Volume 255 — Federal Reporter

<p>In Error to the District Court of the United States for the Western District of Pennsylvania; Charles P. Orr, Judge.</p> <p>Action by Joseph W. Kennedy against the National Tube Company. There was a judgment for defendant, and plaintiff brings error.</p>

Haight, Judge. Action by Matthew J. McKeon, by Patrick McKeon, his next friend, and Patrick McKeon against the Central Stamping Company. There was a judgment for plaintiffs, and defendant brings error.

<p>1. Carriers <@=>292 — Interstate Commerce — Dividing- Earnings — Illegal Transaction — Becovery.</p> <p>Where plaintiff and defendant had a joint tariff providing a through rate on lumher shipments, but there was no provision for remilling at the point of junction, and defendant, on shipments remilled, collected the local rate to the junction point, plaintiff, though it paid defendant a portion of the through rate, may recover the same, regardless of knowledge of the true facts; the transaction violating the Interstate Commerce Act (Comp. St. § 8563 et seq.), and the rule that the courts will refuse re- • dress to joint -idolaters of the law having no application.</p> <p>2. Carriers <@=>29 — Regulations—Dividing Earnings — “Public Corporation.”</p> <p>A railroad company is a “public corporation” charged with public duties, and in view of the rate-making powers of the state such a company cannot make voluntary payments to another railroad company out of rates which it has collected and is entitled to.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Public Corporation.]</p> <p>3. Carriers <@=>29 — Interstate Commerce — Dividing Earnings.</p> <p>Where defendant railroad company was not entitled to any part of the rates received by plaintiff, the shipment not being one falling within a joint through rate, held, that plaintiff could not make voluntary payments to defendant, for that would defeat the purpose of the Interstate Commerce Act (Comp. St. § 8563 et seq.).</p> <p>4. Evidence <@=>298(7) — Judicial Admissions — Demurrers.</p> <p>Though a demurrer to a plea is sustained, an admission of tact therein may be considered.</p> <p>5. Appeal and Error <@=>1951(3) — Review—Harmless Error.</p> <p>Where defendants own plea admitted the facts shown by evidence, the admission of such evidence, though erroneous, was harmless.</p> <p><@=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>6. Carriers <§=>202 — Charges—Connecting Carriers — Overpayment—Recovery.</p> <p>Where plaintiff sued to recover from defendant amounts paid to defendant as its share of joint through rates, and it appeared that plaintiff was not entitled to recover on all of the cars on which such rates were paid, plaintiff was bound to establish its case by showing the shipments and cars on which it was entitled to recover.</p> <p>7. Appear and Error <§=>1175(1) — Ribview—Harmless Error.</p> <p>Where a judgment for plaintiff was for too large an amount, and tho record did not contain evidence from which the error might be corrected, the case must he remanded.</p> <p><©c^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Foster, Judge. Harvey D. Apgar was convicted of violation of Rev. St. § 5209 (Comp. St. § 9772), in that while acting as cashier of a national banking association he willfully misapplied moneys, etc., and he brings error.

Action at law by William E. Allaun against the Druid Steamship Company, Incorporated. Judgment for plaintiff, and defendant brings error. Prior to April 14, 1917, the Druid Company owned the steamship Druid, which it desired to sell and hoped that the United States would purchase. Dor reasons not clearly appearing in the record, the plaintiff below, Allaun, was employed to bring about this sale.

Petition for Writ of Mandamus to the District Court of the United States for the Eastern District of New York. In the matter of the petition of James Thomson Muir, master of the British Admiralty transport Gleneden, for writs of prohibition and mandamus against Thomas I. Chatfield, United States District Judge for the Eastern District of New York.

Eouis C. Fraina and Edward Ralph Cheyney were convicted of conspiring to commit an offense against the United States by aiding and abetting, etc., unknown persons unlawfully to evade the requirements of the Selective Service Act, and they bring error. The indictment in two counts rests upon sections 37 and 332 of the Criminal Code (Act March 4. 1909, c. 321, 35 Stat. 1090, 1152 [Comp.

Suit in admiralty by H. D. Boret against the lighter Robert R., Jacob Rice, claimant; the steamship Prinz Frederick Hendrik, Royal Dutch West India Mail Company, claimant; Angelo Pellegrino and Carmelo Pellegrino, and Johnson Lighterage Company, incorporated, impleaded. Decree for libelant against the steamship alone, and her claimant appeals.

Claim of the Pere Marquette Railway Company against the Chicago & Eastern Illinois Railroad Company and Thomas D. Heed, its receiver. From a decree disallowing its claim, petitioner appeals.

<p>Appeal from the District Court of the United States for the Southern District of Florida; Rhydon M. Call, Judge.</p> <p>Suit in equity by Beatrice H. Holloway and others against Louis A. Colee and others. Decree for defendants (247 Fed. 598), and complainants appeal.</p>

<p>Shipping ®^>104 — Contract op Affreightment — Substitution of Vessels.</p> <p>Under a contract by managers of a steamer line to carry cargo by one of its steamers, “or by a steamer or steamers to be named later,” the shipper was entitled to carriage by a steamer of sueb line, and not required to accept as a substitute a naval transport of a foreign government on which the managers, as brokers, had engaged cargo space.</p> <p><§=r->For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In the matter of Charles Bitner, bankrupt. George W. Keel appeals from orders of the District Court, affirming orders of the referee granting the petition of Leslie Lightbody, trustee in bankruptcy, for the sale of real estate, and denying appellant’s petition to set the order aside.

<p>Appeal from the District Court of the United States for the Southern District of New York. /</p> <p>Suit in admiralty by the Universal Transportation Company, Incorporated, against the steamship Ada; Rederiaktiebo Laget Amie, claimant. Appeal by claimant from decree disallowing costs.</p>

<p>Shipping <&=»81(1) — Liability op Vessel — Fouling Anchoe Line op Deedgh Pontoons.</p> <p>A ship held in fault for injury to the pipe line and supporting pontoons of a dredge working in an adjoining slip, caused by striking the anchor line of the pontoons in backing out of the slip, where it was in the same position when she safely passed in the day before, and no request was made of the dredge to move it.</p> <p><@zs>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in admiralty by Martha Nicholson and others, owners of the barge Nicholson, against the Erie Railroad Company. Decree for libelants, and respondent appeals.</p> <p>Libelants own the barge Nicholson, which they chartered to respondent. While in the possession of the charterer the barge was left by one of the railroad company’s tugs at the end of Pier 39, Brooklyn, outside'of two other barges. This occurred shortly after midnight of February 26-27, at which time' the weather was calm. By noon of February 28 the wind had arisen, and before that time lighter 262-F, belonging to the Erie Company, was moored at the same pier end, and to and alongside of the Nicholson, by a tug not belonging to the railroad company.</p> <p>When the wind arose the 262-F and the Nicholson began to pound, and the situation became dangerous for both. Before 2 p. m. of the 27th the master of the Nicholson by telephone applied for assistance to the Erie office from which he was accustomed to receive orders. No help arrived until about 4 p. m., before which time the Nicholson had received considerable injury by pounding against No. 262-F.</p> <p>Pier 39, Brooklyn, is much exposed to northwesterly winds, and on February 26th the United ’States Weather Bureau had displayed in all the usual places around the harbor warning against a northwest storm. This action was brought to recover for the injuries received as above stated, and two tug masters in the service of respondent railroad company were examined concerning the movements of the barges above named. Neither of them seem to have observed the storm warning, and one of them (the master whose tug had left.the Nicholson at Pier §9) deposed that he did not take “storm warnings into consideration when [putting] boats at piers in the harbor, unless it [was] blowing at the time”; and when asked, “Don’t you rely on those storm warnings?” answered, “Not always.” The District Court granted a decree for libelant; respondent brings this appeal.</p>

<p>Seamen <@=321 — Desertion—What Constitutes.</p> <p>Where the master of a British vessel dropped overboard the original shipping articles which libelants signed in a British port and on arriving in United States libelants refused to sign new articles or to return to the vessel as directed by the master, held, that the master was justified in treating libelants as deserters who had forfeited their wages and effects under the British law, and libelants could not recover because the master refused their demand for half wages made thereafter pursuant to Rev. St. 4530 (Comp. St § 8322).</p> <p><§ss>For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Internal Revenue <©=»9 —-Excise Tax on Corporations — Net Income— “Cain ob Profit.”</p> <p>Under Corporation Tax Act Aug. 5, 1909, where property is sold by a corporation at an advance over the original purchase price, the amount of such advance is a gain or profit received during the year, for the purpose of computing its not income.</p> <p><Sx=jFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Courts @=885(4) — Circuit Court op Appeals — Jurisdiction.</p> <p>The question, arising in a federal District Court, whether that court or a state court, by reason of priority of possession or control, has the right to dispose of property which is the subject-matter of litigation, is not one o£ jurisdiction, within the meaning of Judicial Code, § 238 (Comp. St. § 1215), but is reviewable by the Circuit Court of Appeals.</p> <p>2. Courts @=-198(2) — Federal and State Courts — Priority op Jurisdiction.</p> <p>By an equity suit in a state court of West Virginia by a judgment creditor to subject property of the debtor to the judgment and such other liens as may be proved as provided by statute, although no receiver is appointed, the court acquires exclusive possession or control of the property necessary to effectuate its decree as against a federal court in which a suit for a receiver is subsequently brought by a bondholder of defendant who is a parry to the state suit or represented therein by the mortgage trustee.</p> <p>ig=»For other cases seo same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for China; Charles S. Lobingier, Judge.</p> <p>Action at law by Leonard Everett against Swayne & Hoyt, Incorporated. Judgment for plaintiff, and defendant brings error.</p>

<p>Conspiracy —To Violate Internal Revenue Daw — Salí; oe Drquod Through Go-Between.</p> <p>Evidence that defendant had whisky for sale, although he had not paid special tax as a retail liquor dealer, and sold whisky to a third person through an. acquaintance, who brought the orders, ftsufficient to sustain a verdict for conspiracy with the acquaintance to violate the statute.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Bankruptcy <®=^467 — Review on Appeal — Findings of Fact.</p> <p>A finding of facts by a referee, concurred in. by tb.e District Court, will not be disturbed by tbe appellate court.</p> <p><@zs>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Patents <®=j328 — Construction—Inering-ement.</p> <p>Patents Nos. 943,188, 951,311, 951,312, 951,313, relating to methods and apparatus for the electrolytic purification of water, held not infringed by defendants’ device.</p> <p>or other cases see sarao topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Suit by the Buffalo Forge Company against the City of Buffalo and Thomas & Smith, Incorporated. From decree for complainant, defendants appeal.

