Volume 251 — Federal Reporter

<p>1. Evidence <§=>442(1) — Construction—Pbeliminary Negotiations.</p> <p>Where the terms of a written contract are 1'uil and unambiguous, parol negotiations between the parties anterior to or contemporaneous with the execution of the instrument are to be regarded as either merged in it or concluded by it, and parol evidence is incompetent to show other terms verbally agreed to previously, but not inserted in the written instrument.</p> <p>2. Coijhts @=347 — Federal Courts — Pleading—Countebclaim.</p> <p>Under equity rule 30 (198 Fed. xxvii, 115 O. C. A. xxvii), a defendant, who has a counterclaim arising out of the transaction which is the subject-matter of the suit, is required to set it up, or it is waived.</p> <p><§=Eor other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Suit in equity by Elsworth E. Cook against Jared Elagg. From the decree, defendant appeals. Appeal from a decree in a suit in equity. The jurisdiction of the District Court was based on diversity of citizenship.

<p>1. Customs and Usages <@=»15(1) — Evidence—Admissibility—Written Contracts.</p> <p>Where a written contract for sale of rosin was ambiguous on the question of possession, evidence as to general trade customs was admissible.</p> <p>2. Customs and Usages <S=»18 — Pleading—Necessity.</p> <p>Where a written contract was ambiguous, evidence of general trade customs was admissible, though not pleaded.</p> <p>3. Evidence <@=>354(17) — Salesbook.</p> <p>Where defendant, having contracted with plaintiff for the rosin manufactured by a particular concern, refused rosin tendered on the ground that plaintiff was attempting to work off that of other manufacturers, a salosbook was competent to show the quantity of rosin delivered.</p> <p>4. Evidence <@=>158(28) — Best and Secondary Evidence.</p> <p>Where plaintiff sold to defendant rosin to be manufactured by a specified company, and defendant repudiated the contract, asserting that plaintiff attempted to work off rosin of other manufacturers, plaintiff’ is not obliged, having introduced direct testimony that the rosin it tendered to defendant was manufactured by the company specified, to introduce in evidence books of the manufacturer containing records of its production, on the ground that such books were the best evidence; for the evidence of plaintiffs witnesses was in no sense secondary.</p> <p>6. Appeal and Error <@=>695(1) — Review—Verdict.</p> <p>Where the record fails to disclose that the bill of exceptions contains all of the evidence produced in the case, the verdict cannot be reviewed on writ of error.</p> <p>6. Sales <@=>332 — Resale by Seller.</p> <p>Where the buyer declined to make payment when tendered delivery, and if was the Intention of the parties that the seller should retain possession until payment, the seller may on the buyer’s default resell the goods and recover damages on account of his loss.</p> <p>7. Courts <@=>328(9) — Federal—Amount in Controversy — Interest.</p> <p>In assumpsit for damages for failure to take and pay for rosin purchased, it was permissible to include in the damages the loss on resale of the rosin and the interest for the purpose of fixing the amount in controversy, so as to give the federal court jurisdiction, although under the statute interest as such cannot be included in estimating the jurisdictional amount.</p> <p>8. Appeal and Error <@=>518(5) — Record—Bill of Particulars.</p> <p>Where not saved in the bill of exceptions, a bill of particulars is no part of the record, and an objection that an amount below the jurisdictional amount of the court was involved cannot bo sustained whore based on a bill of particulars not so saved.</p> <p>9. Courts <@=>328(10) — Federal—Amount in Controversy — Claim and Recovery.</p> <p>The damages claimed fix the amount in controversy for the purpose of determining whether the federal court has jurisdiction, and not the recovery.</p> <p>10. Courts <3=5.328(7) — Federal—Amount in Controversy — Set-Off.</p> <p>For the purpose of determining the jurisdiction of the federal court, the matter involved Includes the demands of both plaintiff and defendant, where defendant pleaded a set-off.</p> <p><@=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from District Court of the United States for the Southern District of Alabama; Robert T. Ervin, Judge.</p> <p>Suit in admiralty by the Bisso Towboat Company against the ship Avenger; W. B. Gillican, claimant. Decree for respondent, and claimant appeals.</p>

Ervin, Judge. Suit in admiralty by J. B. Lenoir and others, doing business as the Lenoir Machinery & Wrecking Company, against the ship Avenger; W. B. Gillican, claimant. Decree for libelant, and claimant appeals.

<p>1. Appeal and Error <§=>237(5) — Review—Scope.</p> <p>The federal court will not re-examine any fact tried by a jury, otherwise than according to the rules of the common law, and where plaintiff in error at the close of the testimony made no motion for a directed verdict. on the ground of the insufficiency of the evidence, only rulings of the trial court in excluding or admitting evidence, and in giving or refusing instructions, can be reviewed.</p> <p>2. Saj.es <§=>440(1) — Acts of Agent — Evidence—Admissibility.</p> <p>Where defendant’s sales agent testified that he sent an agent to plaintiff to overcome plaintiff’s difficulty with a milking machine bought from defendant, evidence as to the acts of such agent sent to plaintiff, as well as an agreement made by him, was admissible in action for breach of war-rainy of the machine.</p> <p>3. Evidence <@=>123(3) — Res Gestie — Acts of Agent.</p> <p>A report of an agent of defendant, which sold a milking machine, concerning the possibility of loss resulting from plaintiff’s continued use of the machine, held, admissible as part of the res gestee in an action by plaintiff based on a warranty.</p> <p>4. Appeal and Eeeob <§=>1051 (1) — Review-—Harmless Error.</p> <p>The admission of testimony is harmless, if erroneous, where the fact elicited was established by other competent evidence.</p> <p>5. .Salks <§=>440(2) — Actions fob Breach — Evidence.</p> <p>Where the guaranty under which defendant sold a milking machine recited that it was in all respects as represented in defendant’s printed matter, a pamphlet issued by defendant and delivered to plaintiff pending negotiations is admissible in an action for breach of the warranty.</p> <p>6. Appeal and Error. <@=>204(4) — Presentation of Grounds of Review jn Co get Below.</p> <p>The objection that certain pamphlets offered in evidence by plaintiff were not the identical ones handed him is not available in the appellate court, whore not raised below.</p> <p>7. .Sales <§=>440(2) — Actions for Breach — 'Warranties.</p> <p>Where the seller of a milking machine guaranteed the truth of certain pamphlets, and one of those; pamphlets asserted that it had enough experts to see that dairymen kept their machines in order, a purchaser, in an action for breach of warranty, may testify that the seller was to semi a demonstrator once a month to see that everything was working right.</p> <p>S, Evidence <§=j14.o — Admissibility ™Remoteness.</p> <p>Where the state dairy inspector testified plaintiff’s dairy was sanitary, teslimony that milk from the valley in which plaintiff carried on Ms business was excluded from a market as unsanitary held inadmissible to show the unsanitary condition of plaintiff’s dairy, which defendant asserted caused injuries to his cows, instead of the milking machine, as claimed by plaintiff.</p> <p>9- Evidence <@=>130 — Comparisons- - -Res Inter Alios Acta.</p> <p>In an action for brea'ch of warranty of a, milking machine, which plaintiff asserted injured his cows, evidence as to the condition of cows on which machines were used in other parts of the Country held, inadmissible as res inter alios acta.</p> <p>10. Appeal and Error <§=>105(i(l): — Review—Harmless Ebror.</p> <p>In an action for injuries to plaintiff’s cows, on which a milking machine purchased from defendant had been used, the exclusion of evidence as to the results of the use of milking machines in other dairies, etc., held not reversible error.</p> <p>.©cssFoi other cases see same topic & KEY-NUMBBR in all Key-Numbered Digests & indexer</p> <p>11. Appeal and Error <@=>231(6) — Objections—Sufficiency.</p> <p>The propriety of a hypothetical question, objected to on the ground that it-assumed the existence of conditions not shown- by the. evidence, cannot be reviewed, where the objection did not point out any matter which was not pertinent to the case.</p> <p>12. Appeal and Error <@=>1018(5) — Review—Harmless Error.</p> <p>Where the answer was not unfavorable to it, defendant cannot complain in the appellate court of the allowance of a hypothetical question.</p> <p><g=jFor other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

■ Action for damages for personal injuries by Howard Padgett against, the National Enameling & Stamping Company. There was a judgment for plaintiff, and defendant brings error.

<p>1. Carriers <S=>30 — Rates—Schedules Filed.</p> <p>The rate filed, whatever it is, is the only lawful charge, and the carrier must collect the same.</p> <p>2. Carriers <3=530 — Rates—Published Tariffs.</p> <p>Id, an action by a railroad, company to recover balances due as freight for shipments of cattle, published tariffs held to require that a differential rate from the point of shipment to a central point should be collected.</p> <p>8. Oabbiers <3=530 — Rates—Tariffs.</p> <p>In determining the rate to be charged by a carrier, all parts of the tariff filed should he considered, and if a plain meaning can be gathered therefrom, effect should be given to it.</p> <p>(gxssPor other eases see same topic & KBY-NUMBBR in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United. States for the District of Oregon; Ohas. E. Wolverton, Judge.</p> <p>Action by the Oregon Short Line Railroad Company against the Portland Feeder Company, a corporation. There was a judgment for plaintiff (245 Fed. 214), and defendant brings error.</p>

<p>Corporations @=426(10) — Contracts—Authority of Officers.</p> <p>Plaintiffs' sued defendant, a large life insurance company, for services rendered in adjusting and settling certain claims against defendant, amounting to several hundred thousand dollars. They were employed by the assistant superintendent of one of defendant’s departments, who during the time the services were being rendered was in constant correspondence with plaintiffs, and also with the superintendent, who knew of the employment, and both knew, as appeared- from their letters, that plaintiffs expected to be paid, and intended that they should be. The letters wore also of record in the office of defendant. Held, that whether the controlling officers of defendant had actual knowledge of the services, as was probable in view of the sums involved, or left the matter entirely to the department, they were chargeable with notice, and that defendant could not accept the benefit of the acts of the department, necessarily vested with large discretion, and repudiate its obligations incurred, by denying its authority.</p> <p><J=Foi other eases see samé topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Southern Division of the Southern District of California; Benj. F. Bledsoe, Judge.________</p> <p>Frank Beyer was convicted- of a conspiracy to transport females from the United States to Mexico for the purpose of debauchery, in violation of the White Slave Act, and he brings error.</p> <p>The plaintiff in error was convicted under an indictment charging that lie, with certain others, conspired to transport women and girls from the United States to Mexico for the purpose of debauchery. The evidence was that the defendants were conducting a bar, a gambling hall, a dance hall, and a house of prostitution in a building in Mexicali, Mexico, and that they hired several women and girls at Los Angeles to go to their establishment in Mexicali to act as entertainers, and furnished transportation for some of them. The duties of the entertainers were to sing and dance, and to dance with the male habitués of the place, and although there was no evidence that the entertainers were to sell liquor, there was evidence that they did in fact invite men to dancé, and that the men knew that “if they danced they had to buy a drink.” The girls were to derive a profit of from 40 to 50 per cent, of the selling price of the liquors sold. Back of the dance floor was a hall. The first door leading from the hall was a dressing room for the entertainers. Beyond, on both sides of the hall, were rooms occupied by prostitutes. • The prostitutes were permitted upon the dance floor and in the café and at the bar. The entertainers were boundi by contracts not to engage in prostitution, and they were instructed that, if men should approach them and make improper suggestions to them, they were to say that they were not there for that purpose, but that there were others there.</p>

<p>1. Criminal Law @=101(1) — Federal Courts — Removal of Accused to Other District foe Trial.</p> <p>In proceedings for the removal of one charged with crime from one federal district to another for trial, merely technical objections to the sufficiency of the indictment should not be considered.</p> <p>2. Bankruptcy @=492 — Offenses—Partnership—Concealment of Property by Partner — “Person.”</p> <p>A member of a bankrupt partnership, although not himself adjudged a bankrupt, is subject to prosecution for the fraudulent concealment of property of the partnership from its trustee, under Bankruptcy Act July 1, 1898, c. 541, § 29b (1), 30 Stat. 554 (Comp. St 1916, § 9613), since, as under section 1 (Comp. St. 1916, § 9585), a partnership is a “person,” it is also a “person,” within the meaning of section 29b.</p> <p>(Ed. Note. — For other definitions, see Words and Phrases, First and . Second Series, Person.]</p> <p>@zz>Foi other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Shipping @=>39~Charters — Construction.</p> <p>A provision in a charter party that it shall he construed according to the law of a particular country is valid, hut merely supplies the rule of construction, and does not limit the remedies of the parties.</p> <p>2. Contracts @=127(2) — Effect of Arbitration Clause.</p> <p>Under the law of the American admiralty courts, a provision in a charter party that any dispute arising shall be submitted to arbitration does not deprive the parties of the right to appeal to the courts.</p> <p>3. Admiralty @=>124 — Costs—Fees of Marshal.</p> <p>Under Rev. St. § 829 (Comp. St. 1916, § 1386), allowing the marshal a smaller commission where a decree in admiralty is settled without a sale, the marshal is entitled to have such reduced commission included in the decree as part of the costs.</p> <p>4. Shipping @=>51 — Charter—Breach.</p> <p>Refusal of master of a French yacht in New York, under charter to an American, under instructions from the owner, to proceed with the charter on declaration of war between France and Germany, on the ground that the crow were subject to call for the French army and the yacht to requisition by that government, held an unjustified breach of the charter, where the vessel was not requisitioned, and only about half the crew taken, and charterer offered to pay for substitutes.</p> <p>On Motion for Reargument.</p> <p>5. Shipping @=>58(3) — Breach of Charter — Damages.</p> <p>Measure of damages for breach by the owner of a charter for a pleasure’ yacht held the extra cost of procuring auother vessel, with the incidental expense of transfer from one to the other.</p> <p><@=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Bankruptcy <§=>175 — Titee to Property — Sake by Bankrupt.</p> <p>Under the law of Pennsylvania a sale oí personalty by a bankrupt In good faith to Ids mother-in-law, with whom he and his wife lived as one family and for whom ho worked, is not invalid as to creditors because there was no visible change of possession.</p> <p><©^>For other cases see same topic & KEY-NUMBER in all Key-Num&ered Digests & Indexes</p>

<p>Internal Revenue <g^>9 — Special Taxes — Lyceum Courses — “Lecture Lyceum.”</p> <p>Under Act Oct. 22, 3¡>14, c. 331, § 3. d. 8, 38 Stat. 751, declaring that proprietors or agents of all other public exhibitions or shows for money, not enumerated in the section, shall pay $10, provided that the paragraph shall not apply to Chautauquas, lecture lyceums, agricultural or industrial fairs, or exhibitions held under the auspices of religions or cha ril able associations, a corporation using 1ho term “Lyceum Bureau” in its title, engaged in the business of supplying Chautauqua and lyceum courses throughout the country with lecturers and entertainers, is subject to the tax on professional show features, for they do not fall within the exception ; the expression “lecture lyceum” not including independent show units engaged for the occasion.</p> <p>«SsaEor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

States for the Southern District of New York. In the matter of the bankruptcy of Samuel J. Singer, Meyer Singer, Daniel Singer, and Samuel J. Singer, Jr., individually and composing the firm of S. J. Singer & Sous. From an order denying the application of three of the bankrupts for discharge, they appeal.

<p>, Appeal from the District Court of the United States for the Western District of Pennsylvania; W. H. Seward Thomson, Judge.</p> <p>In the matter of the H. M. Lasker Company, Incorporated, bankrupt. On claim by Louis A. Meyran for rent. From a decree confirming disallowance by the referee, claimant appeals.</p>

<p>O/erks of Courts —Creeks of Feberai, Court — -IhabiIíIty foe Interest on Deposit — “Emoruaient.”</p> <p>Interest accruing on money coiled ed by a clerk oí the federal court £or official services rendered, and held by him pending his semiannual return, do not constitute emoluments of the clerk’s office, to be accounted lor to the United States.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Emolument.]</p> <p><§^Dor other cases see same topic & KEY-NUMBEIi in all Key-Numbered Digests <fc Indexes</p>

<p>Public Lands <@=>8 — Trespass on — Actions—Instructions.</p> <p>In an action by the United States for the value in manufactured form of turpentine and rosin taken from timber on unperfected homesteads, a charge, in language approved by the Supreme Court, that the boxing of trees by a settler on public land covered by an unperfected homestead, etc., and extraction of turpentine therefrom, was a willful and intentional trespass, etc., is not open to attack.</p> <p><§=»For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeat, and Erbob <@=>1073(7) — Review—Haiimhess Error.</p> <p>Where, in an action tried to the court without a jury, interest on the amount due plaintiff was wrongfully withheld, and that amount exceeded an item asserted to have boon erroneously allowed, the judgment may he affirmed by the reviewing court; for where the trial court 'in an action at law. where a jury has been waived, commits an error in his conclusions of law, but renders such judgment as is clearly right, the appellate court is justified in ordering an affirmance.</p> <p><£=aFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Suit in equity by Christopher L- Williams, as receiver of the First National Bank of Mineral Point, Wis., against Calvert Spensley, James Brewer, John L. Gray, William P. Gundry, Frederick Vivian, and others to enforce liability of directors of a national bank. From the decree, complainant appeals.

