Volume 254 — Federal Reporter

Mórton, Jr., Judge. In the matter of Israel Sternburg, bankrupt. On objections of M. Cohen & Co. and others, creditors, the petition of the bankrupt for discharge was denied, and from the order refusing discharge (249 Fed. 980) he appeals.

<p>1. Corporations <&wkey;109(l) — Subscriptions to Stock — Construction op Contract.</p> <p>Authority given syndicate managers by each several signer of an underwriting agreement tor the stock of a corporation to borrow money to the amount of his subscription, to make immediate payment for the stock, “upon such terms” as they might be able to arrange with the lenders, and to pledge the agreement as security, held broad enough to empower them to execute their note to the corporation and to deposit: the agreement with a trustee as collateral.</p> <p>2. Corporations <§s^92 — Capital Stock — Legality of Issue.</p> <p>Under General Corporation Law N. J. § 48, providing that nothing but money shall bo considered as payment for capital stock of a corporation, except, in case of purchase of property, where a note was made to a corporation in which it sold participation certificates for cash, stock issued to the amount of such cash was full-paid and valid.</p> <p>3. Corporations <&wkey;148(2) — Stock Underwriting Agreement — Construction.</p> <p>Wliere an underwriting agreement for stock of a corporation authorized syndicate managers to borrow money to pay for the stock, and to pledge the agreement as security, “without the duty on the part of such lender to inquire into the performance by the syndicate managers of any of their obligations hereunder,” the rights of lenders could not be affected by the fact that the money borrowed was not all applied to the purchase of stock.</p> <p>4. Corporations <&wkey;123(10) — Stock Underwriting Agreement — Action by Pledgee.</p> <p>The declaration in an action by a trustee on an underwriting agreement for stock of a corporation, which in accordance with its terms was pledged with plaintiff to secure a note in which participation certificates were issued and sold, held to state a cause of action in favor of the holders of such certificates.</p>

<p>Trial <@=232(3) — Instructions—Duties of Jury.</p> <p>Am instruction approved that, while a juror should not lightly surrender an opinion which he conscientiously holds, when he finds himself in minority he should stop and consider whether -he is more likely to be surely right than the majority upon a question about which there can be no absolute certainty.</p>

<p>Appeal from the District Court of the United States for the District of Porto Rico; Hamilton, Judge.</p> <p>Suit in equity by Pedro de Diego y Gonzalez against Jose Rovira and another. Prom the decree, complainant appeals.</p>

<p>Appeal from the District Court of the United States for the Northern Division of the Eastern District of Washington; Frank H. Rud-kin, Judge.</p> <p>Action by Frank W. Shultz against Charles N. Crewdson and another. Judgment for plaintiff, and defendant Crewdson brings error.</p> <p>Shultz, appellee, brought action against Crewdson, appellant, and one Out-cault, to recover principal, $5,000, and interest from August 10, 1915, at 6-per' cent, per annum upon a promissory note made by them at Spokane, Wash., on August 10, 1912, to the order of J. B. Yalentine, due five years after date, and before maturity indorsed and delivered by Valentine to Shultz. Crewdson answered, admitting indorsement, but denying delivery to Shultz, or that Shultz was the owner, admitting that no part of the principal or interest had been paid, except interest due to August 10, 1915, and denying any indebtedness to Shultz. He also pleaded three affirmative defenses: (1) That Shultz was not a bona fide holder for value before maturity. (2) That plaintiff took the note with full knowledge of these infirmities: (a) That the note was given for land purchased by defendants from Valentine “upon representations which were false and untrue, and known by said Valentine to be false and untrue, and by reason of which there was a failure of consideration for said note, and that said Valentine could not collect the same”; (b) that Shultz took the note to shield Valentine and aid him in collection, knowing that Valentine could not maintain action against defendants; (c) that Shultz brought this action, not as the real owner and holder of the note, but solely to enforce payment upon the obligation, which could not be enforced by Valentine; (d) that he has refused to make Valentine a party to the action, because he is carrying it on for Valentine,' and not for himself; (e) that he knew that Valentine was solvent and able to> pay. (3) That as Shultz claimed the note was given as collateral to secure a debt of Valentine to Shultz, defendant alleges the note belonged to Valentine; but that, if Shultz claims still to have a debt due to him by -Valentine, then defendant asks the court to order that Valentine be made a party, and that before any judgment may be rendered against defendant the amount of the debt from Valentine to Shultz, and for which the note may be security, be determined, and that until such ascertainment the proceeding be stayed as against defendant.</p> <p>To this answer Shultz replied, denying the allegations of the first, second, and third affirmative defenses, and also pleaded as follows: That in 1915 Shultz brought an action in the state court to recover interest upon the note involved up to August 30. 1915; that in such action Orewdson appeared and answered as set forth in an exhibit made part of the replication herein; that Shultz replied to this answer as set forth in an exhibit to the replication ; that trial was had upon the issues formed by the pleadings, and judgment rendered in favor of Shultz; that on appeal to the Supreme Court of the state-the judgment was affirmed; that all the defenses set forth in the defendant’s answer in this ease were in the case in the state court; that the parties herein were the identical ones Involved In the suit in the state court, and that the action is upon the same promissory note. Shultz also avers that he holds the note described as collateral security for five promissory notes made by Valentine to Shultz on August 1, 1913. aggregating $4,-825. with interest from date, upon which there had been paid as interest $990, and no moro, and that the plaintiff acquired the note sued on in good faith, without notice of infirmity, or of any of the defenses set forth by the defendant in his answer in this case.</p> <p>The answer (made an exhibit in the replication) filed by Orewdson in the state court was as follows: He denied on information and belief that he and Outcault, for a valuable consideration, made the note in writing as set out in the complaint; admitted that by the terms of the note defendants agreed to pay interest at 6 per cent., payable annually, and that they had failed to make the payments, except $60 paid October 1, 1913; denied, that the note was assigned and delivered and pledged to Shultz for value about March. 2G, 3914, and that Shultz was the owner thereof; and admitted that he had refused to pay interest. He then set forth that Shultz became the holder of a note as collateral security to an obligation owing from Valentine, the payee of the note, and that Shultz has made no effort to collect the original obligation, although Valentine was then able to pay any judgment Which might he secured; avers that, when Shultz secured the note, it was on the express understanding with Valentine, and with the makers of the note, that the security would not be resorted to until the plaintiff had exhausted Ms rights as against Valentine; that therefore Shultz should be estopped from proceeding further until steps wore had to secure the payment of the obligation of Valentine. He also set up that Valentine should be made a party, and the rights of all parties determined, in order that suitable judgment might be entered, and that the court should require Shultz first to establish his claim against Valentine; that Shultz, when he came into the possession of the note, knew of the facts and circumstances under which the note was given to Valentine, and that the note was procured by Valentine under “false and fraudulent representations as 1o the value of the property for which, as part consideration, said note was given,” and that defendant had a complete defense to the note and was not liable thereon, and that therefore Shultz was not a bona fide holder for value before maturity; that Shultz and Valentine were intimate, and that Shultz knew of the relations between Valentine and Orewdson and was familiar with the fact that Orewdson has claims against Valentino which are offsets and counterclaims to the obligation in question, and that Shultz knew of these offsets when he received the note; that Shultz and Valentine made an agreement whereby Valentine was to transfer the note to Shultz as collateral security, and for the purpose of having it appear as if Shultz had become a bona fide holder for value, and in order that Orewdson should not be able to interpose the defenses now interposed as against any liability to a claim by Valentine against Orewdson; and that such agreement was made for the purpose of depriving Orewdson of his rights against Valentine, and to assist Valentine in his efforts to defeat Orewdson in the collection of his just claim- against Valentine. The replica tion to the answer filed in the state court admitted that Shultz became the holder of the note as collateral security to an obligation owing from Valentine, admitted that Shultz was friendly with Valentine, and denied every' other allegation made in the answer.</p> <p>Upon these pleadings the present action came to trial before a jury. Counsel then stipulated that the facts pleaded in plaintiff’s affirmative reply were true and correct, whereupon the court granted plaintiff’s (Shultz’s) motion for a verdict for the full amount prayed for, and upon direction the jury returned a verdict in favor of Shultz against Crewdson for $6,393.75, and judgment was entered accordingly.</p>

<p>1. Conspiracy <&wkey;43(6) — Criminal Conspiracy — Indictment.</p> <p>An indictment for conspiracy by force and violence to rob a person named of certain mail matter, constituting a part of the United States mails under control of the post office establishment, and in the lawful custody of such person, considered, and held sufficiently specific.</p> <p>2. Indictment and Information <&wkey;S6(3) — Criminal Conspiracy — Place.</p> <p>In ah indictment for conspiracy to commit an offense against the United States, where the conspiracy is alleged to have been formed within the district of indictment, it is not ■ necessary to set forth the place of performance of the object of .the conspiracy.</p> <p>3. Criminal Daw <&wkey;619 — Trial—Consolidation of Indictments.</p> <p>The consolidation for tidal of an indictment for conspiracy to commit a crime against the United States and. one against the same defendants for commission of such crime held proper, under Rev. St. § 1024 (Comp. St. 1916, § 1690).</p> <p>4. Criminal Law <&wkey;1169(7) — Harmless Error — Evidence.</p> <p>The admission in evidence in a trial for conspiracy of affidavits made by certain of the defendants, which were competent evidence against them, held not prejudicial to the rights of a codefendant tried jointly with them; the evidence not being admitted as against him.</p> <p>5. Criminal Law <&wkey;95 — Jurisdiction of Federal Court — Defendant on Bail from State Court.</p> <p>That a defendant, when indicted, tried, and convicted in a federal court, was under sentence for crime by a state court, and at large on bail pending an appeal, nothing further appearing from the record, did not deprive the federal court of jurisdiction.</p>

<p>1. Post Office <&wkey;48(8) — Robbery oe Mails — Aiders and Abettors — Indictment as Principals.</p> <p>Under Penal Code, § 332 (Comp. St. 1916, § 10506), making one who aids and abets the commission of a crime a principal, an indictment under Penal Code, § 197 (section 10367), directly charging defendant with robbery of the mails, is supported by evidence that he aided and abetted such robbery.</p> <p>2. Robbery &wkey;»17(2) — Indictment—Averment op Intent.</p> <p>An indictment charging that defendant did willfully, unlawfully, and feloniously commit a robbery is sufficient, and need not allege the specific intent.</p>

Pollock, Judge. David J. Kreuzer was convicted of violating the oleomargarine laws, and he brings error. The plaintiff in error, hereafter called the defendant, was convicted of a violation of several sections of the oleomargarine laws. The indictment contained 10 counts, all parts of the same transaction and connected together. Three of the counts charged were misdemeanors, and the others felonies. A demurrer was filed to the indictment, alleging as grounds: First.

Hollister, Judge. In the matter of the Hamilton Gas & Electric Company, a corporation, bankrupt. From an order of the District Court, affirming an assessment against stockholders by the referee on petition of S. M. Goodman, trustee, Thoms & Brenneman and others appeal. In November, 1904, the Hamilton Gas & Electric Company was organized under the laws of Ohio, with an authorized capital stock of $1,000,000, and with an authorized bond issue of the same amount.

McDowell, Judge. In the matter of C. H. Magee, bankrupt; D. P. Sites, trustee. Prom a decree confirming an order of the referee requiring the Virginia Book Company, Incorporated, to surrender property, that company appeals.

Suit by the United States against 530 Packages of Spirituous and Intoxicating Eiquor; Wiley Williams and George Diavis, claimants. Judgment for the United States, and claimants bring error.

<p>In Error to the District Court of the United States for the Southern District of Georgia; Beverly D. Evans, Judge.</p> <p>Criminal prosecution by the United States against Charles T. Williams. Judgment of conviction, and defendant brings error.</p>

Evans, Judge. Robert Dee Gordon was convicted of violating Rev. St. § 3258 (Comp. St. 1916, § 5994), by having in his custody and control a dis- „ tilling apparatus, etc., and he brings error.

<p>Appeal from the District Court of the United States for the Northern Division of the Western District of Washington; Jeremiah Net-erer, Judge.</p> <p>Suit in equity by the American Surety Company of New York against the Bellingham National Bank, the City of Bellingham, and others. Decree for defendants, and complainant appeals.</p>

United States for the Western District of North Carolina, at Greensboro; James F. Boyd, Judge. Bill by the United States against J. B. Minor, administrator of C. O. Ward, deceased, and others. From a decree dismissing the bill (243 Fed. 953), complainant appeals.

<p>INDIANS <&wkey;19 — Unauthorized Pasturing op Stock on Indian Hands— “Cattle.”</p> <p>Itov. St. § 2117 (Comp. St. 1916, § 4107), providing a penalty of $1 a head for grazing “any stock of horses, mules or cattle” on land of any Indian or Indian tribe, applies to sheep.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Cattle.]</p>

<p>1. Criminal Law <@=>113 — Place or Prosecution — Allegation or Indictment.</p> <p>Allegation, in indictment for violation of White Slave Act June 25, 1910 (Comp. St. 1916, §§ 8812-8819), of the place from which transportation was made, fixes jurisdiction.</p> <p>2. Criminal Law <@=>29 — Dífierent Offenses in Same Transaction — State and Federal</p> <p>There may be a conviction of violation of White Slave Act June 25, 1910 (Comp. St. 1916, §§ 8812-8819), though the offense proved may contain the elements of a graver offense, cognizable by the state laws.</p> <p>3. Criminal Law <@=>1156(3) — Appeal—Denial of New Trial — Newly Discovered Evidence — Discretion.</p> <p>Disposition of a motion for new trial, based on alleged newly discovered evidence, is within the discretion of the trial judge, reviewable only for manifest abuse.</p>

<p>In Error to the District Court of the United States for the Western District of Texas, San Antonio Division; Duval West, Judge.</p> <p>Action by the United States against Enrique Anduaga and A. B. Copeland. Judgment for the United States, and defendants bring error.</p>

Bill by the Monitor Stove & Range Company against the U. J. Mueller Furnace Company. From a decree dismissing the bill, complainant appeals. Suit to enjoin infringement of patent No. 933,128, to Robert F. Short, for hot-air heater, and patent No. 1,133,242, to William J. Doyle and J. J. Wollenhaupt, for a furnace.

Appeal and Cross-Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois. Suit by the Stromberg Motor Devices Company against the Zenith Carburetor Company. From a decree in part for complainant (220 Fed. 154), complainant appeals, and defendant cross-appeals.

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Suit by the Stromberg Motor Devices Company against the Zenith Carburetor Company. From an order denying a preliminary injunction, complainant appeals.</p>

Killits, Judge. Suit by Breckenridge Jones, trustee, and others against the Sykes Metal Lath & Roofing Company. Bill dismissed, and complainants appeal. This is the usual infringement suit based on patent No. 671,915, issued April 9. 1901, to Curtis, appellants’ ultimate assignor, for “rolls for cutting expanded metal.” The application was filed October 13, 1900.

<p>.Appeal from the District Court of the United States for the Eastern Division of the Northern District of Ohio; John M. Killits, Judge.</p> <p>Suit by Breclcenridge Jones, trustee, and others, against the General Fireproofing Company. Bill dismissed, añd complainants appeal.</p>

<p>1. Patents @=>114 — Suit to Obtain Patent — Nature of Proceeding — “Independent Proceeding.”</p> <p>A suit in equity, under Rev. St. § 4915 (Comp. St. 1916, § 9460), to obtain issuance of a patent, although necessarily part of the application for a patent, is an independent proceeding, and not appellate.</p> <p>2. Patents @=>114 — Suit to Obtain Patent — Notice to Adverse Parties.</p> <p>In a suit in equity, under Rev. St § 4915 (Comp. St. 1916, § 9460), to obtain issuance of a patent, the court will not make, an order for substituted service on a defendant, but will leave complainant to give such “notice to adverse parties” as he deems sufficient.</p>

<p>In Equity. Suit by Daniel B. Luten against the Wilson Reinforced Concrete Company, in which the State of Nebraska intervenes.</p>

<p>Army asd Navy <§=36 — Offenses by Persons in Military Service--Jurisdiction oí’ Civil Ooubts.</p> <p>Articles of War enacted August 29, 1916 (Comp. St. 1916, § 2308a), do not deprive the civil courts, either in time of peace or war, of the concurrent jurisdiction previously vested in them over crimes against either federal or state law, committed within the United States, by persons subject to military law.</p>

<p>1. Copyrights <S=»83 — Suit for Infringement — Evidence.</p> <p>In a suit lor infringement of copyright, a receipt given by complainant on settlement with another infringer, from whom defendant obtained the photograph which it copied, held not admissible as a defense, although competent as bearing upon the equities between the parties; the rule being no different in copyright eases than in other actions.</p> <p>2. Copyrights <3==>9 — Subjects of Copyright — Photograph.</p> <p>A photograph of a high school class, made under an arrangement by which the photographer was to receive for his work only the proceeds of such copies as he might sell, held copyrightable by him.</p> <p>3. Copyrights'&wkey;>77 — Infringement—Joint Infringers.</p> <p>One who obtained and published a copy of a photograph, which was an infringement of a copyright, but without knowledge of the fact, was not a joint, but an independent, infringer.</p> <p>4. Copyrights <&wkey;52 — Suit foe Infringement — Defenses.</p> <p>That defendant innocently published a copy of a photograph, and had no knowledge that it was copyrighted, is riot a defense to a suit for infringement of the copyright.</p>