Suit in equity by the Vulcan Soot Cleaner Company against the Amoskeag Manufacturing Company and others. Complainant appeals from order denying preliminary injunction.

<p>Patents <©=>328 — Infringement—Cónchete Mixer.</p> <p>The Reed patent, No. 939,629, for concrete mixer, claim, 1, held infringed by a new machine made by defendant after decree adjudging infringement by prior structures. Claims 2 and 4 held not infringed.</p> <p>other casos see same topic & KEY-NUMBEli in all Key-Numbered Digests & Indexes</p>

<p>1. Patents <@=>129 — License Contract-Suit for Royalties — Estoppel.</p> <p>A licensee under an apparently valid patent, when sued for royalties, may not set up its invalidity as a defense, unless prior to the period for which royalties are claimed he gave the licensor such unequivocal notice of repudiation as would render him liable for infringement thereafter if the patent is held valid.</p> <p>2. Patents @=>212(1) — License Contract — Construction.</p> <p>In the absence of an agreement by the licensor, in a contract granting a license under a patent to protect the licensee from infringements by others he is under no obligation to do so.</p> <p><&S5>Foi* other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Master and Servant <S=>851, 385(17) — Workmen’s Compensation Act — Acceptance oi< Compensation — Effect.</p> <p>Though a stevedore presented a claim and accepted compensation under the state compensation law, held that, as the state Compensation Commission was without jurisdiction,, tho acceptance of compensation is not a bar to a libel in admiralty; the payments, if made by the employer, being deductible from the recovery, and, if made by the state, to be treated as gratuities.</p> <p><gx=»For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Bankruptcy <@=^486 — Offenses—False Oath.</p> <p>A bankrupt, who on examination in a bankruptcy proceeding, in answer to a question requiring a statement of assets, willfully fails to state all of such assets, is guilty of making a false oath and punishable under Bankr. Act July 1, 1898, c. 541, § 29b (2), 30 Stat. 554 (Comp. St. § 9613).</p> <p><gzs>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Equity. Suits by the Commercial Cable Company and by the Commercial Pacific Cable Company against Albert S. Burleson and Newcomb Carlton. On motions to dismiss hills. These eases arise on motionsi to dismiss two bills in equity for lack of jurisdiction and for want of equity, and they therefore present cases based altogether upon the allegations contained in them. Each bill was similar, and the consideration of one may' be taken as applicable to both.

In Bankruptcy. In the matter of C. T. Munford, bankrupt. On exceptions to report of special master respecting allowance of dower to Mrs. J. Caroline Munford and allowance to attorneys.

In Equity. Petition for cancellation of conveyances by A. C. Adams, trustee in bankruptcy, against Patrick Osley and others. On defendants’ exceptions to the master’s report for petitioner.

In Bankruptcy. In the matter of the American Paper Company, bankrupt. On review of referee’s order subrogating the trustees of the bankrupt to the rights of Wilkinson Bros. & Co. in its claim filed against another bankrupt.

<p>In Bankruptcy. In the matter of the bankruptcy of Peter C. Kemp. On motion to reverse a report of the referee recommending denial of discharge of the bankrupt, and for an order directing that discharge be granted.</p>

<p>1. Trade-Marks and Trade-Names <S=93(3) — Unfair Competition — Sale of Whisky for Refilling Bottles of Another Manufacturer — Evidence.</p> <p>Defendant helé cbarseable with, fraudulent unfair competition in trade on evidence that complainant bad for many years sold its whisky in the United States in bottles only with labels bearing its trade-mark of “Canadian Club Whisky”; that defendant since 1908 has made a whisky branded “Canadian Type,” similar in proof, color, and flavor to complainant’s, which it sold only in bulk to wholesalers and jobbers, with the knowledge and intention that it would be resold by them to retailers for refilling complainant’s bottles; and that it was chiefly so used, the brand being practically unknown to and never called for by consumers.</p> <p>2. Words and Phrases — -“Missionaries.”</p> <p>The term “missionaries,” as used in the liquor trade, applies to men employed to visit saloons throughout the country and puff liquors of particular manufacture, so that salesmen of wholesalers and jobbers will find the way prepared for them.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Missionary.] <@=>For other cases see same topic & KB y-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>I. War <8==>10(2) — Effect on Civil Rights — Suits by or against Alien Enemies.</p> <p>The rights of an alien enemy as a party to a suit in a court of the United States are no different, whether he is a defendant or a plaintiff or libelant.</p> <p>Z. War <@=>10(2) — Suit by Alien Enemy — Continuance.</p> <p>A libel in rem for wages against an Italian ship, by a seaman who was signed in Italy and came with the vessel to an American port, and who prior to suit became a resident and declared his intention to become a citizen of the United States, will not be dismissed because he is a subject of Austria-Hungary, but will be continued until the termination of the war.</p> <p><@s5>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>At Law. Action by the Board of Trustees for Regina Public School ■District No. 4 of Saskatchewan against Adelbert L- Spitzer, Horton C. Rorick, and Carl B. Spitzer, doing business as Spitzer, Rorick & Co.</p>

<p>1. Aliens <§=368 — Naturalization—Compliance with Statute.</p> <p>Where a native of Germany, as shown by the record of his naturalization, renounced allegiance to every foreign potentate, state, or sovereignty, and particularly to the Emperor of Germany, that was a substantial compliance with Rev. St. § 2165, though the Emperor’s name was not given.</p> <p>2. Citizens <@=313 — Expatriation.</p> <p>A naturalized citizen who returns to the country of his origin does not lose his citizenship, though ho remains there indefinitely, if his purpose be to return to the land of his adoption; the test being one of intention.</p> <p>3. Citizens <@=313 — Expatriation.</p> <p>Where a native of Germany, after becoming naturalized, returned to the land of his nativity, held, that his indefinite stay did not work an expatriation so as to deprive him of his rights as an American citizen on his return.</p> <p>4. Habeas Corpus <@=j25<Í) — Alien Enemies — Internment.</p> <p>A duly naturalized citizen who has not lost his rights, if arrested as an enemy alien on Presidential warrant issued under Rev. St. § 4067, as amended by Act April 16, 1918 (Comp. St. 1918, § 7615), Is entitled to be discharged on habeas corpus.</p> <p>®=3For other cases seo same topic & KEY-NUMBBli in all Key-Numbered Digests & Indexes</p>

In Equity. Suit by Kate Atwood, individually and as administratrix, and Theodore Davis Boal, administrator, against the Rhode Island Hospital Trust Company, administrator and trustee. On motion to dismiss bill and plea to jurisdiction.

<p>In Equity. Suit by William Peirce and George Peirce, trading as Peirce Bros., against the New York Dock Company.</p>

<p>In Bankruptcy. In the matter of W. H. Irvine, bankrupt. On rule to require trustees to execute deed to land sold by them.</p>

<p>In Admiralty. Libels by tbe Caribbean Shipping Company, Limited, and by tbe Central Transportation Company, against the schooner Allan Wilde, claimed by tbe Commercial Shipping Corporation.</p>

John Porria and others were indicted for larceny of property moving in interstate commerce, and for taking in possession, the same having been stolen. The named defendant pleaded former conviction.

Forfeiture. Libel by United States for forfeiture of Cadillac Eight Automobile, alleged to have been used in transporting intoxicating liquor from Kentucky into Tennessee. Answer by claimant, W. B. Winter, incorporating defense in the nature of demurrer to the libel.

In Equity. Bill by Thomas J. Flanagan against Charles Coleman and Isidor H. Gertler, doing business under the trade-name and style of the Songland Publishing Company, and others. On motion for Injunction pendente lite.

<p>1. New Trial <@=105 — Newly Discovered Evidence.</p> <p>Newly discovered evidence, merely to contradict a witness, is not sufficient to warrant a new trial.</p> <p>2. New Trial <@=104(1) — Newly Discovered Evidence — Cumulative Evidence.</p> <p>Newly discovered evidence, which is merely cumulative, is not ordinarily ground for a new trial.</p> <p>3. New Trial <@=108(1) — Newly Discovered Evidence — Conclusion-</p> <p>Where newly discovered evidence is not so conclusive as to raise a reasonable presumption that the result of a new trial would be different from the first, it is insufficient as ground for new trial.</p> <p>4. Malicious Prosecution <@=24(7) — Want of Probable Cause — Prima Facie Evidence.</p> <p>Where a grand jury hears only the witnesses for the prosecution and determines only the question of probable cause its failure after investigation to return an indictment is prima facie evidence of want of probable cause.</p> <p>5. Malicious Prosecution <@=24(6) — Want of Probable Cause — Prima Facie Evidence.</p> <p>Where a magistrate, who sits as a committing magistrate merely, and not to try a case on the merits, discharges the defendant, such discharge is prima facie evidence of want of probable cause.</p> <p>6. Estoppel <g=68(4) — Equitable Estoppel.</p> <p>Where defendant, having sworn out a warrant against plaintiff, cannot, in a subsequent action for malicious prosecution, deny that prosecution was under such warrant, on the ground that plaintiff was not present at the preliminary proceedings or arrested under the warrant, for a defendant cannot in one judicial proceeding deny the validity of steps taken by it in another, which would impute a fraud upon the administration of justice in such proceeding.</p> <p>7. Estoppel @=107 — Equitable Estoppel — Pleading.</p> <p>Generally speaking, an estoppel in pais need not be pleaded; it being m effect a rule of evidence.</p> <p>8. Estoppel <@=110 — Equitable Estoppel — Pleading.</p> <p>At common law, as distinguished from code pleading, an estoppel in pais is available as a defense under the general issue.</p> <p>9. Courts <@=347 — Precedents—Decision of State Court.</p> <p>Under the Conformity Act (Comp. St. § 1537), a decision of the highest court of the state as to the necessity of a pleading in estoppel, if intended to establish a general rule of pleading, is binding on a federal court sitting within the state.</p> <p>10. Estoppel <@=110 — Pleading—Necessity.</p> <p>In an action for malicious prosecution, where plaintiff alleged a prosecution under a warrant, and defendant merely pleaded the general issue, without averring specifically the invalidity of the proceedings before a justice of the peace begun on such warrant, and the proceedings before the justice showed prima facie at least that plaintiff was bound over on the warrant, plaintiff, without specifically pleading the same, may rely on the estoppel precluding defendant from denying that plaintiff was hound over on such warrant, for, if a party have not an opportunity to show an estoppel by pleading, he may exhibit the matter thereof in evidence.</p> <p><g=For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>11. Malicious Prosecution €=>64(1) — Action—Proof.</p> <p>The plaintiff, in an action for malicious prosecution, is not required to prove his own innocence; it being sufficient, to establish a prima facie case, that he show malice and want of probable cause.</p> <p>12. Malicious Prosecution €=>40, 56 — Actions—Defenses.</p> <p>While, as a matter of public policy, ail action for malicious prosecution will not lie in favor of a guilty plaintiff, and defendant by way of defense may show plaintiff’s guilt, the burden of establishing such defense is on the defendant.</p> <p>13. Trial €=>344 — Verdict—Impeachment.</p> <p>A verdict cannot be impeached as a quotient verdict on evidence of the jurors.</p> <p>14. Malicious Prosecution €=>69 — Damages.</p> <p>An award of §1,400, in, an action for malicious prosecution of a criminal proceeding wherein defendant was charged with unlawfully breaking into a railroad car, is not so excessive as to warrant new trial.</p> <p>tgr=>Por other cases see same topic & KEY-NUMBER, in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by the Union Bag & Paper Corporation against Frederick Bischoff.</p>

