Volume 252 — Federal Reporter

Petition for Revision of Proceedings of the District Court of the United States for the Northern District of Ohio, in Bankruptcy; D. C. Westenhaver, Judge. In the matter of the petition of W. C. Stitt, trustee in bankruptcy of the estate of Max B. Rosenbaum, bankrupt, to revise an order of the District Court of the United States for the Northern District of Ohio allowing statutory exemptions.

<p>Appeal from the District Court of the United States for the District of New Jersey; Thos. G. Haight, Judge.</p> <p>Suits in admiralty by Harry W. Whiteman, owner of the lighter Allegheny, and by the Hainesport Mining & Transportation Company, owner of Lighter No.'17, against the steam tug Emily Marie, Nelsoh II. Gildersleeve, John McAteer, and Anna, P. Ganer, claimants. Decree for respondents, and libelants appeal.</p>

Hollister, J udge. In the matter of the bankruptcy o-f Kelson M. Gaskill. The claim of Augustus C. Irwin, which was allowed by the referee as a secured debt was reversed on appeal by' W. Chester- Maple, trustee in bankruptcy, and claimant appeals.

Harry A. Reed and James E. Eaton were convicted of violating Criminal Code, § 32 (Comp. St. 1916, § 10196), by falsely assuming and pretending to be officers acting under the authority of the United States, and they appeal.

Sanford, Judge. Action at law by Rena McGuffey, administratrix of the estate of A. B. McGuffey, deceased, against the Cincinnati, New Orleans & Texas Pacific Railway Company. Judgment for plaintiff and defendant brings error.

<p>1. An>EAL and Eheoe <&=954(1)— Review — Injunctions.</p> <p>The appellate court will overrule or reverse an order granting a preliminary injunction only when satisfied that there was error of law In the action of tile trial court, or that upon the facts there was no reasonable field for discretionary action.</p> <p>2. Injunction <@=>38 — Restraining Intekeerence with Telegraph Lines Pending Condemnation.</p> <p>Where a telegraph company, which maintained interstate lines on a railroad right of way, terminated its agreement with the railroad company, and after the Alabama courts have adjudged that tile telegraph company had no right to condemn an casement on that part of the railroad right of way located in Alabama, the federal courts for Kentucky will nol, on the theory that the telegraph system was unitary and that the company had an easement over part of the right of way in Alabama, enjoin interference with the lines covered by the Alabama decision.</p> <p>3. Injunction <@=>186(8) — Preliminary Injunction-Issuance.</p> <p>Preliminary injunctions should not issue, unless a reasonably clear case of necessity and otherwise irreparable Injury is made out.</p> <p>4. Injunction <§=>38 — Pkeltuinaby Injunction — Continuance.</p> <p>A telegraph company, which maintained interstate lines on a railroad right of way, terminated its agreement with the railroad company and sought to condemn easements in the several states, but condemnation was refused in Alabama. Held, that the federal court for Kentucky, which had enjoined the railrdad company from interfering with the existing lines pending condemnation, will not continue the injunction as to the Alabama lines, particularly where the courts of that state granted an injunction covering telegraph lines on that part of the right of way wherein the telegraph company asserted an existing easement.</p> <p>5. Injunction <®=»137(1) — Preliminary Injunction — Governmental Assumption op Control op Railroads — Telegraph Line on Right op Way.</p> <p>Where a telegraph company, after terminating the arrangement under which it maintained lines on a railroad right of way, was denied right of condemnation in Alabama, held, that preliminary' injunction against the railroad company’s interference with telegraph lines will not be granted, because the government has assumed control of railroads, etc., where the railroad company agreed not to take any action interfering with the telegraph system without governmental approval.</p>

Cross-Appeals from the District Court of the United States for the District of Maryland, at Baltimore; John C. Rose, Judge. Eibel by the Naam Uooze Ve.nuoot Schap, S. S. Willem Van Driel, Sr., a corporation, owner of the steamship Willem Van Driel, Sr., against the Pennsylvania Railroad Company and the Central Elevator Company of Baltimore City.

<p>In Error to the District Court of the United States for the Northern District of West Virginia, at Martinsburg; Alston G. Dayton, Judge.</p> <p>Action by Charles H. Harper against Joseph William Harper. To review judgment for plaintiff, defendant brings error.</p>

<p>In Error to the District Court of the United States for the Western District of Kentucky; Walter Evans, Judge.</p> <p>Proceedings for contempt by the West Kentucky Coal Company against Sam Tosh and George Overby. Judgment against defendants, and they bring error.</p>

<p>Indian's <&wkey;27(5) — United States as Trustee and Guardian — Statute.</p> <p>In view of Act Cong. Feb. 8, 1887, as amended by Act Feb. 28, 1891, securing persona] rights of citizenship and protection of laws to members of tribes of Indians to whom allotments are made under Act Feb. 8, 1887, § 6, as amended by Act May 8, 1900, United States, as trustee and guardian of Indian allottee and trust patentee of certain Indian reservation lands, cannot maintain action for damages caused to fish wheel owned and operated by Indian on Columbia river; wheel having been constructed, maintained, and repaired by Indian with funds derived from sale of 40 acres of his allotment of lands.</p>

C. Van Fleet, Judge. Ernest Pappens and Marie T. Pappens were convicted of keeping a house of ill fame within five miles of a military fort, and they bring error.

Burns, Judge. Libel by the Stag Line, Limited, claimant of the steamship Clematis, and the Commission for Relief in Belgium, against the Southern Pacific Company, claimant of the steamship El Monte and cargo, and,the National Surety Company. Decree for libelants, and respondents appeal.

<p>Appeal from the District Court of the United States for the Western District of Oklahoma; John IT. Cotí eral, Judge.</p> <p>Suit in equity by the United States against Suda Reynolds. Decree for complainant, and defendant appeals.</p>

Petition for Revision of Proceedings of the District Court of the United States for the District qf New jersey; J. Warren Davis, Judge. In the matter of the Canister Company, bankrupt. An order of the referee, assessing stockholders of the bankrupt company, was reversed on petition of Henry D. Maxwell and others (248 Fed. 587), and Marshall A. Barnitt, trustee, petitions to revise.

Tuttle, Judge. Maurice Sugar was indicted for willful refusal to register - under Selective Draft Act May 18, 1917, entered plea of guilty, was sentenced, and entered motion in arrest of the judgment. To review order denying such motion, he brings error.

Tuttle, Judge. Maurice Sugar and others were indicted for conspiracy to unlawfully and willfully aid and abet and procure persons to violate the Conscription Act. Sugar moved to quash the indictment, and the motion was denied (243 Fed. 423); whereupon he demurred to the indictment, and the demurrer was overruled, and he entered plea of guilty, was sentenced, and moved in arrest of judgment, and the motion was denied, and he brings error.

Uibel by Burtis M. Wasson against the barge William Guinan Howard, her tackle, etc., claimed by Thomas J. Howard, who impleaded the Philadelphia & Reading Railway Company. From a decree for claimant and the railway company, libelant appeals. Appeal from a decree in admiralty entered on the 19th day of October, 1917.

Actions by Jacob Landes, doing business as J. Landes, and by Louis Liebman and Nathan Liebman, copartners doing business as Liebman Bros., against Paul Klopstock, doing business as the Paul Klopstock Company. Judgment in each case for defendant upon a directed verdict, and plaintiffs bring error. Writs of error from judgment of tlie District Court for tlie Southern District of New York (Mantón, J., presiding) upon a directed verdict for the defendant, after trial with a jury.

II the matter of Graham & Sons and others, bankrupts. On petition by the bankrupts to review and revise an order, on objection of Mary Yore and others,.refusing to confirm a composition with creditors, and on appeal by the bankrupts from such order.

C. Van Fleet, Judge. . Henry C. Cutting was adjudged guilty of contempt by William C. Van Fleet, District Judge, and brings error adversely to such judge and H. M. Wright, standing master in chancery. In a suit in equity upon a stockholder’s bill against the Monetary Trust Company, a corporation, and Henry C. Cutting, the president thereof, the court below ordered an accounting by Cutting, and referred the matter to the master in chancery for that purpose.

Petition to Revise Order of, and Appeal from, the District Court of 1he United States for the Eastern District of Missouri; Jacob Trieher and David P. Dyer, Judges.

<p>• 1: Internal Revenue @=>7 — Income Tax Law — Commissions of Life Insurance Agent — “Income.”</p> <p>Income Tax Act Oct. 3, 1913, § 2, par. A, subd. 1, taxing entire net “income” arising from all sources in the preceding calendar year, and declaring in paragraph B, such income shall include gains, profits, or incomes from salaries, wages, or compensation for personal services of whatever kind, etc., taxes commissions of general life insurance agent derived from renewal premiums on policies obtained by him and accepted in some earlier year.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Señes, Income.]</p> <p>2. Internal Revenue @=>4 — Federal Income Tax Law — Retroactive Effect.</p> <p>The federal Income Tax Act, though passed October 3, 1913, could tax income from March 1st of that year.</p> <p>3. Internal Revenue @==>25 — Federal Income Tax — Time for Assessment— “False.”</p> <p>Under Income Tax Act Oct. 3, 1913, § 2, par. E, assessment of tax for 1913, in May, 1915, was in time if the taxpayer’s return was “false,” which evidently does not mean “fraudulent,” but merely untrue or incorrect.</p> <p>(Ed. Note. — For other definitions, see Wtords and Phrases, hirst and Second Series, False.]</p>

Action by the United States, on relation of Charles Masters, against William Symons, as Recorder and Clerk, and William Reid, as Mayor, of the City of Rainier. From an order granting a peremptory writ of mandamus, defendants bring- error. The relator recovered in the court below a judgment against the city of Rainier, Or., for ?9,295.40, with interest and costs.

Warren Davis, Judge. Actions at law by John C. Danenhower, trustee in bankruptcy of the Cramer & Rogers Grocery Company, against the G. H. Hammond Company and against Swift & Co. Judgments for plaintiff, and defendants bring error.'

Petition to Superintend and Revise in Mattel’ of Raw Proceedings of, and Appeal from, the District Court of the United States for the Eastern District of Virginia, at Richmond, in Bankruptcy; Edmund Waddill, Jr., Judge. In the matter of the bankruptcy of Phil G. Kelly. Petition to superintend and revise, and appeal from an order, by Willamena A. Kelly.

Libel by the Water Front Contracting & Lighterage Company and others against Scows Nos. 92, 102,118, and 138, and their tackle, claimed by the Goodwin-Gallagher Sand & Gravel Company. From an award, libelants appeal, on account of its insufficiency. Appeal from the decree of the District Court filed July 7, 1916, awarding to libelants $190 as compensation for salvage services. The sole ground of appeal is the inadequacy of the award.

<p>f. Negligence <®=»44 — Construction of Passageway to Building — Top of Door to Entrance.</p> <p>Construction of passageway into automobile assembling building, so that door into passageway was higher than door into interior of building, does not constitute negligence, where building itself was properly constructed for purpose intended.</p> <p>2. Negligence <S=j66(2) — Driver op Dumber Wagon — Use op Passageway-Contributory Negligence.</p> <p>Driver of lumber wagon, who was injured while driving on top of load through passageway into building, because top of door into passageway was higher than top of door from passageway into building, where he had several days before driven through same entrance, and knew manner of its construction, and where second door was 15 feet from first, and building was a daylight building, was guilty of contributory negligence.</p>

Action by the United States of America, for the use of the Samuel Hastings Company, against W. T. Eowrance and others, composing the firm of W. T. & E. M. Eowrance & Co., and others. To review a judgment (236 Eed. 1006) sustaining a demurrer to the complaint, plaintiff brings error.

<p>Costs <&wkey;18 — Federal Corara — Lack oe Jurisdiction.</p> <p>Where plaintiff, in order to get jurisdiction in federal court against citizen of same state, impleaded latter after having brought action in first instance against corporation of another state, Circuit Court of Appeals, in reversing judgment of District Court and dismissing action for lack of jurisdiction, may direct latter court to enter judgment, under Judicial Code, § 37 (Comp. St. 1916, § 1019), for coats of both courts againsl plaintiff.</p>

Petition to Review and Revise Various Orders of the District Court of the United States for the Eastern Division of the Northern District of Illinois. Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois. ■In the matter of Edward W. Morrison, bankrupt, wherein the Central Trust Company of Illinois was appointed trustee. On petition by James R. Ward to review and revise various orders.

Dibel by Verdón '& Co. against the steam tug Neptune. From an order retaxing the mashal’s fees and expenses, libelant appeals. Appeal from an order of the District Court retaxing the marshal’s fees and expenses in the custody of the Neptune, arrested by him on April 19, 1917, and sold on May 28, 1917. While in his custody for a part of the time, he employed one keeper at $5 per diem, and for the rest two at ¥2.50 each per diean.

<p>Appeal from the District Court of the United States for the First Division of the Northern District of California; Maurice T. Dooling, Judge.</p> <p>Proceeding's by Tam Sen against Edward White, as Commissioner of Immigration at the Port of San Francisco, Cal. Decision in favor of the former, and the latter appeals.</p>

Rose, Judge. In the matter of the Charles Wacker Company, bankrupt. From the District Court decree (244 Fed. 483), reversing the referee’s order disallowing claims of the Leedom & Worrell Company and others, the trustees, George A. Solter and another, appeal.

<p>Bankruptcy <&wkey;467 — PreferencHg—Fact Questions.</p> <p>It being conceded Hint a bankrupt’s conveyance to Ms sons was made within four months prior to the adjudication, while the grantor was inso'vont, and that it would secure the grantee's a greater proportion of their claims than other «■editors of Huir class would secure, it was a quest ion of fact for the trial court whether the grantees had reasonable cause to believe the grantor was insolvent and that the conveyance would effect a preference.</p>

<p>Appeal from the District Court of the United States for the District of New Jersey; Thos. G. Haight, Judge.</p> <p>Suit in equity by the Seward Trunk & Bag Company against David Osterweil and others, trading as U. Goldsmith & Son. Decree for defendants, and complainant appeals.</p>

Suit by the I,ife Preserver Suit Company, Incorporated, against the National Nile Preserver Company and others. Decree for complainant, and defendants appeal. The plaintiff is the assignee of whatever rights here important were possessed by one Keviczky, and we shall hereafter speak as if he, and not his creature corporation, had brought the suit.