<p>1. Criminal Law <©==>921 — New Trial — Grounds.</p> <p>The admission in evidence in a criminal case of admissions of defendant, though erroneous, is not ground for new trial, where the fact admitted was not really in controversy, and was independently proven.</p> <p>2. Conspibacy <©=>40 — Criminal Conspiracy — Persons Chargeable.</p> <p>Where offenses are being committed, of such character that they are necessarily the result of concert of action all who participated in the things which are done resulting in such offenses may, if the inference fairly arises out of everything which has been done, be found guilty of conspiracy to commit the offenses.</p> <p>3. Criminal Law <©=5915 — New Trial — Indictment—Conspiracy.</p> <p>In view of Rev. St. § 1025 (Comp. St. 1916, § 1691), providing that n» indictment shall be deemed insufficient by reason of defects in matter of form which do not tend to the prejudice of defendant, an indictment held not fatally defective, on motion for new trial, because it charged in separate counts a conspiracy to commit acts which constituted offenses under different statutes.</p> <p>4. Criminal Law <©=>814(1) — Trial—Instructions.</p> <p>Every charge to a jury ought to reflect the real issue arising out of the evidence, and also as presented in the arguments addressed to the jury.</p>

<p>In Admiralty. Libel by the Earn Line Steamship Company against the Sutherland Steamship Company, Limited.</p> <p>This case arises on a libel in personam in the admiralty by the charterers against the owners of the steamship Olaveresk for breach of a time charter party entered into in New York on February 8, 1913, under which the Olaveresk was let for “about five years from the time of delivery” within the following limits: United States, West Indies, Central America, Caribbean Sea, Gulf of Mexico, South America not south of Bahia Blanca, Europe, and Africa not east of Port Said. Delivery and redelivery were to be made United Kingdom or continent between Bordeaux and Hamburg, and the hire was £1,320 per month. Clause No. 17 read as follows: “Should the vessel be lost, freight paid in advance and not earned (reckoning from the date of her loss) shall be returned to the charterers. The act of God, enemies, nre, restraint of princes, rulers, and people, and all dangers and aeciderits of the seas, rivers, machinery, boilers, and steam navigation, and errors of navigation throughout this charter party always mutually excepted.” The ship was not to carry “molasses or wet sugar,” and there was the usual “breakdown” clause.</p> <p>The Olaveresk entered upon the charter on April 17, 1913, and was used in carrying coal south and ore north between Cuba and the United States under a subcontract between tbe libelant and an iron company. On January 20, 1917, when the charter had a little over a year to run, the owners, who were situated at Newcastle-on-Tyne, in England, received a telegram as follows: “Your steamer Claveresk required for government service after completion discharge in West Indies. Formal requisition follows. Please inform date steamer expected available for government service. Transports L Boom 108a.” This telegram wasi sent by a subordinate in the office of the Director of Transports, itself a department of the Lords Commissioners of the Admiralty, to which the respondents answered on the same day by telegram as follows: “Telegram received requisitioning Claveresk. This steamer arrived Baltimore January seventeen expect would discharge ore load coals and sail again about twenty-third. Therefore expect now on passage to Fel-ton, Cuba, where due about thirtieth. Ought to be discharged there one day and ready your service end this month. Can you arrange for government agent in buba give captain orders? You will doubtless remember when you requisitioned Claveresk in May, 1915, time charterers intercepted our telegrams and prevented captain receiving orders until ship loaded when you released her.”</p> <p>On January 27th one Cyril Hurcomb, for the Director of Transports, sent a letter to the respondents in confirmation of the Director’s telegram. This letter inclosed a requisitioning letter and two copies of a pro forma charter party to be executed by the Lords Commissioners of the Admiralty. It stated that it was not proposed at the time to enter into a formal charter, but that hire would be paid in accordance with the agreement attached. It further stated that the ship would he required to load a full cargo of sugar and that the master should apply to A. H. Lamburn Company, Havana, for instructions. The requisitioning letter, which was inclosed, stated that it had been found necessary by the Lords Commissioners of the Ajdmiralty to requisition the steamer under royal proclamation and under the conditions of the pro forma charter party inclosed. It further stated that the rates of hire as fixed for requisitioned ships had been generally accepted by shipowners, and that payments on this basis would be made as soon as possible.</p> <p>On January 29th respondents wired their captain as follows: "Steamer requisitioned national service by British government apply to Lemborn [sic?l Havana for orders. Telegraph us acknowledging this message. Refuse load iron ore.” The master answered on February 1st: “Instructions received. Wiring Laborn [sic?l Havana.” On February 2d, Oulliford & Clark, shipping agents, wrote the respondents that they had received the following cable from New York: “Notify owners that hire has been paid. If steamer definitely requisitioned, collect hire from admiralty account Earn Line.” To which the respondent answered on the same day that, owing to the action of the government, they had been “frustrated” in completing the time charter and that no hire would he received thereafter on their account. This information was conveyed to the libelant, in New York by the respondent’s agent on February 17. 1917, at the time of refusing a half month’s hire. The steamer was discharged at Felton, Cuba, on February 10, 1917, and has since that time been under requisition by the British Admiralty.</p> <p>On August 3, 1914, the King of Great Britain issued a proclamation authorizing the Lords Commissioners of the Admiralty to requisition any British ship or vessel within the British Tsies or the water adjacent thereto. On November 10, 1915, he issued a second proclamation that any British ship registered in the United Kingdom might be requisitioned for the carriage of food stuffs, and that such requisition should take effect on notice thereof served as therein provided. The notice was to bo deemed sufficient and effective if addressed to the corporation owner in proper cases, and might he signed by any person authorized for such purpose by the president of the Board of Trade. On March 16, 1916, Parliament passed an amendment to the Defense of the Realm Act declaring that, when the fulfillment by any person of a contract is interfered with by the necessity of such person’s complying with any requirement of the Admiralty, such necessity should be a good defense, and no action should be taken against such person for nonfulfillment of his contract. An analogous amendment was also passed on July 10, 1917, the details of which it is not necessary to set out.</p> <p>The testimony was taken in London by deposition of Sir Henry Erie Richards, for the libelant, and Charles Robertson Dunlop, Esq., for the respondent, upon the validity of'this proclamation and of the requisition made in accordance with it. Mr. Dunlop was of opinion that the prerogative of the Crown authorized it to seize British property anywhere for the defense of the realm, and that this prerogative was limited in no sense by the terms of any proclamation which the King might utter. Sir Henry Erie Richards was of opinion that the prerogative extended only to the seizure of such property within the realm as was necessary for its defense, and that, regardless of the terms of the proclamation itself, the King could not under his prerogative seize property outside the realm. He also thought that the prerogative extended only to the actual seizure of property, and did not include a notice operating in personam upon the individual.</p> <p>Mr. Dunlop was also of opinion that, the notice of requisition being legal, the owners were bound to obey it, and if they disobeyed would be liable to punishment by fine and imprisonment as for a misdemeanor, without specific statutory authority; also that the Crown could compel the owners to obey by a writ of mandamus issuing from the King’s Bench Division of the High Court. He believed that the right itself could also be enforced directly by the Crown’s seizing the ship on the high seas, or indirectly in a foreign port if the British representatives at such port had power to refuse clearance papers to the master. On these questions Sir Henry Erie Richards expressed no opinion.</p> <p>Upon the trial of the cause Mr. Frederic R. Coudert and Lieut. Col. Howard Thayer Kingsbury prayed leave to intervene as amici curies, on the ground that they had been retained by the British Embassy at Washington to suggest upon the record that the Claveresk had been requisitioned by the government of Great Britain for government service upon the prerogative of the British Crown, on January 27, 1917, at which time the steamer was at sea; that the period of requisition was indefinite, and became operative on February 10, 1917, that she had remained continuously thereafter in the service of the British government under the orders of the Lords Commissioners of the Admiralty, and that such requisition was a governmental act of the government of Great Britain. This suggestion was evidenced by a certificate under the Embassy’s seal, signed by Colville Barclay, British Chargé d’Af-faires, in the absence of the British Ambassador. The suggestion was entered upon the record and the certificate received in evidence over the objection of the libelant.</p> <p>Two points were raised: First, whether the requisition of January 27th was a valid excuse within the “restraints of princes” clause, and whether it justified the respondent in finally withdrawing the Claveresk from her charter on February 17, 1917; and, second, in case this point went against the libelant, whether in this proceeding it might have a decree for the difference between the hire received from the admiralty for the duration of the charter and the charter hire under the charter party.</p> <p>Upon the second point the respondent raised the question of pleading and of jurisdiction. The libel was drawn for a breach of the charter party by repudiation, and contained no allegations concerning hire received by the owners from the Admiralty. The respondent asserted that under the pleading there could be no such award, and that in any event the action was at most for money had and received which was not properly cognizable in a court of admiralty. To meet this objection the libelant, 'upon the hearing, was allowed to file a replication setting up as new allegations that hire was due under the pro forma charter party between the Admiralty and the owners, and that the hire was greater than the hire reserved in the charter.</p>

<p>Criminal prosecution by the United States against Peter Schafer, Paul Vogel, Uouis Werner, Martin Darkow, and Herman Uemke. On motions in arrest of judgment and for new trial.</p>

<p>1. Railroads <&wkey;5%, New, vol. 6A Key-No. Series — Taking Possession oí Railroads — Courts.</p> <p>The extent of the power conferred by Act Aug. 29, 1916 (Comp. St. 1916, § 1974a), authorizing the President, through the Secretary of War, to take possession of railroads in time of war, etc., and the determination of the property to be taken possession of, are questions for the court.</p> <p>2. Railroads <&wkey;5%, New, vol. 6A Key-No. Series — Taking Possession of Railroads — Effect.</p> <p>Under Act' Aug. 29, 1916 (Comp. St. 1916, § 1974a), authorizing the President in time of war to take possession of railroads, etc., and the presidential proclamation of December 26, 1917, and despite Act March 21, 1918, the Director General of Railroads was not authorized to take possession of land belonging to a railroad company which was not used in its business as a carrier; hence sale of such land under execution against the railroad company will not be enjoined on suit of the Director General, the company making no objection.</p> <p>3. Courts <&wkey;508(3) — Federal Courts — Jurisdiction.</p> <p>The federal courts, by virtue of their general equity powers, have jurisdiction to enjoin the enforcement of a judgment in the state courts upon the usual principles under which a court of equity will enjoin enforcement of a judgment.</p> <p>4. Railroads &wkey;>5%, New, vol. 6A Key-No. Series — Federal Courts — Jurisdiction.</p> <p>A suit by the Director General of Railroads to enjoin sale of land owned by a railroad under execution issued on a judgment of a state court, on the theory that, having taken possession of the same, it was exempt from process under act of March 21, 1918, is a suit of a civil nature arising under the laws of the United States, etc., of which the federal District Court has jurisdiction, for it must be deemed that Act March 21, 1918, modified Jud. Code, § 265 (Comp. St. 1916, § 1242).</p>

Tn Equity. Suit by William W. Crawford, trustee, and another, against John W. Kaste, consolidated with a suit by Russell H. Brown, as trustee in bankruptcy of the Monarch Lumber Company, a bankrupt, against. William W. Crawford, trustee, and others.

<p>In Admiralty. Suit by the McAllister Lighterage Line, Incorporated, against the British steamship Roseric. On suggestion that writ of arrest be quashed, or suit stayed.</p>

In Bankruptcy. In the matter of the Mason Company, bankrupt. On petition of the Massachusetts Bonding & Insurance Company to review order of the referee denying its claim to premiums on insurance policies collected by the trustee.

<p>In the matter of the application of Rosenwasser Bros., Incorporated, for vacation of search warrant.</p>

<p>1. Corporations <S=»397 — Agent of Corporation.</p> <p>One is an agent, whether he is acting for a natural person or a corporation; the fact the principal is artificial not: interfering with the status of the agent.</p> <p>2. Witnesses <S=144(13) — Competency—Transaction with Person Since Deceased.</p> <p>Under Rev. Laws Nev. § 5419, declaring no person shall be allowed to testify when the other party to the transaction is dead, one party to an arrangement with a corporation cannot testify thereto after death of the corporate representative, for such representative was the other party to .the transaction.</p>

In Equity. Ancillary bill by J. E. Lancaster and another, receivers -of the Texas & Pacific Railway Company against the Police Jury, Parish of Avoyelles, and others, filed in the receivership proceedings of B. E. Bush, receiver of the St. Louis, Iron Mountain & Southern Railway Company, against the Texas & Pacific Railway Company. This is an application for an injunction to prevent the levy and collection of certain road taxes.

<p>In Equity. Ancillary bill by J. E. Lancaster and another, receivers of the Texas & Pacific Railway Company, against the Police Jury, Parish of Sabine, State of Louisiana, and others, filed in the receivership proceedings of B. H. Bush, receiver of the St. Louis, Iron Mountain & Southern Railway Company against the Texas & Pacific Railway Company.</p>

<p>In Equity. Suit by James S. Hopkins, as receiver of the Illinois Surety Company, against W. E. Lancaster, as Treasurer of the State of Alabama, and others, in which Meyer & Goldman intervened.</p>

<p>In Equity. Suit by the Norfolk Bank for Savings & Trusts against C. S. Whipple.</p>

<p>In Equity. Suit by Ammon & Person against the Narragansett Dairy Company, Limited.</p>

<p>At Raw. Proceeding by the United States for the forfeiture of Sixty-Five Cases of Glove Feather, claimed by Karplus & Herzberger. Application’by the United States to revive and restore to the calendar such cause, opposed by the claimants.</p> <p>This is an application to revive and restore to the calendar of this court the above-entitled cause, to the end that the prosecution and trial thereof may be proceeded with. The claimants oppose the motion or application mainly on the ground that the case has been dismissed by this court, and that, as the term at which dismissed had passed and ended before the application was made, the court is now without jurisdiction or power to open and restore the case to the calendar, or take any action in the case. Laches is also urged, and it is further claimed that this court never acquired jurisdiction.</p>

<p>At Raw. Application by Sam Brown for writ of certiorari, or writ of mandamus, directed to James J. Spelman and others, as members of the Bocal Board for Division No. 35 of the Borough of Brooklyn, City of New York, and Charles J. Pflug, as Adjutant General of the State of New York.</p>

<p>At Taw. Action by Alfred A. Srere and Harry Srere against Mendel Gottesman and David S. Gottesman. On motion by both parties for direction of verdict.</p> <p>This action is upon a contract between the parlies by which the defendant agreed to deliver 4,800 tons of pulp to ilie plaintiff at $1.95 per 100 pounds, deliveries to be monthly at 150 tons a month, beginning May, 1915, and ending December, 1917. The contract contained the foliowing provisions, which are the only ones of importance: “Each shipment under this contract to be considered as a separate contract, and, default of one or more shipments not to invalidate the rest of. the contract.” Again: “If the buyer makes default in any payment, i;‘ * * seller may at his option cancel future deliveries.”</p> <p>In October of 1915 the parties had a difference as to the execution of the contract, and correspondence passed between them, which it is not: necessary here to detail. The controversy resulted in a claim by the defendants against the plaintiff in the sum of $3,482, for which they made claim. On February 3, 1916, the defendants wrote as follows to the plaintiffs: “YVe have repeatedly written you within the last few months regarding your account, which is in a deplorably overdue condition. We now wish to serve notice on you that unless settlement is in our hands not later than February 8th we will cancel the balance of the contract in accordance with claim 10.” The account referred to was for the sum mentioned, and was made up of three items. Clause 10 is the clause already quoted, for cancellation.</p> <p>As the controversy still continued, the defendants sued the plaintiff in the Supreme Court of New York, and the cause was afterwards removed to this court, claiming in the sum of $3,482.19 as the amount due under the contract. To this the present plaintiffs (the defendants therein) counterclaimed upon the contract in question. They laid the breach in the sixth article of their counterclaim as follows: “That in or about the month of October, 1915, the defendants not being in default under the terms of said agreement, the plaintiffs, notified defendants that they declined and refused to continue the delivery of pulp under said agreement, and that they considered the same terminated, and the said plaintiffs have ever since declined and refused to perform said agreement, to the defendants’ damage of $200,000.” The defendants here required a bill of particulars of the default' alleged in the said sixth article, which was accorded by the plaintiffs here, and which consisted of the correspondence which passed between -the parties during the months of October, November, and December, but did not set up the letter of February 3, 1916.</p> <p>That cause came on for trial in this court before Judge Mayer, and resulted in a verdict for the defendants here upon their complaint, but not for the whole sum; their recovery being $2,209.29, two of the three items of their claim being disallowed. The counterclaim was left to the jury, who found against the plaintiffs here. It appears from the charge of Judge Mayer, as indeed necessarily would have been so, that no question arose in that cause of the letter of February 3, 1916. The defendants’ complaint in that suit was filed on March 16, 1916, and the counterclaim in July, 1916, each of them, consequently, after the letter of February 3d. On January 8, 1917, judgment was entered in the former action for the sum of $2,029.29, without mention of the counterclaim.</p> <p>The present complaint sets up the contract and alleges the breach as follows in article fifth: “Said agreement being in full force and effect, and the plaintiffs being entitled to deliveries of the said pulp during the year 1917 as therein provided, plaintiffs have neglected and refused to deliver the monthly installments of 150 tons each of pulp due under said contract for the months of January, February, March, April, and May, 1917, although repeatedly requested so to do, and on or about the 27th day of February, 1917, defendants notified plaintiffs that they considered said agreement terminated, and that no further pulp would be shipped thereunder, to the defendants’ damage in $200,000.”</p> <p>The plaintiffs here introduce in evidence a letter of February 27, 1917, of which the important part is as follows: “We have heretofore advised you that, owing to your default under the contract, no further pulp would be shipped to you, and as all matters in connection with said contract, default thereunder, and termination thereof were litigated in the action recently tried in the United States District Court of. this city, we do not see that there is anything further to be said in the matter, as our relations have been completely terminated.” It is agreed that no deliveries were made during the year 1917.</p>

<p>In Equity. Suit by the O. & W. Thum Company against Albert G. Dickinson. On review of master’s order.</p>

<p>1. BANKRUPTCY <&wkey;421(l)-DISCHARGEABLE LIABILITIES-JUDGMENT FOR NEGLIGENCE.</p> <p>A judgment for damages caused by negligence is dischargeable in bankruptcy.</p> <p>2. Bankruptcy <&wkey;398 — Release from Imprisonment.</p> <p>Where bankrupt, having recklessly driven an automobile, was arrested under order of the state court made prior to filing of his voluntary petition in bankruptcy, and judgment was recovered against him, he could be released by the bankruptcy court having jurisdiction pending his application for discharge; the judgment being dischargeable in bankruptcy.</p> <p>3. Bankruptcy <&wkey;203(l) — Discharge of Bankrupt from Arrest — Power of Court in Ancillary Proceedings.</p> <p>A bankruptcy court in ancillary proceedings has power to discharge a bankrupt from an arrest made prior to the bankruptcy proceedings, where he has the substantive right to relief.</p>

- Separate petitions by Ella Hutchinson Tinkoff, on behalf of Pay-soff Tinkoff, by Steve Zozaski, by Hugo Carlson, and by Victor Zu-kowski, for writs of habeas corpus, to secure release from military service, into which they were drafted under Selective Service Act May 18, 1917.