<p>1. Statutes <§=>217 — Construction—History and Passage.</p> <p>Where acts of Congress are ambiguous, the courts may properly have recourse to public documents and. proceedings in Congress pending consideration of the legislation and to contemporaneous events and the existing situation.</p> <p>2. Evidence <§=>28 — Judicial Notice — Labor Bodies Which Urged Adam-son Law.</p> <p>It is matter of common knowledge that the Adamson Law Sept. 3, 5, 1916 (Comp. St. §§ 8680a-8680d), was enacted at instance of four bodies of organized railway employés, the Order of Conductors, Brotherhood of Engineers, Brotherhood of Firemen and. Engineers, and Brotherhood of Trainmen.</p> <p><gxs>For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>3. Master and Servant <©^>13 — Railroad Employment — Adamson Law— Nonapplication to Switch Tender.</p> <p>The Adamson Law Sept. 3, 5, 1916 (Comp. St. §§ 8680a-8680d), making eight hours the standard of a day’s work to reckon compensation of railroad employés, hold to apply only to employes doing work performed by four railroad labor brotherhoods to prevent whose strike statute was enacted, that is, all trainmen working on engines and in cars, not to switch tender in yards of railroads.</p> <p>QzaFor other eases see same topic & KIOY-NUMBEK in all Key-Numbered Digests & Indexes</p>

In Equity. Suit by Ellsworth E. Cook against Jared Flagg. On motion for an injunction and the appointment of a temporary receiver. Motion for an injunction against defendant restraining him from paying out or removing from the jurisdiction of this court any of the money constituting the fund described in the bill of complaint, and also praying for a lemXiorary receiver of said fund. Further relief is also prayed for.

<p>On Rehearing. Former decision establishing an equitable lien in favor of the claimant, one William F. Nelson, reversed.</p> <p>This case is now before this court on a rehearing granted by the court after a.decision affirming the report and decision of the referee which established an equitable lien on the sum of $585.50 in the hands of the trustee in favor of the claimant thereto, one William E. Nelson, and which sum is the proceeds of certain accounts due and owing to the bankrupt at the date of the bankruptcy and which were collected by the trustee.</p>

<p>In Equity. Suit by the Pictorial Review Company against the Curtis Publishing Company. On plaintiff’s motion for temporary injunction.</p>

Dominick Le Fanti was convicted of receiving stolen goods, part of an interstate shipment of express, knowing the same to have been stolen. On rule to .show cause why verdict of guilty should not be set aside and new trial granted.

<p>1. Was —Espionage Act — Forfeiture or Property About to be Unlawfully Exported — “Shall.”</p> <p>The provision of Espionage A.ct June 15, 1917, tit. 6, § 2 (Comp. St. 1918, § 7678e), that the officer seizing property as about to bo unlawfully taken out of the United States shall apply within ten days to the District Judge for a warrant to justify its further detention, otherwise “the property shall forthwith be restored to the owner,” is mandatory, and, if such application is not made within the time limited, the owner is entitled to return of the property.</p> <p>[Ed. Noto. — For other definitions, see Words and Phrases, First and Second Series, Shall.]</p> <p><§=>For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>2. Statutes <©=>227, 239 — Construction—Statutes Imposing Forfeitures.</p> <p>A statutory power to divest an owner of his property is to be strictly construed, and where the statute prescribes the procedure such provisions are mandatory.</p> <p><§^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Lxs Pendens <3=24(2) — Foreclosure—Purchaser.</p> <p>Where mortgagor conveyed, long after filing of notice of pendency of a foreclosure action, its grantee is bound by the proceedings.</p> <p>2. Courts <3=509 — Conflicting Jurisdiction — Setting Aside Foreclosure Sale.</p> <p>As against grantee of mortgagor, which conveyed before filing of notice of pendency of foreclosure action, the foreclosure sale is a nullity, and the grantee cannot sue in the federal courts to set it aside, as ample relief can be had in the state court.</p> <p>3. Courts <3=509 — Foreclosure—Erroneous Decision — Attack in Federal Courts.</p> <p>Where mortgagor moved in' state court to set aside foreclosure sale, thereby taking position court had power to grant or deny motion, decision of state court, even if erroneous, cannot be reviewed by federal courts in suit by mortgagor and its grantee to set aside sale; state court having determined there was no violation of due process guaranty of federal Const. Amend. 14.</p> <p>Far other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by the City National Bank of Selma against the Dresdner Bank of Bremen. On motion to dismiss bill.</p>

<p>1. Food <®=»2 — Penal Statute — Construction.'</p> <p>Food and Drugs Act June 30, 1906 (Comp. St. §§ 8717-8728), being highly penal, District Court cannot read into it imposition of anything which partakes of nature of punishment, not to be found in law.</p> <p>2. Courts <@=»78 — Bules Governing Practice — Power of Supreme Court.</p> <p>Supreme Court of United States has statutory authority to indicate and promulgate rules to govern admiralty practice, which power it has exercised.</p> <p>3. Food <@=^24 — Libel under Food and Drugs Act — Costs.</p> <p>Under Food and Drugs Act June 30, 1906 (Comp. St. §§ 8717-8728), on libel of tomato pulp by United States, intervening claimants, who did not stipulate to pay costs and expenses, expense of custody having exceeded all money value involved, so that they acquiesced in government’s securing decree of destruction, were not subject to decree in personam for costs, despite rule 26 of Supreme Court (29 Sup. Ct. xlii).</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Admiralty. libel by Harris Applebaum, as guardian ad litem of Herman Applebaum, against the steamer Santa Barbara, her engines, etc.</p>

<p>1. Indictment and Information <©=>121(1) — Motion for Bill of Particulars —Discretion of Court.</p> <p>A motion by defendant in a criminal case for a bill of particulars is addressed to the sound discretion of the court.</p> <p>2. Conspiracy <©=>43(6) — Criminal Conspiracy — Indictment.</p> <p>In an indictment for conspiracy to commit an offense, the offense which is ini ended to he committed as a result of the conspiracy need not be described with the particularity required in an indictment for the substantive offense.</p> <p>3. Indictment and Information <©=>123(2) — Bill of Particulars.</p> <p>A bill of particulars should only be required where the charges of an indictment are so general that they do not advise defendant of the specific acts of which he is accused.</p> <p><§r5>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Bill for Injunction by Arthur B. Low and others against Henry McMaster, doing business as the Presto Patents Company. On motion to dismiss.</p>

<p>Dominick Lazzaro and others demur to indictment charging violation of Internal Revenue Law, as to liquor business tax.</p>

In Bankruptcy. In the matter of G. Edward Graff and Thomas E. Nevins, individually and as copartners as G. Edward Graff & Co., bankrupts. On motion to confirm order of referee and petition of the People’s Trust Company to revise said order.

Petition to Revise Order of the District Court of the United States for the Eastern District of New York. In the mailer of G. Edward Graff and Thomas F. Nevins, individually and as partners, bankrupts. On petition of the People’s Trust Company as executor, to revise order of 'District Court (255 Fed. 239).

In Frror to the District Court of the United States for the Southern District of New York.. Action at law by Joseph H. Sarnpliner against the Motion Picture Patents Company and others. Judgment for defendants, and plaintiff brings error. The action is brought by the plaintiff as assignee of the Lake Shore Film & Supply Company (hereinafter called the Lake Shore Company) under tho Sherman Anti-Trust Act (Act July 2, 1890, c. 647, 26 Stat. 209 [Comp.

<p>Appeal from the District Court of the United States for the Northern Division of the Western District of Washington; Jeremiah Neterer, Judge.</p> <p>Suit in equity by the United States against J. W. Romaine and others. Decree for defendants, and complainant appeals.</p> <p>The United States brought suit to quiet the title of the Indians of the Lummi Indian reservation to certain lands alleged to be within the boundaries of the reservation, but which had been sold to the defendants as tidelands by the state of Washington.. On January 22, 1855, the United States by treaty with certain Indian tribes, in consideration of their relinquishment of larger tracts of land, set apart to them, among other lands, “the island called Chahchoo-sen, situated in the Lummi river at the point of separation of the mouths emptying respectively into Bellingham Bay and the Gulf of Georgia, all of which tracts shall be set apart, and so far as necessary surveyed and marked out for their exclusive use.” 12 Stat. 928. On November 22, 1873, President Grant made proclamation establishing the Lummi Indian reservation in the following terms: “It is hereby ordered that the following tract of country in Washington Territory be withdrawn from sale and set apart for the use and occupation of the Dwamish and other allied tribes of Indians, viz.: Commencing at the eastern mouth of Lummi river; thence up said river to the point where it is intersected by the line between section 7 and 8 of township 38, range 2 east of the Willamette meridian; thence due north on said section lino to the township line between townships 38 and 39; thonce west along said township line to the low-water mark on the shore of the Gulf of Georgia; then southerly and easterly along the said shore, with the meanders thereof, across the western mouth of Lummi river and around Point brands; thence northeasterly to the place of beginning — so much thereof as lies south of the West fork of the Lummi river being a part of the island already set apart by tbe second article of tbe treaty with tbe Dwamish and other allied tribes of Indians made and concluded January 22, 1857.”</p> <p>Tbe controversy involves tbe question of tbe true location of tbe moutb of the East fork of tbe Lummi- river, later called tbe Nooksaok. Tbe appellant contends tbat tbe moutb of the river at tbe time of tbe treaty was at or near a point marked by a conspicuous rock called by tbe Indians “Treaty Bock.” Tbe appellees contend that tbe moutb of tbe river was at a point now marked by two cottonwood trees, nearly opposite tbe old church, about a mile and a half or two miles westerly from Treaty Bock. Upon tbe evidence tbe court below sustained tbe contention of tbe appellees and dismissed tbe bill. From tbat decree tbe appeal is taken.</p>