Bill by Jolian Stumpf against the A. Schreiber Brewing Company. From an interlocutory decree for plaintiff (242 Fed. 72), defendant appeals. Appeal by defendant from decree in equity holding valid and infringed claims 1, 2, 3, 4, and 8 of patent No. 1,042,168, issued to the plaintiff herein.

<p>Appeal from the District Court of the United States for the Southern District of Ioiva; John C. Pollock, Judge.</p> <p>Suit in equity by the National Marking Machine Company against the Mvmger Laundry Company. Decree for complainant, and defendant appeals.</p>

<p>Appeal from the District Court of the United States for the Western Division of the Southern District of Ohio; Howard C. Hollister, Judge.'</p> <p>Suit by Richard H. Wright against tire Eight Hour Tobacco Company. From a decree for defendant, plaintiff appeals.</p>

<p>1. Patents <&wkey;170 — Construction—Reference to Claims of Copending Patents.</p> <p>Where patents were practically concurrent and copending, each one seeking to be contributory to the advance or change in the art, but referring expressly to each other and to the general purpose to be accomplished by all of them, the court, in considering the claims of one patent, must do so in view of the time and conditions under which the copending patents were brought out, in order to ascertain the true intent and construction to be placed on each.</p> <p>2. Patents &wkey;328 — Validity and Infringement — Shoe Bottom Filler.</p> <p>Thoma patent, No. 832,002, covering a shoe filler package and process of making it, held valid and infringed.</p> <p>3. Patents <&wkey;32S — Validity and Infringement — Shoe Bottom Filler.</p> <p>Thoma patent, No. 861,555, on inner sole shoe filler, held valid and infringed.</p> <p>4. Patents <&wkey;S28 — Invention—Process of Filling Shoe Bottoms.</p> <p>Thoma patent, No. S08,224, for the art of filling shoes, held valid.</p> <p>5. Patents <&wkey;328 — Validity and Infringement — Shoe-Filling Apparatus.</p> <p>The Arnold patent, No. 808,227, for a shoe-filling apparatus, held valid and infringed.</p>

<p>In Equity. Suit by the North American Chemical Company and others against Alvin $. Dexter and others for infringement of patent.</p>

<p>Proceeding by Thomas J. Beales for writ of habeas corpus. On demurrer to petition.</p> <p>John W. Preston, U. S. Atty., and Casper A. Ornbaun, Asst. U. S. Atty., both of San Francisco, Cal.</p>

<p>In Equity. Bill ,by Jennie C. Natterstad against the'Title Guarantee & Trust Company and R. S. Howard, as receiver.</p>

<p>Bankruptcy <3^348 — -Debts—Piuoiuties—“Traveling Salesman.”</p> <p>Partners, who sold goods for the bankrupt on a commission basis maintaining their own office and hot being bound to devote any particular amount of their time to a sale of the bankrupt’s property, are not “traveling salesmen,” within Bankruptcy Act July 1, 1898, so as to he entitled to priority as such.</p> <p>|Ed. Note. — 'For other definitions, see Words and Phrases, First and Second Series, Traveling Salesman.]</p>

Tn Admiralty. In the matter of the libel and petition of Q’Brien Bros., Incorporated, owners of the steam, tug O’Brien Bros., etc., for limitation of liability.

In Equity. Bill of interpleader by the Sovereign Camp of Woodmen of the World against Mrs. Sallie E. Webb, John Quinton, and others. On motion by Mrs. S'allie E. Webb to strike the amended answer filed by John Quinton and the unnamed* defendants.

In Admiralty. Ti^el by the Baltimore Dry Docks & Shipbuilding Company against the steamship Kennebec, with cross-libel by the Seaboard & Gulf Steamship Company, owner of the steamship Kennebec, against the libelant.

<p>In Bankruptcy. On motion by Oscar Quinto and others, creditors, to require David Siegel, bankrupt, to repay moneys expended by a creditors’ committee on reorganization of the. bankrupt’s affairs.</p> <p>The case was this: The bankrupt was adjudicated in the Southern district of New York, and on the 34th day of February, 1918, the first meeting of creditors was held before the referee in bankruptcy. At that time tho bankrupt’s attorney announced to the referee that the bankrupt offered a settlement of 37 cents in cash and proposed to pay all priority claims and expenses of the proceeding, including $1,000 to the creditors’ committee in repayment of the amount paid to its counsel. The creditors’ committee represented some 90 por cent, in amount of all the creditors of tho bankrupt, and accepted the terms of the composition so offered, upon the understanding that the sum mentioned should be repaid. The committee had paid this sum to an attorney who conducted inquiries into the affairs of the bankrupt and disclosed facts which probably led to the discovery of preferences to some of the creditors. The examination was conducted without the request of the receiver, either express or implied;, it took place, however, with the receiver’s knowledge and without his dissent. It may be assumed that the results were In some degree beneficial to the estate. Upon applying Cor a confirmation of the composition, the District Court declined to allow tho payment of this sum, and the order was signed without such provision. Thereafter the bankrupt distributed the consideration of the composition in accordance with the order of the court, and has since that time returned the sum of $1,000 to the persons from whom he borrowed it at the time to meet the supposed necessities of the composition. The order of composition itself was signed on April 9, 3918, and tills motion was made upon the 251 h of June following. At that time the bankrupt did not have tho sum in question, and swore that die would be unable to comply with tho order of the court for the payment, if made.</p>

In Bankruptcy. Proceedings in the matter of the estate of I* Frosteg, bankrupt, wherein the bankrupt excepts to the master’s report denying his discharge.

<p>In Admiralty. Libel by Harry C. Ferguson against the steamship Vestris, her tackle, etc.</p>

<p>In Admiralty. Libel by Charles David and others against the steamship Pinna.</p>

<p>In Bankruptcy. In the matter of Frank Radley, bankrupt. On review of an order of the referee sustaining objections to the bankrupt’s discharge.</p> <p>This is a hearing on review of an order of the referee in bankruptcy, Hon. James A, Van Voast, sustaining the objections to the discharge in this proceeding of the above-named bankrupt, on the ground that in voluntary bankruptcy proceedings on his part in this district within the six years last past said Radley had been granted a discharge from his debts.</p>

At Caw. Action by Mike Martin against the Kennecott Copper Corporation. On motion by defendant to strike denials filed by plaintiff to the answer and for judgment on the pleadings.

<p>SHIPPING <&wkey;>81(l) — NEGLIGENCE OP PILOTS — LIABILITY OP VESSEL OWNER.</p> <p>Where Norwegian vessel, having no choice under the law hut to take Virginia pilot, was anchored by him in vicinity of government cables shown on charts as prohibited, and the anchor fouled the cables and caused damage, the ship was liable for such default of the pilot.</p>

In Admiralty. Uibel by Joseph Jefferson against the gas boat Flle-nora, her engines, tackle, apparel, and furniture, and others.

<p>In Admiralty. Libel by Bushe Sherale and others against the steamship Hannington Court, her tackle, apparel, etc. Decision in favor of claimant.</p>

<p>B. H. Schutte was indicted for violation of Espionage Act, § 3. On demurrer to the indictment.</p>

<p>1. CrimiNal Daw <&wkey;304.(l) — Judicial None® — War Activities — Red Cross.</p> <p>Tlie government having constituted the American Red Cross an important factor of the national war activities, the court must take judicial notice of many Red Cross aetiviilfes.</p> <p>2. War &wkey;4 — Persons in Servio® — Rim Cross — Espionage—“Military and Naval Forces ov. the United States.”</p> <p>Tlie American National Red Cross, having been employed as a part of the sanitary service of 1iie army and, navy, is a part of the “military or naval forces of the United States,” within the meaning- of Act Juno 15, 1917, c. 30, § 3, as amended May 16, 1918, providing punishment for those making false statements with intent to hinder the success of such forces.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First Series, Military Forces; Naval Forces.]</p> <p>3. War <&wkey;4 — Military and Naval Forces or the United States — Persons in Service — Army T. M. O. A.</p> <p>The Y. M. C. A., as recognized by the President of the United States and engaged in raising funds for and in serving the soldiers and sailors, is a part of the “military and naval forces of the United States,” within the verms of Act June 15,1917, e. 30, as amended May 16, 1918, prohibiting interference with the successful operation of such forces.</p> <p>4. War <&wkey;4 — Military and Naval Forces oe the United States — Red Cross — International Treaties--Military or Naval Service — Espionage.</p> <p>The official recognition of th’o Red Cross by international treaties, particularly the Treaty of Geneva of August 22, 1864, whereby members captured were to be treated as neutrals, does not prevent recognition of the Red Cross as a part of the “military and naval forces of the United States.' under Act June 15, 1917, c. 30, as amended May 16, 1918, pro-Minting interference with the operation of such forces.</p> <p>5» War <S&wkey;4- — Military Forces — Espionage—Interfering with Raising Money von Army Y. M. G. A. and Red Cross Work.</p> <p>Tlie making of false statements concerning the Army Red Cross and Army Y. M. 0. A. and the government’s management of the war, to persons soliciting funds to carry on war work, if intended to Interfere with raising such funds, and with “the operation or success” of the “military or naval forces.” is punishable under Act June 15, 1917, c. 30, as amended May 16, 1918.</p>

Scott Nearing and the American Socialist Society were indicted for conspiracy to violate and attempted violation of the Espionage Act. On demurrer to the indictment. Demurrer by both defendants to two indictments — the first found on March 21, 1918, and the second on May 13, 1918. The first indictment is in four counts.

<p>1. Indictment and Information <&wkey;121(2) — Bill of Particulars — Bight Thereto.</p> <p>Where an indictment charged that defendants conspired to impede enlistment service by public speeches, private solicitation, and the publication of a magazine, held, that they were entitled to a bill of particulars of the speeches etc., relied on.</p> <p>2. Army and Navy <&wkey;40 — Conspiracy .to Cause Insubordination in Military Service.</p> <p>The same rules govern an attempt to cause insubordination in the military forces that apply to an attempt to impede enlistment, and where the words likely to cause insubordination are used with intent me result is immaterial.</p> <p>3. Army and Navy <&wkey;40 — Offenses—Causing Insubordination — Indictment.</p> <p>While an indictment charging an attempt to cause insubordination in the military service must allege that the words were uttered under such circumstances that they were in the course of events likely to reach members of the military force, an indictment alleging publication of magazines calculated to cause insubordination and their distribution throughout New York and the United States is sufficient. ■</p>

<p>In Equity. Suit by William F. Eitzhugh and other’s against Verner Z. Reid. On motion to quash service of process.</p>

<p>In Admiralty. Libel in rem by Horace Turner and others, owners of the schooner Addison E. Bullard, against a Cargo of Resawn Pitch Pine Timber and Lumber, and in personam against Allen & Freiderichs.</p>

Habeas corpus by the. United Slates, on the relation of Max Kotzen, against the Chairman, Clerk, and Members of Local Exemption Board No. 157 Cor the City of New York, the Military Authorities of the United States, and any person having custody of the relator.

In Equity. Suit by Russell H. Brown, as trustee in bankruptcy of the Monarch Lumber Company, a bankrupt, against William W. Crawford, trustee, and the Assets Realization Company, a corporation, wherein the David Investment Company intervenes, making parties defendant, in addition to those already parties, Grayson M. P. Murphy and others.

<p>Joseph Greenbaum was indicted for concealing property while a bankrupt, and he demurs to the indictment</p>

<p>In Admiralty. libel by the Kincraig Steamship Company, limited, against the Norwegian steamship Kongsli.</p>

<p>1. Bankruptcy <&wkey;184(2) — Preferential Transfer — Record—“Required.”</p> <p>Under Bankruptcy Act July 1, 1898, §§ 60a, 60b (Comp. St, 1916, § 9644), avoiding preferential transfers by an insolvent recorded within four months before bankruptcy proceedings, “if by law such recording * * * is required,” the word “required” does not mean required for any purpose, and, in view of Gem Laws R. I. 1909, c. 253, § 2, making an unrecorded mortgage as between the parties valid the m,ere failure to record is insufficient evidence of a tacit agreement between the bankrupt and the mortgagee to withhold it from record for improper purposes.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Require.]</p> <p>2. Mortgages &wkey;>25(6) — Consideration—Presumption.</p> <p>The presumption is that a mortgage is for a present consideration.</p> <p>3. Bankruptcy <&wkey;342% — Evidence—Record.</p> <p>On petitions to review referee's order disallowing a mortgagtee’s claims for payment out of proceeds of mortgaged realty sold free and clear of liens, testimony of bankrupt before referee, not properly a part of the record on the petitions, might be disregarded.</p> <p>4. Bankruptcy <&wkey;340 — Preference—Notice to Creditor — Evidence.</p> <p>On petitions to review referee’s order disallowing claims for payment out of the proceeds of mortgaged realty sold free and clear of liens, evidence held, to sustain referee’s conclusion that the creditor, immediately receiving the proceeds of the mortgage, had reasonable cause to believe that a preference was intended. • ■</p> <p>5. Bankruptcy <&wkey;342% — Loan to Bankrupt — Intent—Evidence.</p> <p>On petitions to review referee’s order disallowing claims for payment out of the proceeds of mortgaged realty, sold free and clear of liens, evidence held to support referee’s finding that the loan was sought and made to procure funds to prefer a creditor, and to pay its claim in full.</p> <p>6. Bankruptcy <&wkey;342%' — Hearing Before Referee — Weight of Evidence.</p> <p>The credit which should be attached to oral testimony of witnesses appearing before the referee, and the weight which he should attach to sweeping denials of actual knowledge of matters concerning which knowledge or inquiry were to be expected, are matters to be finally determined by him. /</p>

<p>1. Trade-Marks and Trade-Names <&wkey;93(3) — Infringement—Evidence.</p> <p>In suit to restrain defendant from using the word “Queen” as a trademark for oleomargarine, held, under the evidence, that plaintiff was entitled to injunction against infringement of trade-mark “Queen of the West,” and against the use of the word “Queen” in connection with sale of oleomargarine.</p> <p>2. Trade-Marks and Trade-Names <&wkey;61 — Infringement — What Constitutes.</p> <p>The rules applicable to the use of the same name on distinct kinds of goods are'inapplicable in cases where the product is the same, and the only difference is in the size or form of the receptacle or package in which the product' is sold.</p> <p>3. Trade-Marks and Trade-Names <&wkey;59(5) — Infringement—What Constitutes.</p> <p>The unnecessary adoption of a part of plaintiff’s trade-mark, a part so substantial as to have become a trade-name or nickname for the goods, is generally regarded as an infringement.</p> <p>4. Trade-Marks and Trade-Names &wkey;>59(5) — Infkingement^-What Constitutes.</p> <p>The use by a defendant of 'a trade-mark identical with a name which has been derived from plaintiff’s--trade-mark proper, and has become sufficiently descriptive of plaintiff’s goods, is the adoption of a mark which will cause its goods to bear the same name in the market.</p> <p>5. Trade-Marks and Trade-Names &wkey;*57 — Infringement—What Constitutes.</p> <p>Neither subtractions from nor additions to a trade-mark proper will avoid infringement, when such imitation as is likely to lead to confusion still remains, despite the change.</p>

In Equity. Suit by J. W. Atkins against E. C. Garrett. This is a suit at law for the rescission of a contract of sale of 50 shares of stock of the Lenzburg-Oriditon Oil & Gas Company for nonpayment of the purchase price, represented by the note of the purchaser for $5,000, the payment of which was secured by the 50 shares of stock as collateral. A trial by jury was waived and the case submitted to the court.