<p>Appeal from the District Court of the United States for the Eastern District of Michigan; Arthur J. Tuttle, Judge.</p> <p>Suit in equity by William A. Murray against the Detroit Wire Spring Company. From final decree, complainant appeals.</p>

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Suit by the Perkins Glue Company against the Solva Waterproof Glue Company and others. From a decree for complainant (223 Fed. 792), defendants appeal.</p>

<p>Appeal from the District Court of the United States for the Eastern Division of the Ñorthern District of Illinois.</p> <p>Suit by Walter A. Sheaffer against C. E. Barrett and the Kraker Pen Company. From a decree for complainant, defendants appeal.</p> <p>This appeal involves the decree of the district court sustaining the validity of claims 1, 2, 3, 4, 5, 7 and 11 of patent No. 1,118,240, issued to W. A. Sheaffer on November 24, 1914, for improvements in attachments for fountain pens, and awarding the same to appellee, entered May 23, 1917. The gist of the invention consists in spring means arranged within the casing to lift the presser bar in a fountain pen, independent of the reservoir, and firmly hold the lever in open or closed position. Claim 1 reads as follows:</p> <p>“1. In combination with a fountain pen having a hollow casing with a slot extending longitudinally thereof and a lever fulcrumed in said slot, a compressible ink reservoir inserted within said casing, of means operable independent of said reservoir and arranged within said casing for firmly holding •said lever in either open or closed position.”</p> <p>Mgs. 1 and 2 of the drawings will serve to illustrate the device:</p> <p> </p> <p>The pens of the prior art were provided, sojne with filling means operable by depressing the presser bar upon the ink reservoir with the finger, a coin, or a pin provided for that purpose from outside the case, having no lever, as in Hamilton patent, No. 781,649, issued February 7, 1905, and Kaufmann patent, No. 827,022, issued July 24:, 1906. These have lifting means for raising the presser bar, independent of the ink reservoir. Barnes patent, No. 720,4.95, issued April 28, 1903, Sheaffer patent, No. 896,861, issued August 25, 1908, and Swedish patent to Johansson, No. 5,380, issued August 18, 1894, disclose the use of a lever in compressing the ink reservoir and spring means for lifting the presser bar from the reservoir; compression and release being steps common to all self-filling fountain pens, in order that a vacuum may be created in the rubber ink container to facilitate the inflow of ink thereinto.</p> <p>Conceiving that, all the devices of the prior art failed to firmly bold in place the lever, whether open or closed, as well as to provide efficient means for uniformly operating the presser bar — both without the aid of the resilient rubber ink reservoir — Sheaffer. by combining the lever of the prior art with a. spring and presser bar within the case, brought the presser bar up against the lower end of the lover and kept it there, both in opon and closed positions, by spring action in such a manner as to control the lever firmly in either posi ■ tion. In so doing he took the flat removable spring bar shown in Duryea, exit a longitudinal slot therein xmder the lower end of the lever as pivoted, passed the previously adjusted lower end thereof through the slot in the spring bai‘, the flat bar like Dxxryea’s, and thus caused the lever foot to be firmly rested upon the top of the presser bar, when in action causing certainty of movement, and when not in action housed in ihe slot, and also, when it was released from lever pressure, lifting the presser bar firmly against the foot or lower part of the lover; all withoxit any strain upon the ink reservoir.</p> <p>It seems to be very desirable in fountain pens that there be certainty of movement of the parts in order to avoid leakage and other disarrangement. The spring bar of the patent, is of such construction that the locking means is very reliable. This is in substance the interpretation given to the first claim. Claim 2 is practically the same as claim 1, except that it calls especially for a txibular reservoir, and also for means arranged between the inner wall of the casing and the reservoir for yieldingly compressing the reservoir. Claim 3 likewise is the same as claim 1, with the addition of means for limiting ihe opening movement of the lever, as. disclosed in the drawings, a detent raised on the top surface of the presser bar to engage and limit the extent of the movement of the lower end of the lover and also the adjustment ot ihe outer end wall of slot 9 in the spring bar through which the lever passes, so that said end wall will co-operate with the detent on the presser bar in limiting the movement of the lever. Claim 4 has special reference to the adjustment of the friction, i. e., split ring-held spring and presser bar in operative position — the spring bar slotted as above described, the slot being so arranged as to limit the movement of the lever, and yieldably hojd the same in open or closed position. Claim 5 covers specifically the co-o¿eration of the end wall of the slot in the spring bar and the detent on the presser bar above mentioned, to limit movement of the lever and to protect the same. Claim 7 covers the provision fulcruming the lever in the casing slot and locating the lower end of the lever within the slot in the spring bar at all times, thereby preventing rotation of the spring bar. Claim 11 covers the improvements of claims 1, 2, 3, 4, 5, and 7 as a combination, and reads as follows:</p> <p>“11. The combination with a slotted fountain pen casing having a compressible ink reservoir and a lever operable in said slot, of a reservoir compressing device comprising a double bar provided with means for removably holding it within the casing, said double bar. being composed of a resilient arm having a slot therein to at all times receive the lever and to be thereby held against turning or lateral movement in the casing, and another arm secured to one end of said resilient arm and extending parallel therewith for engagement with the compressible ink reservoir, one end wall of the slot in said resilient arms being positioned to limit the swinging movement of the lever in one direction.”</p> <p>Appellants’ alleged infringing device — Kraker’s present pen — contains within its case means, operable independent of its reservoir, for firmly holding its lever in either open or closed position. Its spring means consist of a wire loop extending from a position near to the end of the presser bar, where its spring head is located, to a tongue on the bottom of the presser bar, about one-third of the length of the latter, in which tongue it is caught and loosely held, whereby the presser bar is controlled when not under the influence of the lever. There is no open slot in a spring bar through which the lever end operates upon the presser bar. The presser bar is rigid, and, when depressed by the lever, descends uniformly upon the reservoir to exclude ink and air. When released, the bar is lifted by the spring into contact with the prostrate lever, firmly holding it in closed position. When the lever' is in an open position, its foot rests and moves on the presser bar, and by upward tension of, the spring within the casing is held firmly in an open position. The reservoir is free to inflate without interference of the presser bar or the lifting means. In addition to the spring device-in the casing for lifting the bar and holding the lever in position, the lever carries, resting within the slot, but working outside the casing when open, a supplemental spring for holding it in open and closed position. This spring is mainly relied on by appellants to differentiate their pen from that in suit, while aijpellee insists that it is surplusage, and only used for misleading the court and public. The following drawings of appellants’ alleged infringing device are taken from appellants’ brief:</p> <p> </p> <p>The usual defenses of invalidity and noninfringement are pleaded, and, in addition, that Sheaffer was not the first inventor of the substantial subject-matter of the patent, or, as appellants put it, the invention did not originate with Sheaffer. It appears that appellants’ assignor, one Craig, had, on February 27, 1914, and April 9, 1914, respectively, filed applications for patents pertaining to the subject-matter here involved after the patent in suit was issued, and about December 9, 1914, he amended his applications by inserting claims 1, 2, S, 4, 7, and 11 from appellee’s said patent Thereafter such proceedings wore Rad that the examiner in interference and the examiners in eliiei! awarded the invention to Sheaffor. Since the commencement of this suit this action has been affirmed by the Commissioner of Patents. The pendency of this proceeding is urged by appellants as a reason for not disposing of this suit at the present time, they insisting that the patent was inadvertently issued inasmuch as the interference has not been disposed of.</p> <p>Appellee seeks to hold ono Barrett, manufacturer of the pen barrels or casing's for Kraker Pen Company, as a contributory infringer. He supplied casings to appellant pen company, prepared for ami adapted to the insertion by appellant o£ the alleged infringing parts, only. The district court entered a decree for the appellee.</p> <p>The errors assigned are (1) that the District Court sustained the patent; (2) that it held appellants’ device to infringe the patent; (,‘i) that it charged appellant Barrett & Co. to be guilty of contributory infringement; (4) that it awarded the claims in suit to appellee.</p> <p>Other fads appear in the opinion.</p>

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Suit by Edwin R. Gill and others against George H. Blettner. Erom a decree for complainants, defendant appeals.</p>

At Law. Ejectment by the Virginia & West Virginia Coal Company against Green Charles. On November 16, 1795, the commonwealth of Virginia granted to Richard Smyth and Henry Banks a tract of land, described as containing 200,000 acres, located then in Russell county, later in Tazewell county, and since 1858 in Buchanan county. On October 23, 1820, Wmi.

<p>1. Salvage ®=s>17 — Right to Compensation — Success of Efforts.</p> <p>It is not necessary, in order to establish a right to salvage, that the claimant should actually complete the work of saving the property at risk; but it is sufficient if he endeavor to do so, and Ms efforts have a causal relation to the eventual preservation of it.</p> <p>2, Salvage <g=»14 — Right to Compensation — Saving Human Life.</p> <p>Ail outbound fishing vessel, which rescued the crew of a water-logged lumber schooner, who were in danger of freezing, and after trying unsuccessfully to tow the schooner returned to port and notified a revenue cutter, which brought in the derelict, held entitled to salvage, and her crew to a share in the award for saving- human life, under Comp. St. 1916, § 7892.</p> <p><S=3For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Bill by the Ocmulgee River Lumber Company against the Ocmulgee Valley Railway Company.</p>

In Bankruptcy. In the matter of the Rawlins Mercantile Company, bankrupt. B. S. Deaver, trustee, obtained an order from the referee for the sale of the residence of J. C. Rawlins, and from an order of the referee, sustaining the claim of J S. Nicholson in intervention, the trustee petitions for a review’.

<p>1. Insurance <@=et¡27(2) — Service of Process — “Doing Business” in State.</p> <p>An incorporated Iowa insurance association, which maintained no regular agents in Missouri, although it issued certificates o£ membership to Missouri residents, hold not to ho doing business in that state, so that service could be made on the superintendent of the Missouri insurance department under Rev. St. Mo. 1909, § 7042.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Doing Business.]</p> <p>2. Insurance <g=s>G27(l) — Service of Process-Agents- — Foreign Company.</p> <p>Though the by-laws of an incorporated traveling men’s association obligated every member to use his influence further in the interest of the association, members who voluntarily induced others to join are not agents, and do not represent the association to the extent that service of summons on them would be binding on it.</p> <p>3. Insurance <s=>G27(2) — Service of Process- -Jurisdiction.</p> <p>Where the insurance contract between an incorporated association and a member was not a Missouri contract, and the association was not doing business in that state, service on the superintendent of the Missouri insurance department in accordance with the local statutes cannot, on the theory of convenience to iho members, be deemed to give jurisdiction over the association.</p> <p>©csEor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Wharves <@=>17 — Wharfage—Damages—Market Value.</p> <p>like demurrage, wharfage can be fixed, at a market rate, which represents the amount of damage, loss of profits, etc.</p> <p>2. Wharves <@=>19 — Wharfage—Damages—Evidence.</p> <p>If proof be given of a market rate of wharfage, no further proof on question of damages is necessary, and such charge is properly allowed.</p> <p>3. Shipping <@=>76 — Repair of Vessels — Deductions.</p> <p>Where libelant, which had repaired a vessel, consented to a deduction on the condition of prompt payment, and the owner failed to comply with the condition, being unable to dispose of the vessel, so as to obtain funds to pay for the repairs, it lost any legal right to claim the deduction or allowance.</p> <p>4. Wharves <@=>18 — Wharfage—Dien.</p> <p>Where the owner of a vessel failed to pay for repairs at their completion, the vessel meanwhile remaining in the dock of libelant, which made the repairs, the vessel is liable for wharfage, and libelant is entitled to a lien thereon.</p> <p>5. Wharves <@=>17 — Wharfage—Amount.</p> <p>On libel by a dock company, which repaired a vessel, held that, under the circumstances, it was entitled to wharfage at the rate of $45 a day during the period when the vessel-was retained, because of the owner’s failure to pay for the repairs.</p> <p>tgz^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Pledges @=>36 — Action Against Pledgee — Juey Question.</p> <p>Evidence held to warrant the submission to the jury of the question whether a corporation, through its president,’ had assented to the private sale oí collateral held by a bank.</p> <p>2, Aupeal and Error @=>1030(5) — Exclusion of Evidence — Harmless Error.</p> <p>Exclusion ot evidence in an action tried to a jury held not prejudicial error.</p> <p>£-r.Vnr other cases see same topic & KEY-NUMBER in all Key-Numbered Digesis & Indexes</p>

Libel by the Northern Lakes Steamship Company against the Clark-son Coal & Dock Company. From a decree for libelant, respondent appeals, and libelant cross-appeals, asserting the insufficiency of the damages.

<p>In Error to the District Court of the United States for the Eastern District of Missouri; David P. Dyer, judge.</p> <p>Action by Kristo Zirkovics against the National Enameling & Stamping Company. Judgment for plaintiff, and defendant brings error.</p>

Cross-Appeals from the District Court of the United States for the Eastern District of Arkansas; Jacob Trieber, Judge. Suit by Robert L. Meysenburg and another against Joseph P. O’Toole and others. From decree of foreclosure, both parties appeal.

<p>1. Contracts <3=9(1) — Validity—Uncertainty.</p> <p>A contract giving defendant, a manufacturer of composition roofing, the exclusive right to use and sell patented cleats for such roofing during the life of the patent, and obligating defendant to purchase certain cleats, etc., held, void for uncertainty.</p> <p>2. Sales <@=98 — Enforcement—Breach.</p> <p>Where a contract provided lhat defendant should p'urchase 25,000 sets of cleats monthly, the fact that defendant in one month purchased less than that number is an inconsequential breach, and ■will not destroy its rights, where the amount was made up the following month.</p> <p>3. Contracts <@=105 — Performance—Effect.</p> <p>Complete performance of only one of five or six important executory contract obligations cannot present avoidance of the contract, where others equally important remain executory and are uncertain.</p> <p>4. Cancellation of Instruments <@=57 — Contracts—Accounting.</p> <p>Where' a contract which was legally uncertain was substantially performed by both parties up to the date of the attempted avoidance, complainant is not in a suit to cancel the contract entitled to an accounting.</p> <p>Munger, District Judge, dissenting.</p> <p>(g^oFor other cases see same topic & KEY-NUMBER in all Key-Nümbered Digests & Indexes</p>

Sater, Judge. Separate proceedings for contempt by the United States against Alonzo Swepston and against Donald Swepston. From orders finding respondents guilty, and imposing punishment, defendants bring error.

Action by the United States against the Oregon-Washington Railroad & Navigation Company. There was a judgment, overriding a demurrer to the answer, and dismissing the complaint, and the United States brings error. Writ of error to a judgment, overruling a demurrer to the answer, without leave to plead over, and dismissing the complaint. The complaint; was for an excise tax against (he defendant under section 88 of the Ad; of August 5, 1909 (3(5 Ktat. 112, c. 6).

Appeals from the District Court of the United Stales for the .Eastern District of New York. Libel and petition by the Reichert Towing Tine, Incorporated, owner of the steam lug James Roy, for limita!ioti of liability, to which the Home Insurance Company and others answered, filing claims, consolidated with a libel by Jacob Rice against the Brooklyn Ash Removal Company, which brought in the petitioner and the _ Moran Towing & Transportation Company.

Second Division of the Northern District of California; Wm. C. Van Fleet, Judge; Action by the Western Pacific Railroad Company, a corporation, against the Pacific Mail Steamship Company, a corporation. There was a judgment for plaintiff, and defendant brings error.

Cushman, Judge. Suit in admiralty by the National Carbon Company against the steamship Eureka; the Alaska Steamship Company, claimant. Decree for respondent, and libelant appeals. Appeal from a decree dismissing a libel alleging the following facts: On September 8, 1915, libelant, National Carbon Company, shipped at New York on the Eureka, bound for San Francisco, certain dry battery cells consigned to libelant at San Francisco.

Trip-pet, Judge. Action by the New York Central Railroad Company against the Mutual Orange Distributors. A demurrer having been sustained, the complaint was dismissed, and plaintiff brings error. The court below having sustained a demurrer to the complaint, and the plaintiff having declined to amend, judgment was entered, dismissing the action, at the plaintiff’s cost — the plaintiff bringing the case here by writ of error.

Dietrich, Judge. Bill by Celia Diamond, and others against Lawrence F. Connolly, administrator of the estate of John Corbett, deceased, and individually, and others. From a decree dismissing the bill of complaint, complainants appeal.

<p>1. Jury @=28(6) — Waiver of Right to Trial by Jury.</p> <p>An objection to the jurisdiction of a federal court on the ground that the citizenship of plaintiff is not as alleged, thus raising an issue of fact, is most properly presented by plea in abatement; but, when á motion to dismiss on that ground is determined by the court without objection, the right of plaintiff to a jury trial on the issue is waived.</p> <p>2. Courts @=342 — Federal Court — Nature of Cause of Action.</p> <p>A bill alleging that defendant’s intestate, as agent for the investment of money for complainant, sold notes owned by her and fraudulently substituted others, but which sought only an accounting and money judgment for the notes taken, held not to state a cause of action in equity, hut in effect one at law for conversion.</p> <p>3. Trial @=11(3) — Transfer of Cause to Law Side.</p> <p>Where a bill in a federal court presents a mere cause of action at law for -damages, of which equity is without jurisdiction, a motion to transfer the cause to the law side may be made at any time before the taking of proofs.</p> <p>4. Discovery @=19 — In Equity — Bill for Discovery.</p> <p>To give equity jurisdiction of a bill as one for discovery, where it also prays for other relief, it must allege that discovery is essential to such relief.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from District Court of the United States for the Eastern District of Pennsylvania; J. Whitaker Thompson, Judge.</p> <p>Suit in equity by Deo Eeist, Incorporated, against the American Music Roll Company. From the decree, complainant appeals.</p>

Cotteral, Judge. Action by the Pollard-Campbell Dredging Company, a 'corporation, against the Board of County Commissioners of Kay County, Okl. There was judgment for plaintiff, and defendant brings error.

Action by Eugene W. Mente and Emanuel V. Benjamin, copartners trading as Mente & Co., against the De Witt Rice Mill Company. There was a judgment for defendant, and plaintiffs bring error.

B. Witmer, Judge. Suit in equity by Augustus U. Patterson, and others, as executors and trustees under the will of Roswell P. Patterson, against the Delaware & Hudson Company, in which John J. Coyne was made a party defendant by amendment. From a decree dismissing: the bill, complainants appeal.

Suit in equity by the Société Des Films Menchen against the Vita-graph Company of America and others. From a decree dismissing the bill, complainant appeals.

In "Error to the District Court of the United Steles for the Southern Division of the Southern District of California; Robert S. Bean, Judge. Action by the United States against the Atchison, Topeka. & Santa Pé Railway Company to recover for penalties for violation of the Hours of Service Act (Act March 4, 1907, c. 2939, 34 Slat. 1415 [Comp. St. 1916, §§ 8677-8680]). From the judgment, defendant brings error.

<p>1. Waters and Water Courses <@=^257(2) — Irrigation—Rates.</p> <p>Irrigation company could not complain if rate fixed by board of, county commissioners under the Colorado Constitution and statutes for the use of water was an adequate return for its services and on the value of its property, even if the board erred in its method.</p> <p>2. Waters and Water Courses <@=>257(2) — Irrigation—Rates.</p> <p>Where value of irrigation ditch was $19,375, its annual maintenance $2,000, not apportioned as to its users in Nebraska, it could not be said, that a rate of $1.83 per acre for 695 acres of Colorado land was not a reasonable return on investpent devoted to use of Colorado consumers.</p> <p>3. Waters and Water Courses <@=>257(2) — Irrigation—Rates—Reasonableness.</p> <p>Denial of irrigation company’s allegation of value of water furnished to Colorado users in Yuma county made it impossible to say that rate| fixed was not fair, even if company was entitled to payment for value of water furnished, as rate might be sufficient to include that item above re-' turn on capital applied to particular usa</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Bean, Judge. Petition by the Shipowners’ & Merchants’ Tugboat Company, a corporation, for limitation of liability. On motion of the Plammond Lumber Company, a corporation, the petition for limitation was dismissed, and petitioner appeals.