<p>1. Commerce @=>27(7) — -Injury in “Interstate Commerce.”</p> <p>Employs, in a local switching crew at station in New Jersey, injured while setting brake on open coal car being switched between sidings, car having come from Pennsylvania consigned to company in New Jersey, held not engaged in “interstate commerce,” to bring his case within federal Safety Appliance Act (Comp. St. j 8605 et seq.).</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.]</p> <p>2. Courts @=>489(9%) — Master and Servant @=>351, 396 — Injuries to Railroad Servant — Federal Safety Appliance Act — Workmen’s Compensation Act.</p> <p>Member of railroad’s local switching crew, injured in intrastate commerce in New Jersey, while setting brake on car, held entitled to recover against railroad under federal Safety Appliance Act (Comp. St. § 8605 et seq.), not in the federal court under the, federal Employers’ Liability Act, but only in the court of common pleas of the county of New Jersey which would have jurisdiction in a civil cause, there having been no provision in contract of employment that Workmen’s Compensation Act of New Jersey (P. L. 1911, p. 134), as amended by Act N. J. April 1, 1913 (P. L, p. 302), should not apply, and. he having given no such notice to railroad before accident.</p> <p>3. Master and Servant @=>111(1) — Federal Safety Appliance Act — Action for Damages.</p> <p>Failure to comply with federal act requiring hand brakes (Comp. St. § 8618) renders railroad company liable for injuries to a switchman resulting from such violation, though the only punishment fixed by the statute is a penalty recoverable at the suit of the United States.</p> <p><®ss>For oilier cases see same topic & KBY-NUMBlfllt in all Key-NumDered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Criminal prosecution by the United States against John E. Jelke, Harry E. Hitchins, William. M. Steele, Hugh D. Cameron, William R. Dillard, William P. Jackson, Fred Rapp, R. B. Tullís, Francis M. Dowry, and four others. From judgments of conviction, the defendants named separately bring error.</p> <p>The nine plaintiffs in error and four others were indicted by the grand jury, charged with the crime of conspiracy to defraud the United States out of the ten ceDts per pound tax due by law upon certain colored oleomargarine, using means set forth in the indictment and hereinafter more particularly described.</p> <p>Of the thirteen defendants jointly charged with the offense, one, Philemon Berry, was never apprehended; the defendant Harvey P. McFarland was acquitted by the jury, and the two defendants Abner D. Mize and O. S. Martin were dismissed upon order of the court. The remaining defendants were found guilty by the jury, and each was sentenced to pay a heavy fine. The defendants Francis M. Lowry and John F. Jelke were also sentenced to the penitentiary for the terms of one and two years respectively.</p> <p>Each plaintiff in error separately obtained a writ of error to review this judgment. ■</p> <p>The indictment is as follows (the paragraphing is arbitrary, and for convenience sake follows .the copy as it appears in the brief of plaintiffs in error):</p> <p>section. “The Indictment.</p> <p>1 In the District Court of the United States of America for the Northern District of Illinois, Eastern Division.</p> <p>Northern District of Illinois, Eastern Division — Set.</p> <p>The grand jurors for the United States of America impaneled and sworn in the District Court of the United States for the Northern District of Illinois, and inquiring in and for the Eastern Division of said Northern District, upon their oath present that,</p> <p>2 upon the first day of January, in the year nineteen hundred and three, and continuously fromi that day to the date of the return of this indictment into open court, and therefore continuously from the first day of August, in the year nineteen hundred and eight, to the first day of July, in the year nineteen hundred and eleven,</p> <p>3 one John F. Jelke, one Francis M. Lowry, one Abner D. Mize, one Philemon Berry, one Harry E. Hitchins, one William M. Steele, one Harvey P. McFarland, one Hugh D. Cameron, one William L. Lillard, one William P. Jackson, one Fred Rapp, one L. B. Tullis (whose Christian name is to the said grand jurors unknown), and one O. S. Martin (whose Christian name is to the said grand jurors unknown), each late of the city of Chicago,</p> <p>4 in said Eastern Division of the Northern District of Illinois, hereinafter in this indictment referred to as the defendants, at the city of Chicago, in the said division and district,</p> <p>5 unlawfully, willfully, knowingly, and feloniously have combined, conspired, confederated and agreed together to defraud the said United States of the tax by law provided to become due to the said United States of ten cents per pound upon certain oleomargarine, artificially colored to look like butter of a shade of yellow,</p> <p>6 which the defendants, throughout said period of time, agreed they should cause to be manufactured, produced and sold, and removed for consumption and use from the place of manufacture,</p> <p>7 which oleomargarine the defendants agreed and intended they would cause to be manufactured by the addition to and the mixing with oleomargarine which was subject by law to a tax of one-fourth of one cent per pound, (commonly called white oleomargarine or white goods), of artificial coloration which would cause it to look like butter of a shade of yellow,</p> <p>Section.</p> <p>8 and, as a part of said conspiracy, tho said defendants agreed that they would cause divers individuals, to wit, William A. Dwan, Benjamin Balch, Henry F. Marhoet'er, Charles R. Kenyon, Charles R. Zurn, Anton T. Peterson, Frank S. Goll, William A. Schaefer, Edward Marhoefer, Harry H. Kendall, Sherwood W. Alger, Eugene Salvo, Fred Marhoefer, and J. G. Paule (whose Christihn name is to the said grand jurors unknown), and other persons too numerous to be here named,</p> <p>9 at divers times and on divers days throughout said period of time,</p> <p>10 to add to and mix with the said white oleomargarine artificial coloration to cause it to look like butter of a shade of yellow,</p> <p>11 which white oleomargarine and which artificial coloring matter to cause it to look like butter of a shade of yellow,</p> <p>12 the said defendants agreed among themselves to furnish and cause to be furnished</p> <p>13 to the said William A. Dwan, Benjamin Balch, Henry F. Marhoefer, Charles R. Kenyon, Charles R. Zurn, Anton T. Peterson, Frank S. Goll, William A. Schaefer, Edward Marhoefer, Harry H. Kendall, Sherwood W. Alger, Eugene Salvo, Fred Marhoefer, and J. G. Paule (whose Christian name is to the said grand jurors unknown), and other persons too numerous to bo here named,</p> <p>14 and further1 as a part of said conspiracy, the defendants agreed among themselves</p> <p>15 (a) to furnish to the said individuals last above named and referred to, tub liners to be used by the said individuals last above named and. referred to in packing in tubs the said oleomargarine after the addition of artificial coloration causing it to look like butter of a shade of yellow as aforesaid, and wrappers of paper to be used by the said individuals last named and referred to in packing in pound packages and packages of other weight the said oleomargarine after it had been artificially colored, as aforesaid,</p> <p>16 and further as a part of said conspiracy,</p> <p>17 (b) to cause the said individuals last named and referred to to sell and furnish for profit to consumers and persons other than their own families and remove for consumption and use from the place where such coloring matter was added to and mixed with said oleomargarine, the said oleomargarine thus artificially colored,</p> <p>18 without paying and causing to be paid,</p> <p>19 and intending that they, the defendants, and tho said individuals, last hereinabove named and referred to, should not pay to the United States, and intending that no payment whatever should he made by any person, firm or corporation to the said United States of, the tax, which would then, to wit, at the time of such removal for sale and for consumption and use, as aforesaid, become due to the said United States, to wit, the tax of ten cents per pound, as provided by law,</p> <p>20 and intending that the said United States should be defrauded out of the money by law due the said United States for such tax.</p> <p>21 And the grand jurors aforesaid, upon their oath aforesaid, do further present, that in pursuance of the said conspiracy and in order to effec-t the object of the same, the said defendants* on, to wit, the eleventh day of October, in the year nineteen hundred and nine, at the city of Chicago, in the division and district aforesaid, knowingly, willfully and feloniously delivered and caused to be delivered to the said William A. Dwan, a large quantity, to wit, nine hundred and sixty pounds, of white oleomargarine and sufficient coloring matter to color the same to look like butter of a shade of yellow.</p> <p>22 (Same as section 21 down to star), on, to wit, the eleventh day of October, in the year nineteen hundred and nine, at the city of Chicago, in the division and district aforesaid, knowingly, willfully, and feloniously delivered and caused to be delivered to the said Benjamin Balch, a large. quantity, to wit, eighty pounds of white oleomargarine and sufficient coloring matter to color the same to look like butter of a shade of yellow.”</p> <p>Paragraphs 23 to 38, inclusive, allege defendants at different times and at different places delivered large quantities of white oleomargarine with free coloring material to divers persons named therein.</p> <p>Section.</p> <p>39 “(Same as in section 37 down to the star) the said Harvey P. McFarland (defendant herein) on, to wit, the twenty-sixth day of August, in the year nineteen hundred and nine, at the city of Chicago, in the division and district aforesaid, knowingly, willfully and feloniously did prepare and cause to'be prepared a certain writing and ticket called a sales ticket, which was of the tenor following, to wit:</p> <p>John F. Jelke Co. City Sales 40 Date, 8/26/09. No. 4814. Chicago.</p> <p>Sold, to New City Creamery</p> <p> </p> <p>Paragraphs 40 and 41 are similar in purport to paragraph 39 and charge McFarland with having prepared a sales ticket to the New City Creamery on a date different than that set forth in paragraph 39.</p> <p>42 “And so the grand jurors aforesaid, upon their oath aforesaid, do say that the said John F. Jelke, Francis M. Lowry, Abner D. Mize, Philemon Berry, Harry E. Hitchins, William M. Steele, Harvey P. McFarland, Hugh D. Cameron, William L. Lillard, William P. Jackson, Fred Rapp, L. B. Tullís, and O. S. Martin, in the manner and form aforesaid throughout the period of time from the first day of January in the year nineteen hundred and three to the first day of July, in the year nineteen hundred and eleven, continuously have conspired, combined, confederated and agreed together to defraud the said United States in the manner as aforesaid; against the peace and dignity of the said United States and contrary to the form of the statute of the same in such case made and provided.”</p> <p>Assignments of error numbering 127 for a single plaintiff in error, covering some 79 pages of the record, will be divided into five heads and set forth in the fore part of the statement of facts, in order that it may be better understood.</p> <p>Plaintiffs in error complain of the ruling of the court: (a) In holding the indictment sufficient, (b) In denying motion of plaintiffs in error to dismiss each defendant upon the ground that the evidence was not sufficient to justify a conviction, (e) In admitting evidence against the objection of the plaintiffs in error, and in rejecting evidence offered by plaintiffs in error, (d) In giving instructions to the jury to which exceptions were taken, and in refusing instructions proposed by plaintiffs in error, (e) In making adverse rulings during the trial upon various unusual questions and not covered by any one of the other assignments.</p> <p>It is impossible to accurately and briefly picture the record because of its length. The trial lasted weeks, and testimony covering thousands of pages was taken. A more detailed statement of the facts necessary to the consideration of each question raised will appear in the opinion, while a brief general statement only is here attempted.</p> <p>The Oleomargarine Act (Act Aug. 2, 1886, c. 840, 24 Stat. 209) as amended (Act May 9, 1902, c. 784, 32 Stat. 193), went into effect July 1, 1902, and its constitutionality was sustained in the case of McCray v. United States, 195 ü. S. 27, 24 Sup. Ct. 769, 49 L. Ed. 78, 1 Ann. Oas. 561. Generally speaking, this ad; as amended imposed a tax' of ten cents per pound upon oleomargarine artificially colored to look like butter, and one-fourth cent per pound upon white oleomargarine. Prior to the passage of this act a flat tax of two cents a pound was imposed on all oleomargarine, colored or uncolored.</p> <p>The more important sections, so far as this case is concerned, are here quoted:</p> <p>“Section 2. That for the purposes of this act certain manufactured substances, certain extracts, and certain mixtures and compounds, inducting such mixtures and compounds with butter, shall be known and designated as ‘oleomargarine,’ namely: All substances heretofore known as oleomargarine, oleo, oleomargarine oil, butterino, lardine, suine, and neutral; all mixtures and compounds of oleomargarine, oleo, oleomargarine oil, butterine, lardine, suine, and neutral; all lard extracts and tallow extracts; and all mixtures and compounds of tallow, beef fat, suet, lard, lard-oil, vegetable oil, annatto, and other coloring matter, intestinal fat, and offal fat made in imitation or semblance of butter, or when so made, calculated or intended to be sold as butter or for butter.” Comp. St. § G2L6.</p> <p>"Section 3. That special taxes aro imposed as follows: Manufacturers of oleomargarine shall pay six hundred dollars. Every person who manufactures oleomargarine for sale shall be deemed a manufacturer of oleomargarine.</p> <p>"And any person that sells, vends, or furnishes oleomargarine for the use and consumption of others, except to his own family table without compensation, who shall add to or mix with such oleomargarine any artificial coloration that causes it to look like butter of any shade of yellow shall also be held to be a manufacturer of oleomargarine within the meaning of said Act, and subject to the provisions thereof.