<p>1. Life Estates <&wkey;15(2) — What Constitutes' “Income” — Stock Dividends.</p> <p>Where residuary estate was devised for life to complainant, with remainder to others, and consisted principally of stock, and the corporation, after the decree of distribution, by resolution increased its capital stock, “in order to represent the capitalization of the company,” the life tenant was not entitled to the shares to which the possession of the before issued shares entitled their owner, since such new shares were not “income.”</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Income.]</p> <p>2. Life Estates <&wkey;15(2) — Right to Income — What Constitutes Income-Stock Dividends.</p> <p>Where by such distribution of additional stock the value of each original share was lessened, complainant was not entitled to receive the additional shares.</p> <p>3. Life Estates <&wkey;15(2) — Right to Income — What Constitutes Income— Stock Dividends.</p> <p>Where only one-third of the amount of the additional stock was taken from the surplus earnings after the decree which fixed the values of the respective estates, plaintiff, as life tenant, was not entitled even to the proportional amount of one-third of the stock.</p>

<p>1. Courts i&wkey;334 — Federal Court — Sonus Facias.</p> <p>Under Judicial Code, § 262 (Comp. St. 1916, § 1239), empowering District Courts to issue writs of scire facias, they may do so in a state which has abolished the writ.</p> <p>2. Appeal and Error <&wkey;>1239 — Scire Facias —Nature of Writ.</p> <p>The writ o-f scire facias, to enforce liability of the surety on an appeal bond, is original only in the sense that, being obtained, the subsequent procedure is as in an action at law, entitling the defendant to answer and to jury trial.</p> <p>8. Appeal and Error <&wkey;>1239 — Appeal Bond —Scire Facias.</p> <p>It is not ground of objection to issuance of scire facias against the: surety on an appeal bond, to enforce its liability thereon, that it was not a party to the original action.</p> <p>4. Courts <&wkey;334 — Federal Court — Common-Law Writ — Procedure.</p> <p>In absence of rule of federal court, a common-law writ will proceed in accordance with the settled practice at common law.</p>

<p>1. Bankruptcy @=>123 — Secured Claims — Proof.</p> <p>Where a secured creditor made a purely formal proof of claim, and did not allege any insufficiency in the security, or take any of the steps provided for by Bankruptcy Act July 1, 1898, § 57e (Comp. St. 1916, § 9641). it was not entitled to have its secured claim allowed in any amount, in order that it might participate in the creditors’ meeting's.</p> <p>2. Bankruptcy @=>327(2) — Trustee—Rights.</p> <p>Under Bankruptcy Act July 1, 1898, §§ 67, 70 (Comp. St. 3916, §§ 9651, 9654), the trustee takes only the bankrupt’s equity in the property, subject to valid liens, and the lienholder, unless restrained, may enforce the lien without regard to the bankruptcy court.</p> <p>3. Bankruptcy @=>214 — Courts--Rights.</p> <p>A bankruptcy court may, in the interest of general creditors, regulate the method of enforcing liens, in order to realize as much as possible from the bankrupt’s equity.</p> <p>4. Bankruptcy <5=3258 — Courts—Authority.</p> <p>Where property comes into the possession of the bankruptcy court, it may sell the same free from liens, and award the lienholder a preferential payment, representing the proceeds of his lion; hut such practico is of doubtful propriety, where the right to a lien is disputed.</p> <p>5. Bankruptcy @=>258 — Proceedings— Authority ok Court.</p> <p>The bankruptcy court may in its discretion soil merely the bankrupt’s equity in the property, and leave the lienholder to enforce his lien by appropriate proceedings.</p> <p>6. Bankruptcy @=>327(2) — Creditors—Secured Creditors.</p> <p>A secured creditor is not even required to file a formal proof of claim, thongli, where the trustee has taken possession of the property and sold it, ho may file a petition to obtain the proceeds of the lien in the hands of the trustee.</p> <p>7. Bankruptcy @=>345 — Debts- -Priority.</p> <p>Bankruptcy Act July 1, 189-8, § 64b (5) (Comp. St. 3916, § 9648), directing payment of debts having priority, does not relate to claims secured by specific liens on property protected by section 67 (section 9651).</p> <p>8. Bankruptcy @=> 150 — Taking Possession op Incumbered Property.</p> <p>Bankruptcy court is not required to administer property burdened with liens, and should do so only when it is for the interest of the general estate.</p> <p>9. Bankruptcy @=>258 — Claims—Opposition to Sale.</p> <p>A secured creditor, who filed a formal proof of claim, showing that it liad mortgages on certain property, held not entitled to object to the referee’s order directing the trastee to sell the same subject’ to liens, notwithstanding such creditor later filed an unsecured claim for a small amount, and the trustee questioned the validity of the mortgage.</p>

Joe Peak was indicted in the Alabama circuit court for grand larceny, and the cause was removed to the federal court on petition, under Judicial Code, § 33. On motion to remand.

<p>In Admiralty. Libel by August Razukas against the New York Trap Rock Company.</p>

Habeas Corpus. Petition by the United States, on the relation oí .Meier Schwartz, for a writ of habeas corpus against the Commanding Officer of the 78th Division, U. S. A., located at Camp Dix, N. j. On petition for the writ, and return of 'an order to show cause.

<p>1. Courts <S^814 — Jurisdiction—Parties.</p> <p>A suit against “J. O. B., sheriff of Coahoma county, Miss.,” was an action against the individual, and not against the office, so that service obtained while he was out of his own state, where he was not acting as sheriff, would not affect the validity of the service.</p> <p>2 Courts <¡x=»272 — Ekderal Courts — Diversity of Citizenship — District in Which Brought.</p> <p>Where federal jurisdiction is invoked, founded only on the fact that the action Is between citizens of different states, and the suit is brought in the district of the plaintiff’s residence, objection thereto on the ground that the suit should have been brought in the district of the defendant’s residence presents a question of venue, rather than of jurisdiction; and if in such case the requisite diversity of citizenship appears the objection is not well taken. Judicial Code, §§ 24, 51 (Comp. St. 1916, §§ 991(1), 1033).</p>

<p>Removal op Causes <@=>19(8) — Remand—“Action Arising Under the Constitution or Laws.”</p> <p>An action by a shipbuilding company against the Emergency Fleet Corporation organized under Act March 3, 1901, pursuant to the United States Shipbuilding Act (Comp. St. 1916, §§ S146a-8146r), upon an alleged contract for the building of ships, which it was not allowed to build, is an action arising under the Constitution and laws of the United States, and is not subject to remand from, the federal District Court to the state court.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Arising.]</p>

<p>1. Mortgages <§=>171(5) — Mistake in Description — Notice to Trustee in . Bankruptcy.</p> <p>The repetition in tbe description of the property as the “N. W. of N. E. %” and “N. % of N. E. in the same township and range, carried no notice to a trustee in bankruptcy of the mortgagor that the N. % of the N. W. % was intended to be conveyed.</p> <p>2. Notice <@=6 — Constructive Notice — Knowledge of Facts.</p> <p>The rule of notice is that knowledge of facts which, if followed up, would disclose the true state of facts, is efficacious.</p> <p>3. Bankruptcy <§==>151 — Property Vesting in Trustee — Real Property.</p> <p>Real property of a bankrupt, which was intended to be covered by a mortgage, but which was not sufficiently described therein to give the trustee notice thereof, passes to the trustee, under Bankruptcy Act July 1, 1898, § 47, as amended by Act June 25, 1910, § 8 (Comp. St. 1916, § 9631), vesting the trustee with all the rights, remedies, and powers of a judgment creditor holding a lien by legal or equitable proceedings thereon.</p>

In Equity. Suit by Louis Karasik and others, as trustees in bankruptcy of the Franklin Brewing Company, bankrupt, against the People’s Trust… Held: at its officio, on August 10, 1915, at which all of the stockholders were present, and a resolution was presented setting forth: (1) That the Franklin Browing Company was indebted to tire estate of Claus Doscher in a sum exceeding $450,000, for money loaned and upon open account; (2) that the financial condition of the Franklin…

<p>Appeal from the District Court of the United States for the Eastern District of New York.</p> <p>Suit by Bonis Karasik and others, as trustees in bankruptcy of the Franklin Brewing Company, against the People’s Trust Company, individually and as trustee under an alleged mortgage. From a decree for complainants (252 Fed. 324), defendant appeals.</p>

<p>In Error to the District Court of the United States for the District of Minnesota; Wilbur F. Booth, Judge.</p> <p>Action by the J. D. Owens Company against I. E. Officer. Judgment for plaintiff, and defendant brings error.</p>

Bean, Judge. Suit by Parker Stennick, trustee in bankruptcy for the Hamilton Creek Timber Company and the Rainier Lumber & Shingle Company, against Willard N. Jones and others. From a decree for defendants, complainant appeals.

<p>In Error to the District Court of the United States for the Northern Division of the District of Idaho; Frank S. Dietrich, Judge.</p> <p>Action by Angelo Dalo against the Federal Mining & Smelting Company, a corporation. Judgment for plaintiff, and defendant brings error.</p>

<p>1. MUNICIPAL CORPORATIONS <&wkey;706(6) — COLLISION IN STREET — NEGLIGENCIA —Question por Jury.</p> <p>In action by plaintiff pedestrian for injuries due to collision with automobile within or near intersecting streets, question of negligence held, under evidence, for jury.</p> <p>Z. Trial &wkey;>178 — Directed Verdict.</p> <p>Upon defendant’s motion for directed verdict, the evidence will be viewed in the light most favorable to plaintiff.</p> <p>3: Municipal Corporations &wkey;>705(l) — Collision at Street Intersection —Duty op Automobile Driver.</p> <p>It is the duty of the driver of an automobile himself, independently of the conduct and intentions of drivers of other vehicles, to exercise reasonable caution and care as respects the safety of others in approaching and passing over foot crossings of city streets.</p> <p>4. Municipal Corporations <&wkey;705(l) — Collision at Street Intersection —Duty op Automobile Driver.</p> <p>The amount of care and. caution required of an automobile driver, in approaching and passing over foot crossings of city streets, is to be proportioned to the amount of travel.</p> <p>5. Municipal Corporations &wkey;>705(2) — Use op Streets — Duties.</p> <p>The general rule concerning the rights and reciprocal duties of travelers, one on foot and the other in an automobile, is that both have equal rights, but that each in the exercise of his rights is bound to use ordinary care respecting the other.</p> <p>6. Municipal Corporations <&wkey;705(l) — Use op Streets — Duties.</p> <p>After a pedestrian has entered upon a street crossing in a prudent manner, he is entitled to the exercise of reasonable care on the part of drivers of subsequently approaching machines.</p> <p>7. Municipal Corporations &wkey;>705(10) — Use op Streets — Duties.</p> <p>After a pedestrian has entered upon a street crossing in a prudent manner, he is not bound, as a matter of law, to be continually looking or listening for automobiles.</p> <p>8. Municipal Corporations <&wkey;706{7) — Collision at Street Intersections —Contributory Negligence) — Question por Jury.</p> <p>Where a pedestrian, after having prudently entered upon a street crossing, is injured by collision by an automobile, the question of contributory negligence is one of fact.</p> <p>9. Trial <&wkey;296(I3) — Instructions—Correction.</p> <p>In action by pedestrian for injuries due to collision with automobile, where ordinance giving pedestrian right of way at crossing was introduced in evidence without objection, defendant’s complaint as to giving of instruction that plaintiff had right of way will not be sustained; charge, being modified as limited by the ordinance and defendant reserving no exception and making no assignment to charge as modified.</p>

r the Southern Division of the Western District of Michigan; Clarence W. Sessions, Judge. Suit by Arthur C. Rake against Alfred B. Mudgett and another, receivers of the Bear River Paper & Bag Company. From an order denying full payment of certain mortgage bonds, and directing payment of certain expenses incurred by the receivers, complainant appeals.