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois; Kenesaw M. Dandis, Judge.</p> <p>From orders (254 Fed. 222) denying wilts of habeas corpus to Paysoff Tinkoff, Steve Zozaski, Hugo Carlson, and Victor Zukowski, petitioners separately appeal.</p>

<p>1. Internal Revenue @=»2 — Harrison Narcotic Act.</p> <p>Harrison Narcotic Act, § 2 (Comp. St. 1916, § 6287h) is not invalid on the ground that its provisions are in no sense provisions of a revenue measure, but are purely police restrictions.</p> <p>2. Poisons <3=^2 — Drug Act — Sales.</p> <p>Harrison Narcotic Act, § 2 (Comp. St. 1916, § 6287h) declaring that it shall bo unlawful for any person to sell named narcotic drugs, except on a written order of the person to whom the drug is sold, applies not only to registered dealers, but to all sellers, for revenue is raised from the sale of prohibited drugs.</p> <p>3. Poisons <3^9 — Drug Act — Violations—Indictment.</p> <p>An indictment charging that defendant sold narcotic drugs in violation of the Harrison Narcotic Act held sufficient to charge a violation of the act, and show defendant to be subject to the penalty prescribed by section 9 (Comp. St. 1916, g 6287o), regardless of whether it was alleged defendant was required to register.</p> <p>4. Indictment and Information <5=111(1) — Statutory Exceptions.</p> <p>Const. Amend. 6, does not preclude Congress from exacting, as it has in Harrison Narcotic Act, § 8 (Comp. St. 1910, § 6287n), that it shall not be necessary to negative in any indictment any of the statutory exemptions or exceptions therein.</p> <p>5. Indictment and Information <5=3111(4) — Exceptions—Negativing.</p> <p>An indictment charging a violation of the Harrison Narcotic Act (Comp. St. 1916, §§ 6287g-6287q) held to sufficiently negative any of the exemp tions and exceptions therein contained.</p>

<p>In Error to the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge.</p> <p>Action at law by Mary E. Preston against the Western Union Telegraph Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from the District Court of the United States for the District of Nebraska; Joseph'W. Woodrough, Judge.</p> <p>Bill by the Union Pacific Railroad Company against the Chicago, Rock Island '& Pacific Railway Company and others. From a decree against it, the named defendant appeals.</p>

Bill by the Glen Investment Company against Eugenio Romero, as Treasurer and ex officio Collector of the County of San Miguel, State of New Mexico. From a decree dismissing the bill for want of jurisdiction, complainant appeals.

Woodrough, Judge. Proceedings by t-he County of Douglas in the State of Nebraska, under the Nebraska inheritance tax statute, against real and personal property claimed by the county to have been the property of Francis Smith, deceased, and claimed by George Warren Smith to belong to him as a surviving joint tenant, which were removed from the state to the federal court. There was a judgment for the County of Douglas, and George Warren Smith brings error.

<p>Banks and Banking <&wkey;283 — Liquidation of National Bank — Suit Against Stockholders.</p> <p>Contract, for consolidation between two national banks, by which one agreed to voluntarily liquidate and transfer all its assets to the other, which agreed to act as its liquidating agent and to pay all claims against it. construed, and, as acted upon by the parties, held 1,o create the relation of debtor and creditor between them, which would support a suit against the stockholders of the liquidating bank on the insufficiency of its assets to pay Its debts.</p>

<p>1. Criminal Law <&wkey;371(l) — Obstructing Enlistment — Evidence—Other Offenses.</p> <p>On trial of a defendant, under Espionage Act June 15, 1917,«for willfully obstructing the recruiting or enlistment service, statements made by bim before tbe passage of the act may be admissible, as tending to show the intent and purpose of statements subsequently made, on which the charge is based.</p> <p>2. Army and Navy <&wkey;40 — Espionage Act — Construction—“Obstruct” Enlistments.</p> <p>In Espionage Act June 15, 1917, § 3, making it an offense to “willfully obstruct the recruiting or enlistment service,” the word “obstruct” is not used as the equivalent of “prevent,” but rather of “to make difficult,” and, to warrant conviction for its violation, it need not be shown that defendant’s words or acts actually prevented recruiting or enlistment.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Obstruct.]</p>

<p>1. Criminal Daw <&wkey;448(2) — Conclusions—False Accounts by Postmaster.</p> <p>On trial of a postmaster for presenting a false account in reporting excessive postage cancellations, testimony of an inspector, from examination of the records of many offices of the same class, as to the ratio of sales of stamps to cancellations, and also that there were no industrial plants in defendant’s town likely to receive stamps from other places, and his testimony from the records of defendant’s office as to the .relation of sales to cancellations before his incumbency, held not incompetent as conclusions.</p> <p>2. Criminal Law <&wkey;322 — Evidence—Public Records.</p> <p>The records of a public office, as a post office, are presumptively correct.</p>

Riner, Judge. Bill by the United States against the Diamond Coal & Coke Company. The bill was dismissed, as not stating a cause of action, and the United States appeals. This is a suit in equity, brought by the United, States against tho Diamond Coal & Coko Company, a corporation, to avoid for fraud in obtaining thorn tho patents to 38 tracts of land, aggregating 2,283 acres, and tho deeds thereof made by the 18 patentees to the coal company.

ourt of the United States for the District of Kansas; John C. Pollock, Judge. Ono Manuel was convicted of murder, with sentence of death, and brings error.

Booth, Judge.' Libel by Ludwig B. Elhardt and others against the steamer Eronte-nac and barge Mississippi. Petition by the St. Charles Amusement & Transportation Company to set aside its default and be permitted to, answer the libel. Erom an order refusing to set aside the default, petitioner appeals.

<p>Appeal from the District Court of the United States for the Northern District of Georgia; William T. Newman, Judge.</p> <p>In the matter of the Phoenix Planing Mill, bankrupt. From an order awarding a fund in court to the Atlanta National Bank, William A. Fuller, trustee, appeals.</p>

Smith, Judge. Bill by the Empire Trust Company against the Medina Valley Irrigation Company, on which Eloyd McGown was appointed receiver. From a decree denying the motion of the complainant to set aside the order appointing William Aubrey, attorney for the receiver, etc., the complainant and receiver appeal.

<p>1. Appeal and Error @==>1195(1) — Retrial—Law op Case.</p> <p>A decision on a former writ of error that plaintiff was entitled to recover future profits is the law of the ease on subsequent trial; the relevant facts remaining the same.</p> <p>2. Appeal and Error @=>1062(1) — Harmless Error — Submission op Question to Jury.</p> <p>The erroneous submission of issues to the jury is'harmless, where the verdict is in favor of the plaintiff in error.</p> <p>3. Appeal and Error @=>977(1) — Denial op New Trial — Abuse op Discretion.</p> <p>While ordinarily the ruling of the trial court on motion for new trial is not subject to reviéw, the motion being addressed to the sound discretion of the court, yet, if an abuse of discretion is shown, the matter may be reviewed.</p> <p>4. New Trial @=>75(3) — Grounds—Inconsistent Verdict.</p> <p>In an action for breach of contract, where the jury found that defendant broke the contract, but awarded plaintiff a much less sum than the undisputed evidence showed it was entitled to recover, held,, that the verdict was so inconsistent that the refusal of the trial court to-grant plaintiff a new trial was an abuse of discretion.</p> <p>5. Estoppel @=>88(1) — Equitable Estoppel — Damages.</p> <p>A telegram by plaintiff’s agent, stating that the damages for a certain breach of contract would not be less than $500, held not to estop plaintiff from claiming greater damages in a subsequent suit on the contract.</p>

Newman, Judge. Proceeding by the United States, under Rev. St. § 3450 (Comp. St. 1916, §■ 6352), for the forfeiture of one Ford automobile, claimed by James M. Mincey. There was a judgment for claimant, and the United States brings error.

<p>1. Indians &wkey;>38(5) — Intoxicating Dtquoes — Evidence.</p> <p>In a prosecution for introducing intoxicating liquor into an Oklahoma county, evidence held sufficient to sustain the conviction.</p> <p>2. Criminal Daw <&wkey;721(5) — Argument or Prosecutor— Comment on Defendant's Pait/ure to Testify.</p> <p>Argument by the attorney for the United States that the evidence against defendants was conclusive, and that it. had not been contradicted, is not objectionable as a comment on the failure of defendants to testify.</p> <p>3. Criminal Daw <&wkey;304(5) — Yenue—Judio tal Notice.</p> <p>Where the evidence showed the location of the offense with reference to a city, a river, and lines of railroad, the court may take judicial notice of the location of the same, and that the offense occurred in the county where prosecution was had.</p> <p>4. Criminal Daw <&wkey;829(l) — Trial—Refusal of Instructions.</p> <p>The refusal of requested instructions covered by those given is not errox-.</p>

Dyer, Judge. Action by Bettie Eriedman, administratrix of the estate of William G. Richardson, deceased, against the Vandalia Railroad Company. Judgment for defendant, and plaintiff brings error.

<p>In Error to the District Court of the United States for the District of Minnesota; Wilbur F. Booth, Judge.</p> <p>Jacob O. Bentall was convicted of aiding, abetting, counseling, commanding, and inducing another to refuse to register for military service, pursuant to Act May 18, 1917, c. 15, § 5, 40 Stat. 80, and he brings error.</p>

Petition for Mandamus to the District Court of the United States for the Eastern District of Pennsylvania. Petition by the Nulomoline Company for a writ of mandamus against Oliver B. Dickinson, District Judge, to require the insertion of certain provisions in the decree entered by the District Court pursuant to the decision in Nulomoline Company v. Stromeyer, 249 Fed. 597, -C. C. A.-.

<p>Carriers <©=>848(3) — Passengers—Injury—Instructions.</p> <p>In an action by plaintiff, struck by defendant’s engine at one of its passenger stations, after be bad passed through the gates, which had been unlocked by the gateman, who announced plaintiff’s train, etc., instructions on invitation to plaintiff to pass through gate, etc., held to correctly announce the law.</p>

<p>Appeal from the District Court of the United Slates for the District of South Dakota; James D. Elliott, Judge.</p> <p>Suit by Josephine Parent against Irene L. Simmons Picotte. From a decree for defendant, complainant appeals.</p>

<p>1. War <&wkey;5 — Restrictions on Trade — Statute.</p> <p>Where the United States libeled gold coin, on the ground that it was delivered for export and shipment and for the purpose of being taken out of the United States, in violation of Act June 15, 1917, and of the presidential proclamation of September 7,1917, held that, as the proceeding fell within title 7 of the act dealing, with exports, return of the coin on the giving of bond, etc., could not be allowed, under title 6, § 5, which is part of the general provision relating to seizure of arms, etc.</p> <p>2. An peat. and Error <®t-»11T70) — Review—Remand.</p> <p>Where gold eoiri was forfeited in proceedings under Act .Tune 15, 15)17, oil tlio ground it was delivered for export outside of the United States, but it was ordered delivered to the claimant on bis giving a bond conditioned that it would not be exported, etc., held that, though the provision for delivery on bond was unwarranted, the entire judgment will be reversed, to enable the trial court to pass on questions of law and fact,under a proper construction of the statute.</p>

R. Smith, Judge. Proceeding between William Eeitner and another and the United States. There was a judgment for the United States and Leitner and another bring error.

<p>Appeal from the District Court of the United States for the District of Rhode Island; Arthur D. Brown, Judge.</p> <p>Suit by the National Metal Molding Company against the Tubular Woven Fabric Company. On supplemental bill. Decree for defendant, and complainant appeals.</p>

<p>1. Patents @=>93 — Ownership—Inventions of Empeoyé.</p> <p>Whether a patent for an invention made by an employs belongs to him or the employer depends upon his position. If the work for which he is paid is done under direction of others, any invention he makes outside of such work is his own; but if he contracts to devote his time and sendees to making improvements in articles made by the employer, a patent for any such improvement belongs in equity to the employer.</p> <p>2. Patents @=>98 — Ownership—Invention of Employes.</p> <p>A patent for an essential and valuable improvement in rubber tires for automobiles, developed by employés of a rubber company as the result of many and various experiments, and for which patent was issued to the president and general -manager, who had sole charge of the company’s business and was the second largest stockholder, helé, under the facts shown, to be the property of the company.</p> <p>S. Patents @=>328 — Validity—Ownership—Rubber Tire.</p> <p>The Dowse patent, No. ,1,174,238, for a method of reinforcing automobile tires, held valid, and to be in equity the property of the Federal Rubber Company in whose plant the invention was developed.</p>

<p>At Raw. Action by the Pressed Steel Car Company against the Union Pacific Railroad Company.</p> <p>The parties entered into a contract, the essential features of which are as follows:</p> <p>“Agreement made the 1st day of November, 1905, between Pressed Steel Car Company, a corporation * * * (hereinafter called the Car Company), of the first part, and Union Pacific Railroad Company, a corporation « * * (hereinafter called the Railroad Company), of the second part;</p> <p>“Whereas, the Car Company is the owner of certain patents covering various devices or designs used by the Railroad Company in the construction of ‘common standard’ freight cars; * * * and *</p> <p>“Whereas, the Railroad Company admits the use by it in the construction of its ‘common standard’ freight cars of certain designs and patented devices owned by the Car Company, * * * and admits the validity of the patents embodied therein, and has agreed not to evade or attempt to evade said patented devices * * * as embodied in its ‘common standard’ freight cars; and</p> <p>“Whereas, the Railroad Company is desirous of making an arrangement with the Car Company whereby it may build or cause to he built, under royalty, freight cars containing such designs and patented devices for its own use and the use of the various railroad companies now or hereafter owned or controlled by it by the ownership of a majority of the capital stock herein or otherwise, or leased or operated by it, but not for sale; and</p> <p>“Whereas, the Railroad Company has since the 1st of June, 1904, built and caused to be built ‘common standard’ freight cars in which the devices covered by said patents of the Car Company have been used:</p> <p>“Now, therefore, * * * it is agreed as follows between the parties hereto:</p> <p>“First. From the date of the execution of this agreement until the 21st day of December, 1914, the Railroad Company shall have a right and license to construct or have constructed for its own use and the use of the various railroad companies now or hei'eafter owned or controlled by it by the ownership of a majority of the capital stock therein or otherwise, or leased or operated by it, and to use and to permit to be used by and upon the lines of the various railroad companies so owned, controlled, leased, or operated by it, freight cars containing the designs and devices covered by patents now owned or controlled or which may during the said period be acquired, owned, or controlled by said Car Company. * * *</p> <p>“Third. For each car hereafter built or caused to ho built during the period of this contract by the Railroad Company (except cars constructed for the Railroad Company by the Car Company or by the Western Steel Car & Foundry Company) containing any of the designs or devices covered by patents now owned or controlled or which may hereafter be owned or controlled by said Car Company, the Railroad Company shall pay as royalty to the Oar Company, within ninety (90) days after completion of such car, ten dollars ($10) per car in cash. * * *</p> <p>“Fourth. The Railroad Company hereby gives to the Car Company and/or to a corporation known as the Western Steel Car & Foundry Company, a corporation organized and existing under and by virtue of the laws of the state of New Jersey, and for which company the Oar Company in this regard will act as agent, a preference (provided they can make reasonably prompt or similar deliveries, under the same plans and specifications) over any other car builders in the construction of any or all freight cars containing designs and devices covered by patents now owned or controlled or which may hereafter be owned or controlled by the Car Company, caused to be built by the Railroad Company outside of its own shops, at the price of ton dollars (S10) per car in excess of the price hid by such other car builders for the construction of any freight cars embodying such designs and devices; the Railroad Company, however, reserves the right to build such cars in its own shops, in which event the Railroad Company agrees to pay to the Car Company a royalty of ten dollars ($10) per car for each car so built.</p> <p>“Fifth. It is further agreed that if the Railroad Company abandone its present ‘common standard’ and adopts instead thereof a new design, which it contends does not embody any of the designs and devices covered by the patents now or hereafter owned or controlled by the Pressed Steel Car Company, and if such contention is disputed by the Car Company, then the question whether or not such new design does embody any design or device of patent owned by the Car Company, shall upon written request of either party to the other, be referred to * * * arbitrators. * * * ”</p>

<p>In Equity. Suit by the Utah Construction Company against the St. Eouis Construction & Equipment Company, the St. Eouis, R. M. & P. Railway Company, and the Metropolitan Trust Company of New York City, trustee, with the Bell & Levy Contracting Company as cross-petitioner.</p>

<p>1. Caeriers <&wkey;38 — Interstate Commerce — Discrimination—Offenses.</p> <p>Under the statute declaring that every person or corporation, whether shipper or carrier, who shall knowingly offer, grant, or give, or solicit, accept, or receive rebates, etc., shall be guilty of a misdemeanor, the mere offer by a carrier is an offense.</p> <p>2. Carriers <&wkey;38 — Interstate Commerce — Discriminations—Indictment.</p> <p>An indictment charging that railroads had not collected demurrage, and that the shippers had not paid it, held, insufficient to charge the offense of discrimination, etc.</p> <p>3. Carriers &wkey;>38 — Interstate Commerce — Discrimination—Indictment.</p> <p>Indictments charging that, while an embargo in respect to the transportation of hay was in force, a railroad company did unlawfully offer, grant, and give permits for transportation to certain shippers, while others similarly situated did not receive certain permits, held insufficient to charge the offense of discrimination, etc., it not being alleged there was any transportation, etc.</p> <p>4. Carriers <&wkey;32(2) — Interstate Commerce — '“Discrimination.”</p> <p>Transportation pursuant to authorizations given one shipper while an embargo was enforced against others is an unlawful “discrimination,'” and constitutes a violation of statute.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Discrimination.]</p> <p>5. Carriers &wkey;>32(l) — Interstate Commerce — Embargoes—Discrimination.</p> <p>That a railroad embargo was illegal does not make discriminatory transportation under it legal.</p>

The Metropolitan Rumher Company and another, the Southern Rumber Company and another, the Franklin Rumber Company, the Boynton Rumber Company, Ira R. Crouse, and Perrine & Buckelew, Incorporated, were severally indicted for alleged violations of Act Feb. 19, 1903, c. 708, § 1, as amended by Act June 29, 1906, c. 3591. On demurrers to the indictments.