</p> <p>“Wholesale dealers in oleomargarine shall pay four hundred and eighty dollars. * * *</p> <p>“Retail dealers in oleomargarine shall pay forty-eight dollars. Every person who sells oleomargarine in less quantities than ten pounds at one time shall be regarded as a retail dealer in oleomargarine. * * * ” Comp. St. § 5977.</p> <p>“Section 5. That every manufacturer of oleomargarine shall file with the collector of internal revenue of the district in which his manufactory is located such notices, inventories, and bonds, shall keep such books and render such returns of materials and products, shall put up such signs and affix such number of his factory, and conduct his business under such surveillance of officers and agents as the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, may, by regulation, require. But the bond required of such manufacturer shall be with sureties satisfactory to the collector of internal revenue, and In a penal sum of not less than five thousand dollars; and the sum of said bond may bo increased from time to time, and additional sureties required at the discretion of the collector, or under instructions of the Commissioner of Internal Revenue.”</p> <p>"Section 8. That upon oleomargarine which shall be manufactured and sold, or removed for consumption or use, there shall be assessed and collected a tax of ten cents per pound, to be paid by the manufacturer thereof; and any fractional part of a pound in a package shall be taxed as a pound; Provided, when oleomargarine is free from artificial coloration that causes it to look like butter of: any shade of yellow said tax shall be one-fourth of one cent per pound. The tax levied by this section shall be represented by coupon stamps; and the provisions of existing laws governing the engraving, issue, sale, accountability, offacemeut, and destruction of stamps relating to tobacco and snuff, as far as applicable, are hereby made to apply to stamps provided for by this section.” Comp. St. § 6217.</p> <p>“Section 16. That oleomargarine may be removed from the place of manufacture for export to a foreign country without payment of tax or affixing stamps thereto, under such regulations and the filing of such bonds and other security as the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, may prescribe. Every person who shall export oleomargarine shall brand upon every tub, firkin, or other package containing such article the word ‘Oleomargarine,’ in plain Roman letters not less than one-half inch square.” Oomp. St. § 6228.</p> <p>“Section 20. That the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, may make all needful regulations for the carrying into effect of this act.” Comp. St. § 6232.</p> <p>In 1897 the state of Illinois passed a statute (Laws 1897, p. 3) prohibiting the manufacture of colored oleomargarine in Illinois, and in the course of this trial this statute was, against the objection of the plaintiffs in error, read in evidence. Two of the important sections of this state law read as follows:</p> <p>“Section 1. Be it enacted by the people of the state of Illinois, represented in the General Assembly, that for the purpose of this act, every article, substitute or compound, other than [that] which is produced from pure milk or cream therefrom, made in the semblance of butter and designed to be used as á substitute for butter made from pure milk or its cream, is hereby declared to be imitation butter: Provided, that the use of salt and harmless coloring matter for coloring the product of pure milk or cream shall not be construed to render such product an imitation.</p> <p>“Section 2. No person shall coat, powder or color with annatto, or any coloring matter whatever, any substance designed as a substitute for butter, whereby such substitute or product so colored or compounded shall be made to resemble butter, the product of the dairy.”</p> <p>The John F. Jelke Company was organized as an Illinois corporation m 1889, the stockholders being George P. Braun, John F. Jelke,'and L. V. Fitts; they were also directors and officers. The corporate name of the company at this time was Braun & Fitts Company, and it succeeded to the business and purchased the assets of Braun & Fitts, a partnership. John F. Jelke increased his holdings in the company, and plaintiff in error F. M. Lowry became its secretary in 1902, and continued in that position thereafter, and was so acting at the time of the trial. The change in name of the corporation occurred in 1907.</p> <p>The George P. Braun Company is an Illinois corporation, and was organized December 5, 1904. In 1908 John F. Jelke became the owner of a large share of stock of this corporation, and shortly thereafter the directors were Ferdinand F. Jelke, F. M. Lowry, John F. Jelke, Jr., William M. Steele, and John F. Jelke. The record shows that both of these companies transacted a very large business, and that their principal place of business was at Chicago, 111.</p> <p>Plaintiffs in error were all connected in some way with one of these two companies. John F. Jelke was secretary-treasurer and director of the Braun & Fitts Company, later general manager, and still later president and practically the sole owner of the stock. His relations to the company were the same after it changed its name to the John F. Jelke Company. He also was the owner of over 80 per cent, of the stock of George P. Braun Company and was director thereof; his son being president. Francis M. Lowry was secretary of the Braun & Fitts Company, later known as the John F. Jelke Company, and was secretary and director and stockholder of George P. Braun Company. Prior to his official connection with the Braun & Fitts Company, he was credit man and assistant manager of the company. Plaintiff in error William M. Steele was office and sales manager of John F. Jelke Company from 1908 to the time of the indictment, and was director and stockholder in George P. Braun Company. Wiilliam P. Jackson, was manager of George P. Braun Company from May 11, 1898, to June 30, 1911. Harry E. Hitchins was salesman for Braun & Fitts Company, later known as the John F. Jelke Company, from; May, 1902, to 1910. Hugh D. Cameron, was a former internal revenue officer, and then became salesman for Braun & Fitts Company, and remained in that capacity from 1905 to 1910. William L. Lillard was salesman for the John F. Jelke Company from 1907 to 1909. L. B. Tullís was salesman for Braun & Fitts Company for about nine years. Fred Rapp was salesman for George P. Braun Company from 1907 to 1911.</p> <p>Abner D. Mize became a salesman for Braun & Fitts in 1900, and left that employment in 1906. O. S. Martin, a former internal revenue agent, became a salesman for the Braun & Fitts Company in 1901, later taking charge of the New ,York branch oí that company. Both Martin and Mize were discharged by ihe court on the ground that the statute of limitations had run against the offense so far as they were concerned. Philemon Berry, a former internal revenue collector, was for several years a salesman for the John F. Jelke Company, but he was never apprehended. Harvey P. McFarland was assistant and later chief shipping clerk for Braun & Fitts Company, serving in that capacity from 1900 to the date of the indictment. He was found not guilty by the jury.</p> <p>To establish its charge of conspiracy, the government attempted to show, and claims the evidence clearly established, a motive on the part of the plaintiffs in error to commit the crime set forth in the indictment. It is claimed that this motive was established by showing: (a) That all of the plaintiffs in error were interested in increasing the sales of oleomargarine produced by the factories of the Jelke companies. All of the plaintiffs in error were either interested as stockholders or were salesmen who received commissions on sales made, (b) The testimony shows that in 1902, when the amended Oleomargarine Act went into force, there was no developed business in uncolored oleomargarine ; that the factories engaged in manufacturing this product had previously turned out colored oleomargarine; that the consuming public was not at this time disposed to purchase the uncolored product, (c) That at certain seasons of the year, when the price of butter was at its lowest, it was impossible to manufacture oleomargarine and sell it in competition with butter and at the same time pay a ten cents per pound tax. In other words, colored oleomargarine could not compete in the market with butter in the summer time and pay a ten cent per pound tax.</p> <p>Having established the motive, the government produced evidence tending to show a systematic and purposeful co-operation among the plaintiffs in error, as well as a common plan and very similar means, to get the colored oleomargarine produced by the Jelke factories upon the market without the payment of the tax of ten cents per pound thereon.</p> <p>This proof came from the lips of many witnesses, the majority of whom were at one lime or another engaged in selling colored oleomargarine to consumers* in violation of the law. It is claimed that the evidence establishes a well-defined plan on the part of the plaintiffs in error to develop the business which was so uniformly followed as to indicate it was preconcerted, and consisted of salesmen of the Jelke Company (one or more of the plaintiffs in error) approaching a retail merchant engaged in handling butter and similar products and proposing, to him that he buy uncolored oleomargarine from the factory and engage in what was generally known, and throughout the testimony was described, as “moonshining” — that is, coloring oleomargarine without paying the ten cents per pound tax thereon.</p> <p>The government further claims that the testimony showed the plaintiffs in error,' as well as the John F. Jelke Company and George P. Braun Company, participated actively in carrying out the conspiracy and provided the means by which the object of such conspiracy might be attained. These means, among others, were; (1) The free distribution of coloring matter in bottles and cans to all purchasers of white oleomargarine. (2) The free dislribution of tub liner-s and top and bottom circles with the sale of white oleomargarine. (3) The delivery of white oleomargarine in soft and pliable condition, making it possible for the “moonshiner” to more readily color his purchase. At the same time the colored oleomargarine was delivered in a hard state. (4) The delivery of white oleomargarine in tubs containing two pounds less than the tubs ordinarily carried. This permitted coloring matter to be mixed with the white oleomargarine and the weight would then correspond to the usual weight, thereby more effectually preventing detection. (5) The uncanceled stamps on tubs containing colored oleomargarine were so protected as to permit the “moonshiner” to fill and refill the same tub and prevent detection in case a government inspector appeared. (6) The Jelke companies made false reports to the government as to tile names of the actual purchasers of white oleomargarine and the amounts thus purchased. The names of bakeries, not requiring a government license, were given as large purchasers, when in fact no purchases by such bakeries were made. This, it is claimed, was to prevent the government from tracing the output or successfully prosecuting the “moonshiner.” (7) “Moonshiners,” arrested for violation of the law, were provided with bondsmen, legal counsel, and were assisted in other ways. (8) Delivery of oleomargarine in cheese boxes in place of oleomargarine tubs; the delivery of goods in. wagons bearing no name; the transfer of goods en route from factory wagons to other wagons; warning sent the “moonshiner” of prospective visits from revenue agents; detailed instructions and advice to men known to be engaged in the “moonshining” business as to the best methods and means of coloring white oleomargarine.</p> <p>The government contends that these Various means were adopted by the plaintiffs in error, and were used by them singly and sometimes jointly, very generally for several years. It is claimed that each and every one of the plaintiffs in error participated, not once, but; many times, in accomplishing the end of the alleged conspiracy by the means indicated, and the statements made by the various co-conspirators to the “moonshiners” who testified in the case established the preconcerted common plan, means and purpose as related above.</p> <p>The government further contends that the evidence showed that the officers of the Jelke companies called the salesmen together regularly (it is claimed on Saturday afternoons) where the plan of extending the business was discussed; that such plan called for a constantly increasing number of customers through the means heretofore set forth, and the salesmen were instructed to advance, if necessary, the difference between the retailer’s license fee for selling colored oleomargarine over the license fee charged for selling uncolored oleomargarine.</p> <p>None of the plaintiffs in error testified upon the trial in their own behalf either to dispute the statements made or to explain those susceptible of two inferences. On behalf of the plaintiffs in error, however, it is contended that each and every one of the so-called means or acts involving one or more of such plaintiffs in error, is explainable on the theory of the innocence of the plaintiffs in error of the crime charged. The government conceded that Braun & Fitts, the John F. Jelke Company, and the George P. Braun Company had at all times paid license fees as manufacturers and the ten cent and one-quarter cent per pound on all oleomargarine manufactured and sold by them, and that all the goods purchased by the “moonshiners” from such companies were tax paid according to law, and had been purchased and paid for at the time the “moonshiners” colored the oleomargarine. Plaintiffs in error showed that the furnishing of free coloring fluid to retailers was not illegal, but was in fact sanctioned by the rulings of the Commissioner of Internal Kevenue.</p> <p>The plaintiffs in error assailed the credibility of the government witnesses and showed that many of them had been retail dealers who had colored oleomargarine and sold it in violation of the law. It appeared from the testimony that many of the government witnesses had been granted immunity, others had pleaded guilty and were awaiting sentence, while still others were serving their time in the penitentiary. Such further statement of the facts as may be pertinent to the questions considered will appear in the opinion.</p>