M. Morton, Judge. Jn the matter of the Leslie & Griffith Company, bankrupt. The claim of A. C. Ratshesky and others, trustees, was disallowed by the referee, on the objection of Herbert A. Whiting, trustee in bankruptcy, and claimants appeal from a decree of the District Court (230 Fed. 465), affirming orders of the referee.

Suit in admiralty for collision by R. M. Bates, Jr., owner of the motorboat Rita, against the Cornell Steamboat Company, with the barges Sunnyside, A. C. McClellan, and J, S. Nolan impleaded, William W. Aldrich and others, claimants, and the barge Intrepid impleaded, the Simmons Transportation Company, claimant. ’Decree for libelant against the Intrepid, Sunnyside, McClellan, and Nolan, and the latter appeal.

<p>1. Trade-Marks and Trade-Names <3=»73(l) — Unfair CoMPisTirrosr.</p> <p>A man has the right to use his own name in liis own business, unless there is proof of fraud or of positive confusion; and hence, where it did not appear that there was any fraud, etc., an Incorporated clipping bureau, doing business under the name of Henry Romeike, is not entitled to have defendants, one of whom was named Romeike, and the other Ruebe, enjoined from conducting a clipping bureau under the name of Romeike & Ruebe.</p> <p>On Petition to Require the District Court to Allow Defendants’ Application for Costs.</p> <p>2. Appeal and Error <g=»12()7 — Allowance—Discretion of Trial Court.</p> <p>When the decree of the trial court in an equity case is reversed or modified on appeal, with costs, the costs of the appellate court are meant, unless the mandate otherwise provides; and, the- trial court having a discretion as to costs in such cases, the application of the successful party for costs after the mandate has gone down must be addressed to the trial court.</p> <p>other cases see same topic & KJ3Y-NÜ JIBUR, in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Eastern District of Louisiana: Rufus E. Foster, Judge.</p> <p>Habeas corpus by Fee Wong Hin against John P. Mayo, Commissioner of Immigration, Port of New Orleans, and another. Judgment for relator, and defendants appeal.</p>

Libel by Timothy O’Connell against the steam tug M. Moran, her engines, etc., claimed by the Moran Towing & Transportation Company. From a decree for libelan!, claimant appeals. On a fair summer afternoon, with the tide ebb and a light south southwest wind (barely enough to give a sailing vessel steerage way), the small schooner Oakwoods went down Buttermilk Channel in tow of a tug.

<p>1. Remo vat, of Causes <g=>41 — Jurisdiction of Federad Courts — Suit by State — “Citizen.”</p> <p>A- state is not a “citizen,” and a federal court does not acquire jurisdiction by removal of a suit by a state on the ground of diversity of citizensiiip.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Citizen.]</p> <p>2. Arpead and Error <3=>1S5(!) —Jurisdiction op Federad Courts — Duty to Determine.</p> <p>On every writ of error or appeal in the federal courts, the first a.nd fundamental question is that of jurisdiction, of which the court itself must take notice, as well the jurisdiction of, the court' below as its own.</p> <p><§^5>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Bankruptcy <S=o314(3) — Provable Claims.</p> <p>That a bank which lent money to a manufacturing corporation, taking secured notes therefor, made an ultra vires agreement to accept a share of the net profits of the business, from which it received nothing, does not debar it from proving its notes against the corporation in bankruptcy.</p> <p><5£5>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Jack, Judge. Suit in equity by Towne Young, trustee in bankruptcy, against Samuel Shipman Evants, the bankrupt, and others. Decree for defendants, and complainant appeals.

Bill by the General Electric Company against the Sundh Electric Company. From the decree in equity, both parties appeal. Action is on patents to Mclver, No. 874,025 (claim 12), to White and Oariehoff, No. 969,585 (claims 7, 12 and 14), and to White, No. 969,738 (claims 1 and 19). Melver’s application was filed March 8, 1903, and letters issued December 17, 1907.

Suit by the Benjamin Electric Manufacturing Company against the Northwestern Electric Equipment Company. From a decree for complainant, defendant appeals. Appeal from decree In equity entered in the District Court for the Southern District of New York. Action is upon claims 3, 6, 12. 25, and 28 of patent 1,012,970, issued December 2G, 1911, to It, 15.

<p>1. Patents @=>129 — Suit for Infringement — Kstokpel to Deny Validity.</p> <p>If tlie assignor of a patent, estopped to deny its validity, procures a third person to furnish, money to make and sell an infringing device, or a corporal ion is organized for that purpose, such third person or corporation is hound by the estoppel.</p> <p>2. Patents <3=129 — Suit for Infringement — Effect of Estopfel to Deny Validity.</p> <p>In an infringement suit against an assignor and his privies, who are estopped to deny validity of the patent, the claims are given their prima fade scope, and evidence of the prior art is admissible only to explain any ambiguity in their language.</p> <p>8. Patents <S--»328 — Infringement—Ttre Pressure Gauge.</p> <p>Pollock patent, No. 1,220,272, for an automobile tire pressure gauge, held infringed.</p> <p>4. Patents <3=129 — Suit for Infeingementl-AVaiver of Estoppel.</p> <p>Effect of the estoppel of defendants in an infringement suit to deny validity of the patent is not waived by complainant, by introducing other patents as bearing on the question of infringement, where waiver is expressly disclaimed.</p> <p><§£^ForfcPtlier caaes see same topic & KEY-NUMBEli in all Key -Numbered Digests & Indexes</p>

<p>In Equity. Suit by the JJolian Company against the Cunningham Piano Company. On final hearing.</p>

<p>1. Statutes @=>241(1) — Criminal Statutes — Construction.</p> <p>While a criminal statute should be strictly construed, the construction shonld not rob it of force and vigor to accomplish the purpose for which it was enacted and intended.</p> <p>2. Army and Navy @=>40 — Selective Service Act — False Notarial Certificate.</p> <p>Under Selective Service Act, § 6, declaring that any person, who shall make or be a party to any false statement or certificate as to the fitness or liability of himself or any other person for military service, shall, if not subject to military law, be guilty of a misdemeanor, the making of a notarial certificate falsely reciting that doctors, whose statements were filed in support of a claim for exemption from military service, appeared before the notary, falls within the scope of the section, even though the statements by the doctors were not in themselves false.</p> <p>3. Indictment and Information @=>125(3) — Separate Offenses — Single Count — Selective Service Act.</p> <p>Where a notary appended false certificates to statements by several physicians, which were intended to be used in connection with a claim for exemption from military service, the false certification of each statement was a separate offense under the Selective Service Act, and the several offenses could not be charged in a single count of the indictment.</p> <p>4. Indictment and Information @=>125(2) — Counts—Offenses.</p> <p>Only one offense can be charged in each count of an indictment.</p> <p>5. Army and Navy @=>40 — Selective Service Act — Offenses—Indictment— ‘ ‘ Fitness” — “Unfitness.”</p> <p>Indictment charging making of false notarial certificate as to unfitness and liability of another person for military service, is insufficient to charge offense of making false statement or certificate as to fitness or liability of another person to military service denounced by Selective Service Act, § 6, the words “fitness” and “unfitness” not meaning the same thing, although a statement as to the fitness of one for military service might include facts as to “unfitness.”</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First Series, Fitness.l</p> <p>@=>For other oases see same topic & KEY-NUMBER in all Key-Numbered. Digests & Indexes</p>

Criminal prosecution by the United States against the Watson-Dur- and-Kasper Grocery Company. Hearing by the court on demurrer and stipulation of facts.

Andre Boutin was indicted for a violation of Espionage A.cf June 15, 1917, § 3. On demurrer to the indictment.

In Bankruptcy. In the matter of the voluntary petition of Reuben M. Busch. On motion by a judgment creditor to discharge a stay against the judgment which was rendered by the state court.

<p>1. Bankruptcy <@=381(1) — Proceedings—Commencement—Petitioning Creditor.</p> <p>Proceedings date from the filing of the petition in bankruptcy, and prima facie at least it is sufficient if petitioner be alleged to be a creditor on that date.</p> <p>2. Bankruptcy <@=j76(1) — Assignees—Rights of as Petitioning Creditors.</p> <p>Where a petitioner’s assignor was a creditor at .the time of the debtor’s commission of an act of bankruptcy, the assignee may join as a petitioner in bankruptcy having the same rights as his assignor, except in cases where the assignment was taken as a part of an unlawful or oppressive scheme.</p> <p>3. Bankruptcy <@=>81(1) — Petition—Assignment.</p> <p>Where one of the petitioning creditors received his claim by assignment after commission of the act of bankruptcy, it is unnecessary that a copy of the assignment be annexed to the petition.</p> <p>^r»For other casen see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Admiralty. In the matter of the wages and effects of J. II. Johnson, a deceased seaman, late of the steamship Arapohoe.</p>

<p>1. Equity <@=>279 — Amended Answer — Rejection—Denial oe Former Admissions.</p> <p>In a suit in equity an amended answer, tentatively received during trial, “more in detail,” would be rejected to the extent found to deny former admissions.</p> <p>2. Equity <@=>283 — Amended Answer — Rejection—Surprise.</p> <p>In a suit in equity an amended answer, tentatively received during trial, “more in detail,” would be rejected to the extent found to raise new issues operating as a surprise.</p> <p>3. Mortgages <§=4S(1) — General Description — Validity.</p> <p>Though a large part of the property description in a mortgage or trust deed of an irrigation company’s real and personal property was general only, it was valid.</p> <p>4: Mortgages <@=>310 — Trustee—Rights Under Bankrupt’s Trust Deed.</p> <p>Where an irrigation company’s trust deed to secure bonds, provided that lands and water rights sold by it should be released on its deposit of first lien purchase-'money notes and mortgages amounting to $42 per acre, its trustee in bankruptcy, after its default in payment of a bond installment, as to contracts for land sold, but not released, was not entitled to the sale price in excess of $42 per acre, or on payment of that amount to compel releases.</p> <p>5. Bankruptcy <@=>254 — Rights oe Trustee.</p> <p>The trustee of a bankrupt estate succeeds! to the bankrupt’s rights in the premises, subject to its liabilities, and takes its contracts, and can compel their performance, if he performs them on its part.</p> <p>6. Mortgages <@=>397 — Foreclosure—Default in Installments.</p> <p>Where an irrigation company’s trust deed to secure its bonds was an entire contract, to be performed in installments, all bonds would become due upon a default in an installment.</p> <p>7. Mortgages <@=>533 — Trust Deed — Rights of Purchasers.</p> <p>Where irrigation company’s trust deed to secure its bonds intended its sales of its lands and water rights, and that the proceeds should pay the bonds, the contracts were subject to the trust deed, and they, or the lands'subject thereto, might be sold thereunder, in which case the rights of purchasers under their contracts would survive foreclosure, and the purchaser on foreclosure would take the contracts and the lands subject thereto.</p> <p><Jxs>For other cases see same topic & KEY-NUMBER in all‘Key-Numbered Digests & Indexes</p> <p>3. Bankruptcy <@=>254 — Notes and Mortgages Belonging to the Estate —Rights of Trustee.</p> <p>Purchase-money notes and mortgages for lands sold by an irrigation company, but not released from the operation of its trust deed to secure its bonds, in the possession of its trustee in bankruptcy, who was unable to perform its contracts, were valueless, and he was required to return the notes and cancel the mortgages, and to return any collections made by him for application on the bonds.</p> <p>O. Mortgages <3=131 — -After-Acquired Property — Trust Peed.</p> <p>Where an irrigation company mortgaged its realty and personalty, including notes and mortgages and after-acquired property, and lands subject to the trust deed were sold and released as provided therein, and the company, by purchase at foreclosure sales or by conveyance and satisfaction of such notes and mortgages, was revested with title, they were covered by the trust deed.</p> <p>10. Waters and Water Courses <@=>217(2) — Irrigation Company — Sale of Water and Service — Injunction.</p> <p>Under an irrigation company’s sales of lands and water rights, amounting to a composite sale of water and service, not dischargeable without the grantees’ consent, the grantees could enjoin the company from like grants in excess of the capacity of its water supply and distribution system.</p> <p>11. Waters and Water Courses <@=217(2) — -Irrigation Company — Mortgage — Sale of Water Rights Beyond Capacity — Evidence.</p> <p>In a suit in equity between the trustee under an irrigation company’s trust deed to secure its bonds and the company and purchasers of its lands and water rights, seeking to enjoin a further sale of water lights, evidence hold not to show that the company had sold rights in excess of its supply and distribution system.</p> <p>12. Waters and Water Courses <@=256 — -Irrigation Company — Sale of Lands and Water Rights.</p> <p>Where an irrigation company contracted to deliver at its head gates, to main or branch canals, which in its judgment were most convenient to convey water through laterals to the users’ lands, not in excess of a certain amount, its judgment, if honest and consulting the convenience of users, would control, and otherwise Its judgment might b« controlled by the courts.</p> <p>other eases sec sanio topic & KEY-NUYLBEii in all Key-Numbered Digests & Indexes</p>

In Equity. Suit hy J. M. Bryan and others against D. S. Barriger and others, begun in the state court and removed to the federal court. On plaintiff’s motion to remand, together with the motion of the named defendant to quash the service of summons.

At Law. Action by tlie Hartford Fire Insurance Company against the Kansas City, Mexico & Orient Railway Company of Texas and. others, begun in state court and removed to the federal court. On motion for remand.

At Law. Action by Lena De Boe James against the Amarillo City Light & Water Company, begun in the state court and removed to the federal court. On motion to remand.

In Equity. Bill by the Amusement Syndicate Company against the El Paso Band Improvement Company. On motion to stay trial until final determination of a suit in the state court.

<p>1. Bankruptcy <8=3825 — Claims—Indebtedness as Indorser.</p> <p>Holder oC a note indorsed by a bankrupt, not due at the time of bankruptcy, but which became due before proof of claim, and on which in the meantime a payment was received from the maker, can prove only for the amount due thereon at maturity.</p> <p>2. Bankruptcy <8=>355 — Distribution of Assets — “Secured Creditor.”</p> <p>A “secured creditor” is one who directly holds as security for his debt property which would otherwise swell the assets of the bankrupt estate, or indirectly holds like property through having the debt obligation of another person who himself holds such property.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Secured Creditor.]</p> <p>other capes see same topic & KE Y-N UMBER in all Key-Numbered Digests & Indexes</p>

<p>In Admiralty. lyibel by the White Oak Transportation Company against the Boston, Cape Cod & New York Canal Company together with libels by the Canal Company against the Transportation Company, and a libel and intervening petition against the T. A. Scott Company, Incorporated.</p>

In Bankruptcy. In the matter of the bankruptcy of A. U. Brown and the community composed of A. L- Brown and Emma Brown, his wife. On motion of the petitioning and certain other creditors for confirmation of the master’s report, and exceptions to the report by the alleged bankrupts and another.

<p>1. Trade-Masks and Trade-Names @=>70(3) — Unfair Competition — What Constitutes.</p> <p>Whore complainant advertised and built up extensive trade in a sweet wine known as “Virginia Dare,” held, that the defendant’s sale of a similar wine under the name “Virginia. Belle” was unfair and that, in the absence of other considerations, defendant should be enjoined from selling its wine under the name “Virginia.”</p> <p>2. Trade-Marks and Trade-Names @=>70(8) — Unfair Competition.</p> <p>Though the use of the name “Virginia” as part of a trade-mark tor alcoholic beverages, such as whiskies, is established, that fact does not warrant defendant’s unfair use of the word to dispose of its sweet wine as complainant’s product, known as “Virginia Dare.”</p> <p>3. Judgment @=>91 — Consent Decree — Construction.</p> <p>A consent decree should be construed as If it were a contract.</p> <p>4. Evidence @^88G(1) — Parol Evidence — Judicial Proceedings.</p> <p>Where a consent decree was unambiguous, evidence of negotiations leading up to it is inadmissible.</p> <p>5. Teadb-Mabics and Trade-Names @=>97 — Unfair Competition — Consent Decree.</p> <p>A consent decree in a suit for unfair competition held to preclude defendant from selling, in competition with complainant’s wine, known as “Virginia Dare,” its own wane, under the name of “Virginia,” where the use of the word “Virginia” was bound to be unfair.</p> <p><g^Por other cases see same topic & KEY-NXJMBElt in all Key“Numt>ered Digests & Indexes</p>

<p>1. Monopolies <©=>29 — Offenses—Violation of Anti-Trust Act.</p> <p>Under the Sherman Act an unlawful agreement is the essence of the offense of combination or conspiracy, and to hold it illegal for persons in the same business and trade organization, after exchanging information and views, to act in the same way, but independently of each other, on buying, selling, or prices, would unduly extend the scope of the act and cause much confusion.</p> <p>2. MoNoimuiES <S=s>29 — Offenses—Inferences.</p> <p>An unlawful agreement, which is the essential of the offense of combination or conspiracy denounced by the Sherman Act, may be tacit as well as expressed, and its existence may be inferred, even in criminal cases, from the conduct of the parties.</p> <p>other cases sou same topic & KEY-NUMBER in all Key-NumVercd Digests & Indexes</p> <p>3. Monopolies <@=>31 — Offenses—Indictment—“Concerted.”</p> <p>An indictment charging that defendants, with certain other members of an association, unlawfully entered into a combination in restraint of trade, to be brought about by a concerted plan, held, despite the use of the word “concerted,” which often, but not necessarily, indicates an agreement, not to charge an unlawful agreement, which is the essence of the offense of conspiracy under the Sherman Act.</p> <p>4. Monopolies <@=31 — Offenses—Indictment.</p> <p>An indictment charging a combination and conspiracy to monopolize the trade in Northern onions, in violation of the Sherman Act, etc., Held sufficient to charge that defendants acted jointly and by agreement, though, not expressly so stating.</p> <p><S=For otter oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Admiralty. Suits for salvage against the British steamship Kerry Range by the Curtis Bay Towing Company, owner of the tugs Dandy and others, by the Merchants’ & Miners’ Transportation Company, owner of the tug Isis, and by the Baker Whiteley Coal Company, owner of the tugs Britannia, Chicago, and Elma, heard with suit for collision by Furness, Withy & Co., Fimited, owner of the Kerry Range, the Salvage Association, London, and the Inter-Ocean Transportation Company, Limited, against the steamship Anthony Groves, Jr.</p>

<p>In Admiralty. Dibel by Mark & Rawolle, Incorporated, against the steamship Koan Maru.</p>

<p>In Admiralty. Label by William Kuhnhold against the Compagnie Genérale Transatlantique.</p>

<p>Collision ®=»9S(2) — Vessel in Tow — Fault oe Tugs.</p> <p>A collision between a steamship and a car float, against, which the" steamship, without motive power of her own, was driven by the wind while being moved to another pier in Baltimore Harbor by two tugs, held due to the fault of the tugs; the ship having expressly asked for three tugs.</p> <p><gs»For oilier cases see same topic & KEY-NüMilDít in all Key-Numbered Digests & Indexes</p>

<p>On review of order of commissioner for the deportation of Charlie Dart as a Chinese alien.</p>

A't Daw. Action by the United States, to the use of Robert W. Yarnall, against the Southern Dredging Company and the Southwestern Surety Insurance Company. On defendant surety’s motion to-quash return of service upon it.