<p>1. Extradition <£=>32 — Interstate Extradition- -Sufficiency of Charge.</p> <p>In proceedings for the rendition from one state to another of persons charged with crime, courts will not indulge in technical tests of the sufficiency of a charge, where it substantially describes the crime, if there is som^ appropriate allegation and evidence that a charge has in reality been duly made in the state where the crime is alleged to have been committed.</p> <p>2. Extradition <§=>32 — State Extradition — Sufficiency of Charge.</p> <p>In a proceeding before a magistrate for the arrest of a person charged with crime in another state, brought in the state to which he is alleged to have fled, it must appear that in the state where the crime was committed he stands charged through indictment or affidavit before a magistrate, or by some other equivalent accusation, sanctioned by the laws of that state.</p> <p>3. False Imprisonment <3=>12 — Fugitives from Justice — Warrant—Sufficiency.</p> <p>A warrant issued by a justice to arrest an alleged fugitive, issued, on information on oath “that the offense of fugitive from justice has been committed and accusing M. II. thereof,” even if considered in connection with oath reciting that accused had unlawfully entered state from Mississippi, “where he is charged with the crime of murder,” was not fair and, regular on its face, but void, as failing to state how, or under what competent official sanction, accused was charged in Mississippi, in view of Thomp. Shan. Code Tenn. §§ 7323, 7324, 7326, and Rev. St. TJ. S. § 527» (Comp. St. 1916, § 10126).</p> <p>4. False Imprisonment <§=>12 — Defenses—Void Warrants.</p> <p>A void warrant, not fair and regular on its face, affords an officer attempting to serve it no protection as against an action for false imprisonment, since he is chargeable with knowledge of its defects.</p> <p>5. Homicide <@=>111 — Resistance of Arrest — Justification.</p> <p>Although a person may with reasonable force resist an officer attempting unlawfully to arrest Mm, yet bis resistance must be proportionate to the danger threatened, and he may not kill the officer, unless the circumstances fairly and honestly lead Mm to believe that he is in imminent danger of death or great bodily harm.</p> <p>6. False Imprisonment <§=>39 — Resistance to Arrest — Instructions.</p> <p>In an action for false imprisonment, involving infliction of personal injury by defendants acting under a void warrant while attempting to enter plaintiff’s house, where the evidence was conflicting as to the grounds for plaintiff’s resistance, it was error to grant motion to direct a verdict.</p> <p>7. Sheriffs and Constables <§=>100 — Iiabtuty for Acts of Deputies.</p> <p>Where the act of the deputy sheriff is an official act and causes an injury, the sheriff is answerable, if the act is done in execution of the deputy’s office, even though he may be mistaken as to the lawfulness of the act.</p> <p>S. False Imprisonment <@=>19 — Parties—Joinder.</p> <p>In a.n action for false imprisonment, brought against a sheriff: and his deputies, the sheriff was properly joined with the deputies as parties defendant, notwithstanding they both acted in their official capacity.</p> <p>9. Courts <©=>352 — Jurisdiction—Federal Courts — Diversity op Citizenship — Special Findings.</p> <p>In an action for false imprisonment, where on the issue as to jurisdiction based on diversity of citizenship it was specially found that plaintiff “L and was a resident of the state of Mississippi at the day of bringing this suit,” such finding was sufficient to sustain an inference that plaintiff was both a citizen and resident of the state of Mississippi, and that therefore the court was vested with jurisdiction.</p>

<p>In Error to the District Court of the United States for the Northern Division of the District of Idaho; Frank S. Dietrich, Judge.</p> <p>Action at law by William M. Bowden against the Gold Hunter Mining & Smelting Company. Judgment for plaintiff, and defendant brings error.</p>

Petition for Revision of Proceedings of the District Court of the United States for the Western District of Pennsylvania; Charles P. Orr, Judge. In Equity. Suit by Niels A. Christensen and the Allis-Chalmers Company against the Westinghouse Traction Brake Company. On petition by defendant for mandamus or certiorari directed to Charles P. Orr, District Judge.

. Appeal from the District Court of the United States for the District of Montana; Geo. M. Bourquin, Judge. Suit in equity by the Mackey Wall'Plaster Company against the United States Gypsum Company. Decree for complainant, and defendant appeals.' This is a suit for specific performance of an option contract. On Juno 15, 1909, the Mackey Wall Plaster'Company, appellee, made a lease of certain premises to the United States Gypsum Company, appellant.

<p>Appeal from the District Court of the United States for the Northern District of Illinois.</p> <p>Bill by Devi C. Weir, as executor of. the estate of Frederic C. Weir, against John McKechney and others, which, after the death of complainant, was revived in the name of Joseph D. Dackner, his administrator. John S. Miller and another filed an intervening petition, and from a decree dismissing the original bill, cross-bill, and intervening petition, petitioners appeal.</p> <p>On July 28, 1900, Levi O. Weir, a citizen of Ohio, and the executor of the estate of Frederic O. Weir, appointed as such by the courts of Ohio, of which Frederic was a resident, filed a bill as such executor against John Mc-Kechney and John McKechney, Jr., alleged to be the surviving copartners of ' Frederic, and citizens of Illinois. The bill charges that while the partnership was to continue until certain work with the city of Chicago and the drainage canal was completed, and during such time the defendants should superintend the work without pay, they had nevertheless wrongfully paid out funds of the partnership to one of them for such services. Other wrongful transactions were charged. The bill further alleged that in 1897 an action was brought against the city of Chicago; that on March 1, 1899, Frederic died; that the action was revived in the name of the defendants, as surviving partners, on March 10,1899; that in August, 1899, a large judgment was recovered against the city of Chicago;' that an appeal was then pending from the judgment, which judgment constituted the only remaining asset of any value; and that all of the business had been completed, except to collect the judgment and pay the debts of the firm and to distribute the surplus between plaintiff and the defendants. The bill then recited the firm indebtedness to sundry persons, including Levi C. Weir in his individual capacity as an accommodation indorser and for money loaned since the death of Frederic. Insolvency of the defendants, and the threat and danger of a settlement of the judgment and the disposition thereof, to the injury of the bona fide creditors of the partnership and of Frederic’s estate, were charged, and an accounting of the partnership transactions and adjustment of the rights of the parties prayed for; the plaintiff offering to pay the defendants whatever might be due.</p> <p>The - defendants, answering, denied insolvency, as well as the allegations of wrongdoing, and charged that Levi was interested with his brother Frederic in the latter’s share in the firm, and as such was liable for the firm’s debts and -should be made a party to the suit. They further filed a cross-bill for an accounting as to several joint enterprises. Levi was never served individually, and never in any manner appeared in the proceeding other than in his ea-parity as exeeutor of Frederic’s estate. Certain agreements, in tlie nature of ail armistice, were subsequently made by tlie parties. In February, 3902, tlio wife of John McKechney, claiming: an interest in the firm’s assets under this agreement, filed a bill in the state court for tlio appointment of a receiver. Thereupon a supplemental bill was filed in the court below. The stale court proceedings were restrained, and the order appointing a receiver for tlie firm in the court below was affirmed in this court. McKechney v. Weir, 118 Fed. 803, 55 C. C. A. 417.</p> <p>In April, 1904, the defendants filed a petition, alleging that the receiver had no funds to conserve the estate; that they wore unable to pay the attorney's fees of the present appellants, John S. Miller and Merritt Starr, who had represented the firm in (ho litigation with the city of Chicago; that these counsel had given notice of their intention to withdraw, whereupon they prayed authority to employ counsel to prosecute the claims. Levi C. Weir, as executor, in his answer to the petition, alleged that, since the death of Frederic and during the pendency of the action against tlio city of Chicago, he had advanced considerable sums for the benefit of the firm, and specifically had advanced the money necessary to pay Miller and Starr to file a petition for rehearing, after the Supreme Court had reversed the judgment against the city of Chicago; that by this action the opinion had been modified, so that a recovery against the city was deemed probable. He denied any liability to Messrs. Miller and Starr for their past services. McKechney’s petition was subsequently withdrawn by leave of court.</p> <p>In July, 3904, the firm of Peck, Miller & Starr withdrew their appearance as solicitors for the defendants in this causo, and thereupon the appellants, by leave of court, filed their intervening petition in the proceedings. This petition alleged that the firm of Weir, McKechney & Co., and its several members, about January 26, 1899, retained the petitioners in and about their business and in the prosecution of claims against the city of Chicago; that the original contract of empioym. at was made by John McKechney, the managing partner, and was ratified by Frederic O. Weir: that, shortly after Frederic’s death, the surviving partners renewed the request that the petitioners prosecute the claims, and that these requests and tlie iiromise to pay for the services were made at the instance or with the assent of Levi O. Weir, the executor: that, shortly after his appointment as executor, Levi, as executor, renewed the requests that the petitioners prosecute the suits; and that pursuant thereto they have rendered services to the firm since January 26, 1899. The petition further recites the recovery of the judgment against; the city of Chicago in the sum of over half a million dollars in August, 1899, but its final reversal in the Supreme Court of Illinois; that the action was then still pending and undetermined. Petitioners charged that the balance due them, amounting to over $65,000. was a lien upon the assets of the firm, to be paid therefrom before any division among the partners. It charged the insolvency of tlie defendants McKechney; further that Levi C. Weir is the principal legatee of Frederic, and that the estate of Frederic is solvent; that Levi, as exeeutor, has large sums in excess of all individual and firm debts of Frederic. Levi, as executor and individually, as well as the McKeehneys, were made parties respondent. Petitioners prayed for an order calling upon creditors to prove their claims and for an allowance of petitioners’ claim, to bo paid to them, as well as for general relief.</p> <p>Levi C. Weir, as executor, demurred to the petition for want of equity. Appended to the demurrer was an affidavit of the attorney, stating that Levi was without the jurisdiction, and that the a ftorney did not represent Levi personally and had no authority to appear for him individually. The order overruling the demurrer of Levi O. Weir, as executor, and directing him to answer the petition, contained tlie following addition: “The question as to the right of said petitioners to recover as against Levi O. Weir, executor of the last will and testament of Frederic G. Weir, deceased, to be paid from or out of the assets coming to his hands as'executor or received by him as dev-isee under the will of Frederic G. Weir, deceased, is reserved, and not passed upon, by the action taken in overruling said demurrer.” Thereupon Levi G. Weir, as executor, filed a document, entitled “a demurrer in part and an answer to the residue of the petition.” As to so much of the petition as charged the receipt by Levi, as executor, of large sums of money, and as prayed that Levi, as executor, might be decreed to pay the petitioners the amount which might be found due and owing them, Levi, as executor, demurred generally for want of equity, and as to the residue of the petition answered that be neither admitted nor denied the original retainer of petitioners, the ratification by Frederic, the renewal of the contract after Frederic’s death, by the surviving partners, but denied that the surviving partners’ promises were made with his assent, or that he requested the petitioners to attend to the business of the firm. The petitioners replied to so much of this document as purported to answer the petition, and as to the remainder moved that it be stricken out.</p> <p>The cause had been referred to a master in chancery in 1900. In March, 1905, prior to the disposition of the demurrers to Miller and Starr’s petition, this order of reference was ordered to stand. No proceedings were taken thereunder, and on December 10, 1912, :he order of reference was set aside, and the “cause” referred to another master. In the meantime, by the order of September, 1910, Joseph L. Lackner, as administrator de bonis non with the will annexed of Frederic O. Weir, deceased, was substituted as complainant, and it was ordered that all intervening petitions filed should stand without prejudice by reason of the death of Levi O. Weir.</p> <p>In February, 1913, testimony was begun to be taken before the master on the petition of Miller and Starr. In June, 1913, the hearing was stayed by order of court. In January, 1914, the proceedings before the master were again stayed, and discontinued until the determination in the state court of a bill of review of the former proceedings and the judgment in favor of the city of Chicago. On March 16, 1914, a decree was entered, denying the motion of Miller and Starr for the vacation of the stay orders and for permission to proceed with the taking of testimony, the decree reciting that the demurrer to the bill of review in the state court had been sustained, but that a!n appeal therefrom was pending. The decree further denied the motion of Miller and Starr for permission to the master to certify the evidence theretofore taken by him, and sustained the objection to any proof on the intervening petition, and thereupon, on motion of the complainant, dismissed the original bill, cross-bill, and all intervening petitions. From this decree, the present appeal was taken.</p> <p>It is to be noted that the bill of review in the state court had been filed after the city of Chicago, under its plea of set-off, had been successful in the original litigation, and it may be added that, pending the. present appeal, the bill of review has been finally dismissed.</p>

In Admiralty. Uibel by the Wolverine Steamship Company against the steamer Norman B. Ream, together with cross-libel by the Pittsburgh Steamship Company against the steamer Senator. From a decree dismissing the libel, and awarding damages to the cross-libelant, the libelant appeals.