At Law. Action by John Lysaght, Limited, against the Lehigh Valley Railroad Company. On demurrer to pleas. Demurrer to three pleas interposed to a complaint.

<p>In Equity. Suit by Stephen H. P. Pell and others against W. Gordon McCabe, Jr., and others.</p>

<p>1. Costs <@=>254(1,5), 258 — Federal Courts — Costs Awarded on Reversal.</p> <p>Under rule 29, par. 3, and rule 23, par. 7, of the Circuit Court of Appeals (224 Fed. six, xvi, 137 "O. C. A. xix, xvi), when a judgment is reversed, with, costs, plaintiff is entitled to costs of the appeal, including actual cost of printing the record, but not including cost of printing briefs, nor cost of transcript, which must be taxed in the District .Court as costs in the case.</p> <p>2. Costs <@=>247 — Costs Awarded on Reversal.</p> <p>A mandate from the Circuit Court of Appeals, reversing a judgment, with cost's “in the sum of $50.10,” held not to entitle plaintiff to execution for costs incurred by him in the District Court, but only for costs of the appellate proceedings, including those specified in the mandate.</p>

<p>1. Judgment <@=>812(3) — Conclusiveness—Res Judicata.</p> <p>Where libelant bad previously libeled a vessel in rein, for personal injuries, and the vessel had been claimed by respondent through its agent, held, that the judgment rendered in the first proceeding might bo pleaded by respondent as res judicata.</p> <p>2. Judgment <@=>713(2) — Conclusiveness—Res Judicata.</p> <p>Where the parties to a libel against a vessel in which respondent appeared by its agent and claimed the vessel were the same as those to the second, any issue which could have been determined in that proceeding is res judicata in the later proceeding.</p> <p>3. Judgment <@=>588 — Conclusiveness—Res Judicata.</p> <p>Where libelant had previously libeled a vessel, and, respondent, by its agent, appeared and claimed the vessel, held that, as both proceedings were intended to enable libelant to recover for personal injuries, the fact that libelant alleged additional acts of negligence in the second does not of itself prevent the first judgment from being a bar to the second libel.</p> <p>4. Judgment <@=>812(2) — Conclusiveness—Res Judicata.</p> <p>Where a libel in rem, in which libelant sought to recover for personal injuries, set up as part of the damages the expenses of care while a cure was being effected, held, that a judgment dismissing the libel against the vessel was a bar to a later libel in personam against respondent, which appeared and claimed the vessel in the first proceeding.</p>

<p>Trade Marks and Trade-Names <§=»95(2) — Uotair OoMPETmost — Preliminary Injunction.</p> <p>Wliere plaintiff, an individual dealer, in accordance with, the New York statute filed a certificate showing his adoption of the name “Iowa Button Company” as a trade-name, and defendant, which was later incorporated under the laws of Iowa, adopted the same in ignorance of plaintiff’s action, held that, as buttons from fresh-water shells are known to the trade as “Iowa pearl buttons,” and neither party was entitled to the exclusive use of the name, plaintiff’s motion for a preliminary injunction, restraining defendant, which had begun to do business in Now York, from using such name, will be denied.</p>

<p>Petition of the United States, on relation of Warren Sandford Doughty, directed to Colonel John E. Hunt, for writ of habeas corpus.</p>

<p>1. Admiralty <3=>57 — Arrest—Release—Be-arrest.</p> <p>While normally a vessel, once arrested and discharged, may not be rearrested for the same cause o£ action, yet if the stipulation was entered into Improvidently, or through fraud or mistake, the court may order a new arrest; so, whero vessels libeled for towage service were released, they may be re-arrested on an amended libel setting forth other items, provided such items constitute separate causes of action, hut not if the items which were omitted from tho original libel wore part of the several breaches of a single contract.</p> <p>2. Admiralty <S=»57 — Arrest—Re-arkest.</p> <p>The rule that a vessel, once arrested and discharged, may not he re-arrested for the same cause of action, unless the stipulation was entered into improvidently, or through fraud or mistake, is designed to compel the libelant to state his cause once for all, and the mistake, etc., must go to the supposed value of the vessel to warrant re-arrest.</p>

<p>Appeal from the District Court of the United States for the District of Porto Rico; Peter J. Hamilton, Judge.</p> <p>Suit in equity by the People of Porto Rico and others against the American Railroad Company of Porto Rico. Decree for defendant, and complainants appeal.</p>

<p>1. Appeal and Error <&wkey;1008(2) — Review—Finding or 'Facts by Trial Court.</p> <p>In an action at law tried to the court by consent, every finding of fact made by the court, having reasonable support In the evidence and tending to support the Judgment, is binding on the reviewing court.</p> <p>2. Constitutional Law <&wkey;175, 249, 311 — Obligation or Contracts — Rules or Evidence — Due Process-Equal Protection.</p> <p>As there is no vested right in the rules of evidence, the general principle is that the obligation of a contract is not impaired, nor due process of law nor the equal protection of law denied, by a statute making a fact proved presumptive evidence of another, and since the Legislature may create the presumption whore it did not before exist, it may by repealing the statute destroy the presumption.</p> <p>3. Taxation <&wkey;7S8(2) — 1Tax Deeds — Prima Facie Evidence.</p> <p>Statutes”making tax deeds prima fade evidence of the legality of the proceedings under which they were made have been universally sustained.</p> <p>4. Taxation <&wkey;>788(2) — Tax Deeds — Presumptions—Repealing Statutes.</p> <p>Despite Code Va. 1904, § 6, held that Act March 14, 1914 (Laws Va. 1914, c. 100), repealing Act March 13, 1912 (Laws Va. 1912, c. 235), making deeds recorded prior to 1865 prima facie evidence that all requirements had been complied with, destroyed any rights which a purchaser during the life of the act o£ 1912 from one claiming under deeds recorded prior to 1865 might have acquired; the Legislature being entitled to chango rules of presumption, and the Code section protecting only substantive rights, etc.</p> <p>5. Taxation <&wkey;796(l) — Tax Deeds — Collateral Attack.</p> <p>As a plaintiff in ejectment, claiming under a tax title has the burden of proving such title, an objection to the legality of the tax deeds under which plaintiff claimed was not a collateral attack on the deed.</p> <p>6. Taxation <&wkey;789(4) — Action on Tax Title — Burden oe Proof.</p> <p>A plaintiff in ejectment, who relies on a tax title may be required by defendant in, possession to prove due execution of the power under which the deed was made.</p> <p>7. Taxation <&wkey;788(8) — Tax Deeds — Presumption.</p> <p>Both the authenticity and validity of a tax deed may be inferred from long possession under it, with such failure of the alleged defaulting taxpayer to assert his title as to show acquiescence or estoppel.</p> <p>8. Taxation <&wkey;788(8) — Presumption—Validity of Tax Deeds.</p> <p>Under the Virginia rule that a presumption of the validity of a tax deed does not arise, unless there has been possession for such length of time as would presume any other link in the chain of title, evidence held insufficient to warrant a presumption of the validity of a tax sale under which plaintiff deraigned title.</p> <p>9. Taxation <&wkey;773 — Tax Deeds — Recitals—Effect.</p> <p>The recitals in an ancient tax deed do not prove its authenticity or validity, and are not sufficient to show compliance with the law.</p> <p>10. Taxation <&wkey;615 — Sale of Property — Mandatory Statute.</p> <p>The provisions of Act Cong. Jan. 9. 1S15. as amended by Act March 3, 1815, providing for sale of land for nonpayment of direct taxes, and for assessment, are mandatory, because designed to protect the taxpayer.</p> <p>11. Taxation <&wkey;855 — Forfeiture of Lands — Tax Titles — “Just Title”— “Just Claim.”</p> <p>Plaintiffs in ejectment, who asserted that the title of the original owner of land west of the Allegheny Mountains had been forfeited to the state, and that their predecessors took title under Act Va. 1842, § 3, held not entitled to recover; their predecessors not having “just title,” which means a title good against all the world, or a “just claim,” which means a claim that would be good, but for the paramount right forfeited to the state, etc.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Just Claim; Just Title.]</p> <p>12. Taxation &wkey;>855 — Forfeiture of Land — Presumption.</p> <p>There is no presumption of forfeiture of land to state for nonpayment of taxes.</p> <p>13. Taxation <&wkey;851 — Nonpayment—Land—Statute Declaring Forfeiture —Publication.</p> <p>While ordinarily provisions for the publication of statutes are directory, yet as the only notice to defaulting taxpayers of the impending forfeiture of their land) under Act Va. 1803 (2 Bev. Code, 1819, p. 528), was the publication of the statute provided for in section 2, no forfeiture can be declared were such publication was not had as provided.</p> <p>14. Adverse Possession <&wkey;16(3) — Land in State of Nature.</p> <p>It is settled in Virginia that there can be no adverse possession of land in a state of nature, but actual possession of part of a single tract, under a junior patent, extends to the entire patent, including the portion still in a state of nature.</p> <p>15. Adverse Possession &wkey;>101 — Constructive Possession — Adjoining Parcels.</p> <p>Where several parcels are granted by different patents to the same person, and are so situated that they are covered by an unbroken boundary, they are regarded as forming one tract, and actual adverse possession, for the statutory period, of any portion of the one tract thus formed from several extends to the. entire boundary, and perfects the title to all separate tracts so consolidated.</p> <p>16. Adverse Possession <®=>106(4) — Effective Possession — Liens.</p> <p>liens existing on land are lost by possession for the statutory period adverse to the owner, so the tax lien of the state is destroyed where an adverse occupant holds the land for the statutory period, though forfeiture be declared before the adverse occupancy ripened into title.</p>

F. Bledsoe, Judge. Suit in equity by the Santa Marina Company against the Canadian Bank of Commerce. From a decree for part only of the amount claimed (242 Fed. 142), plaintiff appeals.

<p>Appeal from the District Court of the United States for the Territory of Hawaii; Horace W. Vaughan, Judge.</p> <p>Suits in admiralty by Uto Yenobi and by Omito Itokazu against the Japanese steamship Korea Maru. Decrees for libelants, and claimant appeals.</p>

T. Dooling, Judge. Habeas corpus by Quan Hing Sun and others against Edward White, Commissioner of Immigration for the Port of San Francisco. From an order discharging the writ, and remanding petitioners for deportation, they appeal.

Reed, Judge. Action by Anzonetta M. IJoyd against the Royal Union Mutual Rife Insurance Company, in which the parties stipulated certain issues should be transferred to the equity side of the court. There was a judgment and decree for the plaintiff (245 Fed. 162), and defendant appeals and brings error.

Ervin, Judge. Libel by the Clinchfield Fuel Company against the Henderson Iron Works Company, together with a like libel against Frank Henderson. The two cases were tried together, and, judgment being against libelant in each case, it appeals.

Condemnation proceeding by the North American Telegraph Company against the Northern Pacific Railway Company. There was judgment on the verdict, assessing damages in the sum of $16,850, and plaintiff brings error.

<p>1. BANKRUPTCY c&wkey;136(l)-SUMMARY PROCEEDINGS.</p> <p>A bankrupt may be summarily ordered to surrender to his trustee any assets oC the estate found in his possession, and for failure to obey such order may be committed as for contempt.</p> <p>2. Bankruptcy <&wkey;28S(i) — Summary Proceedings.</p> <p>Where the trustee has possession of and legal title to any property, the bankruptcy court in summary proceedings may adjust demands for the property; hut, where the trustee lias not title and possession, an adverse claim to property demanded by him cannot be summarily determined.</p> <p>3. Bankruptcy <&wkey;288(l) — Summary Proceedings.</p> <p>Where the bankrupt is a corporation, summary proceedings may lie to recover corporate property in the possession of an officer thereof wno makes no personal claim to it; hut as against another than the bankrupt, who sets up title in himself, his claim, if more than colorable, cannot be disposed of, except by plenary suit.</p> <p>4. Bankruptcy <&wkey;288(i) — Summary Proceedings.</p> <p>Where imported merchandise was deposited by the owner in a bonded warehouse, and after organizing a corporation such owner pledged the warehouse receipt as collateral security for a corporate debt, held that, as title remained in Mm, Ms claim to tlie property, which lie asserted on bankruptcy of the corporation, could not be disposed of in summary proceedings.</p>

<p>1. Trial <&wkey;412 — Objections to Evidence — Waiver.</p> <p>Where defendant objected .to a .question to its witness as to whether ho had been indicted for forgery, it was not a waiver of the objection and exception for defendant’s counsel to state in the presence of the jury that he was not trying to keep anything back, and would like to have the witness explain the matter, as he stated he could.</p> <p>2. Witnesses <&wkey;345(l) — Credibility—Indictment.</p> <p>Evidence of a pending indictment is not competent to affect the credibility of a witness.</p> <p>3. Evidence <&wkey;158(28) — Best and Secondary — Oral Assignments.</p> <p>Oral proof of assignment of a cause of "action is proper, where it was not shown to have been in writing; and the fact that a memorandum of the terms was contained in a journal entry on the assignee’s books of account does not establish that the assignment was in the form of a written contract.</p> <p>4. Sales &wkey;>58 — Reference.</p> <p>Where a contract for the sale of corn for future delivery referred to the trade rule, such rule thereby became a part of the contract.</p> <p>5. Evidence <&wkey;450(5) — Oral Evidence — Trade Rule.</p> <p>Where a trade rule, which was part of a contract, was ambiguous, oral proof was properly permitted to elucidate it</p> <p>6. Sales &wkey;64 — Construction—Trade Rule.</p> <p>Under a trade rule, which by reference was incorporated into and made a part of a contract for the sale of com for future delivery, held, that it was immaterial to the buyer how long before the exercise of the election of the seller to ship the grain, on cancel the contract, notice of /election was given, provided it reached the buyer 24 hours before election was exercised.</p>

Libel by Stephen W. Morey against the City of New Rochelle anc! another. From a decree for libelant for half damages only, the named respondent appeals. Libelant owned a coal barge of a not unusual size, which was sent to New Kochelle and berthed at a public wharf owned by -the city; the municipality collecting the wharfage. This wharf had been in existence for upwards of ten years, and stands upon a ledge of rock rising above the general bottom level.

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Action by James Milne Smith against the Standard Sanitary Manufacturing Company. There was a judgment dismissing the complaint, and plaintiff brings error.</p>

<p>Appeal from the District Court of the United States for the District of Minnesota; Page Morris, Judge.</p> <p>Suit by the Disc, Grader & Plow Company against the Austin-Western Road Machinery Company. . From a decree of dismissal, complainant appeals.</p>

<p>1. Patents &wkey;»282 — Infringement—What Constitutes.</p> <p>If a claim cannot be read on defendant’s device, there can be no infringement; but, if it can be read, infringement is suggested, not proved, and tbe prior art, as well as tbe disclosure, must still be studied.</p> <p>2. Patents &wkey;>328 — Infringement.</p> <p>Tbe Cottie patent, No. 909,555, relating to a belt coupling, claims 1, 2, and 3, held not infringed by defendant’s device, in view of tbe prior art and tbe limitations of tbe disclosure.</p>

Dyer, Judge. Suit by the W. S. Tyler Company against the Eudlow-Saylor Wire Company. From a decree dismissing the bill, plaintiff appeals. The following is the opinion of the court below: I have listened with a great deal of interest to all that was said, and have given attention to all the testimony that was offered. I do not think that a further discussion of this matter will enable the court to do more than it is now able to do from ah the testimony in the ease.

<p>In Equity. Suit by A. Schrader’s Son, Incorporated, against the Protex Manufacturing Company. On motion for preliminary injunction.</p>

<p>In Admiralty. Eibel by Emanuel Eostinis against the steamship Olga and others. On motion to vacate process against the steamer Olga.</p>

<p>Bankeuptcy <&wkey;399(2) — Judgment Creditor — Waiver op Exemptions.</p> <p>Where, after execution is issued and levied, on the personal property of the judgment debtor, a petition in bankruptcy is filed against bim, and the debtor refuses to claim exemptions, waiving the same in favor of the judgment creditor, such creditor is entitled to receive payment in full out of the proceeds of the sale of the bankrupt’s assets up to the amount of the exemptions.</p>

In Bankruptcy. In the matter of John T. McGraw, alleged bankrupt. On motion of the alleged bankrupt to dismiss the original and amended petitions.

In Equity. Application by the Primos Chemical Company for the appointment of receivers of the property of the Fulton Steel Corporation, as ancillary receivers, based on ■ an ancillary bill, in which another creditor intervened, denying the jurisdiction of the District Court wherein the original suit was brought.

