of the United States for the Eastern District of New York. In the matter of the bankruptcy of G. Edward Graff and Thomas E. Nevins, individually and as copartners composing the firm of G. Ed-.vyard Graff & Co. On petition by the People’s Trust Company, as executor of the estate of Edward Johnson, deceased, to reopen the estate.

<p>In Admiralty. Libel by the Erkside Steam Shipping Company, Limited, owner of the British steamship Monkshaven, against Gailey, Davis & Co. Sur exceptions to answer.</p>

<p>In Bankruptcy. In the matter of the bankruptcy of Cecilia Mitchell. On certificate to review an order denying the petition of the John Median Distilling Company.</p>

<p>In Bankruptcy. In the matter of the bankruptcy of Albert F. Whitney. On petition for discharge.</p>

<p>In Bankruptcy. In the matter of the bankruptcy of Andrew Mc-Cann. On petition to review an order of the referee refusing to release the Citizens’ Brewing Company from a bid for certain property sold it.</p> <p>Review of order of referee refusing to release Citizens’ Brewing Corporation from a bid of $800 for certain property sold to it through Mr. H. A. Rubino, and which at the time of such sale was subject to a tax due the United States.</p>

<p>In the matter of the application of Eugene Weisz for naturalization. Certificate granted.</p>

<p>In Admiralty. Libel by the owner of the yacht Vanadis. On exceptions to the master’s report, ruling that the libelant was not entitled to damages for detention of the vessel while in dry dock for repairs after the collision.</p> <p>Exceptions to a commissioner's report in admiralty, awarding damages .for a collision in which the libelant’s yacht, Yanadis, was injured off Glen Cove, in Long Island Sound, on June 13, 1915. The only point raised by the exceptions is the commissioner's ruling that the libelant was not entitled to damages for detention (demurrage, so called), while in dry dock for repairs after the collision. It was proved that $13,000 a month had been offered for the yacht for the seasons of 1914 and 1915, that such vessels were scarce and in demand at the time, and that her charter value was $11,000, assuming any damages for detention were properly allowable at all. The period of the detention was, roughly speaking, the month of July, 1915, which was part- of the season in which vessels of her class were used.</p>

<p>At Law. Actions by the United States against Ezra Brainerd, Jr., and others, against W. T. Ward and others, and against R. H. Matthews and others, referees in bankruptcy and their bondsmen. On demurrers to the petitions.</p>

Libel by the Standard Oil Company, owner of the steamship Muskogee, against the steamship Almora, claimed by A. H. Torb-jarnsen. From a decree dismissing the libel, libelant appeals.

<p>In Error to the District Court of the United States for the Southern District of West Virginia, at Huntington.</p>

• In Error to the District Court of the United States for the Southern District of New York. Criminal prosecution by the United States against Joseph Barbalatt and others for conspiracy to commit an offense against the United States) and for fraudulently concealing property of Fox & Barbalatt, bankrupts, from their trustee in bankruptcy. Judgment of guilty as to Barbalatt and others of the defendants, and they bring error.

<p>Appeal from the District Court of thei United States for thet Southern District of New York. Bill for receiver by Henry W. Chapman against Mills & Gibb. From a decree allowing a Haim, (241 Fed. 715) the M. & G. Properties Company, Incorporated, appeals.</p>

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

Appeals from the District Court of the United States for the District of Maine; Clarence Hale, Judge. Bills by the Electric Boat Company against the Lake Torpedo Boat Company. From decrees dismissing the bills, complainant appeals.

<p>In Error to the District Court of the United States for the Southern District of New York. Emil Erber was convicted of a violation of Criminal Code (Act March. 4, 1909, c. 321) § 215, 35 Stat. 1130 (Comp. St. 1910, § 10385), and he brings error.</p>

<p>Appeal from the District Court of the United States for the Western District of Nbrth Carolina, at Asheville;’ James E. Boyd, Judge.</p>

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

<p>In Error to the District Court of the United States for the Northern District of New York. Action by the United States against the G. F. Harvey Company. There was a judgment for the United States, and defendant brings error.</p>

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

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

<p>Appeal from lire District Court of the United States for the Southern District of New York. Suit in admiralty by the Liverpool, Brazil & River Plate Steam Navigation Company, Limited, against the Brooklyn Eastern District Terminal. Decree for respondent, and libelant appeals.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York. Suit by the Lyon Non-Skid Company, and the Metal Stamping Company against Edward V. Hartford, Incorporated. From a decree for complainants (247 Fed. 524), defendant appeals.</p>

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Illinois. Action at law by the McNeil-LIiggins Company against tlio Old Dominion Steamship Company for damages for loss of shipment of coffee. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from the District Court of the United States for the Eastern District of New York. Suit in admiralty by the Hudson Towboat Company against the barge Rebecca; the New York Central Railroad Company, claimant. Decree for libelant, and claimant appeals.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York. Libel by the P. Lorillard Company against the steamship River Meander, her engines, etc., claimed by Norton & Sons, together with four other consolidated cases. There were decrees for libelants (209 Eed. 931), and claimant appeals.</p>

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Illinois. Action by Kate Siegel against the Southern Pacific Company. There was a judgment for defendant, and plaintiff brings error.</p>

<p>Appeal from the District Court of the United States for the Northern District of Ohio. Petition by A. O. Stellwagen, trustee for Margaret Zéngerle, for an order requiring the surrender of property by Alfred Clum, trustee in bankruptcy of the Georgian Bay Company. From a - decree dismissing the petition, petitioner appeals. Decree affirmed, in conformity to answers of the Supreme Court to questions certified (245 U. S. 605, 38 Sup. Ct. 215, 62 L. Ed. -).</p>

<p>Appeal from the District Court of tho United States for the Southern. District of New York. Suit by the Stromberg Motor Devices Company against Ludwig Arnson and Alfred Michaels, as copartners, etc. From a decree for defendants, complainants appeal.</p>

<p>1917.) In Bankruptcy. In the matter of M. & H. Gordon, bankrupts. On motion for confirmal ion of composition.</p>

Bill by the United States Metal Cap & Seal' Company against the American Keyless Kap Corporation, together with a bill by the defendant against the complainant in the first suit. Decree for complainant in the first suit, and bill in the second suit dismissed. The decree sustaining the complainant’s patent was affirmed by the Circuit Court of Appeals. 250 Fed. 857,-C. C. A. ■ — •.