<p>Petition by Hor Yuk Sang for writ of habeas corpus to the Commissioner of Immigration of the Port of Boston.</p>

<p>In Equity. Suit by the Baker & Bennett Company against John C. Dettra & Co., Incorporated. On motion for preliminary injunction. Writ to issue on condition.</p>

<p>1. Deeds —Construction—Effect.</p> <p>Where, to clear up the bankrupt’s title, petitioner and her sister conveyed all their right, title, and interest to certain property, such conveyances, having been based on a valuable consideration, would carry with them any leasehold rights which petitioner might have in the land.</p> <p>2. Bankruptcy <$ — >151—Trustee~-Sai.es by.</p> <p>A trustee in bankruptcy lakes 1he right, title, and interest of the bankrupt in both real and personal property, and he cannot, by selling the property in which he asserted the bankrupt had an interest, convey a greater right than the bankrupt had.</p> <p>3. Bankruptcy <@es>288(l) — Controversies—Summary Proceedings.</p> <p>Where petitioner claimed a leasehold in lands and to own structures thereon, and an adjudication of her title would require other parties to he brought in, her summary petition to restrain the trustee from selling such lands, etc., as those of the bankrupt, cannot be granted, but that question should be left for determination in a plenary action, for petitioner might forbid the sale and notify purchasers of her interest, and such purchasers could acquire no greater rights than the bankrupt had.</p> <p><g=^E’or other cases see same topic & KISY-NUMBEK in all Key-Numbered Digests & Indexes</p>

<p>1. Seamen @=24 — Wages—Uncompleted Voyage.</p> <p>When seamen are to be paid for the voyage, generally speaking, nothing is earned, unless the voyage is completed.</p> <p>2. Seamen @=19 — Wages—Uncompleted Voyage.</p> <p>When a voyage is interrupted by perils of the sea, so that it cannot be-completed, seamen hired for the voyage are entitled to discharge, and if their services rendered have been of benefit to the vessel they are entitled to pay on an equitable basis, otherwise to no wages.</p> <p>3. Seamen @=26 — Wages—Delayed Voyage — Evidence.</p> <p>Libelants, who signed for a trip for a cargo of sand, but remained with the vessel while.she was frozen in, held, on tlie evidence, to have stayed under an agreement with the master that they should be paid, and entitled to recover on a quantum meruit.</p> <p>@=For other cases see same topic & KEY-NUMBER in all Key-Numhered Digests & Indexes</p>

Petition by Harry C. Palls for writ of habeas corpus. Writ dismissed, on the ground that the petitioner was a person “serving with the armies of the United States in the field,” and was therefore “subject to military law,” and to trial by court-martial.

<p>1. Customs Duties <§=>129 — ’“Action foe Penalty or, Fobeeitube” — Dimitati on.</p> <p>An action by the United States on bonds given by an importing agent pursuant to Kev. St. § 2787 (Cbmp. St 1916, § 5181), for failure to observe the technical requirements of that section, the duties having been paid, is one to recover a penalty or forfeiture accruing under the customs laws, and is barred in three years by Comp-. St. 19.10, § 1718.</p> <p>FRd. Note. — For other definitions, see Words and Phrases, First and Second Series, Action, for Penalty or Forfeiture.]</p> <p><@==>Eor other casos soo same topic & KEY-NX MBEÍR. in ail Key-Numbered Digests & Indexes</p> <p>2. Action @=>19 — Nature—Action for Penalty or Forfeiture.</p> <p>Whether or not an action is for a penalty or forfeiture depends on the character of thef liability sought to be enforced. If it is to recover compensation for a loss sustained by plaintiff it is not, but if the sum. claimed has no relation to any such loss, but is arbitrarily exacted for some act or omission of defendant, the action is essentially penal.</p> <p><§^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Brokers <©=324(2) — Pledges—Rights of Customer.</p> <p>Under the Massachusetts law a customer of a stockbroker, who turns over securities to him as collateral for a trading account, does not lose title to the securities and become simply a general creditor, but such securities remain the property of the customer, subject to the pledge; hence, where the broker repledged the collateral and defaulted, the customer, under familiar principles of marshaling of assets and subrogation, is entitled to any balance remaining after the sale of the collateral to satisfy the broker’s obligation.</p> <p>2. Bankruptcy <@=3152 — Trustees—Rights of — Massachusetts Rule.</p> <p>Under Bankruptcy. Act, § 47, giving the trustee the rights of a creditor holding a lien by legal or equitable proceedings, or having an execution returned unsatisfied, the trustee of a Massachusetts bankrupt takes the property of the debtor, personal as well as real, subject to whatever equitable interests existed at bankruptcy.</p> <p><g=;>For other cases see same topic & KEY-NUMBER in all Key-Numhered Digests & Indexes</p>

<p>Towage @=^12(2) — Accidents—Fault.</p> <p>Where a canal boat, with two others behind it, which, was in tow oí a cingle tug. was injured at a point where the canal crossed the Hudson river, held, that the master of the tug was negligent in attempting 1o tow the three vessels through the cross-current made by the river, and that the owner of the canal boat was also negligent in railing to use adequate care to keep his boat away from the xiier with which it collided ; hence damages should be divided.</p> <p><@s»For other casos see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Bankruptcy <@=»194(1)~Tadn for Bent — Pennsylvania Stattjto — “Equitable Execution.”</p> <p>Under Purdon’s Dig. Pa. (13th. Ed.) p. 2186, giving landlord lien for rent duo. on property on premises when taken in execution, bankruptcy of the tenant operates as an equitable execution, and the landlord is entitled to payment from the proceeds of the property.</p> <p>Rid. Note. — For other definitions, see Words and Phrases, First Series, Equitable Execution.]</p> <p>@=Foi other cases seo sacie topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Bankruptcy. In the matter of Samuel Eisenberg, bankrupt. On application to review election of trustee.</p>

In Bankruptcy. In the matter of the bankruptcy of Leslie Fdelman, bankrupt. On application by the trustee to require the bankrupt to turn over assets alleged to have been concealed. Findings of referee confirmed, and bankrupt required to turn over to the trustee certain assets.

<p>1. Bankruptcy <3=407(5) — Discharge —Ground fob Refusal — “False Statement Made fob Purpose of Obtaining Credit.”</p> <p>The giving by a bankrupt, in. payment for property bought, of a check on a bank where lie had neither money nor credit, while a false representation, was not a “false statement ® ® made * * * for- the purpose of obtaining credit,” within Bankruptcy Act July 1, 1898, c. 541, § 14b (3), 30 Stat. 550. as amended by Act Feb. 5, 1903, c. 487, § 4, 32 Stat. 797, and Act June 25, 1910, e. 412, § 6>, 36 Stat. 839 (Comp. St. 1916, § 9598), which will defeat the bankrupt’s right to a discharge.</p> <p>2. Bankruptcy <3=407(5)- — Discharge—Ground for Refusal — “Credit.”</p> <p>The word “credit,” used in Bankruptcy Act, § 14b (3), as amended by Act Feb. 5, 1803, § 4, and Act June 25, 1910, § 6, .prohibiting discharge where the bankrupt 1ms “obtained money or property on credit upon a materially false statement in writing, made * * * for the purpose of obtaining credit.” means express credit, and not, unintended credit, such as that forced upon a seller, who accepts a check upon a bank in which the purchaser has no funds.</p> <p>(Ed. Note.--For other definitions, seo Words and Phrases, First and Second Series, Credit.]</p> <p>3. Bankruptcy ©=407(1) — Refusal to Answer Questions.</p> <p>A few days before referee's hearing on objections to discharge, objectors noiiced the bankrupts to produce certain contrails, all related letters, and all accounts and bank books and canceled checks for three years before adjudication and afterwards, which bankrupts at the hearing stated they refused to do, but referee was not moved to compel production of the papers and books. Held, there was no refusal “to answer any material question approved by the court,” within Bankruptcy Act July 1, 1898, § Fib (6), because or which discharge should be refused.</p> <p>other cases see same topic & KISY-NUMDER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Northern District of Ohio; John M. Killits, Judge.</p> <p>John J. Shea was convicted of conspiracy to use the mails in furtherance of a scheme to defraud, and brings error.</p>

Killits, Judge. John J. Shea and Edward Taylor were convicted-of using the mails in furtherance of a scheme to defraud, and bring error.

Suit in "admiralty by the Pacific Mail Steamship Company against the Panama Railroad Company. Decree for respondent, and libelant ap - peals. Appeal from a decree dismissing a' libel in personam in admiralty. The libel was brought to recover damage's against the respondent for the negligent maintenance of a wharf at Balboa, in the Canal Zone, at 1lie Isthmus of Panama, on the ISth day of August, 1912.

Action at law by the United States, on behalf of and for the use of the Brown-Ketcham Iron Works, with the Sykes Steel Roofing Company, Jacob H. Shaffer, as trustee for the creditors of the Robert C. Eisher Company, the George S. Holmes Company, the Winslow Bros. Company, the Tiffany Studios, Eastman Bros. & Co., the Long Island Sand Company, and the Philip Rinn Company intervening, against John C. Robinson and the Federal Union Surety Company, impleaded with the Empire…

<p>1. Indemnity <s=> 16 — Assumption op Building Contract by Guarantor.</p> <p>Rights of a guarantor to the surety on a contract for building a courthouse, which took over the work on its abandonment by the contractor, without further agreement with the comity, are measured by the contract, and, where that: provides for payment in warrants, the guarantor cannot recover a money judgment on the theory of an implied contract.</p> <p>2. Corporations <@=>657(3) — Foreign Corporations — Compliance with Requirement's — Contractual Rights.</p> <p>Under the Constitution and statutes of Alabama, making it unlawful for any foreign corporation to transact any business in the state without having first complied with certain requirements, a corporation which has not so complied can acquire no contractual right as the result of anything done by it in that state.</p> <p>3. Courts <S>=>312(1) — Jurisdiction op Federal Courts — Butts by Assignees.</p> <p>An action by the assignee of a building contract, providing for assignment,, io recover for wont done after the assignment is not within Judicial Code, § 24(1) [Comp. St. 1016, § 001(1)1, which denies jurisdiction of suits by assignees, unless the assignor could have sued in the same court.</p> <p><@=>For other cases see same topic & KEY-NUMBBH in all Key-Numbered Digests g Indexes</p>

Forrester A. Einti and another were convicted of violating Criminal Code, § 215, and the named defendant brings error. The plaintiff in error, hereafter referred to as tho defendant, was indicted for a violation of section 215 of the federal criminal Code (Act March 4, 1909, c. 321, 35 Stat. 1130 [Comp. St. 1916, § 103S5]).

<p>Petition to Revise Order of the District Court of the United States for the Southern District of New York.</p> <p>In the matter of the Independent Machine & Tool Corporation, Incorporated, alleged bankrupt. On an involuntary petition in bankruptcy against the alleged bankrupt a receiver was 'appointed. The alleged bankrupt having been found solvent, the petition was dismissed, .and the receiver directed to turn over to the alleged bankrupt all its property, except so much as might be necessary to pay obligations incurred in performing the duties of the receivership; and the alleged bankrupt petitions to revise such order.</p>

J. Cochran, Judge. Suit in equity by the Ashland Waterworks Company against the City of Ashland and others. Decree of dismissal, and complainant appeals. The waterworks system in Ashland (a Kentucky city of the fourth class) was installed by appellant’s predecessor pursuant: to the city ordinance of .Tuly 10, 1890. The presently pertinent provisions of the ordinance follow: “Hoc;. 2.

Action by Tomas Quinones against the Ana Maria Sugar Company, Incorporated. From a judgment of the Supreme Court of Porto Rico, reversing a judgment of the district court for defendant, and rendering judgment for plaintiff, defendant appeals.

Action by the Dixon Pure Ice .Company against the Sandusky Portland Cement Company. There was a judgment for plaintiff, and defendant brings error. Suit to restrain future trespasses and to recover damages for past trespasses committed by appellant, a corporation engaged in manufacturing cement and owning land and operating its factory thereon at a point near Dixon, Ill., on the Rock river, and just above appellee’s ice fields.

<p>Appeal from the District Court of the United States for the Eastern District of Wisconsin.</p> <p>Bill by the Investment Registry, Limited, against the Chicago & 'Milwaukee Electric Railroad Company and others, consolidated with proceedings by the Western Trust & Savings Bank and others and by the P'iler & Stowell Company. From an order vacating a previous order allowing the Filer & Stowell Company to sue in the slate court, that company appeals.</p> <p>The appeal is from, an order of the District Court restraining appellant from further prosecution of an action it had commenced in the Wisconsin state court against certain i'eceivers theretofore appointed in the District Court in an action there pending, and vacating an order of the District Court authorizing the state court suit. The District Court suit was a general creditors’ MIL against the Chicago & Milwaukee Electric Railroad Company, died January 28, 1908, by the Sovereign Bank of Canada, asking for the administration of the assets of that company for the benefit of creditors, the determination of liens, and appointment of receivers, and accordingly on tlmt day receivers were duly appointed, who took possession of all the property of the railroad. The suit in the state court was brought by leave granted appellant by the District Court March 27, 3908, to bring an action in the state court against the receivers, to establish an alleged vendor’s lien on certain described real estate theretofore sold by appellant to the railroad company, and which had passed to 1-he receivers by virtue of their appointment. In the petition for leave to sue in the state court it was represented that the petitioner (appellant) had sold the real estalo to the railroad company for the sum of ¡¡>1(50,-000, which amount was unpaid, and that it was entitled to an equitable vendor's lien therefor upon the property it so sold.</p> <p>The suit in the state court was promptly begun, but shortly thereafter the receivers moved in the District, Court for vacation of the leave which had been granted to begin' the suit. The motion to vacate was denied, and thereupon the receivers filed their answer in the state court proceeding, wherein it was alleged that the railroad company had fully paid appellant the consideration for the property. Appellant then filed in the state court suit an amended complaint wherein it set up for the first time that, in purported payment of the consideraÍion the railroad company had given, it S3 (¡0,000 of its bonds of an issue of 810,000,000 theretofore given by the railroad company and secured by a mortgage upon its property, and it- was further alleged that the bonds so received by it were accepted as the result of fraudulent misrepresentations on the part of the railroad company, and it was further alleged that such entire bond issue, including the bonds so turned over to- appellant, was void because in transgression of the statute of Wisconsin which made it essential to the validity of corporate bonds that they represent in actual money or property" passing to the corporation on account of this issue, not less than 75 per cent, of fheir par value, and in such amended petition lien was asked not only upon the property conveyed, but upon the entire railroad property then in the possession of the District Court. The receivers and the trustee under the 810,000,000 mortgage filed answers to the amended petition.</p> <p>In 1908, after the filing of the amended petition in the state court, the Investment Registry, Limited, a Canadian corporation, a holder of others of these bonds, filed its bill In ihe District Court alleging default in the payment of interest on the bonds, asking foreclosure of the mortgage, and praying that the receivership then pending bo extended to include the matters which its bill involved. Shortly afterwards there was an order of the District Court consolidating these causes there pending, and in April, 1909, the trustees under the mortgage filed In the District Court their c-ross-bill in said consolidated action for foreclosure of the mortgage. In December, 1908, appellant began taking depositions in the state court suit, and this continued at intervals till February, 1910, when -the receivers presented a petition to the District Court in the alternative, asking for the vacation of the order of March 27, 3,908, giving leave to sue in the state court, or enjoining' appellant from offering evidence in the state court suit on the question of the validity of the bond issue. It seems tills petition was not passed upon, but that later, in April, 1031, the trustees under the mortgage presented their petition to vacate the order giving leave to sue the receiver in the state court, and to enjoin appellant from further prosecuting any suit to' establish its lien,’ elsewhere than in the District Court. This petition was heard in 1913, and was granted March 19, 1917. In the meantime the consolidated suits and cross-suits in the District Court had proceeded to hearing and decree, in which a sale of the property was ordered, and the sale had taken place and was approved. One of the questions litigated and determined in the District Court was that of the validity of the $10,000,000 bond issue, the decree finding it valid. The order of March 19, 1917, which is the one appealed from, vacated the previous order granting appellant leave to sue in the state court, and enjoined appellant from prosecuting'its suit there, or its claim for a lien, in any court other than the District Court, gave appellant permission to file its claim.for its alleged vendor’s lien or other claim it may have, nunc pro tunc as of March 28, 1908 (the date of commencement of its suit in the state court), and provided that' all depositions taken for use in the state court suit might be used as evidence in the District Court, and that stipulations of counsel entered into in that court would be deemed stipulations in the federal court. Aside from the taking of the depositions, no proceedings were had in the.state court ■suit.</p> <p>The decree under which the property was sold provided that the sale be made subject to the priority of various claims, which were reserved for the future consideration and determination by the court, in case any such claims should hereafter be sustained, and so far as the court shall adjudge and' decree, among them the claim of appellant</p>

Tuttle, Judge. Suits by the JSIew York Trust Company and others against the Detroit, Toledo & Ironton Railway Company, wherein receivers were appointed for defendant. Interest on six months and receivership claims by the Halley Coal Company, W. K. Tripp, and others were disallowed, and claimants appeal. These cases are here on appeal from judgments denying the right to interest on six months and receivership claims.

- In Error to the District Court of the United States for the Middle District of Tennessee; John E. McCall, Judge. Action by the National Eife & Accident Insurance Company against E. B. Craig, Collector of Internal Revenue. There was a judgment for defendant, and plaintiff brings error.