In Bankruptcy. In the matter of the bankruptcy of Ole Drag and Jacob Svang, doing business as copartners under the firm name of Drag & Svang. Petition by the Holmes & Kelsey Company for review of an order of the referee denying the right of petitioner to enforce a chattel mortgage against the exemptions of the bankrupts.

<p>In Admiralty. Libel for collision by William C. Reid, managing owner of the American schooner Dorothy, against the British steamship Elm Branch, with cross-libel.</p>

<p>In Equity. Suit by the Barnett Oil & Gas Company against the New Martinsville Oil Company.</p>

<p>In Equity. Suit by David Peoples against Peoples Bros., Incorporated. On exceptions to report of special master.</p>

<p>In Equity. Suit by the Standard Fashion Company against the Magrane Houston Company.</p>

<p>1. Aliens @=>27 — Chinese Exclusion Act — Preinvestigation of Claim of Chinese Person to be Merchant.</p> <p>Under the Chinese Exclusion Acts (Comp. St, 1916, § 4324), the Department of Labor was authorized to promulgate its rule for the investigation, in advance of his departure, of the claimed mercantile status of a Chinese person desiring to go abroad temporarily, and to require such person to furnish with his application the names of two witnesses able to testify that for one year preceding proposed departure the applicant had been engaged in mercantile pursuit named, so the securing of approval of the application of one not entitled would work a fraud on the government.</p> <p>2. Conspiracy @=>33 — To Defraud Government.</p> <p>A conspiracy to secure the approval of the application of a Chinese person, desiring temporarily to go abroad, for preinvestigation of his claimed mercantile status, when he is not entitled to the same, is a violation of Criminal Code, § 37 (Comp. St. 1916, § 10201), denouncing conspiracies to defraud the government.</p> <p>3. Conspiracy @=>43(10) — Chinese Persons — Offenses—Indictment.</p> <p>An indictment alleging that defendants conspired to secure the approval of the application of a Chinese,person desiring to go abroad for preinvestigation of his claimed mercantile status held, in view of the requirement of the rule of the Department of Labor that application should be made 30 days before proposed departure, and the Chinese Exclusion Acts (Comp. St. 1916, § 4324), to be insufficient, as it merely alleged defendants knew the applicant had not been a merchant for one year before his application.</p>

In Bankruptcy. In the matter of' Solomon & Johnson, bankrupts. Petition to review an order of the referee refusing to set aside to the petitioner, as assignee of the bankrupt, certain exemptions.

In Bankruptcy. In the matter of Milton O. Chambers, bankrupt. Petition of the Commercial Trust & Savings Bank of Charles City for review of an order of the referee denying its claim to priority under a chattel mortgage, and allowing a judgment of Mrs. Margaret E. Glad-win as a lien prior and superior thereto.

<p>Salvage <S=30 — Rescue or Steanded Steamship — Compensation.</p> <p>The steamship Mont Cenis, with a cargo of iron and valued at $2,000,000, in September 191T, on a voyage from New York to Marseilles, stranded near the Mediterranean coast of Spain, and in answer to her calls the steamer St. Charles, part of a convoy to Marseilles, valued at $500,000, contrary to orders, came to her assistance and within tiiree hours released her without danger. The St. Charles later rejoined her convoy. Being in the submarine zone, quick passage was desirable for both vessels. Held, that the St. Charles was entitled to a salvage award of $15,000.</p>

<p>On application of Paul Pfleiger for naturalization.</p>

<p>Appeal from the United States District Court for the Western District of Texas; William R. Smith," Judge.</p> <p>Suit by the Atchison, Topeka & Santa Fé Railway Company against J. F. Weeks and others. Decree for defendants, and complainant appeals.</p>

<p>1. Evidence <@=^151(1) — Witnesses <S=>240(4) — Examination—Leading Questions.</p> <p>It was proper to refuse to allow defendant as a witness to answer a leading question calling for undisclosed state of inind of defendant upon a subject-matter which was vital to the case and upon which it was impossible to contradict him.</p> <p>2. Gaming <©=>12 — Gaming Contracts.</p> <p>The uncommunicated intention of either party to a contract for the sale of cotton for futura delivery, that no cotton was to bo actually delivered, will not establish the gaming character of the transaction, and it must appear that the parties mutually, either expressly or impliedly, understood no delivery was to be made or accepted.</p> <p>3. Evidence <©=>134 — Similar Transactions — 'Intent—Gaming Contracts.</p> <p>In an action for breach of a contract to sell cotton for future delivery, which defendant contended was a gaming contract, in that no actual delivery was contemplated, evidence that similar contracts were settled on a monetary basis by payment of difference between contract and market price, held inadmissible; such evidence not showing intent.</p> <p>4. Gaming <©=^49(3)- — Contracts—Evidence.</p> <p>In an action for breach of a contract for the future delivery of cotton, evidence held to warrant a finding that the contract was not a gaming contract.</p> <p>5. Principal and Agent <S=>119(1) — Authority of Agent — Burden of Proof.</p> <p>Defendant, who relied on. the cancellation of a contract by plaintiff’s agent, has the burden of proving the authority of the agent.</p> <p>6. Principal and Agent <@=111(1) — Authority of Agent' — Scope.</p> <p>Authority of an agent to make a contract does not imply authority to cancel it.</p> <p>7. Principal and Agent <©=>111(3) — Authority of Agent — Scope.</p> <p>That plaintiff’s agent accepted settlement of one contract for the future delivery of ^cotton, on payment of the legal measure of damages after breach, does'not establish the agent’s authority to cancel another contract.</p> <p>8. Trial <©=>48 — Evidence—Exclusion.</p> <p>Exclusion of evidence inadmissible for the purpose for which it was offered is proper, though evidence was admissible on another theory.</p>

<p>Appeal from the District Court of the United States for the Northern Division of the Western District of Washington; EMward H. Cushman, Judge.</p> <p>Suit in equity by the United States against the Great Northern Railway Company. Decree for defendant, and the United States appeals.</p>

<p>Appeals from the District Court of the United States for the Southern District of West Virginia, at Huntington; Benjamin F. Keller, Judge.</p> <p>Suits by T. J. Woodall and by Alonzo Woodall against Herbert L. Clark and another, trustees of the Lincoln County Land Association, a voluntary unincorporated association, and others, and by Oad Mills against the Huntington Development & Gas Company, a corporation, begun in the state court, and removed to the federal court. From decrees dismissing the suits, complainants appeal.</p>

<p>Appeal from the District Court of the United States for the Northern District of West Virginia, at Clarksburg; Alston G. Dayton, Judge.</p> <p>Bill by Drusa Sturm and others against John S. Stump and others. From a decree for complainants (239 Fed. 749), defendants appeal.</p>

Appeals from the District Court of the United States for the District of Maryland, at Baltimore; John C. Rose, Judge. Bill by the Chapin-Sacks Manufacturing Company against the Hendler Creamery Company and another. From the decree, which granted part of the relief sought (231 Fed. 550), both parties appeal.

Lewis, Judge. Suit by James H. Brown, for and on behalf of himself and all other holders of bonds who might come into the suit and contribute to the expenses, against the Denver Omnibus & Cab Company, a Wyoming corporation, and the Continental Trust Company. From a judgment dismissing the complaint, plaintiff appeals.

<p>1. Appeal and Error <&wkey;854(5) — Review—Affirmance.</p> <p>Where defendants moved to dismiss on several grounds, the Judgment of dismissal may be sustained on any of the grounds made in the motion to dismiss.</p> <p>2. Indians (&wkey;27(l) — Suit by United States — Adequate Remedy at Baw.</p> <p>Act Okl. March 10, 1909 (Comp. Baws 1909, § 7616; Rev. Baws 1910, § 7367; Sess. Baws 1910-11, c. 152) and Act Okl. March 11,1915 (Baws 1915, c. 107), afford a plain, speedy, and adequate remedy to property owners complaining of the erroneous assessment of taxes; so, no relief having been sought pursuant to the statutes, the United States, as guardian of Indian allottees, cannot maintain a suit in equity to enjoin' sale of allotted lands for delinquent state and county taxes.</p> <p>3. United States <&wkey;124 — Suits by —Equity Jurisdiction.</p> <p>The United States have no more rights, so far as equitable jurisdiction is concerned, than private citizens.</p>

Suit in admiralty for collision by the Canyon Lumber Company and others against the Puget Sound Navigation Company, owner of the steamer Indianapolis. Decree for libelants, and respondent appeals.

Libel by James Dwyer and others against the steam tug Westches-ter, her engines, etc., claimed by the Red Star Towing & Transportation Company. From a decree for claimant, respondents appeal. Libelants’ boat Sinclair, loaded, was in tow of the Westchester bound from the Harlem River to West Farms when the tug became disabled by the breaking of her propeller shaft in the bushing.

Tib el by Thomas Flannery against the steam tug Bouker No. 2, her engines, etc., claimed by the Bouker Contracting Company. From a decree for libelant, claimant appeals.

<p>1. COMMERCE <&wkey;>27(2) — Safety Appliance Act — Railroads Subíject to Act.</p> <p>A railroad company, having its line wholly in Texas and incorporated therein as required by the state law, but which, with its connections, constitutes part of the interstate system of railroads, is subject to the provisions of the Safety Appliance Act March 2, 1893 (Comp. St. §§ 8(105-8612).</p> <p>2. Commerce <&wkey;27(3) — Railroads—Safety Appliance Act.</p> <p>A railroad company subject to the provisions o£ Safety Appliance Act March 2, 1893 (Comp. St. §§ 8605-8612) is liable for an, injury to an employs resulting from violation of that act, regardless of whether the particular car not properly equipped was at the time employed in interstate commerce.</p>

<p>1. Patents <&wkey;35 — Evidence of Invention — Commercial Success.</p> <p>Where commercial success may be accounted for on other grounds, and the patent in suit plays either no part or an inferior part in attaining such success, a court must be cautious in giving it weight in aid of the patent, or a broad construction of its claims.</p> <p>2. Patents <&wkey;328 — Validity and Infringement — Alcohol Lahi>.</p> <p>The Ball patents, No. 1,222,571, for a container, and No. 1,237,453, for a combined lamp and stand, both relating to lamps for burning solid alcohol held void! for lack of invention; also held not infringed, if conceded validity.</p>

<p>In Equity. Suit by Daniel B. Ruten against Arthur E. Allen, William S. Fulton, and Arthur E. Allen and William S. Fulton, partners doing business as Allen & Fulton. On motion to dismiss bill.</p>

<p>Patents <&wkey;328 — Invention-Method or Reinforcing Concrete Bridges.</p> <p>The Buten patent, No. 853,203, for method of reinforcing concrete arches in bridges, held void for lack of invention.</p>

<p>In Equity. Bill by Eugene Fromont against the JEolian Company.</p>

<p>At Law. Action by the Pitkin-Holdsworth Worsted Company against Aaron Meislin, doing business under the trade-name of the Chester Knitting Works.</p>

In Equity. Bill by Henry L. Doherty & Co. against the Toledo Railways & Light Company and others, in which the City of Toledo became a party by its voluntary intervention. On petition by the Toledo Railways & Light Company for an injunction. The Toledo Railways & Light Company, operating all the street railways of the city of Toledo1, is a consolidation of several independent companies. The lines were governed by a number of separate franchises expiring at different dates.

<p>1. Army and Navy <&wkey;20 — Selective Service Act — Duty op Registrants to Remain at Residence.</p> <p>Neither tho Selective Service Act nor the regulations prescribed by the President required, registrants to remain in their permanent homes and actual places of legal residence until drafted into military service, etc.</p> <p>2. Criminal Law &wkey;>5 — What Law Governs.</p> <p>The offense of forcibly taking a person in the state and carrying into another denounced by Pen. Code Ariz. 1901, § 186, as well as the offense of false imprisonment denounced by section 205, are witbin the police power reserved to the states by Const. Amend. 10.</p> <p>3. Criminal Law &wkey;>5 — What Law Governs.</p> <p>As tho congressional legislation against kidnapping found in Criminal Code, §1 268-271 (Comp. St. 1916, §§ 10111-10114), is expressly limited to tho constitutional authority of Congress to legislate against slavery, etc., under Const. Amends. 13, 14, this amounts to a legislative declaration that kidnapping not so limited was left to be dealt with by the states under their police power; the expression of one thing excluding others.</p> <p>4. Conspiracy <&wkey;29 — Offenses—Federal Law.</p> <p>It was not a violation of Criminal Code, § 19 (Comp. St. 1916, § 10183), denouncing conspiracy to injure, etc., any citizen in tho exercise of any right secured by the Constitution or laws of the United States for defendants to conspire to deport from Arizona citizens of tho United States some of whom had registered under the Selective Service Act; tho conspiracy not depriving those conspired against of rights secured by Const, art. 4, § 2, or Amendment 14, the federal statutes against kidnapping, etc., being inapplicable, and the Selective Service Act not requiring registrants to remain at their legal residences.</p> <p>5. Conspiracy <&wkey;29 — Construction of Statute.</p> <p>Section 19 of the Criminal Code of tho United States (Comp. St. 1916, § 10183) has the same meaning as when it was enacted as section 6, Act May 31, 1870. As there enacted it was intended to protect the political rights of citizens of the United States in the several states, and not their civil rights as mere persons, residents or inhabitants. Baldwin v. Franks, 120 U. S. 678, 7 Sup. Ot. 656, 763, 30 L. Ed. 766.</p> <p>6. Criminal Law &wkey;95 — Jurisdiction-Federal Courts.</p> <p>That it might be impossible to enforce the state law against kidnapping, etc., against defendants who conspired, etc., to deport citizens of the United States from Arizona, does not give the federal court jurisdiction of the prosecution; no federal law being violated.</p>

<p>Reference <&wkey;8(l) — Procedure in Federal Courts — -Appointment of Auditor.</p> <p>In an action at law to recover for goods sold and delivered, which involves the examination of long accounts, many items of which are in dispute, a federal court may properly appoint an auditor to make a preliminary examination, hear the evidence, and report his findings, with a view to simplifying the issues for the jury.</p>

At Daw and in Equity. Action and suit by the Original Sixteen to One Mine, Incorporated, against the Twenty-One Mining Company. New trial granted in law action as to one issue.

<p>Ram Chandra and others were indicted under Criminal Code, § 37 (Comp. St. 1916, § 10201), for conspiracy to violate section 13 (section 10177). On demurrers to indictment.</p>

<p>Salvage <S=c30 — Amount or Award — -Rescue of Steamship Stranded at Sea.</p> <p>A salvage award of $12,000 made for the rescue of a steamship, laden largely with explosives, stranded outside the Virginia capes, off False Cape, in the winter, vessel and cargo being valued at $2,000,000, and the service, which was efficiently performed, including towage to a safe harbor, requiring some 24 hours.</p>

<p>In Admiralty. Suit by Joseph F. O’Boyle, owner of the boat Stella Murphy, against the New York Steam Company and another.</p>

Trip-pet, Judge. Action by W. F. Harper, trustee in bankruptcy of H. G. Faubion, against the First National Bank of F,1 Centro. Judgment for plaintiff, and defendant brings error. The defendant in error, the trustee of the estate of H. G. Faubion, who was adjudged a bankrupt upon an involuntary petition filed October1 11, 1913, brought this action against the plaintiff in error to recover $12,728 as a voidable preference.

<p>1. Bankruptcy @=200(o) — Peeeerenoe—Landlord’s Attachment eor Rent.</p> <p>An attachment for rent, right to which is given by Rev. St. Mo. 1909, § 7898, but which, under section 7897, must be followed by determination of the rights of the parties by proceeding' in court, and then by execution, is not the equivalent of a common-law distress l'or rent, and so does not give the landlord’s claim a preference, but, being witbin four months of petition in involuntary bankruptcy, is void under Bankruptcy Act, § ÍS7Í (Comp. St. 1.916, § 9651).</p> <p>2. Bankruptcy ©=>444 — Petition to Revise-"Contentions Available — Respondents.</p> <p>Insistence of respondents, on petition of trustee in bankruptcy to revise order of District Court giving preference to their claim, thereby reversing order of referee, that the bankruptcy proceedings were not adversary, cannot be considered, not being covered by certificate of referee or order on review.</p>