Criminal prosecution by the United States against Swift & Co. Judgment of conviction, and defendant brings error. Plaintiff in error, indicted upon 29 counts, was found guilty on all of them and sentenced to pay a fine of §(i9,000 upon 28 of them, 1 having been dismissed. The charges preferred against it may bo divided 'into two classes. Counts 1 to 25 dealt with section I of Idle Elkins Act (Act Feb. 19, 1908, c. 708, 32 Stat. 847 [Comp.

<p>In Error to the District Court of the United States for the District of Oregon; Robert S. Bean, Judge.</p> <p>Action by the Salem Water, Right & Power Company against the City of Salem, Walter E. Keyes, its Mayor, and C. O. Rice, Treasurer. Judgment for plaintiff, and defendants bring error.</p> <p>This is an action by the Salem Water, Light & Power Company to recover for fire hydrant service furnished to the municipality. The water company’s demand is based upon a hydrant charge fixed by an order of the Public Service Commission of Oregon, published in August, 1914, and not upon a lower maximum rate named in the franchise granted by the city to the water company in 1891.</p> <p>The city of Salem, in Oregon, was incorporated by legislative act in 1862 under a constitutional provision (section 2, art. 11, of the Constitution of Oregon) which authorized corporations to be formed under general laws, and not by special laws, except for municipal purposes, and also provided that all laws passed pursuant to the section could be amended or repealed, but not so as to impair or destroy any vested corporate rights. The act of incorporation (Special Laws of Oregon, 1802, p. 3) under which Ordinance No. 207, enacted in April, 1891, the franchise ordinance here involved, was passed, has these provisions:</p> <p>“Sec. 6. The mayor and aldermen shall comprise the common council of said city, and at any meeting shall have exclusive power—</p> <p>“To provide for lighting the streets and furnishing the city and the inhabitants thereof with gas or other light, and with pure and wholesome water, and for such purposes may construct such water, gas or other works, within or without the city limits, as may be necessary or convenient therefor: Provided, that the council may grant and allow the use of the streets and alleys of the city to any person, company or corporation who may desire to establish works for supplying the city and the inhabitants thereof with such water or light upon such terms and conditions as the council may prescribe.</p> <p>“26. * * * To permit and regulate the use of the streets, alleys and public grounds of the city for laying down and repairing gas and water mains, for building and repairing sewers and the erection of gas or other lights; to preserve the streets, alleys, side and cross walks, bridges and public grounds from injury, and prevent the unlawful use of the same, and to regulate their use, to fix the maximum rate of wharfage, rates for gas or other lights, for carrying passengers on street railways, and water rates.”</p> <p>In section 4 of the Ordinance No. 207 it was provided that the Salem Water Company shall not charge at any time “higher rates for water than is customarily allowed for water in towns or cities of like population on the Pacific Coast; but the Salem Water Company, its successors or assigns, shall not at any time charge more than one dollar and eighty-two cents ($1.82) per month for each hydrant or cistern actually supplied. And the right is hereby reserved by the city of Salem to continue or discontinue to connect or disconnect any or all hydrants or cisterns connected, or which may hereafter be connected with said works; and the city of Salem shall not p-ay for said hydrants or cisterns while the same are disconnected or discontinued.”</p> <p>In May, 1913, the city filed a complaint with the Public Service Commission of the state of Oregon against the water company, wherein the city set forth that the water company as a public utility was subject to the provisions of chapter 279 of the Laws of Oregon of 1911, and that the distributing system of the water company was inadequate to supply the demands of the residents of the city, and that the water supply was inadequate, and that the rates charged were unequal; wherefore the city prayed that the commission should make such orders as were necessary for extending the distributing mains and that the rates of the water company should be adjusted and equalized, “so that the same shall be uniform and equal and that said rates may be reduced so that the charges may return to the defendant [water company] a reasonable return upon its investment.”</p> <p>After filing the complaint with the Public Service Commission, and about March, 1914, the city council adopted a resolution (No-. 1294) in substance as follows: That the Commission, in adjusting the rates of the water company for the city on the private users, take into consideration the price “at which the hydrants should be charged to make an equitable rate for 'the private user, and, if the rate now charged the city for hydrants by the water company is too high or too low, that it be adjusted accordingly.”</p> <p>After public hearing about August 19, 1914, the commission found that the rate of $1.82 charged by the water company to the city for its fire hydrants put an undue burden upon the other users of water, and that the city should pay to the water company $2.50 per hydrant per month for all hydrants to which water was furnished by the water company, the new rate to be effective October 1, 1914. Thereafter the water company furnished to the city and to the fire hydrants water, and the city accepted the service without dissent. Bills for water are payable in advance, but the city has refused to pay for the service, and there is a large amount claimed to be due.</p> <p>The city, in its answer, sets up that the Public Service Commission was created in 1911, and subsequent to the acts of incorporation of the water company and to the various amendments to the act creating the city of Salem, and subsequent to the amendment to section 2 of article 11 of the Constitution of Oregon, as amended in November, 1910, and subsequent to the adoption of section la of article 4 of the Constitution of Oregon, and to certain legislative enactments which need not be here fully cited. One of the amendments of 1903 added a new subdivision to section 6, and provided that the mayor and aldermen, comprising the common council, should have exclusive power (subdivision 41): To license, regulate, and tax water and power companies, and to fix the maximum rates to be charged by any person, company, or corporation for water or power supplied by such person or company to private or public consumers within the city.</p> <p>Tiie city alleges that the charges ma.de by the water company for supplying water to the inhabitants of the city were unreasonable, unjust, and unequal as between different patrons and consumers, and alleges that to secure an appraisement of the value of the property and equipment, and for the purpose ®f having a determination by the Public Service Commission whether or not the city was charging its patrons unjust tariffs for the private use of water, the city filed a complaint with the Public Service Commission, and later the resolution hereinbefore referred to was passed. It is admitted that the city has declined to accept the orders of the Public Service Commission in so far as they increased the rates for water service for hydrants.</p>