<p>1. Searches and Seizures <@=>Y — Search Warrants — Issuance.</p> <p>Under Const. Amend. 4, protecting citizens from unreasonable searches, one’s premises cannot be forcibly searched by the suspicious and curious; nor can a disinterested officer of the law search premises, unless armed with a search warrant.</p> <p>2. Searches and Seizures <3^3 — Search Warrants — -Issuance.</p> <p>No search warrant should be issued, unless the judge to whom application is made has been furnished with facts under oath tending to establish probable cause for issuance of the search warrant.</p> <p>3. Searches and Seizures <g=»3 — 'Issuance—Probable Cause.</p> <p>The finding of the probable cause for the issuance of a search warrant is one exclusively for the court, and not for the affiant or deponent seeking the issuance of the same.</p> <p>4. Searches and Seizures <®=»3 — -Issuance—Probable Cause.</p> <p>Act June 15, 1017, c. 30, contemplates the issuance of search warrants only when felonies have been committed that are presently proseeulable within the United States, and does not warrant, the issuance of search warrants for the seizure of property, etc., used in felonies long since barred by limitations.</p> <p>5. Searches and Seizures <@==>3 — Afeidavits—Suitjuiency.</p> <p>Under Const. Amend. 4, prohibiting unreasonable searches, and Act June 15, 1017, c. 30, providing for search warrants, etc., an affidavit and deposition for search warrants to examine books, memorandums, etc., to discover a conspiracy between packing companies for the hoarding of food, etc., iwltl insufficient to show probable cause, authorizing issuance of the warrant.</p> <p>0. Searches and Seizures ©wS — Denial oe Warrant— Defect.</p> <p>The denial of a search warrant on the ground of the insufficiency of the-affidavit and deposition is not a. bar to further proceedings.</p>

<p>Appeal from the District Court of the United States for the Southern District of West Virginia, at Huntington; Benjamin F. Keller, Judge.</p> <p>On rehearing.</p>

<p>In Error to the District Court of the United States for the Eastern District of South Carolina, at Charleston; Henry A. Middleton Smitli, Judge.</p> <p>Action at law by. Robert A. Woods, by his guardian ad litem, against the Atlantic Coast Dine Railroad Company. To review judgment for plaintiff, defendant brings error.</p>

<p>1. Conspiracy «2=48 — Prosecution—Evidence—Question fob Jury.</p> <p>In a prosecution under Criminal Code, § 37, for a conspiracy to sink a German merchant vessel in the navigable waters of the United States, etc., evidence held sufficient to carry the case to the jury</p> <p>2. Criminal Daw @=»789(2) — -Instructions—Sufficiency</p> <p>In a prosecution against a naturalized citizen of German origin and another a subject of the German Empire for conspiracy to sink a vessel in navigable waters, etc., tbe charge held to sufficiently safeguard the rights of the naturalized citizen as to the question of reasonable doubt and the treatment he should receive at the hands of the jury, notwithstanding alienage of Ms coconspirator.</p> <p>3. Conspiracy <C=15 — To Sink Vessel — Evidence—Admissibility.</p> <p>In a prosecution under Criminal Code, § 37, for conspiracy to sink a German vessel in navigable waters of the United States, etc., evidence as to the condition of the ship, and that the valves were open, etc., held admissible ; the injury to the equipment of ship contributing to the sinking.</p> <p>■1. Criminal Daw «2=178 — Former Jeopardy- — Dismissal.</p> <p>That a defendant liad previously been indicted with others who were acquitted, will not support a plea of former jeopardy, where such defendant was not tried on account of his illness, and after trial the case against him was dismissed without prejudice to any charge that might be made against him.</p> <p>5. Criminal Daw (8=338(7) — Prejudice of Judge — Evidence.</p> <p>A defendant, who complains 1hat ho cannot obtain a fair trial on account of prejudice or bias of the judge, must apply for a transfer m ae-cordance with Judicial Code, § 21, and where no such application has been made, a defendant cannot introduce evidence of an otherwise collateral matter for the purpose of discrediting the judge and attempting to show his animus.</p>

<p>Appeal from the District Court of the United States for the Northern District of Ohio; D. C. Westenhaver, Judge.</p> <p>Suit by the General Film Company against Joseph H. Sampliner. From decree of dismissal, complainant appeals.</p>

Louis Malvin and others were convicted of conspiracy to violate the provisions of Bankruptcy Act July 1, 1898, relating to the concealment of assets by bankrupts, and they bring error.

Bill by the Graselli Chemical Company against the TEtna Explosives Company, Incorporated, on which a receiver was appointed. From an order staying any action at a stockholders’ meeting, except adjournment, Addison G. Fay and another appeal. The complainant, a general creditor of the defendant, filed a bill in equity on April 19, 1917, praying for the appointment of receivers of the defendant.

<p>1. FACTORS <&wkey;18 — Title to Goods — “Sale.”</p> <p>Ordinarily, wliere a person receives property which he is not bound to return in the identical form, but may account therefor in money or other property, the transaction amounts to a “sale”; but this rule is not applicable to consignments to sell, where the owner of a chattel delivers it to an agent to sell, in which (¡ase the title remains in the ptin-cipal or bailor, though possession is transferred to the agent or bailee.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Sale.]</p> <p>2. Bankruptcy <&wkey;140(3)- — Consignment for Sale — Advertising Relation.</p> <p>Though the bankrupt did not advertise himself as an agent, or in any way indicate that he was selling goods on consignment, that fact does not affect the rights of the owner, who consigned goods to the bankrupt for sale.</p> <p>3. Bankruptcy <&wkey; 140(3) — Rights of Trustee — Sale of Goods on Consignment.</p> <p>Though by written agreement of the parties goods were consigned to the bankrupt for sale, yet, whore the parties treated the transaction as one of actual sale, and the bankrupt was not required to account for the proceeds as provided in the contract, held,, that the consignors were liable for goods which they retook on the eve of bankruptcy, for the written agreement could not be invoked as against the trustee in bankruptcy.</p>

<p>1. Perjury <&wkey;9(2) — Authority to Administer Oath — 'United States Commissioners — “Process.”</p> <p>Relative to .commission of perjury under Criminal Code, § 125 (Comp. St. 3916, § 30295), a United States commissioner, under Rev. St. § 1011 (Comp. St. 1916, § 1674), wherein “process” is used with the meaning of “procedure,” has authority to conduct a preliminary hearing (recognized by section 981 [Comp. St. 1916, § 1622], and called for by Comp. St. 1916, § 1678), and therein to administer oaths.</p> <p>[Ed. Aofe. — For other' definitions, see Words and Phrases, First and Second Series, Process.]</p> <p>2. Criminal Law <&wkey;1169(l) — Harmless Error — Evidence oe Identity— Letters — Hearsay.</p> <p>Identity of a person, whether O. or W., who under the name of O., with T., registered at a hotel, being in issue, on prosecution for perjury, admission of letters previously written in the name of O. to T., only to show similarity of character, habits, expressions, and chirography of writer with those of W., as proved by witnesses and letters coneededly written by him, objected to as hearsay, was immaterial.</p> <p>8. Criminal Law <&wkey;815(l) — One-Sided Charge — Discussion of Testimony.</p> <p>Charge fully informing jury'of presumption of innocence, necessity of proof beyond reasonable doubt, and that they were the absolute judges of the Cac-ts, held not one-sided, though its contrasting of the evidence necessarily showed the government’s case far the more probable.</p> <p>4. Criminal Law <&wkey;689 — Reopening Case for Evidence-Discretion.</p> <p>Denying defendant’s application, made after conclusion of government’s summing up, to explain an exhibit or offer further evidence respecting it, was within the judge’s discretion.</p> <p>5. "Witnesses <&wkey;48(l) — Federal Courts — Competency of Witness.</p> <p>Previous convictions do not make a witness incompetent in a federal court.</p> <p>6. Witnesses <&wkey;245 — Extent of Examination.</p> <p>The trial court may exclude questions previously answered.</p> <p>7. Witnesses <&wkey;225 — Extent of Examination.</p> <p>The trial court may prevent unnecessary and prolix examination.</p>

In Km’or to the District Court of the United States for the Southern District of New York. Suit by Lewis Pidcock against the Lehigh Valley Railroad Company. There was a judgment for plaintiff, and defendant brings error. The plaintiff in error is hereinafter referred to as defendant, and the defendant in error as plaintiff.

Action by Nellie C. Hodge, as administratrix of the estate oí Hiram A. Hodge, deceased, and anofher, against Arthur L. Meyer and others. Judgment of dismissal, and plaintiffs bring error. Appeal from a dismissal of the plaintiffs’ complaint, in an, action at common law. Hiram A. Hodge and Frank I).

<p>1. BANKRUPTCY <&wkey;331-Gl,AUI BY TRUSTEE POK BONDHOLDERS — TERMINATION.</p> <p>Where the formal legal right of a trustee for bondholder» to use its own name while collecting the money for the bondholders from a b’ank-rupt estate was disputed, the bondholders, if it had such right, were not required to file individual claims, and might safely wait until the trustee’s right was finally decided.</p> <p>2. Bankruptcy <&wkey;336 — Parties Entitled to Prove Claims — Bondholders Under Deed op Trust.</p> <p>Where the trustee for bondholders under a deed of trust filed a claim in bankruptcy for a deficiency judgment, stating that it was acting for th'e bondholders, though its right to do-so was in dispute, the District Court had power to allow an amendment, filed by the holders of outstanding bonds, ratifying the action of their trustee and making the claim a direct claim by the bondholders.</p> <p>3. Bankruptcy <&wkey;331 — State Statute.</p> <p>The lis pendens provision of section 51 of the Mortgage Act of New Jersey does not apply in a case where a mortgage has been foreclosed after bankruptcy.</p>

<p>In Error to the District Court of the United States for the Northern District of West Virginia, at Martinsburg; Alston G. Dayton, Judge.</p> <p>Action by the Pennsylvania Steel Company against the Washington & Berkeley Bridge Company. Judgment for plaintiff, arid defendant brings error.</p>

<p>1. Master and Servant <&wkey;286(10) — Injury to Servant — Nkotjohnce— Question eor Jury.</p> <p>In an action for personal injury to a machinist’s helper, who, while oiling a loose pulley in the nighttime, had his arm caught and broken when the belt on a movitig machine shifted from a tight pulley to the loose pulley, held, on the evidence, that defendant’s negligence was for the jury.</p> <p>2. Master and Servant <&wkey;289(iri) -Injury to Servant — Contributory Negligence — Question eor Jury.</p> <p>In an action for personal injury to a machinist’s helper, who, while oiling a loose pulley in the nighttime, had his arm caught and broken when the belt on a moving machine shifted from a tight pulley to the loose pulley, held, on the evidence, that the plaintiff’s contributory negligence was for the jury.</p> <p>3. CORPORATIONS <&wkey;580 — Financial Reorganization — Assumption op Lia- . bilities — Suit Against New Corporation.</p> <p>Where the company employing plaintiff when he was injured in order to effect a financial reorganization transferred all its assets to a new company, which assumed all the old company’s liabilities, and there was little change in the management of the business, plaintiff might sue the new company directly for the negligence of its predecessor.</p> <p>4. Master and Servant <&wkey;270(7) — Personal Injury — Evidence—Subsequent Repairs.</p> <p>In an action for injury caused by a machine alleged to be defective, the subsequent alteration or repair of the machine is not competent evidence of negligence in its original construction, as such acts furnish no legitimate basis for an inference of previous neglect</p> <p>5. Appeal and Error <&wkey;1048(6) — Harmless Error — Admission op Evidence.</p> <p>In a servant’s action for injury while oiling a loose pulley, any error in the admission of testimony on a long cross-examination that screens, subsequently placed around the pulleys to exclude dust and particles of cotton, would also operate to protect employés, was not so harmful as to require a reversal.</p>

<p>In Error to District Court of the United States for the Southern District of West Virginia, at Huntington; Chas. A. Woods, Judge.</p> <p>Action by Herbert If. Clark and others against Jasper Vance and another. Judgment for plaintiffs, and defendants bring error.</p>

<p>In Error to the District Court of the United States for the Eastern District of South Carolina, at Charleston; Henry A. Middleton Smith, Judge.</p> <p>Action by the Klaren Bridge Company against the Savannah & New York Transportation Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Salvage <&wkey;26--Amount — -Elements in Estimate.</p> <p>Tiie elements which enter into the estimate of salvage enumerated.</p> <p>2. Salvage <&wkey;51 — Appeal—Review.</p> <p>While since Act March 3, 1891, as before Act Feb. 16, 1875 (Comp. St. 1010, §§ 1585, 1586), appellate jurisdiction, in admiralty is not limited to matters of law, finding of fact as to allowance for salvage should not be disturbed for mere doubt, or inclination, to differ, but only for clear and certain conviction.</p> <p>3. Salvage <&wkey;27 — Amount—Computation.</p> <p>The per cent, basis is no longer followed in determining allowance for salvage, and no formula meeting the justice of every case can be given.</p> <p>4. Salvage <&wkey;>26 — Value o¡r Vessel.</p> <p>Relative to award of salvage for rescue of vessel, her real value is her valuó as reduced by the fact of her being under requisition of the British government.</p> <p>5. Salvage <&wkey;51 — Appeal--Freight Money.</p> <p>There being nothing to show on appeal in a salvage case that the value of the cargo was estimated at point of shipment, and not at point of destination, there is no ground for adding freight money.</p> <p>8. Salvage <&wkey;>30 — Future Peril — Absence op Other Aid.</p> <p>Future peril of complete loss from storms, frequent in the region, is to bo considered in awarding salvage for rescue of vessel stranded on a coral reef near the Bahamas, especially, in view of no other aid being procurable, except from a distance.</p> <p>7. Salvage <&wkey;2f — Maintenance of Local Salvage Plant.</p> <p>Vital importance of a local salvage plant and vessel to ships navigating those waters justifies encouragement of their maintenance by fairly liberal awards for salvage.</p> <p>8. Salvage <&wkey;30 — Stranding—Amount of Award.</p> <p>All tilings considered, held, an award of 8X00,000. for rescue by ves:-sel of a local salvage plant of a ship, with cargo worth 83,900,000, from coral reef near the Bahamas, should be increased to $150,000.</p> <p>9. Interest <&wkey;39(2) — Salvage—Decree—Increase on Appeal.</p> <p>Decree on appeal increasing allowance for salvage will draw interest from date of District Court decree.</p>

<p>In Error to the District Court of the United States for the Western District of Virginia, at Lynchburg; Henry Clay McDowell, Judge.</p> <p>Action by Harriet P. Birchett against the Norfolk & Western Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Criminal Daw <§s»1054(1) — Exceptions Below — Admission oe Evidence.</p> <p>Por review of admission of evidence, exception must have been taken.</p> <p>2. Criminal. Law <®=»1043(3) — Appeal,—Objection Below — Admission oe Evidence.</p> <p>Objection of admission of ledger sheets, without accounting for the original memoranda, is not available in appellate court; the objection below having been merely irrelevancy and immateriality.</p> <p>3. Criminal Law <§s=>402(1) — Evidence—Ledger Sheets — -Accounting por Original Memoranda.</p> <p>Relative to admission of bank’s ledger sheets pertaining to defendant’s account, offered by prosecution, it appearing the original memoranda, checks, and deposit slips had been delivered to defendant, the court properly held that it was impossible for the bank to producé them.</p> <p>4. Perjury <©=>32(8) — Evidence—Materiality.</p> <p>' Testimony of one to whom defendant gave a mortgage that he made no deposit to cover check given by him to defendant, held, on prosecution for perjury for statements of defendant in supplementary proceedings, material, as tending to show the mortgage was fictitious.</p> <p>5. Criminal Law <@=>784(8) — Instructions—Weight op Evidence.</p> <p>Instruction leaving it to the jury to determine whether positive testimony or circumstances shall prevail, according as they believe in the credibility of the witnesses, in .view of the circumstances, held proper.</p>

<p>In Error to the District Court of the United States for the Eastern District of Virginia, at Richmond; Edmund Waddill, Jr., Judge.</p> <p>Action by Eugene P. Kelly against E. I. Du Pont de Nemours & Co. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from the District Court of the United States for the Northern District of West Virginia, at Philippi, in Bankruptcy; Alston G. Dayton, Judge.</p> <p>In the matter of the Dakota Coal & Coke Company, bankrupt. From a decree of the District Court, reversing ruling of the referee, and directing refusal of the claim of B. C. Tunison, allowed by the referee, over objections of Doty Guthrie and others, claimant appeals.</p>

Johnson, Judge. Bill by the Central Bank & Trust Corporation as mortgagee, against the Greenville & Western Railway Company, for foreclosure and sale of the railroad. Upon appointment of a receiver and an order discontinuing operation of trains, R. Mays Cleveland and others intervene. From an order appointing a co-receiver of the defendant, and directing receivers to issue receivers’ certificates, the Central Bank & Trust Corporation and others appeal.