<p>Appeal from the District Court of the United States for the Southern Division of the Southern District of California; Oscar A. Trip-pet, Judge.</p> <p>Suit by C. E. Stoner and others, directors and trustees of the Ventura-California Oil Company, against the Penn Development Company and others. Decree for complainants, from which defendant Penn Development Company appeals.</p> <p>The amended bill, upon which this suit was tried and decided in the court below, first alleged that the complainant, Ventura-California Oil Company, a California corporation, was the owner and in possession of certain specifically described oil lands, situated in Ventura county, containing in the aggregate 569.54 acres, together with the oil wells thereon and the personal property connected therewith; that the defendants to the suit claimed some interest in the property, which claim was without the basis of any right; and 'for a second cause of suit the bill alleged, among other things, in substance that on the 22d of July, 1913, the complainant and the defendant Stephen W. Dorsey entered into a contract by which the complainant agreed to sell and the said Dorsey to buy all of the said property, the consideration therefor to be, according to the allegations ,of the bill, as follows:</p> <p>“The defendant Dorsey agreed to transfer and assign, within 30 days of the date of said agreement, 11,000 shares of the capital stock of the Pacific Petroleum Company, one of said defendants, of the par value of $110,000, and $25,000 par value of first mortgage bonds of said Pacific Petroleum Company, secured by a mortgage on said property and other property in said state [of California] and to pay in cash $15,000 on or before November 1, 1913, and said Dorsey also assumed and agreed to pay ah indebtedness represented by notes secured by a trust deed then existing against said property, made to and held by the Citizens’ Trust & Savings Bank, as trustee, which 'notes had been executed to Benson Investment Company, a corporation, on February 19, 1943,- and by it assigned to certain individuals residing in England. That the total amount of the issue of said notes secured by said trust deed made to said Citizens’ Trust & Savings Bank was the sum of $50,000, but at the time when the said agreement was entered into the total amount unpaid thereon was the sum of $25,000, and interest at the rate of 6 per cent, for about three months, and that the assumption of said lien, and the payment thereof according to the terms of said notes and trust deed, was a part of the consideration for the purchase of said property on the part of said Dorsey.”</p> <p>The bill further alleged that Dorsey assigned the contract of purchase to the Pacific Petroleum Company, under which the latter entered into possession of the property, and that in and by the assignment that company “agreed to perform all the covenants on the part of said Dorsey contained in said contract to be performed, and assumed and agreed to pay all the payments provided therein, and to pay and satisfy the indebtedness secured by the trust deed to the Citizens’ Trust & Savings Bank.”</p> <p>The hill further alleged that subsequently the defendant Penn Development Company entered into an agreement with the Pa ciñe Petroleum Company, by whieh it obtained some interest in the property, and that the individual defendants likewise obtained some interest therein, all oí which interests so obtained were subject to the rights and interests of the complainant; that neither of the defendants paid to the complainant the $15,000 due on or before November 1, 1913, under the Dorsey contract, nor have rney transferred or caused to be transferred the $25,000 par value of first mortgage bonds of the Pacific Petroleum, Company, as required by the Dorsey contract, by reason of which failure each of the defendants forfeited all right to any of the property.</p> <p>The answer of the Penn Development Company, while admitting that it had not paid to the complainant “the sum of $15,000, nor transferred nor caused to bo transferred the particular mortgage bonds” referred to in the bill, denied that it was at any time legally or equitably required to make such payment or such transfer of bonds, and among other things alleged that on March 11, 1914, it purchased and acquired for a valuable consideration all of tiro property described in the bill, of which it has ever since been in continuous possession and its owner in fee.</p> <p>The answer of the Pacific Petroleum Company denied that the complainant is, or at any time since March 11, 1914, has been, the owner of, or had any interest in, any of the property referred to, and alleged that ever since the day last mentioned the Penn Development Company has been its owner in fee. It also denied that the two defendant corporations ever entered into any agreement by whieh the Perm Development Company obtained any interest in the real property described in the bill, and denied that any interest ever acquired by the latter company was taken subject to any right of the complainant, and denied that the $15,000 referred to in. the bill was not paid. The answer of the Pacific Petroleum Company admitted the nondelivery of the $25,000 par value, bonds, in respect to which it alleged that it “duly authorized the issuance of bonds, including said bonds for plaintiff; that temporary receipts for such bonds were executed by this defendant, and delivered to and accepted by plaintiff; that this defendant has been hindered and delayed in the actual issuance and delivery of its bonds by the refusal of the trustee agreed upon to act, by litigaüon, and by other unforeseen events, but that this defendant intends in good faith to execute and deliver its said bonds to plaintiff as agreed, and that plaintiff has not been prejudiced or damaged by such delay in the issuance and delivery of said bonds”; and in addition to various other denials the Pacific Petroleum Company pleaded a judgment entered in the superior court of the county of Dos Angeles, rendered in its favor against the Penn Development Company for $350,000, besides costs.</p> <p>On the trial it was stipulated that the judgment so pleaded was in fact rendered on or about November 8, 1914, in an action brought by the Petroleum Company against the Penn Company for a breach of the aforesaid contract between those parties, and it was further stipulated that in February, 3913, the title to the property in controversy was in the Ventura California Oil Company.</p>

<p>1. Boundaries <§==>3(1) — Surveys—Rules for Construction.</p> <p>Tlxe general rule of precedence of proofs for determining disputed, boundaries is: Eirst, natural monuments; second, artificial marks; third, courses and distances; and, last, recitals of quantity; but the rule is not imperative, and is adaptable to circumstances.</p> <p>• 2. Boundaries <©==>3(9) — Survey—Call eor Quantity — Acreage.</p> <p>Where persons entitled under a treaty to select certain lands out of the public domain undertook to locate nearly 100,000 acres of land, and the selection and location were made specifically to comprise that acreage, held,, that -the calls for quantity will prevail over the marks, etc., of contract surveyors employed by the Surveyor General; it being apparent from the field notes that such surveyors did not actually run the exterior lines of the location.</p> <p>3. Constitutional- Law ■@=>68(1) — Political Questions — Judicial Power — - Surveys.</p> <p>The making and correction of surveys of public lands belong to the political department of the government, and the courts should not attempt to determine, in a suit by the United States against a patentee of public land, that a private survey is correct, though the court may adjudge a survey made to be incorrect.</p> <p>4. Public Lands <®=>28 — Resurveys.</p> <p>The erroneous refusal of the Land Office to make a resurvey of a location of public lands based upon a misconception of the patentee’s rights does not preclude a resurvey; the refusal not operating as a permanent bar.</p>

Petitions to Revise Orders of the District Court of the United States for the Northern District of New York. In the matter of the P. J. Sullivan Company, Incorporated, bankrupt. Petitions by the City of Syracuse and the Massachusetts Bonding & Insurance Company, and by the City of Syracuse and others, to revise orders of the District Court (247 Fed. 139), directing the delivery to H. A. Whiting, trustee, and Frank B. Hodges, ancillary receiver, of certain property.

Petition to Revise Order of the District Court of the United States for the Southern District of New York. In the matter of Anthony Brose, bankrupt. Petition by Nathan Peck, as receiver in bankruptcy, to revise an order of the District Court directing him to pay over to a receiver in a mortgage foreclosure action rents collected, etc.

Appeals from the District Court of the United States for the Western District of New York. Libel by the Buffalo Dry Dock Company against the steamship Rich-land Queen, her engines, etc., claimed by the Richland Steamship Company, together with a libel by the RichlanduSteamship Company against the Buffalo Dry Dock Company. From decrees for the Dry Dock Company,- the Steamship Company appeals.

<p>1. Collision <3=5106 — Collision Rules — Wilat Governs.</p> <p>A vessel coming out of her slip and maneuvering to get on her course, or one maneuvering to get into her slip, is not on any course, and the steering and sailing rules do not apply, but article 27 of the Inland Regulations (Comp. St. § 7901), which is the special circumstance rule, is applicable.</p> <p>2. Collision <3=106 — Lookout—Necessity.</p> <p>Where the master of a tug, which was maneuvering to push its floats up the river, so as to berth them, would have known of the perilous situation as another tug was maneuvering in the vicinity, if proper lookout was kept, the first tug cannot escape liability on the ground that the master was not at fault for not sooner discovering the situation.</p> <p>8. Collision <3=106 — Vessel at Fault — Liability.</p> <p>Libelant’s tug, which with its tow attempted to squeeze in behind the stern of a second tug, which was attempting to push her floats up the river so as to berth them, etc., held at fault for the collision, and the second tug also was at fault for beginning its maneuver, without regard to the presence of libelant’s tug, which could plainly be seen if lookout was kept.</p>

Petition to Revise Order of the District Court of the United States for the Eastern District of New York. In the matter of Camille Weidenfeld, alleged bankrupt.

<p>In Error to the District Court of the United States for the Northern District of New York.</p> <p>Action by Frank L. Normile against the Lehigh Valley Railroad. Company. There was a judgment for plaintiff, and defendant brings error.</p>

» In Error to the District Court of the United States for the District of North Dakota; Charles F. Amidon, Judge. Action by E. H. Johnson, as administrator, etc., against the Great Northern Railway Company. There was a judgment for plaintiff, and defendant brings error.

<p>Appeal from the District Court of the United Statés for the Northern District of Texas; Edward R.-Meek, Judge.</p> <p>On the petition of Jack Yarbrough and others to intervene in bankruptcy proceedings previously instituted, Thomas Trammell was adjudicated a bankrupt, and he appeals.</p>

Petition to Revise Order of the 'District Court of the United States for the Eastern District of New York. In the matter of Charlotte A. Carey, alleged .bankrupt. Petition by Elizabeth J. Grauten to revise an order striking out, on the ground that she was a preferred and secured creditor, the answer of the petitioner opposing the adjudication. Petition to revise an order in bankruptcy entered in the District Court for the Eastern District of New York.

On Petition for Review from the District Court of the United States for the Middle District of Pennsylvania; Charles B. Witmer, Judge. In the matter of John Hance, bankrupt. On petition to review order denying claim of Reynolds & Reynolds for rent.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Uibel by Bartle Daly against the New York Dock Company. From a decree for libelant, respondent appeals.</p>

<p>In Error to the District Court of the United States for the Eastern District of Arkansas; Jacob Trieber, Judge.</p> <p>Action by J. A. Dillard against the Trumann Cooperage Company. There was a judgment for plaintiff, and defendant brings error.</p>

<p>Appeal and Ekror <&wkey;>S39(l) — Review—Moot Case.</p> <p>Review of a decision of the Circuit Court of Appeals cannot be bad by agreement between counsel for the respective parties, but only on a record and bearing presenting a real contest.</p>

In ,F,rror to the District Court of the United States for the District of North Dakota; Charles F. Amidon, Judge. The Jacob Schmidt Brewing Company, a corporation, was convicted' of violating Criminal Code, § 240, and it brings error.

Suit by Bayley & Sons, Incorporated, against Michael J. Blumberg and Mrs. J. Blumberg, doing business under the name of J. Blumberg. From an order dismissing the bill, plaintiff appeals.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Bill by Bernard I. Fligel and Mitchell Fligel, copartners doing business as Fligel & Son, against Sears, Roebuck & Co. From a decree dismissing the bill, complainants appeal.</p>

<p>In Equity. Suit by Daniel B. Luten against J. B. Marsh and others.</p>

<p>In Equity. Suit by Charles D. Lyons against F. Lewald & Co.</p>

<p>Trade-Masks and Trade-Names <&wkey;>95(4) — INFRINGEMENT—Preliminary In- ■ JUNCTION.</p> <p>Preliminary injunction granted, restraining defendant from using, on Lotties containing a preparation of sandalwood oil, labels and wrappers with lettering and devices which, while not identical with those used for many years by complainant and his predecessors, and registered as a trade-mark, are so like as to indicate an intention to deceive purchasers.</p>

<p>1. Akmy and Navy &wkey;>20 — Selective Dram Act — Powers of Local Board.</p> <p>A local draft board, which certified for service a Russian subject, who had not declared Ms intention of becoming a citizen and was therefore not subject to the Selective Draft Act, which facts were shown by his claim of exemption and affidavit filed in due form, and were undisputed, and was denied a hearing, held to have exceeded its authority, and its action held void.</p> <p>2. Haiseas Corpus &wkey;>16 — Person Iumígally Inducted into Army.</p> <p>Failure of one certified for service by a local draft board, although not subject to draft, to appeal to the district board, does not exclude the jurisdiction of a court to discharge him from the army on habeas corpus, where the local board, before making its order, had consulted with and obtained the approval of the district board.</p>

<p>COURTS <&wkey;318 — Jurisdiction or Federal Courts — Diversity or Citizenship.</p> <p>In an action in a federal court; on a promissory noto against two defendants, both of whom have appeared and raised the question of Jurisdiction, plaintiff cannot vest the court with jurisdiction by a dismissal as to one, who is a citizen of the same state as himself.</p>

The Jacob Schmidt Brewing Company was convicted of violating Criminal Code, § 240 (Comp. St. 1916, § 10410), and, the conviction being affirmed on defendant’s writ of error, the question whether the United States was entitled to interest on the judgment, the defendant having given a stay bond, was submitted on stipulation of counsel.

<p>1. Shipping &wkey;>84(3) — Liability of Ship — Injury to Stevedore.</p> <p>A steamship company held liable for injury to an employé of contracting stevedores for coaling a ship, on the ground that its walking boss, co-operating in the loading as on former occasions in the course of his employment, furnished an unsafe rigging for use in delivering the coal at the hatchway.</p> <p>2. Corporations 4&wkey;423 — Liability for Negligence of Agent.</p> <p>A corporation may be held liable for negligence of its agents, where the act in question was performed in the course of the agent’s employment in the business of the principal.</p>

<p>Shipping @=?84(1) — Action for Wrongful Death — Negligence.</p> <p>A dredge, stationed in a slip and made fast to piers by two lines on each side, which allowed th'e second line to sag while a launch loaded with stevedores was passing out under them, by which a stevedore was swept off and drowned, held in fault and liable for the death; it appearing that the launch signaled her start, and that if the lines had been held taut, as customary, she could have passed under safely, but that through negligence of the lookout on the dredge she was neither heard nor seen.</p>

In Equity. Suit by Nathan Gregg, Charles B. Whitehead, and George O. Wolf, copartners doing business under the firm name of Gregg, Whitehead & Co., and others, against Roy C. Megargel, doing business under the firm name and style of R. C. Megargel & Co.

<p>In Equity. Suit by J. Hartley Manners against Oliver Morosco.</p> <p>For convenience of counsel interested in this class of case, the essential features of the two contracts between the parties are here set forth. Foi brevity, they will be referred to ns the first and second contracts.</p> <p>„ First Contract.</p> <p>“Whereas, the party of the first part is the sole and exclusive author and owner of a certain dramatic composition at present entitled ‘Peg O’ My Heart’; and</p> <p>“Whereas, the party of the second part wishes to obtain the exclusion right and license to produce, perform, and represent the said play in the ““United States of America and the Dominion of Canada:</p> <p>“Now, therefore, in consideration of the promises * * * it is hereby understood, covenanted, and agreed by and among the parties to the agreement as follows:</p> <p>“First. The party of the first part hereby grants, and by these presents hereby does grant, to the party of the second part, subject to the terms, conditions, and limitations hereinaftei expressed, the sole and exclusive license and liberty to produce, perforin, and represent the said play in the United States of America and the Dominion of Canada.</p> <p>“Second. The party of the second part, in consideration of such grant, hereby agrees to pay to the party of the first part the sum of five hundred (8500.00) dollars upon the signing and execution of this agreement * * ® in advance of the royalties to accrue to the party of the first part under this agreement. * * *</p> <p>“Third. The party of the second part agrees to produce the play not later than January 1, 191.3, and to continue the said play for at least 75 performances during the season of 1913-1914, and for each theatrical season thereafter lor a period of five years.</p> <p>“Fourth. The party of the second part further agrees to pay to the party of the first part * * * further sums as royalties, as follows:</p> <p>“Five per cent. (5%) of the first four thousand five hundred ($4,500) dollars gross weekly receipts; seven and one half (7%) I>er cent, on the next two thousand ($2,000) dollars gross weekly receipts; and ten (10%) per cent, on all sums over that amount of six thousand five hundred ($6,500) dollars gross weekly receipts — which said sum' of money, together with certified box office statements, the party of the second part agrees to send to the party of the first part.</p> <p>“Fifth. The said party of the second part further agrees that if during any one theatrical year, such year to begin on the 1st day of October, said play has not been produced or presented for 75 performances, then all rights of the said party of the second part shall cease and determine and shall immediately revert to the said party of the first part.</p> <p>“Sixth. It is further agreed that the said party of the second part shall present the said play in first-class theaters with a competent company, the said company to he mutually satisfactory to both the parties to this agreement, and with Miss Laurette Taylor in the title role of ‘Peg O’ My Heart,’ and that the play will have a production in New York Oity, and will be continued on the road with Miss Taylor in the part of ‘Peg,’ for at least one season, or longer, if considered advisable by both parties to this agreement.</p> <p>“Seventh. No alterations, eliminations, or additions to be made in the play without the approval of the author.</p> <p>“Eighth. The rehearsals and production of the play to be under the direction of the author.</p> <p>“Ninth. The name of the author to appear on all advertising, reading, and printed matter used in connection with the play.</p> <p>“Tenth. The author to have the right to print and publish the play, but this right is not to be exercised by the author within six months after the production of said play in New York Oity, unless the written consent of the manager, has first been obtained.</p> <p>“Eleventh. Said manager does hereby agree that he will not lease, sublet, assign, transfer, or sell to any person or persons, firm or corporation, any of his aforesaid rights in and to the said dramatic composition or play, without the written consent of said author has first been obtained. Should the play fail in New York Oity and on the road, it is agreed between both parties it shall be released for stock.</p> <p>“Twelfth. Whenever the play is released for stock, the royalties received from the stock theaters to be divided equally between the party of the first part and the party of the second part.</p> <p>“Thirteenth. This agreement is binding upon the parties hereto, upon their heirs, executors, assigns, administrators, and successors. * * * ”</p> <p>To tliis agreement there was an addenditm as follows:</p> <p>“It is further agreed that after Miss Taylor shall have finished her season in ‘Peg O’ My Heart,’ as provided for in this contract, her successor in the rSle of ‘Peg’ for any subsequent tours shall be mutually agreeable to both parties to this contract. J. Hartley Manners.</p> <p>“Oliver Morosco.”</p> <p>Second Contract.</p> <p>“Whereas, J. Hartley Manners, of the city, county, and state of New York, party of the first part hereto, and Oliver Morosco, of Los Angeles, California, party of the second part hereto, have heretofore entered into an agreement, dated January 19, 1912 (hereinafter called ‘original agreement’), a copy of which is hereto attached, and by express reference thereto made a part hereof, and controversies have arisen and now exist between the parties hereto with reference to the meaning of said original agreement, and the parties hereto desire to settle and adjust said controversies, and to change said original agreement as hereinafter set forth:</p> <p>“Now, therefore, in consideration of the premises * * * the parties hereto do hereby enter into this supplemental agreement:</p> <p>“First. The parties hereto do hereby settle and adjust all of said controversies.</p> <p>“Second. Said original agreement, except as by this supplemental agreement changed, is hereby in all respects ratified, confirmed, and approved.</p> <p>“Third. Paragraphs ‘Sixth’ and ‘Eighth’ of said original agreement, and also the addendum or postscript to said original agreement (which addendum or postscript bears the signatures of said Manners and said Morosco), are each and all hereby canceled and eliminated from said original agreement</p> <p>“Fourth. There shall be and there is hereby added to said original agreement the following, to be designated as new paragraph ‘Sixth’ thereof:</p> <p>•“ ‘Said Morosco may, contemporaneously, and from time to time, as long as this contract is in force, 'produce, perform, and represent said play “Peg O’ My Heart,” with or in as many companies in the United States and Canada as ho, the said Morosco, may, in his sole discretion, deem proper; and it is further agreed iliat Laurette Taylor (Laurette Taylor Manners) need not be engaged to appear, and need not appear, in the title rf>le, or star or principal part, or any other part in any of said companies, and that the said Morosco need in no way consult or confer with the said J. Hartley Manners respecting the star, the cast, the featured member or members of the cast, the rehearsals, or production of said play by any of said companies — of all of which (he said Morosco shall have, and is hereby given, sole and exclusive charge and control.’</p> <p>“Fifth. There shall be, and there is hereby, added to said original agreement, to be known as new paragraph ‘Kixih-a,’ the following:</p> <p>“ ‘Said Morosco shall use reasonable efforts to direct that all advertising matter in the United States and Ganada shall contain a reference to the fact that said Laurette Taylor was the creator of the rble of “Peg” in said play; it being the intention of this provision that said Morosco shall use reasonable endeavors to have said Laurette Taylor’s name featured in the manner abo-ve indicated, but it being expressly understood and agreed that said Morosco shall have the unlimited right and privilege to feature, star, and advertise any other person or persons appearing or to appear in any of said companies, in any manner that he, said Morosco, shall deem fit or proper.’</p> <p>“Sixth. There shall be, and there is hereby, added to paragraph ‘Fourth’ of said original agreement the following provision:</p> <p>“ ‘The royalties herein specified shall be paid to the said Manners by said Morosco at the rate herein set forth, for every company informing the said play of “Peg O’ My Heart” in, the United States or Canada, under the management of said Morosco, under said original agreement or this supplemental agreement.’</p> <p>“Seventh. T,t is further agreed that paragraph ‘Eleventh’ of said original agreement shall be, and the same is hereby, amended so as to read as follows:</p> <p>“ ’Eleventh. Said Morose» is hereby expressly authorized to lease, sublet, assign, transfer, or sell to any person or persons, firm or corporation, whatsoever, any of his rights acquired under said original agreement or this supplemental agreement; it being expressly understood and agreed that no such leasing, subletting, assignment, transfer, or sale shall in any way release or discharge said Morosco from Ms personal liability to pay to said J. Hartley Manners the royalties in amounts, manner, and at the time as specified lii said original agreement and in this supplemental agreement.’</p> <p>“Eighth: It is further agreed that paragraph ‘Twelfth’ of said original agreement shall be and the samo is hereby amended, so as to road as follows:</p> <p>“ ‘Twelfth. Said play “Peg O’ My Heart” may be released for stock, in the United States and Canada, during the time that this contract is in force, whenever the net amount realized from all the companies producing the play in any one theatrical season shall yield a net profit of less than two thousand ($2,000) dollars. Whenever the said play is released for stock company or companies, Iho royalties received from the stock theaters shall be divided equally between the said J. Hartley Manners and said Morosco as and when received by said Morosco.’</p> <p>“Ninth. It is further agreed that, during the period of four years from and after the date hereof, neither party hereto shall or will, without the written consent of the other party"hereto first had and obtained, directly or indirectly produce, represent, or exhibit, or permit, allow, or suffer to be produced, represented, or exhibited, or sell, lease, give, or transfer, any permission, privilege, or right to prodiice, represent, or exhibit the said play by cinematograph or motion or moving pictures in the United States or Canada. It is further expressly understood and agreed that, after the expiration of said four-year period, the rights, whatever they may be, of either said Morosco or said .T. Hartley Manners, to directly or indirectly produce, represent, or exhibit, or permit, allow, or suffer to be produced, represented, or exhibited, or sell, lease, give, or transfer any permission, privilege, or right to produce, represent, or exhibit, the said play by cinematograph or motion or moving pictures in the United States or Canada, shall be such as said Morosco and said ,T. Hartley Manners shall respectively be legally entitled to under and pursuant to the terms of said original agreement, to the said extent and with the same effect as though this supplemental agreement had not been entered into. This provision is not to he construed as a recognition by either party hereto that the other had under the original agreement, or has under this agreement, the right to give or authorize the giving of cinematograph or motion or moving pictures of said play.</p> <p>‘‘Tenth. The said J. Hartley Manners and the said Morosco hereby forever mutually release the one the other from any and all claims and demands which either one now has or asserts, or might have or assert, against the other, for or on account of any alleged violation of said original agreement, on the part of either of the parties hereto, prior to the execution of this supplemental agreement. * * * ”</p>