G. Haight, Judge. Suit in equity by M. H. Todd, receiver of the liquidating partnership of Walter Wood and Stuart Wood, deceased, late trading in the name, style, and firm of R. D. Wood & Co., and the Provident Fife & Trust Company and Edward R. Wood, Jr., executors under the last will and testament of S'tuart Wood, deceased, against the Florence Iron Works, Harold B. Wells, its receiver, the Camden lion Works, Heulings Lippincott, its receiver, and Walter Wood., From the…

J. Cochran, Judge. Suit by the Bickett Coal & Coke Company against the Detroit-Kentucky Coal Company and others, for specific performance of contracts and to enjoin violation of such contracts. From an order granting a preliminary injunction, defendants appeal.

<p>Appeal from the District Court of the United States for the Northern Division of the Southern District of California; Robert S. Bean, Judge.</p> <p>Three suits in equity by the United States against the Devil’s Den Consolidated Oil Company, against the Dost Hills Mining Company, and against the Universal Oil Company. From orders granting motions for the appointment of receivers (236 Fed. 973), the defendants appeal.</p> <p>These cases were heard together in the court below and have been argued and submitted together’ here. They are, in the main, alike, the real issues being substantially the same; but there are some differences, which will be pointed out. They are cases of great importance, not only by reason of the questions involved, but also because the lands in controversy are oil-producing in large quantities, and hence of great value. That the lands are mineral in character is shown, and it is conceded that the legal title thereto is in the United States, and that the defendants to the ’respective suits were at the time of their commencement in possession of the lands respectively involved in them, and were at the time extracting oil therefrom. In such circumstances the government instituted the suits, and, among other things, prayed for the appointment of a receiver in each of them, which applications the court below granted, and from which orders the present appeals were taken. The evidence upon which the orders were based has by stipulation of the parties been printed only in the record of case No. 3095. We therefore make reference to that record, as have the respective counsel in their arguments and briefs, noting only the differences that have been referred to.</p> <p>In its bill in case here numbered 3095 the government alleged that on and before September 27, 1909, the lands involved, to wit, the northwest quarter and the southeast quarter of section 30, and all of section 32, of township 26 south, range 21 east, Mt. Diablo meridian, were parts of the public domain, of which the United States has ever since been the owner and entitled to tlio possession, including all oil, petroleum, gas, and oilier minerals therein contained; that on the said 27th day of September, 1909, the President. under the authority legally vested in him, withdrew and reserved the said described tracts, together with other lands, from mineral exploration and from all forms of location, occupation, entry, or disposal under any law of the United States; that nevertheless, and in violation of law and of such action of the President, the defendants Lost Hills Mining Company and Universal Oil Company entered upon and took possession of the said specifically described tracts, “long subsequent to the 27th day of September, 1909, but not prior thereto, for the purpose of prospecting and exploring for petroleum and gas therein, and did so prospect and explore long subsequent to the date on which said lands were withdrawn, as hereinbefore mentioned, by said withdrawal order of September 27, 1909.”</p> <p>The bill also alleges that none of the defendants had discovered petroleum, gas, or other minerals in the lands before their withdrawal, and that neither of thorn, nor any one under whom they claim, was at the date of such withdrawal n bona fide occupant or claimant of any of the land, or in the diligent prosecution of work leading to the discovery of oil or gas therein, and that neither of them, after the dates of their respective alleged entry thereon, “and after beginning the prosecution of the work of drilling for oil and, gas, iu violation of the order of withdrawal of September 27, 1909, continued in the.diligent prosecution of such work till oil or gas was discovered”; that long after the withdrawal of the lands as alleged, “to wit, on the 29th day of July, 1910, and not before that date, as plaintiff is informed and believes,” the defendant Lost Hills Mining Company discovered petroleum therein, and since that date it and the defendant Universal Oil Company have drilled numerous wells thereon, and have, in violation of the rights of the complainant, and to its great and irreparable damage, and to the great and irreparable injury to the said described lands and other lands of the government, extracted therefrom large quantities of petroleum and gas, the exact amount and value of which the complainant is unable to state, all of which the defendants have sold and converted to their own use; that the said named defendants are continuing to unlawfully extract such oil and gas, to the irreparable injury of the lands, and that each of them “claims some right, title, or interest to said land, or some part thereof, or in the petroleum or gas extracted therefrom, or in or to the proceeds arising from the sale of such petroleum, or through and by purchase thereof, and each of said claims is predicated upon, or derived directly or mediately from, some pretended notice or notices of mining locations, or otherwise, and by conveyances, contraéis, or liens directly or mediately from the persons by whom such pretended locations; are claimed to have been made. But none of such location notices and claims is valid against this plaintiff, and no rights have accrued to the defendants or any of them thereunder, either direolly or mediately, nor have any minerals been discovered on said land, except as hereinbefore the. ted: lmt said claims are asserted to cast a cloud upon the title of the plaintiff herein, and wrongfully interfere with its operation and disposition of said land, to the great and irreparable damage of said plaintiff, and to the great and irreparable injury of said land, and the plaintiff herein is without redress or adequate remedy save by this suit, and tills suit is necessary to avoid a multiplicity of actions.”</p> <p>The next allegation of the bill is as, follow's: “Except as in this bill slated, the plaintiff has no other knowledge or information concerning the nature of any other claims asserted by the defendants herein, or any of them, and therefore loaves said defendants to set forth their respective claims and interests. In that behalf plaintiff alleges, because of the premises of this bill, that nono of the defendants has or ever had any right, title, or Interest in or to, or any lien upon, said land or any part thereof, or any right, title, or interest in .or to the petroleum, mineral oil, or gas deposited therein, or any right to extract petroleum, gas, or other minerals from said land, or to convert or dispose of the petroleum or gas so extracted, or any part thereof; on the contrary, the acts of these defendants who have entered upon said lands and drilled oil and gas wells thereon, and used and appropriated the petroleum deposited therein, and assumed to sell and convey any interest in or to any part of said lands, or any part of the petroleum extracted therefrom, were all in violation of the laws of the United States and of the aforesaid order of withdrawal, and all of said acts are in violation of the rights of the plaintiff herein, and such acts interfere with the execution by the plaintiff of its public policies with respect to said lands and the petroleum and gas therein as hereinbefore set forth.”</p> <p>After alleging the value of the lands involved, in the suit to exceed $1,000,-000, the prayer is in substance that the defendants and each of them bo required to disclose and state their respective claims; that they and each of them be adjudged to have, no estate, right, title, or interest in any of the lands involved, or in the contents thereof, and that all of the said property be decreed to be the property of the complainant, free and clear of any ¿aim on the part of either of the defendants; and that all of them be enjoined from asserting any right, title, interest, claim, or lien on any of the said property, and that each of them, and all of their officers, agents, servants, and attorneys, during the progress of the suit, and thereafter, finally be enjoined from going upon any portion of the said land in controversy, and from in any manner using or extracting, therefrom any of its. contents, and from in any manner committing any trespass or waste thereon, and for an accounting and for the appointment of a receiver to take possession of all of said specifically described land, and of all wells and other property thereon, “with full power and authority to continue the operations on said land in the production and sale of petroleum and other minerals, where such course is necessary to protect the property of the complainant against injury and waste, and for the preservation, protection, and use of the oil and gas in said land, and the wells, derricks, pumps, tanks, storage vats, pipes, pipe lines, houses, shops, tools, machinery, and appliances being used by the defendants, their officers, agents, or assigns, in the production, transportation, manufacture, or sale of petroleum or other minerals from said land or any part thereof, and that such receiver may have the usual and general powers vested in receivers or courts of chancery.”</p> <p>Subsequently the bill was so amended as to describe the lands involved as the northwest quarter and the southeast quarter of section 30, and the northeast quarter and west half of section 32, all in township 26 south, of range 21 -east, Mt. Diablo meridian.</p> <p>The answer of the defendants, after specifically denying various allegations of the bill, set up as a further and separate defense that on the 13th day of February, 1907, eight specifically named individuals, all of whom it alleged were then citizens of the United States, entered upon and took possession of the northwest quarter of the said section 30, and duly located the same under the laws of the United States relating to placer mining claims, a notice of which location was thereafter duly filed in the office of the recorder of the county in which the land is situated, since which time the said piece of land has been in the actual, peaceable, open, notorious, continuous, exclusive and undisputed possession of the defendant Lost Hills Mining Company and its predecessors in interest', the aforesaid locators, and that during each year since its location more than $100 has been expended in its development, and that during all of the said time the said defendant and its predecessors in interest were in the diligent prosecution of work leading to the discovery of oil thereon, and which actually resulted in the discovery of oil by means of a well drilled at the cost of over $5,000, which produced at least 200 barrels per day; that the said defendant and its predecessors in interest also discovered upon the said land extensive and valuable deposits of gypsum, of good commercial quality, that has been opened up and developed at an expense of over $600, and that prior to and on the date of the order of withdrawal made by the President, and prior to andi at the time of the passage of the act of Congress of June 25, 1910, known as the Pickett Act t36 Stat 847, c. 421 [Comp.. St. 1916, §§ 4523,-4525]), and ever since and continuously, the said defendant has been and now is a bona fide occupant and in the exclusive possession of the said piece of land under a bona fide claim thereto by virtue of the said location and work and that long, prior to'the commencement of the suit the said defendant made due application in the proper land office of the United States for a patent to the said piece of land, pursuant to the provisions of the Revised .Statutes, and that: after due proceedings had in the land office, as specifically set out in the answer, the said defendant was by the officers of the local land office allowed to purchase the said piece of land, and paid therefor the full price fixed by law therefor, receiving the receipt in duplicate of the receiver, numbered 679,643, and dated February 24, 191.2, whereupon the register and receiver allowed the entry and forwarded one of the duplicate receipts with the entire record, to the Commissioner of the General Land Office for his examination and approval; that subsequently, and pending the application for the patent, charges on the part of the government were filed in the General Land Office, based upon the grounds of a lack of diligent work on the pari of the applicants looking to the discovery of oil, and niton the alleged lack of discovery within the proper timo, and in casos Nos. 3095 and 3096 on a lack of good faith respecting the claim to the discovery of gypsum, and in case No. 8091 on the further ground of a lack of good faith on the part of the locators of the ground involved in that case.</p> <p>Similar proceedings are alleged respecting the other pieces of land involved in cases 3095 and 3080, except that in ease numbered 3096 the bill alleged that the application for patent to the land therein involved was not filed in the local land office until about 25 days after the commencement of the suit, and that, the statutory time for advertising not having passed, no receiver’s receipt had then been issued, and in case No. 3094 the bill makes no reference to gypsum. The answers in the several cases further pleaded a lack of jurisdiction in the court to try and del ermine the matters alleged in the bills of complaint, or the title to the lauds (herein described, or the right of the defendants to their contents.</p> <p>On the hearing of the applications for the appointment of a receiver In the several cases, a large amount of evidence was introduced, both on the part of the government and the defendants to the suits, including copies of all of the proceedings in the Land Department relating to the applications for patents, and showing that those proceeding's are still pending and undetermined in the Land Department, although partly there heard upon evidence of the respective parties, which evidence remains unconcluded — -respecting which ponding proceedings there was entered into between the respective partios a stipulation which is in part as follows:</p> <p>"The following facts, data, and documents hereto attached and made a part of this stipulation are hereby stipulated, by and between the respective counsel in the above-entitled action, to be correct copies of the originals, and that the copies of any documents hereto attached are to be taken the same as if the originals were hereto attached. It is furthermore stipulated that, upon any proceedings in the above-entitled action in court, the facts, matters, data, and documents hereto attached, and. which are stipulated to he correct and true copies of the originals, may he introduced by either jwrty the same as if the originals were offered, and with the same force and effect thereof, but subject to objections of counsel as to their relevancy and materiality. Attached hereto, and marked ‘Exhibit A,’ and made a part of this stipulation, is a copy of all the papers filed by the Lost Hills Mining Company, one of the defendants herein, in mineral entry No. 03431, upon the application of said company for a patent covering the northwest quarter (N. W. y¿) of section thirty (30), in township twenty-six (26) south, range twenty-one (21) east, M. D. B. '& M., Korn county, California containing one hundred and sixty (160) acres. Attached hereto and marked ‘Exhibit B,’ and made a part of this stipulation, is a copy of all of the papers filed by the Lost Hills Alining Company, one of the defendants herein, in mineral entry No. 03482, upon the application of said company for a patent covering the southeast quarter (S. E. %) of section thirty (30) in township twenty-six (261 south, range twenty-one (21) east, i£. D. B. & M., Kern county, California, containing one hundred and sixty (160) acres. Attached hereto, and marked ‘Exhibit O’, and made a part of the stipulation, is a copy of all of the papers filed by the Lost Hills Mining Company, one of the defendants herein, in mineral entry No. 03457, upon, the application of said company for a patent covering the northeast quarter (N. B. j4) of section thirty-two (32), in township twenty-six (26) south, range twenty-one (21) east, M. D. B. & M., Kern county, California, containing one hundred and sixty (160) acres. Attached hereto and marked ‘Exhibit D,’ and made a part of this stipulation, is a copy of all of the papers filed by the Lost Hills Mining Company, one of the defendants herein in mineral entry No. 03459 upon the application of said company for a patent covering the southwest quáyter (S. W. %), of section thirty-two (32), in township twenty-six (26) south, range twenty-one (21) east, M. D. B. & M., ICem county, California, containing one hundred and sixty (160) acres. Attached hereto, and marked ‘Exhibit E’ and made a part of this stipulation, is a copy of all the papers filed by the Lost Hills Mining Company, one of the defendants herein, in mineral entry No. 03448, upon the application of said company for a patent covering the northwest quarter (N. W. *4) of section thirty-two (32), in township twenty-six (26) south, range twenty-one (21) east, M. D. B. & M., Kern county, California, containing one hundred and sixty (160) acres.</p> <p>“It is furthermore stipulated that the following is a true and correct copy of a letter of the Commissioner of the General Land Office, dated Washington, November 29, 1915, clear-listing the southeast quarter (S. E. %) of section thirty-two (32), township twenty-six (26) south, range twenty-one (21) east, M. D. B. & M., containing one hundred and sixty (160) acres, Kern county, California. * * * ” The letter of the Commissioner referred to In the stipulation was addressed to the Chief of Division N, and is .in part as follows: “Sir: December 2, 1911, the Lost Hills Mining Company made mineral application No. 03458 for the Fog Horn placer mining claim, embracing the S. E. % of section 32, township 26 south, R. 21 E., M. D. M. The said land was included in petroleum reserve No. 13, by executive order of October 7, 1910. No other existing withdrawals affect this land. There has been received in the record reports by special agents and a mineral inspector of this office, in which it is shown that the tract is petroleum bearing in character, and has been developed to a state of high production of this mineral. The claim was located February 14, 1907, by O. D. Barton, W. B. Wallace, Sarah McCord, C. A. Butts, Hugh McPhaill, A. Levis, R. O. Hardin, and A. H. Murry, Jr. At the same time these persons, with 28 others, also located some 22 other tracts in the vicinity. Some two years or more after location the said locators organized the Lost Hills Mining Company, a corporation, the present applicant. The several locations were transferred to the said corporation, each interested person receiving his proportionate share of the stock issued. It thus appears that there exists no reason for questioning the good faith and regularity of the said Fog Horn location. * * * ”</p> <p>It -was that quarter section, thus clear-listed by the Commissioner, that was dropped from the bill of complaint by the amendment thereto that has been mentioned.</p>

<p>1. Appeal and Error @=>1008(1) — Review—Findings.</p> <p>A finding of the trial court as to the size and age of a seaman, who testified at the hearing on a libpl in personam for personal injuries, will ho deferred to on appeal.</p> <p>2. Shipping @=>166(1) — Passengers—Negligence.</p> <p>Where a woman passenger fell in stepping from the platform of a ship's eompanionway into a lifeboat, though both the ship and boat were practically motionless, held, that failure to place a seaman in the boat, or to provide the platform with devices to be grasped, was not negligence; nor was it negligence for a' seaman, who steadied the passenger when she began the step, to let go before she placed her foot on the thwart of the lifeboat.</p> <p>3. Shipping @=>166(1) — Passengers—Care.</p> <p>If a woman passenger, whose appearance did not indicate that she was unable to control her balance as a normal person, desired extra assistance in stepping from a eompanionway of a ship into a lifeboat, the ship and boat being practically motionless, she should request additional assistance.</p> <p>Rogers, Circuit Judge, dissenting.</p> <p><§ — >For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

I'. Johnson, Judge. Suit for injtmction by the Standard Fashion Company against the Magrane Houston Company. Decree for defendant, and plaintiff appeals. Affirmed, reserving to plaintiff the right Id make application to the District Court under equity rule 22 (198 Fed. xxiv, 115 C. C. A. xxiv), to transfer its suit to the law side.

<p>1. Collision <3=91 — Meeting Vessels Coming Around Bends — Channel.</p> <p>Vessels bound, respectively, in and out of Harlem River, when rounding Horn’s Hoolc, cannot be assumed to be on crossing courses, but should follow the meeting rules, which normally require each vessel to pass port to port.</p> <p>2. Collision <3=91 — Meeting Vessels — Liability.</p> <p>Where a steam tug coming downstream in the Harlem River, on meeting another vessel rounding Horn’s Hook, proposed a starboard to starboard crossing, instead of the ordinary passage port to port, held, that the tug undertook the risk of the venture, and the vessel’s assent did not relieve her; hence, where a collision resulted, the tug must be deemed at fault.</p> <p>3. Collision <3=90 — Speed in River.</p> <p>For a yacht to proceed at a rate of 15 miles an hour in the Harlem River, in the midst of confined and dangerous waters, around a point which obscured the view of other vessels, is improper, and in case of a collision the yacht must be deemed at fault.</p> <p>4. Collision <3=98 — Backing Signal.</p> <p>Where a yacht, on meeting a tug with a tow, assented to the tug’s proposal for a starboard to starboard crossing, which necessitated the yacht’s backing or passing under the stem of the tow, held that, as the yacht attempted to hack, it was in fault for failure to give the backing signal, under Navigation Rules, art. 28 (Comp. St. 1916, § 7867).</p> <p><§z^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Petition in equity in the nature of bill to quiet title by Arthur T. Holmes, trustee in bankruptcy of Earl J. Mahoney, bankrupt, against the Story & Clark Piano Company. From decree for complainant, defendant appeals.