<p>Appeal from the District Court of the United States for the Southern District of West Virginia, at Charleston; benjamin P. Keller, Judge.</p> <p>Bill hy the New Pocahontas Coal Company against the Standard Pocahontas Coal Company. From a decree for complainant, defendant appeals.</p>

Johnson, Judge. Action by Clarence T,. O’Dell, by his guardian ad litem, E. B. O’Dell, against the Southern Railway Company. Direction of verdict for defendant was refused (248 Fed. 345), and defendant brings error.

<p>Appeal from the District Court of the United States for the District of Minnesota; Page Morris/Judge.</p> <p>Uibel by the Duluth Steamship Company against the Northern Pacific Railway Company. From a decree for libelant, respondent appeals.</p>

<p>Appeal from the District Court of the United States for the District of Nebraska; Thomas C. Munger, Judge.</p> <p>Suit by the Great Northern Railway Company against Blaine County, Neb., and others. From a decree dismissing the suit, complainant appeals.</p>

Action by Michael U. Boehmcr against the Pennsylvania 'Railroad Company. From a judgment dismissing the complaint, plaintiff brings error. Writ of error to a judgment of the District Court for the Western District of New York (Thomas, J., presiding), dismissing a complaint after trial for failure of proof. The jurisdiction of the District Court depended upon diverse citizenship and on the Safety Appliance Act (Act March 2, 1893, c. 196, 27 Sfat. 531 [Comp.

<p>.. ¡.Appeal from the District Court of the United States for the Eastern District of Virginia, at Alexandria; Edmund Waddillj Jr., Judge.</p> <p>Habeas corpus by Eunice D. Brannan .and others against W. H. Whittaker. From .an order in favor of'petitioners, respondent appeals.</p>

J. Cochran, Judge. Suit by William S. Uudlow and another against, the City of Ludlow and others for injunction. From a dismissal of the petition as not stating a cause of action, plaintiffs appeal.

<p>Master and Servant &wkey;>289(23) — Action for Injury to Servant — Contributory Negligence.</p> <p>Whether a freight conductor required by.tbe rules to inspect brakes “as frequently as possible,” and who was injured while s'etting the brake on a qar being switched by the breaking of the stem, was chargeable with contributory negligence, Mid, on the evidence, a question for the jury.</p>

Killits, Judge. Actions by the Central Manufacturers’ Mutual Insurance Company and by the Ohio Underwriters’ Mutual Fire Insurance Company against Frank B. Niles, Collector of Internal Revenue for the Tenth District: of Ohio. Judgments for plaintiffs, and defendant brings error.

Middleton Smith, Judge. Albert Orth was convicted of the statutory offense of aiding a federal convict to escape, and of harboring and concealing such convict, and lie brings error.

Tn Error to the District Court of the United States for the Eastern District of South Carolina, at Charleston; Henry A. Middleton Smith, Judge. Albert Orth was convicted of the statutory offense of aiding a convict to escape from a federal penitentiary, and of harboring and concealing the convict, and he brings error.

C. Wcstenhavcr, judge. Action by Katherine Zimmerman, administratrix of the estate of John F. Zimmerman, deceased, against the Pennsylvania Company, judgment for defendant on directed verdict, and plaintiff brings er‘ror.

Suit by William A. Neer against Frank R. Lang. Judgment for 'defendant, and plaintiff brings error. The plaintiff is a citizen of the state of Michigan. The defendant is a citizen of the state of New York, and a resident of the Southern District thereof.

Suit by Prank Gulden and others against Hijos de Jose Taya S. en C. From a decree for libelants (243 Fed. 780), respondent appeals. Appeal from a decree in admiralty of the District Court for the Eastern District of New York (Chatfield, J., presiding), adjudging the defendants liable for injury to four hogsheads and two barrels of olives stowed upon the ship Asuarea, of which the respondents were the owners.

Bradford, Judge. Suit by the M. B. Fahey Tobacco Company against Joseph Senior and another, who filed a cross-bill. From the decree, which granted complainant only part of the relief sought (247 Fed. 809), both parties appeal.

<p>1. CORPORATIONS <&wkey;433(2) — Contracts—Ratification—Question fob Jury.</p> <p>Whether a corporation had ratified a parol contract made by one of its officers without antecedent authority held a question for the jury.</p> <p>2. Monopolies &wkey;>8 — -Contbacts-—Legality.</p> <p>A contract by a public service corporation to pay a commission for sale of its iH'operty to a competitor, which was prohibited by a law of the state, is not necessarily illegal, where it was contemplated, and an effort was made, to first secure a repeal of the law.</p>

Libel by the Arthur Ackerman lighterage Company against the steam tug Britannia, her engines, etc.; Edward M. Timmins, claimant. Decree for libelant, and the claimant appeals. The tug took the barge Sea Beach to a slip at the Bush Docks, and there left her.

Suit by H. Ward Leonard, Incorporated, against the Maxwell Motor Sales Corporation. Decree for complainant, and defendant appeals. Appeal from a decree awarding the usual injunction upon patents to H. Ward Leonard, Nos. 1,122,774 and 1,157,011. The patents; concerned a regulator to prevent the overcharge of a storage battery by a generator connected with the engine of a motor car.

Wolverton, Judge. Suit by the Columbia Engineering Works against the Willamette Iron & Steel Works to enjoin,the defendant from infringement of letters patent No. 807,994, issued to Otto R. Beck, December 19, 1905, for an improvement in pulleys, of which the plaintiff is the owner by assignment. From a decree for complainant, defendant appeals.

<p>Co deis ®=»293 — Federal Courts — Jurisdiction.</p> <p>, A company manufacturing munitions for the United States out of supplies furnished by the United States, which were shipped in interstate commerce, etc., is acting under the authority of the laws of the United States to as full an extent as though it had been incorporated under and .in pursuance of national laws, and the federal courts have jurisdiction of a suit by such company to enjoin a labor union from illegally interfering with its prosecution of government work.</p>

Petition by James Minotto for writ of habeas corpus to be directed to John J. Bradley, United States Marshal for the Northern District of Illinois. The petition recites that petitioner is an Italian citizen, and is unlawfully held by the United Stales marshal by virtue of a warrant issued under a presidential proclamation made pursuant to sections 4067-4070 of the Revised Statutes (Comp. St 1916, §§ 7615, 7618).

<p>1. Courts <§=3281 — Federal Courts- — Jurisdiction—Application of Federal Statute.</p> <p>Plaintiff's case being founded on the application to the facts of the congressional exemption of Liberty Bonds from taxation, and such application being in disjmte, the federal court has jurisdiction.</p> <p>2. Removal oe Causes —State Legislation.</p> <p>The jurisdiciional facts for removal of a cause to a federal court, claim of exemption under federal statutes from taxation, existing, removal of the litigation, having its basis in attempted state taxation, cannot be defeated by form of judicial review prescribed by the stale.</p> <p>8. Taxation <3=»7 — Liberty Bonds- -Bank Stock — State Statutes.</p> <p>Liberty Bonds, declared exempt from taxation by the statute under which they are issued, are indirectly taxed, in violation thereof and its-underlying principles, when owned by a bank, by tax under Code Supp. Iowa 1913, § 1322, providing that its shares shall be assessed to its stockholders, the value thereof to be based on its capital, surplus, and undivided earnings, and its property not to be otherwise assessed; the bonds being considered in determining the value of the stock, and tho bank’s property being in truth assessed.</p> <p>4. Courts <8=3366(2) — Federal Courts — Following State Decisions — State Statutes.</p> <p>A federal court is not hound by the construction of statutes of a state by its highest court, where the inquiry is whether they as enforced effect results contrary to inhibition of federal statutes.</p>

In Equity. Suit by the Old Dominion Trust Company, in its own right and as curator of the estate of W. H. Gooch, deceased, against the First National Bank of Oxford, N. C., and others.

<p>in Admiralty. Suit by the Central Leather Company against the steamship Maipo. On motion for process against the respondent vessel.</p>

In Bankruptcy. In the matter of J. C. Wilson & Co., bankrupts. On objections to report of special master. Approved, except as set forth in opinion, and saving corrections in figures, which master may make, and any necessary recasting of accounts. J. C. Wilson & Co. were stockbrokers doing business in San Francisco-, Cal., with various branch offices in tbe United States and Canada, all of tbe business of tbe branch offices passing through tbe main office at San Francisco.

<p>In Admiralty. Libel by Henry W. Gordon and others against the steamship Cubadist. ■</p>

<p>At Law. Action by the McCaull-Dinsmore Company against the Chicago, Milwaukee & St. Paul Railway Company.</p>

<p>1. Bankruptcy <&wkey;>228 — l'i voi so oe Bemtkee- -Revihw.</p> <p>A question of fact, wlion found by the re’ciwo in bankruptcy, will not bo disturbed by the courts on petition for review.</p> <p>3. LANDLORD AND TENANT &wkey;>101 %-INSOLVENCY Ol*’ LESSEE-IÍFFECT.</p> <p>A lease contract did not cease to be a subsisting obligation by reason of the insolvency of the lessee and the appointment of a receiver’ for it, and, had the lessor not re-entered, but allowed the premises to stand, vacant, he could, have recovered all of the rent as it accrued from the receiver.</p> <p>S. Bankruptcy &wkey;>822 — -Tenant’s Insolvency — Measure oe Damages.</p> <p>Where lessee company became insolvent, liad receiver appointed for it, and went into bankruptcy, lessor’s measure of damages, provable by him In bankruptcy proceedings, is loss of bargain, difference between rent agreed upon in original lease and actual rent received from receiver and new tenant for balance of term.</p>

<p>In Error to the District Court of the United States' for the Western District of Missouri; Arba S. Van Valkenburgh, Judge.</p> <p>Mandamus by the United States, at the relation and to the use of J. T. Townsend, Jr., and others, against J. T. Bunch and others, County Judges of St. Clair Coimty, Mo., and others. Peremptory writ issued, and defendants bring error.</p>

Action by W. U. Davis and the Sudan Plantations Company against the Anderson-Tully Company. There was a judgment dismissing the action, and plaintiffs bring error.

Cotteral, Judge. , Charles McKnight was convicted, under Penal Code, § 37, of conspiracy to commit the offense denounced by section 238, and brings error.

<p>In Error to the District Court of the United States, for the, Western District of Oklahoma.</p> <p>W. B. Grant was convicted under Penal Code, §' 37, of conspiracy to commit the offense denounced by section 238, and brings error.</p>

, Judge. Bill for specific performance by' C. S. Dixon against T. J. Anderson. Decree for defendant dismissing the bill without prejudice, and plaintiff appeals.

<p>Appeal from the District Court of the United States for the Southern District of West Virginia, at Bluefield; Benjamin F. Keller, Judge.</p> <p>Suit by William E. Ross, administrator of R. R. Henry, deceased, and others, against R. B. Miller. From a decree of dismissal, plaintiffs appeal.</p>

Dayton, Judge. Action by William W. Downey, receiver of the Stewart Vehicle Company, against the German Alliance Insurance Company and another. There was a judgment on directed verdict for defendants, and plaintiff brings error.

<p>Appeal from the District Court of the United States for the Western District of North Carolina, at Asheville; James E. Boyd, Judge.</p> <p>Bill to quiet title by the Babcock Dumber & Band Company against J. W. Ferguson and J. C. Blanchard. From a decree for complainant (243 Fed. 623), defendants appeal.</p>

Bill by William D. Moran, as trustee in bankruptcy of Charles Hobart Morgan and Albert B. Morgan, individually and composing the firm of Morgan Bros., against Charles Hobart Morgan and others. From a decree for complainant, defendants Morgan and wife appeal. Appeal from a decree in equity entered on the 14th day of December, 1910, setting aside a deed of real property as in fraud of creditors.