In Bankruptcy. In the matter of the Caledonia Coal Company, bankrupt. Petition to review an order of the referee disallowing certain claims against the estate, and denying priority to other claims.

<p>Action <$=68 — Stay—Actions Against Railroads — Order of Directos General.</p> <p>Order No. 26 of the Director General of Railroads, dated May 23, 1918, providing that “upon a showing by the defendant carrier that the just interests of the government would he prejudiced by a present trial of any suit against a carrier under federal control * * * the suit shall not be tried during the period of federal control” is within the powers conferred by Congress and-the President, but an application for a stay is addressed to the discretion of the court and the burden rests on defendant to show that interests of the government would be substantially prejudiced by a present trial.</p>

In Admiralty. Suit for collision by the Clyde Lighterage Company, Incorporated, owner of the steam lighter Henry C. Rowe, against the Pennsylvania Railroad Company, owner of the steam tug Mercer, with the Southern Pacific Company, owner of the steam tug El Chico, impleaded.

<p>Seamen <&wkey;19 — Discharge by Order op Consul — Liability op Ship for Wages.</p> <p>A vessel held not liable for wages and. transportation to a seaman discharged in a foreign port by order of the United States consul, after bearing on a complaint made by libelant without the knowledge of the captain, and where he was paid all wages then due him.</p>

<p>Schools and School Districts <&wkey;70 — Contracts—Validity.</p> <p>A contract by a school district for the purchase of a school building held invalid, on the ground that the building purchased did not conform to the requirements of the state law as to light, ventilation, and safety, and was not susceptible of changes which would meet such requirements.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Libel by Furness, Withy & Co., Limited, owner, and R. Laurence Smith, Incorporated, charterer, of the steamship Kanawha, against the steamship Camino, her cargo and freight, claimed by the Western Steam Navigation Company. From the decree, libelants appeal.</p>

Appeals from the District Court of the United States for the Eastern District of New York. Ribel by Thomas Tracy against the steam tug M. Moran, her engines, etc., claimed by the Moran Towing & Transportation Company, together with a libel by the Moran Towing & Transportation Company against the steam tug Coleraine, her engines, etc., claimed by Thomas Tracy.

<p>1. Bankruptcy <®=>161(2) — Preferences—Transfer.</p> <p>Where a corporation, solvent at the time a stockholder and director severed his connection, agreed to assign outstanding accounts receivable to secure him against loss by virtue of his accommodation indorsement of notes of the corporation, held, though the corporation became insolvent nearly a year later, and the holder and accommodation indorser, when the agreement was performed, had reasonable cause to believe the corporation insolvent, the agreement was not invalid, nor was the performance of it obnoxious to the Bankruptcy Act.</p> <p>2. Bankruptcy @=»161(2) — Preferences—What are.</p> <p>Where a corporation, while solvent, agreed to protect a stockholder, who severed his connection therewith, against loss by virtue of his accommodation indorsement of corporate notes, by assigning accounts to him and to execute further papers for that purpose, and corporation, after it became insolvent and within a month of bankruptcy, paid notes, so indorsed, with funds largely advanced by the indorser, and deposited new accounts as security, held, the transaction must be deemed a consummation of the earlier agreement, and not an independent transaction, open to attack under Bankruptcy Act, §§ 60, 67 (Comp. St. §§ 9644, 9651), as preferential, or as working fraud on creditors.</p>

Petition to Revise Order of the District Court of the United States for the Southern District of New York. In the matter of A. Bolognesi & Co., bankrupts. Petition of Francis Gilbert and others, trustees in bankruptcy, to revise an order of the District Court distributing a fund among special claimants. Bolognesi was a banker doing business largely with Italians, who in divers ways wished to transmit funds to Italy.

<p>Appeal and Error <s=>833(3) — Petition por Rehearing — Time op Filing.</p> <p>Where petition for rehearing was filed with the clerk of the Circuit Court of Appeals and noticed for hearing before the expiration of the term at which decision was handed down, held, that the filing was within time, although, as the court had no session practically between June and October, the petition could not be heard until the next term.</p>

Petition to Revise Order of the District Court of the United States for the Southern District of New York. In the matter of Jacob W. Samuels, bankrupt. Petition by Samuel C. Cohen, as trustee, to revise an order denying the application of the trustee for an order requiring the bankrupt either to pay him the value of certain life policies or to turn over the policies.

Action by the Standard Silk Dyeing Company against the Roess-ler & Hasslacher Chemical Company. There was a judgment for plaintiff (244 Fed. 250), and defendant brings error.

Grubb, Judge. In the matter of„the bankruptcy of George E. Lum. Petition by the American Trust & Savings Bank against Charles K. Duncan, trustee in bankruptcy of George E. Lum, praying that the trustee be directed to pay over to the petitioner the sum of $1,000, recovered by the trustee in an action against the bankrupt’s wife. From a decree dismissing a petition for the review of the referee’s order dismissing the original petition, petitioner appeals.

<p>1. Escrows <@=>14(1) — Wrongful Delivery of Bill of Sale — I’mtition.</p> <p>A petition setting up that plaintiff delivered mules to a third person .under a contract requiring such person to pay ?G0 per head, and to give a chattel mortgage, which averred that the defendant bank to which the bill of sale had been delivered wrongfully delivered it to the third person, etc., enabling him to dispose of the mules without paying plaintiff, held to state a cause of action.</p> <p>2. Escrows 0=314(1) — Measure—Wrongful Act.</p> <p>Where plaintiff delivered mules to a third person under a contract requiring such third person to pay a stipulated sum per head, and defendant bank delivered to such person a bill of sale for the mules, though ho did not make payment as required, held, that plaintiff could not recover from the bank as part of damages the expense he was put to In recovering jjossession of those mules not sold by such third person.</p> <p>3. Escrows <@=>14 (1) — Recovery—Evidencie.</p> <p>Where plaintiff delivered mules to a third person under a contract requiring him to pay a fixed sum per head and to give a chattel mortgage, and defendant bank wrongfully delivered to such third person a bill of sale for the mules, though he did not make payment, held, such person having disposed of part of the mules to his damage, plaintiff could not recover for the bank's wrongful act, without proving the value of such mules when they were wrongfully disposed of.</p>

<p>1. Commerce ®=>27(7) — Employers’ Dtability Act — Employment in “Interstate Commerce.”</p> <p>A brakeman, killed while on a train of empty hopper car$ being moved by a switch engine to another point within, the same state, their destination, however, being a further point in another state, to which they were taken the next day for loading with ore, held to have been employed in interstate commerce.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.]</p> <p>2. Commerce <@=527(6) — Interstate Commerce — Moving Empty Cabs.</p> <p>The hauling of empty cars from one state to another is interstate commerce.</p> <p>8. Commerce <@=527(6) — Interstate Commerce — Interstate Train.</p> <p>The presence of interstate cars in a train makes it an interstate train.</p>

<p>Principal and Agent &wkey;>79'(5) — -Liability or Agent — Fraudulent Conduct op Peincipal’s Business.</p> <p>Evidence held sufficient to show that defendant, as agent for insurance companies for the sale of a salvaged stock of goods, was chargeable with fraud in selling the larger part of the goods in bulk to himself1 through a partner.</p>

<p>BANKRUPTCY <&wkey;108(4)-RIGHT TO DISCHARGE — CONCEALMENT Olí’ ASSETS.</p> <p>Failure oí a bankrupt to schedule Ms interest in his deceased father’s estate, where, after payment of a note which he owed the estate, he had no valuable interest, is not a fraudulent concealment of assets, which will defeat his right to a discharge.</p>

Criminal prosecution by the United States against Vincent St. John and others. On application to a Circuit Judge by defendant St. John for bail pending proceedings in error.

<p>Appeal from the District Court of the United States for the Eastern District of Pennsylvania; John B. McPherson, Judge.</p> <p>In the matter of the bankruptcy of Max Manson and Samuel F. Manson, copartners, individually and trading as Max Manson & Son and Adelphia Waist Company. On petition of Harry S. Mesirov, trustee in bankruptcy, the bankrupts were directed to turn over a sum of money, and, the order having been affirmed on certificate to the District Court, the bankrupts appeal.</p>

H. Seward Thomson, Judge. Action by the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company, now for use of Pittsburgh, Cincinnati, Chicago & St. Louis Railroad Company, against the Freedom Oil Works Company. There was a judgment for plaintiff, entered on motion for judgment for want of sufficient affidavit of defense (247 Fed. 573), and defepd-aiit brings .error.

Whitaker Thompson, Judge. Action between J. Walter Farrell, Charles Weil, Sumner S. Weil, and John McKay, trading as Weil, Farrell & Co., and the First National Bank of Philadelphia. There was an order granting the latter a new trial, and the former bring error.

<p>Appeal from the District Court of the United States for the Northern District of New York.</p> <p>Suit in equity by Edmund Gallet and another against the R. & G. Sóap & Supply Company. From the decree, complainants appeal.</p>

<p>1. EvtdeNce <&wkey;25S(2) — Confession of Coconspirator.</p> <p>In action on fire policy, confession of one who was convicted of burning property is not admissible against insured, on theory property was burned as part of a conspiracy, and confession was a declaration of insured’s coeonspirator, for confession was not made pending the conspiracy, or in furtherance of its purpose.</p> <p>2. Evidence <&wkey;253(l) — Conspiracy—Declarations Against Interest.</p> <p>Where insurer claimed that property was burned as result ol' conspiracy between insured and one who fired the property, latter’s confession is not admissible against insured, in an action on the policy, on the theory it was a declaration against interest; the rule applying only to declarations against pecuniary interest.</p> <p>3. Insurance <&wkey;658 — Actions-—Evidence.</p> <p>Where insurer claimed that property was burned as a result of a conspiracy between insured and one who fired the property, latter’s confession is not admissible against insured, in an action on the policy, on the theory that he was an accessory to the burning.</p> <p>4. Evidence &wkey;>317(2) — -Hearsay.</p> <p>Mere hearsay as to declarations by a third person is not admissible in evidence.</p> <p>5. Appeal and Error <3&wkey;1086 — Harmless Errori — Instruction.</p> <p>In action on fire policy, where there was no evidence property was incumbered or belonged to any one other than those insured, policy was prima facie evidence of their ownership; so an, instruction refusing to submit the question whether property was incumbered, etc., was harmless, if erroneous, under Code W. Va., e. 125, § 64 (see. 4818).</p> <p>6. Insurance <&wkey;665(l) — Fire Insurance — Ownership.</p> <p>In action on fire policy, where there was no evidence property was incumbered or belonged to any one other than those insured, policy was prima facie evidence of their ownership.</p> <p>7. Appeal and Error <S&wkey;977(5) — Review—New Trial.</p> <p>Denial of motion for new trial cannot bo reviewed on writ of error.</p>

<p>1. Winns <&wkey;693(5) — Power of Disposition — Exercise—Burden on Estate.</p> <p>Where a will devising land to one for life, remainder to others, authorized the life tenant to sell and dispose of timber on the lands, held, that the life tenant, as he had no right to destroy the estate in remainder, could not burden Such estate by giving the purchaser more than a reasonable time for removal, which is a question of fact dependent on the circumstances, and the ability on part of purchaser to impose conditions on the life tenant did not increase the powers of life tenant.</p> <p>2. Appeal and Error <&wkey;1175(7) — Determination.</p> <p>Where the facts in an equity case were fully developed, and the trial court disregarded the advisory verdict of jury, held, where the litigation has been long drawn out, the appellate court was warranted in determining the issues of fact.</p> <p>3. Life Estates &wkey;>23 — Power to Sell Timber — Removal of Timber — Reasonable Time.</p> <p>Where a life tenant, who was authorized by will to sell timber, disposed of it in 1902, and died in 1905, held that, by the time litigation was instituted in the federal courts in the year 1914, the purchaser had had a reasonable time for removal, and a grantee of the remaindermen should not thereafter be enjoined from cutting timber.</p>

<p>1. Appeau AND Er bos <&wkey;>860(3) — Kevimw—-Scope—Directed Verdict.</p> <p>Where, at close of trial, each party requested an, instructed verdict, each party was estopped from reviewing issues of fact on which there was any substantial conflict in the evidence, and, where there was substantial evidence to sustain a finding in, favor of plaintiff, for whom the court directed verdict, the only question reviewable on. writ of error is: Was there error in the declaration or application of the law by the court below?</p> <p>2. Courts <&wkey;366(T) — PRecedence^-State Laws.</p> <p>Whether Code Supp. Iowa 1913, §§ 1641b, 1641f, prohibit a corporation from selling or' issuing its stock for the notes of solvent makers payable at reasonable times thereafter, is a question of state law, primarily for the decision of the Iowa courts, whoso decision will be followed by the federal court.</p> <p>3. Corporations <&wkey;92 — Issuance of Stock — Notes.</p> <p>Conceding that Code Supp. Iowa 1913, §§ 1641b, 1641f, forbid a corporation from selling or issuing its stock for the notes of solvent makers, an agreement by a purchaser of stock, who had given a note therefor, to reimburse the directors of the corporation if they would pay for the stock already issued, is not in violation of the statute.</p> <p>4. Corporations <&wkey;103 — Stock—Issuance—Validity—“Void.”</p> <p>While Code Supp. Iowa, §§ 1641b, 1641f, provide that a corporation shall not issue its stock until it has received the par value thereof, and that stock issued in violation of such provision shall be void, stock issued for a note is not wholly void, but is only voidable, and the issuance may he ratified, where the corporation receives the par value thereof; the word “void,” as used by the lawmakers, being equivalent to voidable.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Void.]</p> <p>5. Corporations <&wkey;92 — Subscription—Note—Validity.</p> <p>A purchaser of corporate stock, who gave his note therefor, cannot defeat collection of the note on the ground of want of consideration, in that the Iowa statute requires corporations to receive the par value thereof before issuing stock, where the stock was actually issued and transferred by the purchaser for valuable consideration, particularly as the issuance of the stock might be ratified by payment.</p> <p>6. Contracts @=5171(1) — Legality of Consideration — Agreement to Reimburse — Payment of Voidable Note.</p> <p>Though, under the laws of Iowa, a note given for the price of corporate stock duly issued to the maker was void, held that, the maker having transferred the stock to another, an agreement on his part to reimburse directors of the corporation, if they would pay the amount of the note and take it up, is not illegal or against public policy, being separable from the original purchase and note.</p> <p>7. Appeal and Error @=750(2) — Review—Directed Verdict — Assignment of Error.</p> <p>Though judgment for plaintiff was on verdict directed for him on the first cause of action, the question of the validity of the second cause of action is before the appellate court by reason of defendant’s assignment of error to refusal of his general motion for directed verdict.</p> <p>8. Appeal and Error @=854(2) — Review—Reason fori Decision — Direction of Verdict.</p> <p>Though, on motion for directed verdict by each party, verdict was directed for plaintiff on first cause of action, when it should have been directed for him on second cause for same amount, judgment, will be affirmed; the validity of second cause being before the court, under rule of wrong reason for right judgment.</p>

<p>1. Patents <&wkey;328 — Irvextiox—Marking Bivalves.</p> <p>The Armstrong patent No. 1,195.946, for marking bivalves by means of a tag attached to the lower shell of an oyster, held void for lack of invention.</p> <p>2. Patents <&wkey;>27 — “Invention”—Applying Old Process to New Subject.</p> <p>The application of an old process to a new, subject for an old purpose without any change in result is not “invention.”</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Invention.]</p>

Suit by Edward E. Gold and another against James T. Newton, as Commissioner of Patents, substituted for Thomas Ewing, as Commissioner of Patents. From a decree for defendant, complainants appeal. Appeal from a decree in equity entered in the District Court for the Southern District of New York, dismissing a bill originally brought by plaintiffs against Hon. Thomas Ewing, then Commissioner of Patents, under the provisions of section 4915, U. S. Revised Statutes (Comp.