<p>In Error to the District Court of the United States for the Northern District of West Virginia, at Parkersburg; Alston G. Dayton, Judge.</p> <p>Criminal prosecution by the United States against PI. E. Kirchner. Judgment of conviction, and defendant brings error.</p>

<p>1. Shipping @=>108 — Contracts—Breach.</p> <p>Contract for freight room from United States to England, conditioned to be subject to provisions of ocean bill of lading, one of which was liberty to call at any port, in or out of customary route, was not breached by tender of ship “with the understanding that we reserve option of forwarding cargo via a continental port should it prove necessary,” inserted in view of notice of shipper’s claim that European war canceled all contracts for shipment to continental ports.</p> <p>2. Shipping @=>108 — Contracts—Privilege op Calling at Ports.</p> <p>Provision of contract for freight room that ship is to have liberty to call at ports in or out of customary route, in any order, to receive or discharge cargo or passengers, or for any other purpose, is valid, so far as a stop is for a purpose proper or necessary to the voyage in which the ship is engaged.</p> <p><§n»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>3. Shipping <S=j108 — Contbacts—Cancellation.</p> <p>Rejection by shipper of tender of ship, because of carrier’s noncompliance with unwarranted demand that it forego a sight reserved to it by contract for freight room, justified carrier in treating contract as canceled.</p> <p>tSr^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Shipping <¡=¿>27 — Contraot fob Sale of Vessel — Warranty.</p> <p>A statement by the seller of a vessel, after the contract of sale had" been made and part of the consideration paid, that she was sound and seaworthy, did not constitute an expressed warranty.</p> <p>2. Brokers <®=95 — Implied Authority — Warranty on Sale of Vessel.</p> <p>An independent shipbrokor has no implied authority to give an express warranty on sale of a vessel for his principal.</p> <p>3. Shipping <§=¿>27 — Contract for Sale of Vessel-Implied Warranty — • Bule of Caveat Emptor.</p> <p>The rule of caveat emptor applies to the sale of a vessel, in the absence of an express warranty, and where a purchaser acted upon the report of a surveyor employed by it, and did not demand an express warranty, there was no warranty by implication.</p> <p>other cases see same topic & K13Y-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Libel by the United States against Four Packages of Cut Diamonds; Max Goldstein, claimant. From a judgment of forfeiture, claimant brings error.</p>

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Action at law by Stephen D. Selden, receiver of the Elmore & Hamilton Contracting Company, against the City of New York. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Sales @=354(1) — Action foe Purchase Price — Defenses—Breach of Contract.</p> <p>The plea in an action on a note given for part of the price of an ice machine held to sufficiently ailege a breach of an express provision of the contract requiring plaintiff to replace free of charge parts which proved to have latent defects within one year.</p> <p>2. Sales @=288(2) — Action for Purchase Price — Breach of Warranty.</p> <p>In case of an express warranty that the property sold will be of a particular kind and quality, the purchaser has a right to rely on the warranty, and may plead partial failure of consideration growing out of defects discovered after acceptance, even though they would have been apparent on examination before delivery.</p> <p><g=s>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexe*</p>

<p>Aliens <®=^32(9) — Exclusion of Chinksh — Fairness of Heabing.</p> <p>That an immigration commissioner at the time of rejecting a Chinese applicant for admission had in Ms possession a report of an inspector containing material statements made to him by an undisclosed witness, which report was not shown to applicant or Ms attorney, held not sufficient to invalidate the finding, where it appears that the commissioner did not consider the report.</p> <p><S^.y>For other cases see same topic & KEY-NCMT3ER in all Key-Numbered Digests & Indexes</p>

Libel by Theodore Miller against the steam tug Bern, her engines, etc., claimed by the Philadelphia & Reading Railway Company, which brought in Atlantic Gulf & Pacific Company and the dredgo National, her engines, etc., claimed by the Maryland Dredging & Contrae! ing Company. From, a decree against the dredge National for full damage and dismissing the libel against the steam tug Bern, the Maryland Dredging Company and the Atlantic Gulf & Pacific Company appeal.

<p>L Conspiracy <@=>27 — Offense Against United States — Criminal Responsibility — Overt Act.</p> <p>It is enough that “any act” of one of the conspirators “to effect the object of the conspiracy,” by Criminal Code, § 37 (Comp. St. 1916, g 10201), made an element of the offense of conspiracy against the United States, be done with the purpose of putting the unlawful agreement into effect, though it have no tendency to accomplish its. object.</p> <p>2. Witnesses <@=^236(4) — Notice of Purpose of Question.</p> <p>Where affirmative answer to question to codefendant, who had admittedly pleaded guilty and testified for prosecution under promise of leniency, would not necessarily imply more than that before pleading guilty he had made suggestions to codefendants and .their counsel as to selection of jury, sustaining objection to question, in absence of notice of expectation of eliciting admission of his co-operation with the prosecution in selecting jury, was not error.</p> <p><@=»For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in admiralty by William W. Aldrich against the Pennsylvania Railroad Company. Decree for respondent, and libelant appeals.</p> <p>The court below dismissed the libel filed against the respondent for damages to the barge William F. Monk, alleged to have been sustained through negligent towage., The libelant appeals.</p>

Appeal' from the District Court of the United States for the Middle District of Alabama; Henry D. Clayton, Judge. In the matter of Foy & Williams, bankrupts. Claim of the Dothan National Bank, opposed by E. O. Jones, trustee, was rej'ected by the referee, which action was approved, by the trial court, and claimant appeals.

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Criminal prosecution by the United States against Arthur E. Blunt. Judgment of conviction, and defendant brings error.</p>

<p>Criminal prosecutions by the United States against Morris Denker and Hyman Morganstein and against Samuel Bernstein and Nathan Horowitz. On demurrer to indictments.</p>

<p>1. Seamen <@=>10 — Provisions—Burden of Proof.</p> <p>The burden is on the owner of a vessel to show that it was properly-provisioned.</p> <p>2. Seamen <©=>10 — Food—Liability.</p> <p>Under Rev. St. §§ 4612, 4568 (Comp. St. §§ 8357, 8392), the owner of a vessel is not hable for poor cooking, where good food was provided, or for the substitution of wholesome equivalents for provisions which could not be obtained in foreign ports.</p> <p>3. Seamen <@=>10 — Food—Evidence.</p> <p>• On a libel by seamen who claimed one dollar per day for a period of 75 days because of the failure of the ship to provide food fit to eat and in sufficient quantities, evidence held insufficient to show that the vessel was at fault.</p> <p>4. Seamen <@=>26 — Extra Work — Right to Recover.</p> <p>On a libel by seamen for reasonable compensation for extra work while the crew was short, evidence held insufficient to show that the seamen who filed the libel were compelled to do extra work.</p> <p>5. Seamen <@=>33 — Withholding of Wages — What Constitutes.</p> <p>Where there was an actual controversy between seamen and the owner as to the owner’s failure to furnish required food and as to the seamen’s claim for extra compensation, the captain had the lawful right to have the questions adjudicated by the court, and his refusal to pay the sums demanded by all seamen was not a wrongful withholding of wages.</p> <p>6. Seamen <@=>33 — Withholding of Wages — What Constitutes.</p> <p>Whore the seamen’s claim for additional compensation for extra work and for compensation for insufficient food was submitted to the shipping commissioner of a port and decided in favor of the captain of the vessel, that in itself established captain was making a bona fide contention, and the seamen could not recover on the theory that the withholding of the amounts claimed was withholding of wages.</p> <p><@r=For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Towage @=»15(2) — Injury to Scow — Evidence.</p> <p>Where a scow, in charge of a tug in harbor waters, was injured by striking on the spiles of a bridge, and if the tug had kept in the middle of the channel there would have been 20 feet of clear water on either side, and the same scow had previously passed under the bridge without injury, such facts are sufficient to raise an inference of negligence and support a recovery against the tug.</p> <p><g=»For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>2. Towage <§=>15(2) — Injury to Scow--Burden of Proof.</p> <p>Where there was considerable clearance, and a scow, which was part of a tow and ordinarily should have passed safely under bridge struck on the spiles on one side, the claimant of the tug, which was libeled, had the burden of proving it was exercising due care in navigation.</p> <p><@=aFor other eases see same topic & KEY-NUMBEIt in all Key-Numbered Digests & Indexes</p>

<p>At Daw. In the matter of search warrants to search No. 1069 Shattuck Avenue, occupied by Mrs. Ralph Marx, and No. 1130, occupied by John Endicott Gardner, at Berkeley, Alam’eda County. Documents seized were claimed by John Endicott Gardner.</p>

In Equity. Bill by the Rockaway Pacific Corporation against Louis W. Stotesbury and others, individually, and purporting to act as a commission under the pretended authority of Laws N. Y. 1917, c. 13, and purporting to act, respectively, as Adjutant General, State Em gineer, and Superintendent of Public Works, under the pretended authority of said act. On motion for interlocutory injunction.