<p>1. Injunction <&wkey;101(2) — Construction of Statute — Clayton Act — Strikers.</p> <p>Where union employSs of open shop go out on strike for closed shop, employer’s action for injunction against officers and members of union organizations to which strikers belong held within Clayton Act, § 20 (U. S. Comp. St. 1916, § 1243d), relating to granting of injunctions in cases growing out of dispute concerning conditions of employment.</p> <p>2. Injunction <&wkey;101(2) — Secondary Boycotts — Strikes.</p> <p>Clayton Act, § 20 (Comp. St. 1916, §! 1243d), perhaps in conjunction with section 6 (section 8835f) held to legalize a secondary boycott, at least in so far as it rests on or consists of refusing to work for any one who deals with principal offender.</p> <p>Rogers, Circuit Judge, dissenting.</p>

C. Van Fleet, Judge. Suit by Alma A. Crowley against Turner & Dahnken, a corporation, and others. From a decree for plaintiff, defendants appeal.

<p>In Error to the District Court of the United States for the Western District of Kentucky; Walter Evans, Judge.</p> <p>Action by Albert B. Casey, administrator, and another, against T. Scott Mayes, Collector of Internal Revenue. Judgment for plaintiffs, and defendant brings error.</p>

Tuttle, Judge. Petition by Frank Dawhead, trustee in bankruptcy, against the Monroe Building Company and others. From decree for respondents, petitioner appeals, and petitions to revise.

Sanford, Judge. Suit in equity by the Ea Eollette Water, Eight & Telephone Company against the City of La Eolletie 'and others. Decree for complainant, and defendants bring error. The city of La Follette, by ordinance contract of Juno 6, 1905, in terms granted appellee an exclusive franchise for 30 years for constructing and maintaining a system for supplying wafer, electric light, and telephone service to the city and its inhabitants and vicinity.

Grubb, Judge. Suit in equity by Felix M. Drennen, receiver of the American Mortgage & Loan Company, against the Southern States Fire Insurance Company and others. Decree for defendants, and complainant appeals.

Appeals from the District Court of the United States for the Eastern District of Virginia, at Norfolk; Edmund Waddill, Jr., Judge. Libel by the John L. Roper Lumber Company against the Marshall-Towing Company, Incorporated, wherein the libelee filed petition alleging fault for the accident against the Lake Drummond Canal & Water Company, which denied liability.

<p>1. TjIBEL AND SPANDER <&wkey;>5-l-DEFENSES — TRUTH.</p> <p>Where defendant arranged with plaintiff to .advertise its products in newspapers, and, discovering that the account had been assigned, refused to honor a check given plaintiff in payment, held, that a communication to a newspaper which had carried Iho advertisement, detailing the circumstances, furnished no basis for recovery; the statements reflecting on plaintiff’s business integrity being true.</p> <p>2. Di-bel and Slander &wkey;>45(2) — Privileged Communications.</p> <p>Where defendant arranged with plaintiff to advertise its 'products in newspapers, and, discovering that the account had been assigned, refused to honor a cheek given plaintiff in payment, held, that a communication to a. newspaper which carried the advertisement relating the circumstances, was privileged.</p>

<p>In Error to the District Court of the United States for the Western District of Oklahoma.</p> <p>B. H. Bonfoey and another were convicted under Penal Code, § 215 (Comp. St. 1916, § 10385), and bring error.</p>

Cotteral, Judge. Ben Bond was convicted of conspiring for transportation and delivery of intoxicants, in violation of Penal Code, §' 238, and brings error.

Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge. Suit in equity by the Eclipse Machine Company and another against the Harley-Davidson Motor Company and another. Decree for defendant's, and complainants appeal.

<p>In Equity. Suit by the National Circle, Daughters of Isabella, against the National Order of the Daughters of Isabella.</p> <p>This is a suit in equity brought by the plaintiff, National Circle, Daughters of Isabella, a corporation of the state of Connecticut, to enjoin the defendant, the National Order of the Daughters of Isabella, a New York state corporation, from using the name “Daughters of Isabella” in and as part of its corporate name, or in carrying on its corporate business and activities anywhere and everywhere. The plaintiff claims a prior and exclusive right to the sole use of this name or these words “Daughters of Isabella.” This is denied by the defendant, which is the prior corporation in date of incorporation, and prior to plaintiff in establishing subordinate branches and using the name in all the states where used outside of the state of Connecticut.</p>

<p>1. Salvase <®=31 — Assistance Against Pike — Efficient Aid — Amount.</p> <p>Where captain and crew of tug promptly went to aid of oil-burning tug on Are, when her captain whistled for help, incurring no danger, and passing lines of hose to burning tug, which its crew used to extinguish fire, so that tug suffered no damage, harbor being supplied with fire-fighting vessels, award of 3 per cent, of value of salvaged tug, or $1,000, will be made to owner, master, and crew of other.</p> <p>2. Salvage <>=38 — Apportionment.</p> <p>Award of salvage for assisting another tug to extinguish fire on board, service involving no danger, and its meritorious character consisting in prompt response to call for help, will bo apportioned two-thirds to owner and one-third to master and crew of salving tug.</p>

<p>1. Navigable Waters <§=1(6) — Arkansas River-Indian Reservations,</p> <p>The Arkansas river at a point between Osage and P'awnee counties, Okl., is not navigable, and the Osage Tribe acquired title to the bed as far as the middle of the main channel of the stream at the date of Act June 5, 1872.</p> <p>2. Waters and Water Courses <3=80 — Indian Hands — Survey.</p> <p>Where the original government survey commenced in 1871 and finished in 1S72 plainly indicated an island in the Arkansas river which bounded the Osage Reservation, the fact that the islaud was not meandered or surveyed did not affect the claim of the tribe thercio; indeed, title would not have been affected had the island been wholly ignored.</p> <p>3. Indians <§=13 — Indian Hands — Allotment—Illegality.</p> <p>Where an Island belonging to the Osage Tribe was claimed by oihers, suit by the United States for the benefit of the tribe and allottee cannot be defeated on the ground of the illegality of the allotment.</p> <p>4. Waters and Water Courses '<©=>89 — Indian Reservations — Meander Hines oe River. ,</p> <p>Where an Indian reservation was by act of Congress bounded by the main channel of a river, the meander lines of the river are not to be deemed the traverse lines bounding the reservation.</p> <p>5. Waters and Water Courses <3=89 — Indian Reservations — Boundary— “Main Channel” — •“Channel.”</p> <p>Under Act June 5, 1872, describing the Osage Reservation as bounded by the main channel of the Arkansas river, the “main channel” does not simply mean the main branch of the river, for the “channel” of a river is less comprehensive and means primarily its bed, and hence the reservation extended to the main channel.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Channel; Main Channel.]</p> <p>6. Waters and Water Courses <§=92 — Boundaries—Island.</p> <p>The division line between opposite riparian owners on a nonnavigable stream would be the middle of the stream, and, if that line falls upon an island, a division of the island is required.</p> <p>7. Waters and Water Courses <§=89 — Indian Hands — Reservation.</p> <p>An island between Osage and Pawnee counties, Okl., held to belong to the Osage Indian Tribe under Act June 5, 1872, which described reservation as extending to main channel of Arkansas rivef, which at that time was on the side of the island furthest from the reservation.</p>

<p>1. Bankruptcy <@=>228 — Decision op Referee — Setting Aside by Counsel.</p> <p>If it is purpose of counsel by agreement to set aside decision of referee in bankruptcy, they should do so by some direct and unequivocal action, not by attempting to review order without consulting referee, or securing any records from his office.</p> <p>2. Bankruptcy <@=>228 — Determination op Referee — Review.</p> <p>If counsel wish District Court to review determination of referee in bankruptcy, record to be examined should be made up and submitted, under the Bankruptcy Act and the General Orders in bankruptcy, and until this is done the court cannot review the proceedings before the referee.</p> <p>3. Bankruptcy <@=>228 — Order op Referee — Review—General Orders.</p> <p>A party to an order made by the referee on the merits cannot have a review of it, unless he pursues the mode prescribed in General Order in Bankruptcy No. 27.</p> <p>4. Bankruptcy <@=>228 — Order op Referee — Review.</p> <p>The Bankruptcy Act contemplates that the record on review of an order of the referee shall be made up by him and also by him certified to the District Court.</p> <p>5. Bankruptcy <@=342% — Order op Referee — Review—Summary op Evidence.</p> <p>On review of order of referee in bankruptcy sustaining objections to claim on note, secured by chattel mortgage and presented by bankrupt’s wife, if existence of fraud as to creditors on part of bankrupt is still In issue, there should be a detailed summary of the evidence, not a mere statement of conclusions, in relation to the alleged fraud.</p> <p>6. Bankruptcy <@=>228 — Order op Referée — Review—Agreement as to Evidence.</p> <p>On review of order of referee in bankruptcy, agreement as to what conclusions should be.drawn from evidence does not afford District Court sufficient data to enable it to determine whether there has been misstatement of evidence, particularly when referee’s summary of evidence is not submitted.</p>

In Bankruptcy. In the matter of Emil Petersen, bankrupt. On petition for review of an order of the referee refusing to allow a preferred claim.

<p>In Bankruptcy. In the matter of Annie C. Wellesley, J. H. Plunkett, and Orpha Plunkett, copartners doing business as Cartwright & Plunk-ett, and Annie C. Wellesley and J. H. Plunkett individually, alleged bankrupts. Hearing on involuntary petition.</p>

In Admiralty. Libel by the United States against the steamship Hésperos, with petition by G. Sandaa, master of the steamship ETes-peros, against the E. I. Du Pont De Nemours Powder Company, and another, consolidated with libels by the New England Coal & Coke Company and by the Hésperos against the United States, as owner of the steamship Arethusa, together with a petition by the United States against the steamship Hésperos.

At Law. Petition by George O. Kitzerow for writ of certiorari, to be directed to the Local Board, Division No. 10, of the City of Milwaukee, and District Board No. 1, for the Eastern District of Wisconsin.

<p>1. Army and Navy <§=340 — Espionage Act — Intent—'Evidence—I. W. W. Certifícate.</p> <p>Mere possession of an “I. W. TV.” certificate by one using abusive language against the United States and the President, without testimony of the real aims and purposes of that organization has no tendency to prove a charge against him, under Espionage Act, § 3, for willfully causing or attempting to cause insubordination, etc., in military or naval forces.</p> <p>2. Army and Navy <§=340 — Espionage Act — Causing Insubordination, etc., in “Military or Naval Forces.”</p> <p>Men, merely because between the ages of 18 and 45 years, are not in the military or naval forces of the United States, within Espionage Act, § 3, denouncing willfully causing or attempting to cause insubordination, etc., in such forces.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First Series, Military Forces; Naval Forces.]</p> <p>3. Army and Navy <§=40 — Espionage Act — Willfully Obstructing Recruiting or Enlistment — Intent.</p> <p>Willful obstruction of, or willful attempt to obstruct, the recruiting or enlistment service, within Espionage Act, § 3, involving intent, is not proved by mere use of abusive language against the United States and the President among laborers of military age, at a place where no recruiting or ¿enlistment service was going on or was in contemplation.</p>

<p>New Trial <&wkey;75(5) — Inadequate Damages.</p> <p>Where, in action for destruction, by railroad car, of auto, and killing of its driver, contributory negligence might well liare been found, plaintiff will not be given new trial because of verdict for $1;, it not clearly indicating finding of absence of contributory negligence, and inadequate damages from prejudice, passion, or misconduct.</p>

<p>In Admiralty. Suit by Bernard Tucker against Samuel P. EhvelL. •Sur trial hearing on libel, answer, and proofs.</p>

<p>1. Admiralty <&wkey;101 — Liens—Priority.</p> <p>Although the season rule appears to have been recognized and followed upon the Great Lakes, yet, where a tugboat was actively engaged beyond the season, the rule that claims of equal rank incurred in the same calendar year should have equal priority, while those in subsequent years should have priority over any earlier, is properly applied.</p> <p>2. Maritime Liens <&wkey;37 — Repairs—Election oe Remedies.</p> <p>Where libelant, which repaired a vessel, had a possessory lien, such lien merely gives the right to hold the vessel upon which repairs were made; and where the possessory lien was interrupted by the libelant’s enforcement of its maritime lien, it was an election on the part of libelant to rely on its maritime lien, which took the same rank as other supply and repair claims for that year.</p>

<p>In Equity. Bill by Peter Quarte Bonifaci against Maurice Thompson, Adjutant General, and W. M. Whitney and others, Eocal Board for Division No. 6, Seattle, Wash.</p>

In Admiralty. libel by Charles Chrislien, master of the steamship Mexico, against the bark Formica, to recover for salvage Service-Decree in accordance with opinion, to be entered on presentation.

<p>Druggists <&wkey;5 — Misbranding—Offenses.</p> <p>Under Food and Drugs Act, § 2 (Comp. St. 1916, § 8718), declaring that any person who shall ship in interstate commerce any article adulterated or misbranded shall be guilty of a misdemeanor, and for the first offense fined not exceeding $200, and upon conviction for each subsequent offense not exceeding $800, etc., the shipment of seven different articles, each of which were both adulterated and misbranded, constituted fourteen separate, distinct violations of the act, for which separate penalties might be imposed, though the aggregate exceeded $200.</p>

<p>Highways <&wkey;190 — Accidents—“Pkoper Repair.”</p> <p>Gen. Code Ohio, § 2108, declaring liability of county for damages from negligence in not keeping a county road in “proper repair,” is not limited to deterioration from a condition in which the road was put, but applies to original construction in an unsafe or defective manner.</p> <p>[Ed. Note. — For other definitions, see Wbrds and Phrases, First and Second Series, Repair.]</p>

<p>Bankruptcy <&wkey;258 — Filin o ott Involuntary Pktitjon — Effect.</p> <p>The liquidation of property in the possession of a bankrupt at the date of the filing of an involuntary petition against him rests with the bankruptcy court, and the receiver is entitled lo sell mortgaged property in possession of the bankrupt at the time of the filing of the petition as against tho mortgagee, who sought to take possession of the same for foreclosure.</p>

<p>Application by Thomas Addis for naturalization.</p>

<p>in Admiralty. Suit for collision by the Potter Transportation Company, owner of the barge Chemung, against the steam tug Taker Bros.; the W. S. Taylor being impleaded. Decree against tlie W. S. Taylor alone.</p>

Edward II. Phelan was convicted of misdemeanor for failure to register under the Selective Service Act (40 Stat. 76, c. 15), and he moves for new trial.