<p>In Equity. Suit by the Todd Protectograph Company against the Hedman Manufacturing Company and others.</p>

In Equity. Suit by John G. Underhill and Gregorio Martinez Sierra against David Belasco for infringement of copyright of the play “The Cradle Song” by the production of defendant’s play “Marie Odile.” 1. The Cradle Song. The story is that of á community of Sisters. A baby is sent into the convent on the wheel at the door, by an unknown mother. The receipt of the infant, and the decision of the Sisters to keep it form the climax of the first act.

<p>1. WATERS AND WATER COURSES &wkey;>130-RIGHT OF APPROPRIATION-SEEPAGE Waters.</p> <p>Under Rev. St. Neb. 1013, §§ 3426, 3427, and in view of tbe general statutory scheme for the acquisition ¡of water rights, as well as the repeal of Acts 1895, p. 260, § 44, relating to the appropriation of seepage waters, field, that defendant water company, which had the right to appropriate from the Platte river, wasi not entitled to appropriate seepage waters escaping from an interstate canal constructed by the United States under the reclamation acts and with the consent of state of Nebraska, which water had been impounded by the United States.</p> <p>2. Waters and Water Courses <&wkey;130 — Appropriation—Action of State Board.</p> <p>Where, under the Nebraska statutes, defendant was not entitled to appropriate seepage waters belonging to plaintiff, held, that the action of the state board sustaining an attempted appropriation gave defendant no rights.</p>

<p>1. INSURANCE <&wkey;80 — Insurance Agents — Premiums.</p> <p>Where a Russian fire insurance company, which did business In the United States, was represented by a German partnership, which in- turn engaged local agents in the United States, held, that the local agents, who did not fully agree to a contract of agency submitted directly to them by the Russian fire company after relations with Germany were forbidden on account of the war, were not bound, under New York Insurance Law, § 3S, to deposit to the credit of the Russian company eom-missions which had previously been paid to the German partnership, and which the agents themselves might be conditionally entitled to.</p> <p>2. War <&wkey;12-ENEMIES’ PROPERTY — TRUST PlTNUS — ■COMMINOLING- PROPERTY.</p> <p>The alien character of a fund is not divested because the custodian mixed it with other funds, which were unquestionably impressed with a trust for the benefit of American citizens.</p> <p>3. War &wkey;>H — Trading with Enemy — Power of Congress.</p> <p>Congress, by virtue of its war powers, has power to declare unlawful trading with enemy aliens, as it has done by Act Oct. 6, 1917 (Comp. St. 1918. §§ 3115%a-3115%j).</p> <p>4. War &wkey;>l2 — Trading with Enemy — Power of Congress.</p> <p>Under* Trading with the Enemy Act Oct. 6, 1917, § 7, subd. (c), as* amended by Act Nov. 4, 1918, § 1, the determination of the Alien Property Custodian, made in good faith, entitles him to the possession of alleged enemy property, and such possession will not be interfered with by injunction; the act. providing methods for relief of those whose property was improperly taken.</p> <p>5. Constitutional Law <&wkey;>278(l) — Hue Process of Law — Trading with the Enemy Act.</p> <p>Tn view of Trading with, the Enemy Act Oct. 6, 1917, § 9 (Comp. St. 191S, 3115%e), such act is not invalid as violating Const. Amend. 5; there being no deprivation of the property of citizens, or friendly aliens, without due process of law.</p> <p>6. War <&wkey;12 — Trading with Enemy — Armistice.</p> <p>Where the Alien Property Custodian determined funds were alien property, the signing of an armistice does not entitle adverse claimants to the fund, on the theory that the war had ceased, Trading with the Enemy Act Oet. 6, 1917 (Comp. St 1918, §§ 3115%a-3il5%;j) itself declaring that the end of the war shall be deemed to mean the date of proclamation of exchange of ratifications of the treaty of peace, unless the President shall by proclamation declare a prior date; it appearing no such prior date has been declared.</p> <p>7. War <&wkey;>12 — Trading with Enemy — Application of Act.</p> <p>Trading with the Enemy Act, § 9 (Comp. St. 1918, § 3115%e), providing a method for relief of any person claiming any interest, light, or tlUo in any money or other property, etc., is extensive enough in its provisions to give relief to a claimant who asserted that it wholly owned, to the exclusion of all other persons, funds detained as alien property by the Alien Property Custodian, and hence such person is not entitled to equitable relief, etc.</p>

<p>In Equity. Suit by Cornelius C. Watts and Dabney C. T. Davis, Jr., against the Ely Real Estate Investment Company.</p>

<p>1. Intoxicating Liquobs <§=138 — Reed Amendment — “Ob,.”</p> <p>Reed amendment to postal appropriation made by Act March 3, 1917 (Comp. St. 1918, § 8739a), making it offense to order, purchase, or cause intoxicating liquors to be transported in interstate commerce into any state whose laws prohibit their manufacture or sale, applies if either manufacturo or sale is prohibited; conjunctive construction of “or” not bhing permissible.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Or.]</p> <p>2. Coukts <@=306(27) — Following State Decisions — Reed Amendment.</p> <p>Transportation of intoxicating liquors into Texas, which has prohibited their manufacture for beverage purposes, is violation of Reed amendment of postal appropriation made by Act March 3, 1917 (Comp. St. 1918, | 8739a), though there is some ground to believe court of last resort in Texas will hold state prohibitory law unconstitutional, as the federal» court will not anticipate and be guided by wbat the state court might thereafter hold.</p> <p>3. Intoxicating Liquobs <@=138 — Reed Amendment — Necessity for StateWide Pkohibitoky Act.</p> <p>Condition of Reed amendment to postal appropriation made by Act March 3, .1917 (Comp. St. 1918, § 8739a), prohibiting transportation of intoxicating liquors in interstate commerce into any state whose laws prohibit manufacture or sale, is that state shall have prohibited manufacture or sale within entire territory, not merely in parts under local option.</p> <p>4. Intoxicating Liquobs <@=138 — Reed Amendment — Transpobtation “into” Dby State.</p> <p>Seed amendment to postal appropriation made by Act March 3, 1917 (Comp. St. 1918, § 8739a), is not violated unless there is actual transportation of intoxicating liquors from point without to point within state, which has prohibited their manufacture or sale; “into,” as used, conveying idea of entrance, passage, or motion.</p> <p>[Ild. Note. — For other definitions, see Words and Phrases, First and. Second Series, Into.]</p>

<p>WiTARVES ©=>20(1, 5) — WHARFIXGJ5R—DUTY OF.</p> <p>Respondent held at fault for tbe sinking ol' a car float at a lloat bridge -r it appearing that respondent’s conductor, in charge of a switching engine which should have unloaded cars on the float, left and began other work after moving the cars, so that the float was thrown out of equilibrium, while the floatman was not guilty of riegligence.</p>

<p>Railroads New, yol. 6A Key-No. Series — Federal Courts — Distriot or Suit — Railroad Administration.</p> <p>Under Act March 21, 190.8» §§ 8, 10 (Comp. St. 1918, §§ 3115% h, 3115% J), and despita section 9 (section 3115%i), held, that orders of the Director General of Railroads, through whom tho President assumed control of the railroads pursuant to Act Aug. 29, 1916 (Comp. St. 1916, § 1971a) that suits against carriers while under federal control, should be brought in the county or district where the plaintiff resided at the time of the accrual action, wove not effective to so limit that right, and, where authorized by state law, a plaintiff might sue in a district other than that in which ho resided at the time of accrual of the action, upon a cause of action not arising out of the railway company’s duties as a common carrier.</p>

<p>1. Railroads <§=3207 — Receivers—Liability as Carriers.</p> <p>The receiver of a railroad company is a carrier as to goods and passengers transported.</p> <p>2. Railroads @=>5%, New, vol. 7A Key-No. Series — Operation Under Governmental Control — “Carrier.”</p> <p>As the Director General is the carrier since the President has taken control and possession of railroads under Act Aug. 29, 1916, § 1 (Comp. St. 1918, § 1974a), Order No. 50 of the Director General providing for his substitution in case of actions against railroad company for causes of action1, arising since governmental control is warranted notwithstanding Act March 21, 1918, c. 25, § 10 (Comp. St. 1918, § .3115%]'), providing that actions or suits may be brought against such carriers, for the Director General is the carrier, being analogous to a receiver, and it is proper that he be substituted in place of the railroad company.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Carrier.]</p>

<p>In Admiralty. Suits by Michael J. Derby and by Stewart J. Dailey against the Staten Island Rapid Transit Railway Company and the, Lehigh Valley Transportation Company, and by Bartle Daly against the Staten Island Rapid Transit Railway Company.</p>

<p>In Equity. Bill by the United States against Carl Swelgin to vacate and annul a certificate of naturalization.</p>

<p>1. Indictment and Information —Necessity of Indictment — Nature of Punishment — Requiring Convicts to Labor — -Federal Convicts.</p> <p>Greater Now York Charier, § 700, requiring inmates of all criminal jails of tho city to be employed in labor, does not apply to federal convicts sentenced to such jails, unless their sentence includes hard labor; any other construction necessarily meaning that no crime against the United States involving imprisonment in a New York City penal institution could be prosecuted otherwise than by indictment.</p> <p>2. Indictment and Information —Selective Draft Law — Sale of Liquor to Soldiers — Prosecution.</p> <p>A prosecution for selling liquor to soldiers in uniform, in violation of Selective Draft Act May 18, 1917, § 12 (Comp. St. 1918, § 2019a), may he instituted by information.</p>

In the matter of violations of Food Conservation Act Aug. 10, 1917, § 10, by bringing into the United States distilled spirits. The question arises under section 15, chapter 53, Act Aug. 10, 1917, 40 Stat. 282 (Comp.

<p>1. Trade-Marks and Trade-Names <&wkey;3(4) —■ Registration — Descriptive W ORDS-'-“lNEALLIBLE.”</p> <p>Tlie word “infallible,” as applied to smokeless powder, is descriptive, conveying the idea that the powder will always do its work, and so is not the proper subject-matter for a registered trade-mark.</p> <p>2. Courts <&wkey;96(l) — District Court — Weight op Decisions op District op Columbia Court op Appeals.</p> <p>Before District Court will arrive at conclusion with respect to whether name “Infallible,” as applied to smokeless powder, is descriptive, and not registerable. at variance with conclusion of Court of Appeals of District of Columbia upon the same matter, it should be clearly convinced that such conclusion was wrong (following Gold v. Newton, 254 Fed. 824, —■ C. C. A.-).</p>

<p>BANKRUPTCY <&wkey;303(3)-PREMBEENCE — KNOWLEDGE OF INSOLVENCY-EVIDENCE.</p> <p>A defendant held, on conflicting evidence, to have had knowledge that a bankrupt was insolvent at the time it took back property previously sold to him, which rendered the transaction a preference.</p>

<p>HATogAg Corpus &wkey;16 — Action op Draft Board — Iíkview by Courts.</p> <p>Where a local draft board, upon tile facts stated in a registrant’s questionnaire, found him subject to service and gave him a classification, which was affirmed by the district board, a court cannot on habeas corpus review its action in refusing to reopen the case.</p>

<p>In Bankruptcy. In the matter of Franklin Brewing Company, bankrupt. On motion by trustees for order directing surrender of bonds of bankrupt.</p>

<p>At Law. In the matter of the petition of Paysoff Tinkoff for a writ of habeas corpus.</p>

Rudkin, Judge. Suit in admiralty by Cornelius Griep and others against the Dutch steamship Rindjani; William Adam, master, claimant. Decree for libelants, and claimant and others appeal.

Cotteral, Judge. Petitions by D. F. Castle and by Sam W. Tulk for writs of habeas corpus and for a discharge from the custody of Seth M. Lewis, Sheriff of Osage County, Okl. From judgments dismissing and denying the petitions, petitioners appeal.

Suit by the Chicago, Milwaukee & St. Paul Railway Company and others against the Des Moines Union Railway Company and others. From the decree, both parties appeal.

Action by the United States for the use of the R. Haas Electric & Manufacturing Company and others, against the Title Guaranty & Surety Company and others. From a judgment of dismissal, plaintiffs bring error.

<p>1. Master and Servant <@=o121(1) — Factory Act — Construction—Guarding Vats.</p> <p>Under section 2 of the Factory Act of Virginia, that “all vats * * * Shall be properly guarded,” the place and manner of the guarding must be such as will at least reasonably safeguard employes while engaged in their habitual work and in their necessary passing to and from it.</p> <p>2. Master and Servant <S=»289(22) — Action for Injury to Servant — Contributory Negligence.</p> <p>Evidence held to justify submitting to the jury the question of the contributory negligence of an injured employs in failing to remove an obvious danger at his place of work.</p>

, Judge. Criminal prosecution by the United States against Samuel Bernstein. On appeal by defendant from orders denying writ of habeas corpus and petition for release from sentence.

<p>Patents <§=>165 — Construction op Claims — Importing Elements Not Specified.</p> <p>The rule that an element expressly specified in one claim of a patent should not be read into another in which it is not specified is intended to apply only where such element alone differentiates the two claims.</p>

<p>In Equity. Bill by Ered S. Thompson against Alexander H. Nichols.</p> <p>On defendant’s motion to dismiss.</p>

<p>in Error to the District Court of the United States for the Southern District o£ New York. Criminal prosecution by the United States against Jacob Bailis. Judgment of conviction, and defendant brings error.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York. Libel by the Standard Varnish Works against the steamship Bris. From a decree for complainant (233 Fed. 239), libelant appeals.</p>

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

<p>In Error to the District Court of the United States for the Southern District of New York. Proceeding by the United States against Philip Fauer and others. From the judgment, defendants bring error.</p>

<p>Petition to vacate an interlocutory order of the Federal Trade Commission against the Nulomoline Company.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge. Suit by William H. Berry against the Fuel Economy Engineering Company and others. From a decree for plaintiff (248 Fed. 736), defendants appeal.</p>

<p>In Error to the District Court of the United States for the Southern District of New York. Proceedings by the United States against Anthony George. From the judgment, defendant brings error.</p>

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

<p>In Error to the District Court of the United States for the Southern District of New York. Joseph Hayden was convicted of crime, and he brings error.</p>

<p>In Error to tbe District Court of the United States for the Western District of Texas; Duval West, Judge. Ed. Helmer was convicted of selling whisky to soldiers, and brings error.</p>

<p>In Error to the District Court of the United States for the Western District of New York. Action between the International Railway Company and Alice Crawford. There was a .-judgment for the latter, and the former brings error.</p>

<p>In Error to the District Court of the United States for the Southern District of New Xork. Action between the Lehigh Valley Railroad Company and Otto Monk. There was a Judgment for the latter, and the former brings error.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York. Suit by Lila Longson against David Bel asco and others. From a decree for defendants, complainant appeals.</p>

Appeals from the District Court of the United States for the Eastern District of Louisiana; Rufus E. Foster, Judge. Suits in admiralty by A. P. Breaux against the barge Apex and the barge Louisiana; the Lower Lafourche Planting & Manufacturing Company, claimant. Decrees for libelant, and claimant appeals.

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

<p>Appeal from the District Court of the United States for the Western District of New York. Suit by the Safety Car Heating & Lighting Company against the Gould Coupler Company. From a decree for defendant (245 Fed. 755), complainant appeals.</p>

<p>In Error to the District Court of the United States for the Southern District of New York. Abraham Scheier was convicted of crime, and he brings error.</p>

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

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