Woodrough, Judge. - Suit in equity for injunction by the Woodlawn Trust & Savings Bank and others against Drainage District No. 2 of Dakota County, Neb., and others. Decree dismissing the suit, and plaintiffs appeal.

<p>Bill by the Harris & Stevens Corporation, and another against Tarr & McComb, Incorporated. From a decree dismissing the complaint, complainants appeal.</p> <p>This is an appeal from a decree sustaining a motion to dismiss the complaint. The appellants here were plaintiffs in the court below, and the appeliee was defendant. The bill alleges that the suit is between citizens of different stares, the plaintiffs being respectively a Oalii'omia corporation and the manager thereof and a stockholder therein, a citizen of California, while the defendant is an Arizona corporation; that on tile 20th of March, 3917, and for a long time prior thereto, the plaintiffs were in the possession of and operaUng two certain pieces of oil-producing property in Kern county, Cal., under leases from the owners; that on the 2-lth of July, 1915, the plaintiffs had entered into a written contract with the defendant for the sale to defendant of the entire production of crude oil from these leaises, during the life of said leases, for the sum of 30 cents per barrel f. o. b. cars at point of production, it being provided, however, that the defendant need- not take said oil in the event that it should not be able to sell said production for said price at or upon said property; that on the 4th of October, 1916, for the purpose of securing the payment of certain advances and payments of money made and to be made to plaintiffs by defendant, the plaintiffs assigned said leases to defendant; that thereafter, and early in the year 1917, plaintiffs became indebted to sundry parties in about the sum of $40,000; that the said parties were demanding immediate payment thereof and threatening suits for the enforcement of payment; that on the 12th of March, 1917, the plaintiffs and defendant, and all of the creditors of plaintiffs, with the exception of throe (whoso claims represented a' total of $3,000), entered into an agreement providing that the defendant should thereafter take all the oil produced by plaintiffs at the market price, less 22% cents per barrel to be retained by it for inarigsting charges, paying over all moneys above the 22% cents per barrel to the Citizens’ National Bank of Los Angeles; that in said agreement it was further provided that plaintiffs should assign to said bank all accounts receivable, and that said bank would disburse soch moneys received, for payment of operating expenses, and in pro rata payments to the respective creditors; that the said creditors agreed to extend the time of payment of their respective claims for a certain period, upon the payment of $6,000 or over at certain stated times, until their said claims, were paid in full, with 7 per cent, interest thereon.</p> <p>It was further provided in the agreement that, unless all the creditors of the plaintiffs should execute the agreement on or before the 20th day of March, 1917, the agreement should bo null and void and all the parties thereto should be released of all liability thereunder; that thereafter, and shortly after the 21st of March, 1917, the three creditors, with elaimls aggregating $3,000, who had refused to enter into said agreement, threatened to commence suits against plaintiffs for tlio recovery of their claims, and levy attachment upon plaintiffs’ property, and thereupon plaintiffs, for the purpose of protecting the interests of the creditors who had signed said agreement, and the interests of the plaint! Ills in said property, surrendered to the defendant the possession of said leased property, and that defendant represented to and agreed with plaintiffs that it would take and receive possession of the said real and personal property, and hold and operate the same for the, benefit of plaintiffs and the said creditors who had signed the agreement above mentioned, dated March 32, 1917; that the said defendant has from time to time rendered to the said Citizens’ National Bank statements showing receipts and expenditures from tiro operation of said properties, and has paid the said bank certain sums of money to be disbursed to said creditors in partial payment of their claims, and that the said bank has so paid said money to said creditors.</p> <p>Plaintiffs pray for a decree establishing the -title and ownership of the plaintiff Harris & Stevens Corporation as lessee in said leasehold, and right to and immediate possession of said property thereunder, that the said real and personal property were received by and have since bison held by the defendant in trust for plaintiffs, and that said trust is now terminated, for an accounting-from defendant of all rents, income, or profits drived from said property, and for an injunction permanentlj' refetraining defendant from asserting any right or title in or to the said property.</p> <p>The defendant moved the court to dismiss the complaint, on the grounds: (1) Of want of jurisdiction, because no diversity of citizenship existed, as certain indispensable parties defendant, to wit, certain creditors of plaintiffs and the trustee for said creditors, were citizens of the same state as plaintiffs;</p> <p>(2) misjoinder of parties plaintiff, in that plaintiff C. O. Harris is not interested in the subject-matter of the suit, and not entitled to any of the relief sought; (3) insufficiency of fact to constitute a cause of action in equity against the defendant; and (4) nonjoinder of indispensable parties, to wit, tbe creditors of plaintiffs, the trustees for said creditors plaintiffs and defendant, and the lessors of the leases set out in the complaint.</p> <p>The court below granted the motion to dismiss, on all grounds stated, and decree was made accordingly. ’ From that decree the plaintiffs have appealed.</p>

<p>Appear and Error @=>866(3.) — Review- -Action on Motions to Direct Verdict.</p> <p>Wtficre both parties moved court to instruct verdict, thereby affirming there was no disputed question of fact, and necessarily requesting-court to find the facts, they are concluded by finding made by trial court, and appellate court is limited, in reviewing its action, to consideration of correctness of finding on law, and must, affirm, if there is any supporting evidence.</p> <p>other caaes seo same topic Sr KEY-NUMIlEit in ail Key-Numbered Digests & Indexes</p>

<p>1. Brokers <3^>67(2) — Commissions—Acting for Both Parties — Knowledge.</p> <p>Where, in negotiations for sale of a corporation's property, which its officers were authorized to make, they and the customer knew that the intermediary was acting for both parties, his light to recover commissions of the buyer is not affected by the contract taking the form of a sale of all the capital stock, and one of the stockholders not knowing of the dual agency.</p> <p>2. Appeal and Error <&=»27-1(5) — ‘Reservation of Grounds oe Review— Sufficiency of Exception.</p> <p>Exception to the charge submitting the theory that if plaintiff was a mere middleman, without any agency duties, ho might recover commissions of the buyer, even if the sellers did not know of his compensation agreement with, the buyer, being apparently intended only to challenge the rule of law announced, does not authorize review of the charge as unauthorized by the evidence.</p> <p>3. Brokers (gs=>67(2) — Commissions from Both Parties.</p> <p>One may be such a mere middleman or broker as to be entitled to commissions from both sides under agreements therefor not known by both parties, though Ms duties do not pertain merely to bringing forward one .particular and specific buyer or seller.</p> <p><£^>For other casos see same topic & TOJY-NUMUKU in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the District of New Jersey; J. Warren Davis, Judge.</p> <p>At Law. Action by Robert J. McKibben against the Philadelphia & Reading Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Obiminal Law <§=>722% — Tsial—Argument.</p> <p>In a prosecution under Harrison Drug Act Dec. 17, J914, (Comp. St. 1916, §§ 6287g-6287q), the indictment not charging defendant’s attempt to bribe an officer, and there being no evidence thereof, or as to defendant’s character, except on defendant’s cross-examination, it was improper for the prosecuting attorney in argument to comment on the fact that defendant, long after the offense was committed, had offered money to an officer if the latter would defer the arrest.</p> <p>ii. Criminal Law <§=>369(1) — Evidence—Other Offenses.</p> <p>Id a prosecution under Harrison Drug Act Dec. 17, 1914 (Comp. St. 1916, §| 6287g-6287q), the question whether defendant, months after the alleged commission of the offense, had attempted to bribe an officer to defer Ills arrest had no tendency to prove or disprove the offense charged.</p> <p>3. Witnesses <§=>277(4) — Cross-Examination—Scope.</p> <p>In a prosecution under Harrison Drug Act Dee. 17, 1914 (Comp. St. 1916, §§ 6287g-6287q), wherein defendant had not testified in Ms examination in chief as to his aileged offer to bribe an officer to delay his arrest, questions relative thereto were not proper cross-examination.</p> <p>^5»For other cases sec same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In the matter of the bankruptcy of the estate of the Gilmore-Thayer Company. Beach W. Maguire, trustee, filed objections to the claim of the Lehigh Valley Coal Sales Company. Brom a decree sustaining the trustee’s objection, the Coal Sales Company appeals.

<p>In Error to the District Court of the United States for the Western District of Pennsylvania; W. H. Seward Thompson, Judge.</p> <p>Action at law by Mike Pshonko against the Republic Iron & Steel Company. Judgment for plaintiff, and defendant brings error.</p>

Suit by August J. Oehring and the Pratt & Whitney Company against the Fox Typewriter Company. From a decree for complainants for part of the relief sought, defendant appeals, and complainants cross-appeal. Appeal from final decree dated November 28, 1916, awarding to plaintiff $11,053.35 profits made by defendant by its infringement of United States letters patent No. 560,171 of May 12, 1896. The interlocutory decree held claim 1 valid.

<p>Appeal from the District Court of the United States for the Southern District of Ohio; John E. Safer, Judge.</p> <p>Suit in equity by Daniel B. Uuten against William F. Whittier and others. Decree for defendants, and complainant appeals.</p>

Dickinson, Judge. Suit in equity for infringement by the Motion Picture Patents Company against the Calehuff Supply Company, Incorporated. From a decree (248 Fed. 724) dismissing the hill on final hearing, plaintiff appeals.

<p>Appeal from the District Court of the United States for the Northern Division of the Southern District of Illinois.</p> <p>Suit by the Portable Wagon Dump & Elevator Company against Camp Bros. & Co. From a decree for complainant, defendant appeals.</p>

<p>1. Patents <§=238 — Infringement—Substitution of Equivalents.</p> <p>If defendant shows the deletion of one element, without substitution, it escapes infringement, notwithstanding plaintiff be something of a pioneer, and as such entitled to a considerable range of equivalents.</p> <p>2. Patents <§=328 — Infringement—Essential Elements.</p> <p>Boenning patent, No. 709,864, claims 4, 5, 10, 12, and 15 for a machine for edge-uniting veneers is so far basic as to be entitled to lay claim to the essential so-called feeding parts of both the Black patent No. 1,010,846, and defendant’s machine, manufactured substantially in accordance with its teaching, and to entitle plaintiff to a decree restraining infringement and for an accounting.</p> <p>3. Patents <§=328 — Anticipation—Machine fob Edge-Uniting Veneers.</p> <p>Boenning patent, No. 709,864, for a machine for edge-uniting veneers, held not anticipated, as the prior devices were in another art.</p> <p>4. Patents <§=328 — Infringement—Substitution of Equivalent Parts.</p> <p>Black patent, No. 1,010,846, for a machine for edge-uniting veneers, and defendant’s machine, manufactured according to its teaching if possessed of invention, make only minor-improvements on the Boenning patent, No. 709,864, claims 4, 5, 10, 12, and 15, and do not eliminate one element of that patent without providing a substitute.</p> <p>cgz^For other cases see same topic & KEY-NUMBER, in all Key-Numbered Digests & Indexes</p>

Appeal and Cross-Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois. Suit by the Consolidated Rubber Tire Company and the Rubber Tire Wheel Company against the B. F. Goodrich Company. From the decree (237 Fed. 893), which was for part only of the relief sought, defendant appeals and complainants cross-appeal.

<p>Appeal and Cross-Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Suit in equity by the Consolidated Rubber Tire Company and the Rubber Tire Wheel Company against the Republic Rubber Company. Prom a decree (237 Fed. 893) overruling exceptions to report of master, defendant appeals, and plaintiffs cross-appeal.</p>

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Suit by Wolf, Sayer & Heller, Incorporated, against the U. S. Slicing Machine Company. Decree for defendant (243 Fed. 410), and complainant appeals.</p>

<p>Patents <§=3328 — Validity and Infringement — Rind-Removing Attachment.</p> <p>The Stiles patent, No. 1,028,790, for a rind-removing attachment for meat-slicing machines, held, valid and infringed.</p> <p>or other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Suit by the A. Mecky Company against the Carton Toy Company. From a decree for complainant, defendant appeals. Suit to enjoin future infringement of claim 3 of patent No. 1,021,476, granted March 26, 1912, to appellee as the assignee of one William T. Pursglove.

<p>In Equity. Suit by the Sandusky Foundry & Machine Company, a corporation, against D. Sendaud De Favaud and others. On motion, to dismiss.</p>

<p>1. Patents @=>26(2) — Combination of Old Elements.</p> <p>That elements entering into mechanical combination, considered apart from each other, are old and well known, does not negative patentability, where, through inventive faculty, they are assembled so as to produce a new and useful result; the same being true of the various steps entering into a patented process.</p> <p>2. Patents @=>32 — Resolution of Doubt in Favor of Patentability.</p> <p>Where extreme importance of raising sulphur from great depths to surface of ground was widely recognized prior to an invention, yet the inventor alone achieved the result, the law requires that whatever question may exist as to the patentability of his improved apparatus and process, so far as consistent with reason, should be resolved in favor of patentability.</p> <p>3. Patents @=>328 — Novelty—Sulphur Mining.</p> <p>Prasch patent's, Nos. 799,642 and 800,127, for fusing sulphur under ground and raising it to surface in that condition, by means of an air lift pump, in combination with other elements entering into patented combination, held valid and not anticipated.</p> <p>4. Patents @=>328 — Patentable Novelty — Sulphur Mining.</p> <p>Frasch patent, No. 1,008,319, claims 7, 26, and 28 covering apparatus and process for mining sulphur, by fusing it underground and raising it to surface in that condition, held devoid of patentable novelty; new use of old device in connection with sulphur, instead of salt, oil, or other liquid, not conferring patentability.</p> <p>5. Patents @=>109 — Application—Allowance of Amendment.</p> <p>Action of Patent Office, in allowing amendment of application for patent by addition of claims within scope of invention disclosed in original application, was proper.</p> <p>6. Patents @=>109 — Amendment of Application — Prior Public Use.</p> <p>Amendment of application for patent, to add claims within scope of invention disclosed in original application, related back to time of filing of original application; and that claims may be defeated by two years’ prior public use, such use must have extended over at least two years before filing of original application.</p> <p><@=For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>7. Patents <@=>75 — 'Experimental Use as “Public Use.”</p> <p>Experimental use is never “public use,” within the meaning of the statute, if conducted in good faith to test the qualities of the invention, and for no other purpose not naturally incidental.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Public Use.]</p> <p>8. Patents <@=>283(1) — Expired Patents — Infringement.</p> <p>If the sulphur mining apparatus and process employed by defendants were the apparatus and process of old expired patents, and nothing more, the charge of infringement cannot be sustained.</p> <p>9. Patents <@=>40 — Patentability—-Necessity for Improvement.</p> <p>An invention may be patentable as possessing utility in the sense of the law, though an improvement may be necessary to its commercial success..</p> <p>10. Patents <@=>328 — Validity, Anticipation, and Infringement — Sulphur Mining.</p> <p>Claims 2, 3, 6, 12, 19, 21, and 22 of Frasch patent, No. 799,642, and claims 2, 3, 7, 11, and 24 of Frasch patent, No. 800,127, both covering apparatus and process for mining of sulphur by fusing it underground and raising it to surface in that condition, claims relating to air lift, double delivery of hot water, and forcing of hot water through walls of mine cavity, held valid, not anticipated, and infringed.</p> <p>11. Pleading <@=>327 — Suit for Infringement — -Bill of Particulars — Ef- - JTECT.</p> <p>In suit for infringement of patents, where plaintiff voluntarily furnished bill of particulars, which stated particulars were given without waiving right to rely on any infringing acts, no exception or objection having been taken to reservation, plaintiff, on question of infringement, is not restricted to defendants’ wells — patents covering apparatus and process for mining sulphur by fusing it underground and raising it— mentioned by number in bill of particulars.</p> <p>12. Patents <@=>227 — Infringement—Knowledge of Infringer.</p> <p>An infringer of patents is chargeable with knowledge of the infringing acts.</p> <p>13. Patents <@=>312(3) — -Infringement—Responsibility for Acts of Qtiier' —Sufficiency of Evidence.</p> <p>In suit for infringement of patents covering apparatus and process for mining sulphur by fusing it underground and raising it in that condition, evidence held to prove beyond all reasonable doubt the responsibility of one defendant for infringing acts on the part of the other.</p> <p>14. Patents <@=>287 — Infringement—Liability for Other Company.</p> <p>Community as to officers, directors, and stock is not of itself sufficient to render one company liable for acts of infringement of ^patent committed by another company on the premises occupied by it.</p> <p>15. Patents <@=>287 — Agency—Joint Infringement.</p> <p>The doctrine of agency applies to patent infringements; also the principle that one doing an act which naturally causes another to commit an infringement is responsible for it; further, that where several persons co operate in acts of infringement, they are joint tort-feasors and as such jointly and severally liable in solido.</p> <p>16. Patents <@=>283(1) — -Infringement—Payment ov Cost.</p> <p>The circumstance that another person pays the cost of an infringelnont of patent can never serve as justification to the infringer.</p> <p>17. Patents <@=>312(3) — Infringement—Lack of Expert Testimony.</p> <p>In suit for infringement of patents, where plaintiff in prima facie case introduced large volume of competent and convincing evidence as to nature and operation of apparatus and process of patents, its failure to produce any patent expert witness does not prevent court from rendering decision, if in its discretion it feels sufficient testimony has been adduced.</p> <p><g=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Bankruptcy <®=^184(2) — Trustee—Rights op.</p> <p>Where a creditor.of a New Jersey bankrupt did not file an unrecorded conditional sale agreement until after the filing of the petition, such agreement was void as against the trustee in bankruptcy, for 2 Comp. St. N. J. 1910, pp. 1561-1563, makes such agreements void as against judgment creditors not having notice, and the status of the trustee as a creditor holding a lien by legal or equitable proceedings given by Bankruptcy Act, § 47a2 (Comp. St., 1916, § 9631), is fixed by the filing of the petition,, and not adjudication; this being so despite section 70a (Comp. St. 1916, § 9654).</p> <p><@^Foi other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Gabatsiiment ©=>22 — -Persons Subject to Garnishment — Óodeítandants.</p> <p>Under Rev. Laws! Mass. c. 189, § 1, providing Ihal “any person or corporation nmy 1)0 summoned as trustee of the defendant,” one of a. number .of defendants jointly sued in tort may also be summoned as trustee of any or all of the others.</p> <p>«§=>For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Bankruptcy. In the matter of J. S. Neuman, bankrupt. On objections to bankrupt’s discharge.</p>

<p>Collision <g=^>Tl(2) — Steamer Entering Slip and Moored Vessel — Fault.</p> <p>A collision between a steamer, being warped into a slip with, her own steam and the help of two tugs, under direction of tha master of one of the tugs, and a lighter moored on the opposite side of the plip, held due to the fault of the steamer and one of the tugs.</p> <p>@c=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

At Law. Three actions by Alexander Budris against the Consolidation Coal Company, together with an action by Saloma Budris against the same defendant, and one by both Alexander and Saloma Budris against such defendant. Hearing on motions by plaintiffs for judgment, as well as on defendant’s special pleas to the jurisdiction and motions to "dismiss.