<p>1. Aemt and Navy <&wkey;40 — Offenses—Seditious Utterances.</p> <p>Where defendant, in the presence of a soldier of the national army and others, stated that he would never go into the United States army, that the Kaiser could lick England and B'rance, and would soon come to the United States, and that all would have to acknowledge his supremacy, etc., finch statements were a violation of the Espionage Act, § 3, in that they might obstruct the enlistment and recruiting service, and were calculated. to cause insubordination and disloyalty in the military forces.</p> <p>2. Indictment axd Information &wkey;el25(2) — Duplicity.</p> <p>It is elementary that two separate offenses cannot be included in one count of an indictment.</p> <p>3. Indictment and Information <&wkey;125(20) — Duplicity</p> <p>Where a statute creates a single offense, but specifies in the alternative different acts, any one. of which will constitute the offense, an indictment may charge the commission of such offense by all of (he means mentioned, using the conjunctive “and” wherever the statute usos the word “or,” without being duplicitous.</p> <p>4. Indictment and Information <&wkey;JL25(2) — Duplicity—Espionage Act.</p> <p>Tiie Espionage Act, § 3, declaring that whoever shall willfully make or convey false reports with, intent to interfere with military operations, and whoever shall willfully cause or attempt to cause insubordination, or shall obstruct tiie recruiting or enlistment services, shall lie punished, includes throe different offenses, which cannot be join'd in one count of an indictment.</p> <p>5. Indictment and Information <5&wkey;125(4) — Duplicity.</p> <p>An indictment charging in a single count viola lions of the Espionage Act, § 3, etc., held not to charge one transaction as a single offense committed by different acts.</p> <p>if. Indictment and Information &wkey;>159(l) — Amendment—What Constitutes —“Amend.”</p> <p>To amend is to correct or rectify or to freo from error; hence to cure an indictment of the defect of duplicity, by striking from the single count in which several offenses were charged, is to amend the same.</p> <p>[Ed. Nole. — For other definitions, see Words and Phrases, First and Second Series, Amend.]</p> <p>7. Indictment and Information <&wkey;132(2) — Amendment—Priority.</p> <p>Where an indictment was duplicitous because charging, in one count, the three several offenses denounced by the Espionage Act, § 3, the United States attorney will not be allowed to elect to rely on one of the offenses and nolle pros, the others; for that would amount to an amendment, and violate U. S. Const. Amend. 5, declaring no person shall be held to answer for an infamous crime unless on presentment of an indictment of a grand jury, etc.</p> <p>8. Indictment and Information <&wkey;"l25(19) — Duplicity.</p> <p>Where a statute prohibits the doing of a certain tiling, or attempting to do such tiling, these are merely different modes of doing one thing; hence an indictment in one count charging that defendant with me offense of causing insubordination in violation of the Espionage Act, § 3, and attempting to cause such insubordination, is not duplicitous.</p>

<p>In Equity. Suit by the United States against the Capital City Dairy Company. Heard on application for a receiver. Receiver appointed.</p>

At Law. Action by Golden, Belknap & Swartz, a Michigan corporation, against the Connersviile Wheel Company, an Indiana corporation, and another, begun in the state court and removed to the federal court. On motion to set aside the service of summons and to dismiss.

<p>1. Courts <&wkey;307(l) — Jurisdiction of Federal Courts — Diverse Citizenship —“Citizen.”</p> <p>Plaintiff, in suit against Virginia company in. the Western district of Virginia, who, though not a “citizen” of Virginia, had left California with no intention to return to that state, and who had not acquired a domicile in any other state, could not maintain his suit on the ground of diversity of citizenship.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Citizen.]</p> <p>2. Domicile <&wkey;4(l) — Domicile of Choice — Loss.</p> <p>A domicile of choice, once acquired, is not lost until a- new domicile has been acquired.</p> <p>3. Domicile <&wkey;l — Distinguished from “Citizenship.”</p> <p>“Domicile” and “citizenship” are not always synonymous, though where domicile means home, and describes the state in which a citizen of the United States has his home, and to which he intends to return if absent, it is usually, if not always, equivalent to state citizenship; but when no new domicile has been acquired, and domicile exists only by legal fiction, and describes the former home state of a citizen of the United States to which he never intends to return, they are not synonymous.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Citizenship; Domicile.]</p> <p>4. Courts &wkey;>307(l) — Jurisdiction of Federal Courts — Diversity of Citizenship.</p> <p>The grant of jurisdiction to the federal courts is not of controversies between citizens of the United States domiciled in different states, but of controversies between citizens of different states.</p> <p>5. Citizens "&wkey;2 — Who Are — Citizenship.</p> <p>Citizenship implies membership in a political society, the relation of allegiance and protection, identification with the state, and a participation in its functions, and while a temporary absence may suspend the relation between a state and its citizen, his identification with the state remains where he intends to return.</p> <p>6. Courts <&wkey;307(l) — Jurisdiction of Federal Courts — Diversity of Citizenship.</p> <p>Grant of jurisdiction to the federal courts in controversies between citizens of different states does not include a mere homeless wanderer, a citizen of the United States, but not of any state.</p> <p>7. Courts &wkey;>307(l) — Jurisdiction of Federal Courts — Diversity of Citizenship — “Citizen.”</p> <p>The theoretical domicile, which is equivalent to state citizenship, is always one which exists animo revertendi, and such a domicile, clinging to a homeless wanderer, who never intends to return, is not equivalent t« citizenship, in the sense in which the word “citizen” is used in the Judiciary Act.</p> <p>8. Courts @=»35r<4 — Federal Courts — Following State Practice — Non-suit.</p> <p>The state court practico should be followed, where the case is submitted to the jury, or where the jury has been waived. In the first event the plaintiff cannot take a nonsuit after the jury has retired, nor in the latter after the case has been submitted to the court for decision.</p> <p>9. Courts <&wkey;351% — Federal Courts — Following State Practice — Non-suit.</p> <p>After a defendant's motion for a directed verdict a plaintiff has no absolute right to then suffer a nonsuit; the state statute (Code Va. 1904, § 3387) against taking a nonsuit after the jury retires not governing, in view of the accepted Virginia practice (Hurst’s Code Va. 1913, § 3384b; Acts 1912, p. 52) not to direct verdicts.</p> <p>30. Courts <&wkey;351% — Federal Courts — Absence of State Practice.</p> <p>Where there is no state practice as to the granting of a nonsuit, the federal courts of the state are governed only by the general law.</p> <p>31. Dismissal and Nonsuit <&wkey;35 — Discretion of Court.</p> <p>From the time of the submission of a motion to instruct a verdict, the granting of a nonsuit lies wholly in the discretion of the court.</p> <p>32. Dismissal and Nonsuit <&wkey;12 — ■Grounds—Surprise.</p> <p>Whore defendant’s introduction of evidence offered practically at the close of the trial was a surprise to plaintiff, and he had no opportunity to investigate it, or to seek to rebut it, the court might grant a nonsuit.</p> <p>13. Dismissal and Nonsuit &wkey;s30 — Flection.</p> <p>The court may require plaintiff to make an election whether he will suffer a voluntary nonsuit before indicating its views on defendant’s motion for a directed verdict.</p> <p>14. Dismissal and Nonsuit <&wkey;30 — Election-—Motion to Direct Verdict.</p> <p>A plaintiff should not be allowed to first ascertain the court’s conclusion on defendant’s motion to direct a verdict, and thereafter have the unfair advantage of taking a nonsuit, if the court intends to sustain the motion, and of submitting the case to the jury, if the court intends to overrule it.</p>

In Bankruptcy. In the matter of the bankruptcy of the Arthur lv. Pratt Company. On review of an order of the referee disallowing the claim of Charles H. Schupp.

<p>In Equity. Suit by the Rensselaer & Saratoga Railroad^ Company ’ against Roscoe Irwin, Collector of Internal Revenue for the Fourteenth District of New York, and'the Delaware & Hudson Company.</p> <p>This is a motion to dismiss this suit in equity, the object of which suit is to secure a decree of this court providing for the retention from the net income of Rensselaer & Saratoga Railroad Company and payment thereof to the collector of internal revenue direct, or to said railroad company for the purpose, a sum sufficient to pay the federal income tax on the net income of such company duly assessed, and which net income, under the terms of a lease between the said Rensselaer & Saratoga Railroad Company, lessor, and Delaware & Hudson Company, lessee, is now paid by the Delaware Hudson Company direct *to the stockholders of the company as “dividends,” instead of to the Rensselaer & Saratoga Company, and the Delaware & Hudson Company pursuant to the terms of such lease having indorsed on each certificate of stock an agreement to pay the stockholder the “dividend” specified. Such payments in such manner exhaust all the income and available funds of the Rensselaer Company, leaving it without funds to pay such federal tax unless it borrows, and this borrowing will gradually incumber and, so to speak, eat up the property of the company.</p> <p>The facts will appear more in detail in the opinion. The main ground of the motion is the absence ox necessary parties defendant. The law providing for this tax was passed long after the making of the lease.</p>

In Bankruptcy. In the matter of Joseph C. Williams, bankrupt. On petition for review of the referee’s report, marshaling liens and establishing priority thereof.

Louis Jasick was indicted for violation of Act Cong. Feb. 14, 1917, by threatening to inflict bodily injury upon and to take the life of the President of the United States, to which indictment he demurs.

.William Metzdorf was indicted for violation of Act Cong. Feb. 14, 1917, providing for punishment for persons threatening the life or the person of the President of the United States, to which indictment he demurs.

The Tuberclecide Company, a corporation, was charged by information with violating Rood and Drugs Act, § 8, par. 3.

In Bankruptcy. In the matter of Herman J. Keller, doing business as the Milan Garage & Sales Company, bankrupt. On petition by the trustee to review an order of the referee allowing the claim of one Herman IX Keller.

<p>At Law. Proceeding by the United States against the Motion Picture Bilm “The Spirit of ’76.” On motion for return of film.</p>

<p>■ In Bankruptcy. In the matter of the National Piano Company, bankrupt. On review of order of referee disallowing claim.</p>

<p>In Admiralty. Libel by A. M. Hyer, trading as the Hyer Launch Company, against the gasoline launch Adeline, for supplies and materials furnished.</p>

In Bankruptcy. In the matter o£ Franklin Driver, an alleged bankrupt. On motion to confirm the special master’s report recommending adjudication.

In Bankruptcy. In the matter of the bankruptcy oE the Webster Boose Leaf Filing Company, bankrupt. On review of referee’s order refusing to surcharge the trustee’s account.

ern District of Iowa; Martin J. Wade, Judge. Action by Frank M. Wise against the Brotherhood of Locomotive Firemen and Enginemen. Verdict was directed for defendant, and plaintiff brings error.

Reed, Judge. Bill by the First Trust Company, as trustee, against the Crooked Creek Railroad & Coal Company, in which the Chicago & Northwestern Railway Company, the Illinois Central Railroad Company, and the Northern Pacific Railway Company separately intervened. Prom decrees for the interveners (243 Fed. 450), complainant appeals.

<p>.Tudgmext <®=o714(3) — Conclusiveness—Res Judicata.</p> <p>A decree, finding that certain claims against a railroad company were entitled to priority over a mortgage, is not a conclusive adjudication that' other and possibly similar claims were entitled to priority, but that question is open for adjudication.</p>

<p>In Error to the 'District Court of the United States for the District of Nebraska; Thomas C. Muuger, Judge.</p> <p>Action by the Northern Wyoming Rand Company, a corporation, against Harry Butler and Viola Butler. Judgment for defendants, and plaintiff brings error.</p>

Cross-Appeals from the District Court of the United States for ttie District of Maryland, at Baltimore; John C. Hose, Judge. Suit in admiralty by Edwin Dyason, master of the steamship Welbeck Hall and bailee <?f her cargo, against the Pennsylvania Railroad Company and the Central Elevator Company. From decree for libelant, come these cross-appeals.

<p>1. Equity <&wkey;409 — Findings op Master — Weight.</p> <p>In a case involving tlie constitutionality of a state law, statutory or municipal, the court will not be bound by the findings of a master.</p> <p>2. WATERS AND WATER COURSES <&wkey;203(ll)— WATER COMPANIES-VALUATION OE PROPERTY.</p> <p>Findings of a master as to the value of property used by a water company, and necessary for the furnishing of water to a city and its inhabitants, and on which it was entitled to earn dividends, reviewed.</p> <p>3. Waters and Water Courses <&wkey;203(12) — Water Companies — Regulation op Rates.</p> <p>A court is without power to revise rates to be charged by a water company as fixed by a municipal hoard within its authority, nor may it enjoin their enforcement merely because they are deemed unjust or unreasonable, but only on the ground that they are so low as to be clearly confiscatory and unconstitutional.</p> <p>4. Waters and Water Courses <&wkey;203(10) — Water Companies — Regulation oe Rates.</p> <p>Earnings of 6 per cent, on the capital invested by a California water company held a fair return, but ordinances fixing rates under which it could not make such earnings held confiscatory and unconstitutional.</p>

Bill in equity by the A. B. Dick Company against the Underwood Typewriter Company, Incorporated. From a decree (246 Fed. 309), in part for complainant and in part for defendant, defendant appeals.

Ap•peal from the District Court of the United States for the District of Maryland, at Baltimore; John O. Rose, Judge. Action by Catherine E. Corbin, individually and as mother and next friend of Roy A. Corbin, and.another, against the Charles W. Lewis Towing & Lighterage Company. Judgment for plaintiffs, and defendant appeals.

<p>Appeal from the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge. Suit by Edward R. Hills against the Hamilton Watch Company. From a decree dismissing the bill (248 Fed. 499), plaintiff appeals.</p>