<p>In Bankruptcy. In the matter of the bankruptcy of Costa G. Nejour. On review of order allowing exemptions.</p>

<p>1. Commerce <©=89 — Freight—Rates—Province of Courts.</p> <p>Rates of a railroad company, which conform to'its published tariffs, cannot he contested in the courts as unreasonable.</p> <p>2. Carriers <§=188 — Charges—Right of Carrier — Waste Material from:</p> <p>Manufacturing Plants.</p> <p>It is not a defense, to a suit by a railroad company to recover its established rates for transportation of slag, ashes, and other refuse delivered on private sidings “for wasting for the plant,” that some of such material may have been used by the company for ballast.</p> <p>3. Words and Phrases — -“Waste.”</p> <p>To “waste” means “to throw away.”</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Waste.]</p> <p>4. Words and Phrases — “Slag.”</p> <p>“Slag” is a refuse from metallic ores after being smelted.</p> <p>5. Words and Phrases — “Refuse.”</p> <p>“Refuse” is that which is refused or rejected as useless or worthless.</p> <p>[Ed. Note. — For other definitions, see Wiords and Phrases, First and 'Second Series, Refuse.]</p> <p><gc»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>At Daw. Action by the A. H. Marshall Company, Incorporated, against the Buick Motor Company, begun in the state couit and removed to the federal court. On motion to remand.</p> <p>Motion to remand case from the United States District Court, Northern District of New York, to the Supreme Court of the state of New York, Clinton county, from which court it was removed to this court. The claim of the plaintiff is that the matter in controversy, exclusive of interest and costs, does not exceed the sum or value of $3,0C0, but amounts to the sum of $2,936.10 only. Diversity of citizenship is conceded.</p>

<p>John Stobo was indicted for violation of Act Feb. 14, 1917, and he demurs to the indictment.</p>

<p>1. Action <@=>53(3) — Splitting Demands — Separability oe Claims.</p> <p>Claim against individual defendants for recovery of $36,000 expended by complainant in developing mining property, and claim against corporation for stock anfi. dividends, both claims being under single contract between parties for exploitation of mining property, held separable, in sense that, while they could both be enforced in one action, they could also be separately enforced; the action against corporation for stock and dividends being brought in federal court, as involving internal management of foreign corporation after state court had refused to pass on claim against company.</p> <p>2. Action <@=>53 (1) — Splitting Demands.</p> <p>There is no inflexible rule in equity against the splitting of demands, which may be done under special circumstances to avoid injustice.</p> <p>3. Judgment <@=>828(3) — Res Judicata — Judgment op State Court.</p> <p>Defendants, in suit in a federal court, are concluded, by a decision, in complainant’s prior suit in a state court to which they all were parties, as to a question there decided.</p> <p>4. Trial <@=>388(1) — Finding Beyond Jurisdiction of Court.</p> <p>Where state court ruled in stockholder’s suit against his company ana individual stockholders, that ownership of stock in foreign corporation was matter of internal administration, over which it had no jurisdiction, its finding that complainant paid nothing on his stock subscription, in addition to amount already paid, was erroneous.</p> <p>5. Corporations <@=>189(12) — Stockholder as Superintendent — Salary— Evidence.</p> <p>Evidence held to show that complainant stockholder was to receive from company; as superintendent, a salary of $125 a month, and was also to be credited for any outlay incurred by him in that capacity.</p> <p>6. Trusts <@=>103(1) — Transactions Between Stockholders.</p> <p>Where corporate stockholders agreed for development of mining property of company and division of stock in certain proportions, complainant stockholder’s portion of capital stock was impressed with trust in his favor, in accordance with contract, and was not liable, either at law or in equity, without his consent to be taken and sold to other persons, save by due process of law.</p> <p>7. Corporations <@=>189(12) — Rights of Stockholder — Agreement—Violation — Sufficiency of Evidence.</p> <p>Evidence held to show that complainant, stockholder in a lead and zinc mining company, was wronged and victimized by other stockholders, for whose acts the company was responsible, whom he benefited by taking them into the company under an agreement to divide the corporate stock, and who practically threw him out.</p> <p>8. Deposits in Court <@=>11 — Disposition by Judgment.</p> <p>In stockholder’s suit against company and other stockholders, company having become bankrupt, and other stockholders having paid into court amount of money to abide its order, with view to satisfaction, in whole or in part, of any demand determined to exist in favor of complainant,, it being shown that by wrongful acts of his fellow stockholders complainant suffered loss of more than amount, he is entitled to receive entire amount, after deduction of costs.</p> <p>®=^Foi other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>At Law. Action by the Upson Nut Company against the American Shipbuilding Company, wherein defendant filed cross-petition.</p>

In Admiralty. In the matter of the petition of the Cunard Steamship Company, Limited, as owner of the steamship Lusitania, for limitation of its liability.

<p>1. Embezzlement «=>34 — Clerks of Federal Courts- -Fees.</p> <p>An Indictment against a clerk of a federal court for converting unearned fees helé to charge embezzlement, under Penal Code, § 97 (Comp. St. 1916, § 10265).</p> <p>2. Embezzlement «=>21 — Cibk of Federal Court — -Conversion of Unearned Fees.</p> <p>The clerk himself of a - United States Distinct Court, In converting unearned fees, may be guilty of embezzlement, under Penal Code, § 97, notwithstanding section 99.</p> <p>igcsPor other cases! see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Eugene D. Dodge was indicted for embezzlement, and he demurs.</p>

Eugene D. Dodge was indicted for making false entries of fees collected as court clerk, 'and he demurs to the indictment.

<p>1. Shipping <&=>174--Consignees — Acceptance of Cargo.</p> <p>Consignees, accepting a cargo of coal under a bill of lading making detailed provisions as to demurrage, are bound by its terms.</p> <p>2. Shipping <s=»177- -Demurrage — Bio, of Lading.</p> <p>Under a hill of lading establishing a daily rate of discharge, with demurrage if unloading is not completed wiíbin time so limited, and doubling rate in case other vessels be given xircference, the consignee may direct discharge at a single wharf, or in a specified berth at a large wharf; and the double rate does not apply, if the vessel he given her turn where directed.</p> <p>3. Shipping <@=»177 — -Demurrage—Priority in Discharge.</p> <p>Where a bill of lading provided Cor a double rate of demurrage in case later vessels were given preference, a coal-carrying vessel ordered in</p> <p>^x»For otRor cases see same topic & KlSY-NUMBHlt in all Key-Numbered Digests & Indexes general terms to large docks having several berths, and at which coal for different purposes was unloaded at separate places, takes her place in line for the berth at which coal of the sort which she is carrying is habitually discharged.</p> <p>4. Shipping <©=172 — Demurrage—Double Rate of Discharge.</p> <p>Where a bill .of lading to protect a vessel against discrimination provided for a double rate of discharge in case later vessels were given precedence, the provision, being in the nature of a penalty, is enforced with reference to reasonable business conditions and usages prevailing at the wharf where discharge is directed, and comes into effect only when preference is given out of the usual course of business.</p> <p>5. Shipping <©=184 — Demurrage—Burden of Proof.</p> <p>Where a bill of lading provided for double rate of discharge in case a later vessel was given preference, the fact that later vessels are given preference throws on the consignee the burden of justifying such action, and it is not sufficient for it to show that no departure was made from the ordinary business practice, but it must also show that the practice was reasonable.</p> <p>6. Shipping <©=175 — Demurrage—Priority.</p> <p>For a railroad which owned a dock to reserve discharge towers and prefer vessels carrying its own coal is not unreasonable; hence the owner of a coal-carrying schooner, directed to discharge at such dock, cannot recover from the consignee demurrage on the double rate of discharge provided for in the bill of lading in case later vessels were given preference, because vessels carrying coal for the railroad company were given a preference.</p> <p><©3^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Admiralty. Uibel by Alfred Testut against the steamship Van tier Duyn, claimed by the New York & Cuba Mail Steamship Company.</p>

<p>In Bankruptcy. In the matter of the Association Dairy Company, alleged bankrupt. On exception to master’s report.</p>

<p>Towage <§=>11(5) — Liability oe Tug — Negligence.</p> <p>On a libel by the owner of a scow to recover damages for an injury alleged to have been caused by the negligent manner in which it was towed, held, that the'tug was at fault in allowing the scow to strand on a well-known and charted shoal, and that there was no fault on the part of those in charge of the scow.</p> <p><§z=aFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>BANKntrPTOY <Ss=>172 — Trustee—Rights or Pledgees.</p> <p>A second pledge o£ crude rubber, which the owner had stored with ah independent warehouseman, is valid as against the trustee in bankruptcy of the owner, the original pledgee and warehouseman having been notified of the pledge, for the owner had a.t least a right of redemption and a paper assignment of a chose in action, without other delivery than of itself, and without notice to the one in possession of what is transferred, passes good title against a trustee in bankruptcy.</p> <p>¿oz^>For other cases see same topic & KEY-NUMBISK in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit for injunction by George E. Benson against John R. Bulger, as Supervising Inspector for the First District, Steamboat Inspection Service, Department of Commerce of the United States, and others. On motion to dismiss bill.</p>

<p>In Bankruptcy. In the matter of the Worcester Footwear Company, alleged bankrupt.</p>

<p>Habeas Corpus. In the matter of the petition of Pietro Romano.</p>

<p>Bankruptcy <@=>326* — Creditors—Right of Set -Off.</p> <p>Wliere raw materials were delivered to the bankrupt for machine work, and the owner, after bankruptcy, requested a redelivery and agreed to pay for the work already done, the owner cannot, the jiroperty having been redelivered under an order made pursuant to such request, retain the amount due, and, on ascertainment of its damages for nonfulfillment of the original contract, offset such damages against the sum due, but is restricted to proof of such damages as an ordinary creditor.</p> <p><@^For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes.</p>

<p>Army and Navy <@=>20 — Draft of Nondeclarant Aliens.</p> <p>The courts will not release a nondoclarant alien, who by reason of his-lack of understanding of English fails to comply with the draft law; Congress having plainly intimated therein that it will use those who ara willing and those who do not comply with the statute in obtaining a discharge.</p> <p><@zs»For other cases see samo topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Escape <®=>3 — Temporary Release op Prisoner — Charitable Motives.</p> <p>That sheriff, in charge of jail, from charitable motives, released, for 8 hours a day for 40 days, that he might work and support his family, a prisoner committed to his custody by United States District Court, does not excuse sheriff’s contempt in violating order of commitment, or offense of escape, committed both under federal and state law.</p> <p>.@c^For other cases see same topic & KEY-NUMBER in all Key-Numhered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Eastern District of Pennsylvania; J. Whitaker Thompson, Judge.</p> <p>Suit in equity by the Brown-King Construction Company against Charles P. Bower. Bill dismissed, and plaintiff appeals.</p>

<p>In Error to the District Court of the United States for the Western District of Oklahoma; John H. Cotteral, Judge.</p> <p>Action by Jermain P. Quinette against the St. Louis & San Francisco Railroad Company and the Pullman Company. Judgment for plaintiff, and defendants bring error. Reversed, and cause remanded, with directions to render a judgment upon the pleadings in favor of the St. Louis & San Francisco Railroad Company, and to grant a new trial to the Pullman Company.</p>

<p>In Error to the District Court of the United States for the District of Massachusetts; Jas. M. Morton, Judge.</p> <p>Charles W. Rice was convicted of using the mails in pursuance of a scheme to defraud, and he brings error.</p>

<p>In Error to the District Court of the United States for the Eastern District of Missouri; John C. Pollock, Judge.</p> <p>Action by Matt G. Reynolds and another, doing business as Reynolds' & Harlan, against Samuel R. Maynard. Judgment for plaintiffs, and defendant brings error.</p>

Hook, Judge. Consolidated suits between the Bankers’ Trust Company and the Missouri, Kansas & Texas Railway Company and others. From an order extending receivership, etc., the Bankers’ Trust Company appeals.

<p>Appeal from the District Court of the United States for the Western District of Missouri; Arha S. Van Valkenburgh, Judgu.</p> <p>Suit by John C. Healy and others, partners as Healy, Ferris & McA.voy, against Margaret D. C. Ridge. From the decree rendered, the defendant appeals.</p>

B. Witmcr, Judge. In the matter of the Mid-Valley Coal Company, bankrupt. Petition by George M. Campbell, trustee, for summary protection as to property claimed by him as against David R. Spruks and others, adverse claimants thereof. The petition was dismissed, and the trustee appeals and files a petition to revise.

<p>Appeal from the District Court of the United States for the District of Nevada; Edward S. Farrington, Judge.</p> <p>Action by Clara M. Wight and Otis B. Wight, her husband, and Gertrude M. Gregory and T. T. C. Gregory, her husband, as stockholders of the Estate of W. O’H. Martin, Incorporated, against the Washoe County Bank and others, to compel the bank to transfer on its hooks certain shares of stock. Decree for defendants, and plaintiffs appeal.</p>

<p>In Error to the District Court of the United States for the Southern Division of the Northern District of California; Frank H. Rudkin, judge.</p> <p>Action at law by the United States against the Illinois Surety Company, a corporation. To review- judgment for the United States defendant brings error.</p>

Vaughan, Judge- Libel in admiralty by Clinton j. Hutchins against the American steamship Great Northern, and A. Ahman, master, bailee, and claimant, and the Great Northern Pacific Steamship Company, owner. Decree for libelees, and libelant appeals.

<p>In Error to the 'District Court of the United States for the Eastern District of Virginia, at Richmond; Edmund Waddill, Jr., Judge.</p> <p>Action by C. F. Thomasson against the Western Union Telegraph Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Virginia, at Norfolk; Edmund Waddill, Jr., Judge.</p> <p>Bill for injunction by F. Augustus Schermerliorn against Addic Dozier and others. Judgment for defendants, and plaintiff appeals.</p>

Tuttle, Judge. , In the matter of the bankruptcy of Irwin .R. Schlegel. From a decree sustaining the objection of David B. Dichtig, trustee in bankruptcy, to the bankrupt’s chattel mortgage, because made in fraud of his subsequent creditors, ■ the mortgagee, Charles W. Calkins, appeals.

<p>1. Evidence '<§=>372(3) — “Ancient Deed.”</p> <p>A deed of bargain and sale, when 48 years old, was an “ancient deed.”</p> <p>2 Executors, and Administrators <§=>145 — Power to Sell Realty — Presumption from Ancient Deed.</p> <p>After 48 years, bargain and sale deed of executrix, authorized to sell only if personalty was insufficient to pay legacies, which conveyed interest of executrix, and stated she had full power to convey, followed by warranty, raised rebuttable presumption that personalty was insufficient, and justified admission of deed in action of ejectment by heir at law of testator’s devisee.</p> <p><@=^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>3. Ejectment @=>93 — Sale by Executrix — Sufficiency of Personalty to Pay Legacies — Evidence.</p> <p>In ejectment by heir at law of testator’s devisee, against defendant, claiming under bargain and sale deed ot’ executrix, authorized to sell realty only if personalty was insufficient to pay legacies, evidence held Insufficient to show conclusively personalty was sufficient to pay expenses of administration, debts, allowances to widow, and legacies.</p> <p>4. Executors and Administrators @=3138.(1;) — Sale of Beauty — Court Order.</p> <p>Though, in absence of testamentary power of sale, executrix could not sell realty to pay del)is or legacies without court order, testamentary power of sale extending in terms only to legacies, they being postponed to expenses of administration, debts, and allowances to widow, power of sale to meet legacies could be exercised by executrix whenever it was clear personally would bo insufficient, after meeting other exiiemliturcs.</p> <p>5. Ejectment @=>9(3) — Recovery—Strength of Title.</p> <p>A. plaint iff in ejectment must recover on the strength of his own title, not upon tho weakness of his adversary’s.</p> <p>6. Ejectment @=>93(1) — Title—Prima Eacie Evidence — Possession.</p> <p>Possession of realty under claim of ownership in fee is prima facie evidence of title in the possessor.</p> <p>7. Ejectment @=>86(3) — Burden of Proof.</p> <p>Though .pleadings in ejeetmem, in connection with plaintiff’s evidence, made prima facie case in her ftuor, requiring defendant to rebut it, burden of ultimately showing title still rested on her, though in determining whether burden had been sustained her prima facie showing was to bo taken into account, as well as contrary presumption afforded by ancient deed under which defendant claimed.</p> <p>8. Appeal and Error @=3215(1)- — Reservation of Grounds of Review' — Objection to Instruction.</p> <p>If an instruction was unsatisfactory to plaintiff, fairness to the court and defendant required her to say so, and her right to complain on ap peal, if she had any, was lost by her silence.</p> <p>9. Appeal and Error @=>1050(1) — Harmless Error — Evidence.</p> <p>In ejectment;, by heir at law of devisee by will authorizing executrix to sell realty only if personalty was insufficient to pay legados, against, defendant claiming under executrix’s bargain and salo deed, admission of evidence of will of executrix, giving tier' own estate, subject to debts and charges, to her daughter for life, etc., held harmless to plaintiff.</p> <p>10. Ejectment @=>90(1) — Evidence.</p> <p>In ejectment, by heir at law of devisee by will authorizing executrix to sell realty only if personalty was insufficient to pay legacies, against defendant claiming under executrix’s bargain and sale deed, admission in evidence of certified copy of restored transcript of appearance docket of a probate court, so far as relating to proceedings to sell certain other really of tesrator assumed to be to pay debts, was proper, having bearing on wh<-ihor the personalty had proved sufficient.</p> <p>11. Appeal and Error @=>1050'(1) — Harmless Error — 'Evidence.</p> <p>Iju, such action, admission in evidence of certiiied copy of restored transcript of appearance docket of probate court, so far as relating to sale of («main other real estate of testator, held, harmless to plaintiff.</p> <p><§Z7> Por other eases sec same topic & KEY-NTJMl! UÍR in all Key -Numbered Digests & Indexes</p>

McCall, Judge. Dihel by the Memphis Power Boat Club against the steamer Bart Tully, claimed and owned by the Patton-Tully Transportation Company. From a judgment holding both parties at fault and dividing the damages, the owner appeals. Just above the city of Memphis, the Wolf river flows into the Mississippi. A short distance above the junction point, and in the edge of the city, and where the Wolf is running south, are located some sawmills and similar establishments.

' Appeal from the District Court of the United States for the Western District of Oklahoma; John H. Cotteral, Judge. Suit by the St. Louis Union Trust Company against Dora Finley, formerly Dora Patterson, and Mary E. Halliburton, formerly Mary E. Mellon.

Dietrich, Judge. Suit by H. E. Ray, as trustee of the estate of Alec Murray, bankrupt, against James A. Murray. Decree for plaintiff, and defendant appeals. Alec Murray, of whose estate in bankruptcy the appellee is the trustee, was adjudged a bankrupt on June 15, 1917.

<p>Appeal from the District Court of the United States for the District of Nebraska; J. W. Woodrough, Judge.</p> <p>Proceeding in the matter of William R. Richter, a bankrupt, wherein the Albers Commission Company, a creditor, appeals >Irom adjudication of bankruptcy.</p>

<p>Appeal from the District Court of the United States for the District of Maine; Clarence Hale, Judge.</p> <p>Habeas corpus by Joseph M. Cushman against Earle A. Reed. Decree for petitioner, and respondent appeals.</p>

<p>1. Bills and Notes. @=>68 — Acceptance—Statutes Applicable.</p> <p>Where contractor, six months before his bankruptcy, gave order on owner, in favor of subcontractor, and the owner paid money to the contractor, who immediately paid it to the subcontractor within four months of the bankruptcy, and the trustee sued to recover it as a preference, Act Pa. May 10, 1881 (P, L. 17), providing that no person shall be charged as acceptor of order without written acceptance, was not applicable, in favor of the trustee, on the question of acceptance by the owner.</p> <p>2. Appeal and Error @=>1022(1) — Scope of Review — Bindings of Referee.</p> <p>Where the referee’s finding is not a plain mistake, and has been affirmed by the District Court, it will not be disturbed.</p> <p>3. Assignments @=>58 — Equitable Assignments — Assignments of Parí of Claim.</p> <p>An order by a contractor upon the owner to pay money to the subcontractor, which constituted only a part of the claim of the contractor, could not be enforced as an equitable assignment, in the absence of acceptance by the owner.</p> <p>@s>For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Middleton Smith, Judge. Suit by E. K. Rogers and others, against the Marion County Lumber Corporation. From a decree which denied most of the relief sought, plaintiffs appeal.

John W. Phipps and another were convicted, under section 6 of the Criminal Code, for conspiracy to seize, take, and possess by force property of the United States, contrary to the authority thereof, and defendant Phipps brings error.

<p>1. Removal oí Causes <@=107(10) — Amount in Controversy.</p> <p>A cause removed from state court will not, eight years later on appeal, be remanded on the ground that the amount in controversy was less than $2,000, unless it is certain that the maximum limit of possible recovery at the date of commencing suit, and under any theory which plaintiff had fairly entertained, was less than.the jurisdictional amount.</p> <p>2. Courts <@=328(9) — Amount in Controversy- -“Interest.”</p> <p>In an action for: damages for fraudulent representations as to value of stock purchased by plaintiff, the jury might allow plaintiff an annual percentage, not as collateral interest, but as an element in giving her entire compensation for her loss, and such damages, although computed at a percentage rate, would not be that “interest” which the jurisdictional statute (Act March 3, 1887, § 1; Jud. Code, § 2á (Comp. St. 1910, § 991]) says must be excluded.</p> <p>[Ed. Note. — For other definitions, see Wiords and Phrases, First and. Second Series, Interest.]</p> <p><§^>For oilier cases seo same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Suit in equity by the Eox Film Corporation against the City of Chicago and others. From an order refusing to dissolve a pendente lite injunction (247 Fed. 231), defendants appeal.

, Judge. Eibel for collision by Arthur Johnson, as master of the barge John W. Davidson and as bailee of the cargo, against James W. Edgar, master of the steamer Gaston, in which the Marshall Towing Company, Incorporated, as owner of the tug Alina, were impleaded. From a decree (244 Fed. 480) for libelant against the Gaston alone, the master thereof and the Baltimore Steam Packet Company, owner thereof, appeal.

<p>In Error to the District Court of the United States for the District of Nebraska; Joseph W. Woodrough, Judge.</p> <p>Action by John M. Galvin, administrator of the estate of May Swift,, deceased, against the County of Sarpy. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the District of New Jersey; Tlios. G. Haight, Judge.</p> <p>Edward and Nellie Banks were convicted of furnishing liquor to soldiers in uniform, and bring error.</p>

<p>Appeal from the District Court of the United Stales for the Eastern District of New York.</p> <p>Habeas corpus by the United States, on the relation of Joseph Khutor, against Evan M. Johnson, Brigadier General, Commander of the 77th Division, U. S. A., at Camp Upton, N. Y. The writ was denied, and, pending appeal, relator was remanded. On motion to grant a stay.</p>

<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 Jasper Blackburn against the Bonita Manufacturing Company, Incorporated. Prom a decree (248 Fed. 743) for complainant, defendant appeals.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge.</p> <p>Suit by Albert Pick & Co. and another against the Ferd Messmer Manufacturing Company, a corporation. From a decree for complainants, defendant appeals.</p>

<p>1. Patents <®=3828 — Validity-Apparatus for Drying and Shaping Hosiery.</p> <p>Tho Collis patent, No. 1,114,966, covering an apparatus for drying and shaping hosiery and the like, held invalid for anticipation and public use.</p> <p>2. Patents <©^>828 — Validity—Finishing and Shaping Hosiery — Use of Apparatus.</p> <p>The Collis patent, No. 1,204.945, for improvements in Ihe art of finishing and shaping hosiery, in connection with the use of apparatus patented, and as disclosed in the application for such patent, held invalid, as anticipated by prior use of similar apparatus.</p> <p>8. Patents <ss=>120 — Subsequent Patent- -Function of Invention.</p> <p>To sustain a subsequent patent, there must be something distinctively different from that covered by the first patent, and the mere fund ion of a patented invention cannot be made the subject of a separate and subsequent patent.</p> <p>4. Patents <§=3129 — Attacking Validity — Estoppel of Lessee.</p> <p>A provision in a contract for the use of patented apparatus; that, in any suit by lessor against lessee, the latter shall not attack the validity of the patents, must be limited to a preceding condition for the payment of rent, and does not estop lessee, sued by lessor, solely on account of lessee purchasing and using other apparatus regarded by lessor as an infringement.</p> <p>5. Patents <g=»2I6 — Suit by Lessor Against Lessee — Counterclaim—Condition Precedent.</p> <p>In a suit by lessor against lessee of patented apparatus, tender or return thereof is a condition precedent to a counterclaim for rental paid, based on the ground that tho contract was obtained through misrepresentation.</p> <p><§=sjFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Patents ©=>26(2) — Devices Functioning Separately — True Combination.</p> <p>Two devices in a machine, each doing its work precisely as it would if the other was altogether absent, do not form a true combination.</p> <p>2. Patents @=>328 — Validity and Infringement — Can-Making Machine.</p> <p>Conradi patent, No. 1,129,456, claim 11, relating to machine consisting of a peculiar construction of shelves supporting the supply of tin blanks to bo fed into the machine, for making tin cans, held valid, but not infringed.</p> <p>3. Patents ©=>328 — Validity—Tin Can Machine.</p> <p>Kruse patent, No. 1,081,050, claims 4 and 5, relating to a machine consisting of plates supporting tin blanks to be fed into the can-making machine, adjustable so as to regulate the amount of sag of the blanks, held invalid, as not limited as to adjusting means.</p> <p>4. Patents ©=>(>2 — Anticipating Device-Measure of Proof.</p> <p>One relying on an anticipating device is held to produce a strict meas, ure of proof.</p> <p><@s»For other cases see same topic & KEY-NUIVIBBR in all Key-Numbered Digests & Indexes</p> <p>5. Patents <§=>83 — Forfeiture op Right.</p> <p>An inventor, who makes up his mind not to patent his invention, or not to patent it until he thinks some one else is about to invade his monopoly, forfeits all right to a patent.</p> <p>6. Patents <§=>55 — Anticipation—Exception to Rule.</p> <p>If there is such an exception to the rule that no patent may validly issue for anything known or used in- the country before its invention by the patentee, that, if an inventor conceals or suppresses knowledge of the invention, his claim is subordinate to that of a subsequent bona fide inventor of the same device, such exception must be confined within narrow bounds. The first inventor must have determined to practice his invention secretly, and his efforts to keep the invention secret must have been successful.</p> <p>7. Patents <®=>32S — Validity—Anticipation.</p> <p>Kruse patent, No. 1,081,050, claims 2 and 3, relating to a machine consisting of plates supporting tin blanks to be fed into the can-making machine, and Kruse patent, No. 1,244,056, claims 2 and 4, held invalid as for something previously known and used in the country.</p> <p><@s»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Patents <§=>165 — Claims—Construction.</p> <p>Broad claims will not be beld invalid, if they are plainly intended to include by reference sucb specific limitations as would make the invention x>atentable.</p> <p>2. Patents <§=>112(3) — Validity—Presumption.</p> <p>A patent is prima facie valid, and an inventor is presumed to be claiming a valid patent.</p> <p>3. Patents <§=>234 — Infringement—'What Constitutes.</p> <p>Devices not described, but plainly within the concept in so far as it is patentable and is defined in the claims, infringe the patent</p> <p>4. Patents <§=>177 — Claims—Validity.</p> <p>A patentee cannot claim as invention a combination that has nothing whatever to do with the purposes of the device, unless the patentee uses some clear language making the extraneous combination applicable.</p> <p>5. Patents <§=>26(1) — 'Validity— Scope.</p> <p>A patentee cannot patent a combination of device and material upon which the device works, nor limit other persons from using similar material by claiming a device patent.</p> <p>C. Patents <§=>173 — “Pioneer Patents” — What Abe.</p> <p>A “xiioneer patent” is one which meets an old or plainly recognized want by an entirely new method ol' approach.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Pioneer.]</p> <p>7. Patents <§=>173 — 'Construction—Scofe.</p> <p>A machine patent, to be broad enough to cover every method of approaching a desired result, must be basic or pioneer, in such a way as to monopolize, not only the particular method, but any method making use of eauivalents.</p> <p>8. Patents <§=>227 — Infringement—Intent.</p> <p>Where defendant’s machine did not infringe plaintiff’s patent, it is immaterial whether defendant’s machines were bulit deliberately to avoid infringement, or whether by accident a machine was deveioi>ed along lines which did not infringe.</p> <p><@=>For other eases seo same topic & KKY-NUMBJ3K in all Key-Numbered Digests & Indexes</p> <p>9. Patents <@=5328 — Construction—Infringement.</p> <p>Holly patent, No. 1,158,211, for a machine for making boxes of paper, or other material, in which the head and flange are connected by a binder which is adhesively connected with these parts, held not infringed by defendant’s machine for making, such boxes, the claims of the Holly machine as construed in view of the prior art, not extending to defendant’s device, and the products of the two machines not being interchangeable, so as to demonstrate infringement.</p> <p>aFo'r other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by the Inflexible Company against Abraham Megibow.</p>

In Bankruptcy. In the matter of the bankruptcy of the Capital Security Company. On referee’s certificate as to expenses. Referee’s request for the allowance of expenses denied, without prejudice to his right: to seasonably report in detail under oath certain specified expenses.

<p>1. Bankruptcy <@=3413(3) — Discharge—Specification op Objections.</p> <p>A specification of objections to discharge, asserting that the bankrupts obtained property on credit from the objecting creditor on a materially false statement in writing, made for the purpose of obtaining property on credit, is objectionable, where there is no specification or statement of what property was thus obtained.</p> <p>2. Bankruptcy <@=s415(2) — Objections to Discharge — Report op Reperee.</p> <p>Where the referee, who heard objections to the bankrupts’ petitions for discharge, merely reported the testimony, but failed to find any conclusion, the court may either find the ultimate facts or refer the matter back to the referee, with instructions to find and report the same; that being the more approved practice.</p> <p>3. Bankruptcy <@=3407(5) — Discharge—Obtaining Goods on Materially False Financial Statement.</p> <p>To deny discharge on the ground that the bankrupts obtained credit by false financial statement, it must appear that the bankrupts obtained property from the objecting creditor on credit, upon a materially false statement in writing to such creditor, for the purpose of obtaining such property on credit, and that the writing so made was that set forth in the specifications.</p> <p>4. Bankruptcy <@=3414(1) — Discharge—Burden op Proop.</p> <p>A creditor, objecting to discharge on the ground that the bankrupts obtained credit on a false financial statement, has the burden of establishing that fact by clear and convincing evidence, and, unless the burden is met, discharge should not be denied.</p> <p>ottier case* see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

.fosepli Fleming & Son Company and others were convicted of violation of the Harrison Anti-Narcotic Law, and move for new trial and in arrest of judgment.

<p>In Equity. Suit by Philip E. Du Pont and others against Pierre S. Du Pont and others. Heard on various motions and exceptions.</p>

Benedict Prieth and others were indicted under Espionage Act, tit. 1, § 4, for a conspiracy 'to violate one of the provisions of section 3 of ■said actv On demurrer to indictment.

<p>1. Bankruptcy <@=3.308 — Creditor’s Participation in Assets — Payment of Assessments on Stock.</p> <p>A creditor of a bankrupt corporation, who, as a holder of its capital stock, is liable on calls or assessments, c-aimot participate in the assets of the estate until he has paid or satisfied ^uch assessments.</p> <p>2. Corporations <@=>216 — Liability op Stockholder — What Law Governs.</p> <p>Whether a stockholder of a bankrupt corporation is liable to the estate for Die difference between the par value of the stock held by him and the amount originally paid therefor is determined by the law of the state where the corporation was incorporated..</p> <p>8. Corporations <S=>99(2) — Stockholders—Liability for Gorpouatk Debts —Stock Issued for Insufficient Consideration.</p> <p>Corporation Act, § 49 (2 Comp. St. N. J. 1910, p. 1630), providing that, in the absence of actual fraud, th;e director’s judgment as to the value of the properly purchased in consideration of stock shall be conclusive, while legislatively new, is but declaratory of the former law.</p> <p>4. Corporations @=>232(2) — Payment of Stock Subscriptions — Validity as to Creditors.</p> <p>Under the New Jersey decisions payment of a stock subscription is good as against creditors of an insolvent corporation only, where i>ayment lias been made in money, or what may fairly be considered as money’s worth.</p> <p>5. Corporations <@=>232(1) — Stock—Payment—Assessment.</p> <p>Where no money was paid for corporate stock when originally issued for property concededly worth less than the par value of the stock, and the directors did not determine the value of the property, it would bb assessable; if still in the hands of the original holders.</p> <p>C. Corporations @=>244(7) — Liability of Stockholder — Notice as to Payment — Liability to Assessment.</p> <p>Actual notice to a purchaser of corporate stock that it was originally issued without having bdon fully paid is not necessary and Ms knowledge of facts impelling an ordinary and careful invest or to inquire whether it was fully paid, which inquiry would have shown that it was not, would be sufficient notice to make him liable to an assessment.</p> <p>7. Corporations <@=>244(7) — Unpaid Stock — Liability of Holder — Imputed Knowledge.</p> <p>A purchaser of corporate stock from the incorporators who knew ihat the corporation was in financial difficulties, and that part of its pledged book accounts.'taken up by him in consideration of its company’s note and all the stock, were not genuine, and who examined the books, was chargeable with further inquiry, which would have shown him that property taken by the corporation was an inadequate consideration for the original stock.</p> <p>8. Notice <@=>6 — Duty of Inquiry.</p> <p>Neither stupidity nor heedlessness any more than a fraudulent motive, will save one chargeable with making inquiry from the consequences of a knowledge which such an inquiry w ould have ascertained, as one may not take advantage of his own wrong, and as the law imputes to him that knowledge of facts which he would have ascertained, had he performed his duty.</p> <p>9. Corporations <@=>232(1) — Unpaid Stock — Liability of Shareowner.</p> <p>A hokl’er of corporate stock, with imputed knowledge that it had been issued by llie corporation to its incorporators for property which was an inadequate consideration, would be liable to an assessment thereon for such amount, not exceeding the difference between the fair value of the property and tli'e par value of the stock, as would be needed to pay allowed claims in bankruptcy and administration expenses.</p> <p><g=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes.</p> <p>10. Bankruptcy <@=>288(1) — Liability of Stockholder — Assessment—Enforcement.</p> <p>Where no assessment bad been made against tbe bolder of stock issued to incorporators for property not an adequate consideration, it could not be enforced, on objection by a creditor of tbe bankrupt corporation to tbe holder’s claim, without tbe holder’s assent, as the proceeding is summary, and direct proceedings to enforce tbe assessment would have to be taken by tbe trustee.</p> <p>11. Bankruptcy <@=>308 — Claim Against Estate — Allowance.</p> <p>Where a claimant against a bankrupt corporation was liable to an assessment on bis stock, his claim should not be formally allowed until tbe amount due on bis stock was determined.</p> <p>ig^For other cases see same topic & KEY-NUMBER in ail Key-Numbered Digests & Indexes</p>

Jacob Rosenberg was indicted for violation of the Harrison Anti-Narcotic Haw, and he demurs to the indictment... Demurrer to an indictment for the violation" of section 2 of Act Doe. 17, 301!, c. 1. GS ¡3tat. at Large, pp. 785, 786 (Comp. St. 1016, § 6287h) known as the Harrison Anti-Narcotic Law.

In Bankruptcy. In the mailer of Chandler Schilling and W. H. Loller, doing business as the Schilling Construction Company, bankrupt. On petition for review of j’udgment of the refeiee.

In Bankruptcy. In the matter of the bankruptcy of Chandler Schilling and W. H. Loller, doing business as the Schilling Construction Company. On petition to review an order of the referee denying the claim of W. E. N. Hemperly to a lien.

3, City of Syracuse, and that, of the military officers having the custody and control of persons held for service under the Selective. Draft Daw.

<p>At Law. Action by the United States against Harry Coulby to recover alleged unpaid income taxes.</p>

At Law. Action by Dora E. Quereau, as executrix, etc., of Wilson R. Quereau, deceased, against the Lehigh Valley Railroad Company. ■ On defendant’s motion for nonsuit, and dismissal.