<p>1. Bankruptcy <@=>415(3) — Review of Action of Referee — Findings of Fact.</p> <p>Tbe findings of fact of a special master or of a referee on application for discharge stand in substantially tbe same position before tbe court as does tbe verdict of a jury, and are not to be disturbed, unless unsupported by tbe evidence or against tbe weight thereof.</p> <p>2. Bankruptcy <@=>414(1) — Objections to Discharge — Burden of Proof.</p> <p>A bankrupt, who has conformed to the requirements of tbe statute, is prima facie entitled to a discharge; and tbe burden of proof rests on an objecting creditor to establish by satisfactory evidence some one of the designated acts which will defeat his right thereto.</p> <p>3. Bankruptcy <@=>414(3) — Objections to Discharge — Proof.</p> <p>Proceedings on an application for discharge are civil, and where criminal acts are alleged to defeat the discharge, they must be proved by clear, convincing, and satisfactory evidence, although not beyond a reasonable doubt.</p> <p><§=3For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Internal Revenue- <®=>9 — “Munition Manufacturers” — Person Subject to Tax.</p> <p>A steel company, contracting to deliver howitzer shells to a foreign government, which manufactured bars from which shells are made and turned them over to subcontractors for completion, retaining ownership, paying subcontractors, and afterwards delivering shells under its contracts, is subject to tax imposed on “munition manufacturers” by Act Sept. 8, 1916, § 801 (Comp. St. § 6336%b), upon the “entire net profits actually received * * * from the sale” of the shells under contract.</p> <p><§zz>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Removal op Causes @=>18 — -Jurisdiction op Federal Court — Impairment op Obligation op Contract.</p> <p>Actions against defendant, which used part of the right of way of the Western & Atlantic Railroad, a road owned by the state of Georgia, which were brought by the state and by the lessee of the railroad under authority of the Western & Atlantic Railroad Commission, pursuant to Act Ga. Aug. 4, 1916 (Acts 1916, p. 146) § 5a, held actions merely to determine the rights of defendant in the property under the various acts of the state Legislature, and not to be removed to the federal court bn the ground of impairment of contract obligations or deprivation of property without due process of law.</p> <p>2. Removal op Causes @=>48 — Separable Controversy.</p> <p>Where, under the authority of the Western & Atlantic Railroad Commission, separate actions were begun in the name of the state of Georgia and the lessee of the Georgia-owned railroad, wherein it was asserted that the defendant had encroached upon the property, held that, though the lessa was a foreign coloration, there was no separable controversy between it and defendant, which could be removed to the federal court, for the rights of the lessee depended on the state, and the same evidence would have to be adduced in either case.</p> <p>3. Removal op Causes @=>11 — Cases Wuicn can be Removed.</p> <p>No suit which could not have been originally brought in the federal court can be removed from a state court.</p> <p>4. Removal op Causes @=>102 — Cases Which can be Removed.</p> <p>Where it was doubtful, under Act Ga. Aug. 4, 1916 (Acts 1916, p. 1461 § 5a, whether the state of Georgia, which sued defendant, asserting it had encroached on a state-owned railroad, could be considered an unnecessary party to removed cause, and the lessee of the railroad, which had also sued, be considered the sole party, so that the federal District Court for Georgia might have taken jurisdiction under Judicial Code, § 57 (Comp. St. § 1039), as having jurisdiction of the property, the court will remand the cause to the state court.</p> <p>®=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Equity. Suit by the Westinghouse Electric & Manufacturing Company against the Binghamton Railway Company, in which William T. Phelps was appointed receiver.

<p>At Law. Action by the Texas Company against the Atlantic Refining Company. On motion by plaintiff for judgment for want of sufficient affidavit of defense.</p>

<p>1. Monopolies <§=>12(1) — Combinations and Conspiracies — Anti-Trust Daws.</p> <p>Clayton Act Oct. 15, 1914, § 20, legalizes orderly and peaceful strikes “involving or growing out of a dispute concerning terms or conditions of employment,” and takes combinations or agreements to bring about such strikes out of the purview of section 1 of Sherman Act July 2, 1890, but has no application to irregular or malicious strikes, having no relation to such disputes.</p> <p>2. Monopolies <®=»31 — Conspiracy in Restraint oe Interstate Commerce —Indictment.</p> <p>An indictment under Sherman Act July 2, 1890, § 1, i'or conspiracy in ' restraint of interstate commerce, which alleged the things which were to be done by defendants, held, sufficient, although it did not charge the means by which they were to be accomplished.</p> <p>3. Monopolies <§=»S1 — Conspiracy in Restraint oe Interstate Commerce —Indictment.</p> <p>Since an overt act is not an element of the offense of conspiracy under Sherman Act July. 2, 1890, § 1, it need not be charged in the indictment.</p> <p><@=^3?or other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by the Primos Chemical Company against the Fulton Steel Corporation. On motion to dismiss for want of jurisdiction.</p>

<p>Applications by Samuel H. Dixon and Charles Bernat for writs of habeas corpus.</p>

<p>1. Criminal Law <§=>37 — Defenses—Entrapment.</p> <p>Where officers of the law have incited a person to commit the crime charged, and lured him on with the purpose of arresting him in its commission, the law will not authorize a verdict of guilty.</p> <p>2. Criminal Law <§=>739(1) — Question fob Jury.</p> <p>In a criminal prosecution, where the defense was that defendant was incited and induced to commit the offense by officers for the purpose of entrapment, the refusal of instructions submitting that question to the jury as one of fact, and the giving of instructions treating it as one of law, and charging that it presented no defense, was error.</p> <p><§s»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Insurance <®=»376(1) — Accident Insurance — Breach oe Warranty — Waiver.</p> <p>The insurer cannot he deemed to have waived a warranty in the application that insured had not received medical attention within two years, because its agent knew the statement to be untrue, where the policy expressly withheld such authority from the agent, and provided that no waiver should be valid, unless indorsed thereon and signed by the president or secretary.</p> <p><§s»For otlier cases see same topic & KDY-N O’MB Fit in all Key-Numbered Digests & Indexes</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 El Banco Popular de Economías y Prestamos de San Juan, P. R., against Elias B. Wilcox. Decree for complainant, and defendant appeals.</p>

Van Valkenburgh, Judge. Action by W. C. Welch and another against George W. Kirby, administrator of the estate of Mary E. Scott, deceased, and others. There was a judgment for defendants, and plaintiffs bring error.

Petition for Revision of an Order of the District Court of the United States for the Southern District of New York. In the matter of Max Liebig and Cecelia Kochman, individually and as copartners doing business as Kochman & Co., bankrupts.^ Petition of Myle J. Holley, as trustee, to revise an order of the District Court in favor of petitioner in a reclamation proceeding.

Action by Samuel W. Rushmore against the Bosch Magneto Company. There was a judgment for plaintiff, and defendant brings error. The plaintiff below sued for breach of contract executed on the 20th of May, 1911.

<p>1. Statutes <@=o191 — Construction—Statute Regulating Mining.</p> <p>Words and terms used in a mining statute are intended to convey tho meaning they have in mining parlance.</p> <p>2. Master and Servant <@=oll8(7) — Mining Statutes — “Escape Wat.”</p> <p>An “escape way,” as used in a mining statute, means a passageway leading from the inside to the outside of the mine.</p> <p>LEd. Note. — For other definitions, see Words and Phrases, First and Second Series, Escape Way.]</p> <p>3. Master and Servant <S=»118(3) — Mining Statutes — “Slope.”</p> <p>A “slope,” within the moaning of a mining statute, is a level or inclined way, passage, or opening used for the same purpose as a shaft — - citing Words and Phrases.</p> <p>LEd. Note. — For other definitions, see Words and Phrases, First ana Second Series, Slope.]</p> <p>^=ji?or other cases see same tojiic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>4. Negligence <©=>141(8) — Trial <§=>296(4,5) — Instructions—Contributory Negligence.</p> <p>The giving of an instruction which defined contributory negligence as negligence that “helps to bring about the injury” held not error; but, if so, it was harmless, in view of other instructions based on proximate cause.</p> <p>5. Courts <©=>372(3) — Federal Court — Following State Decisions — Instructions.</p> <p>An instruction as to what would constitute contributory negligence under the circumstances shown by the evidence held proper, where it conformed to the rule established by decisions in the state.</p> <p>cg^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Kalman Gruher was convicted of having conspired to violate the provisions of the Selective Service Daw, and he brings error. The plaintiff in error, who was the defendant below, and who is hereinafter referred to as the “defendant,” has been convicted under an indictment which charged him. with having conspired to violate tho provisions of section 6 of the Act of Congress of May 18, 1917, c. 15, 40 Slat. 80 (Comp.

Petitions to Revise and Appeals from Orders of the District Court of the United States for the Western District of New York. In the matter of James H. Havens, alleged bankrupt. On petitions by bankrupt and by the Exchange National Bank to revise orders of the District Court.

Action by Catherine Ryan against the TEtna Life Insurance Company of Hartford, Conn. Judgment for plaintiff, and defendant brings error, plaintiff in error hereinafter being called “defendant,” and defendant in error hereinafter being called “plaintiff.”

Action at law by Arthur Carter Hume, as receiver, against the City of New York. Judgment for defendant, and plaintiff brings error. Held: ■owned, or possessed by the defendant, or to which it had the rights of possession, of every kind, description, and nature, wherever the same may now be, with all the rights and powers of receivers in such or like cases.” The order contained further provisions, among which were that the receivers carry on the business of the…

Action at law by Julius H. Hoyer, administrator of Henry Hoyer, deceased, against the Central Railroad Company of New Jersey. Judgment for defendant, and plaintiff brings error. The action is brought under the federal Employers’ Liability Act April 22, 1908. c. 149, 35 Stat. 65 (OOmp.

<p>1. Contracts <§£=>93(4) — Mistake.</p> <p>A promise, where there is no legal obligation, and made, whether through ignorance of rights or misconception of the law, to avoid something that cannot happen, is without consideration and invalid.</p> <p>2. Husband and Wife <§£=>278(2) — Conteact Conditioned on Hivokce.</p> <p>While a contract toy a husband, separated from bis wife, for her support during such separation, is lawful, one made during separation, and pending suit by the wife for divorce, by which the husband binds himself and estate to pay her a stipulated sum per week during life, condi Honed upon the granting of the divorce, is contrary to public policy and void.</p> <p><©5»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Northern District of Iowa; Henry T. Reed, Judge.</p> <p>Action at law by Ibe Barataría Uand Company against John D. Wolfe and others. Judgment for plaintiff, and defendants bring error.</p>

<p>In Error to the District Court of the United States for the Western District of Oklahoma; John H. Cotteral, Judge.</p> <p>Action at law by J. W. Agnew against the Interstate Compress Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Prostitution <3=»4 — 'White Slave Traffic — Evidence to Support Conviction.</p> <p>Evidence held snilicient to sustain a conviction of defendant for violation of the White Slave Act (Comp-. St. i§ 8812-8819).</p> <p>2. Criminal Law <S=»829(1) — Trial—Refusal of Instructions.</p> <p>Refusal of requested instructions in a prosecution for violation of the White Slave Act (Comp-. St. §§ 8812-8819) held not error, in view of the charge given.</p> <p>2. Criminal Law <§=>1CÍ32(5) — Review—Harmless Error- — Defective Indictment.</p> <p>Where no demurrer or motion to quash was interposed, nor the attention of the trial court otherwise called specifically to an alleged defect in the indictment, and it clearly was not prejudicial to defendant, the objection is not entitled to so favorable consideration by the appellate court as if it had been raised by demurrer.</p> <p><g^For other cases see saino topic & KEY-NUMBER in all Key-Numbered Digeste & Indexes</p>

Libel in admiralty by the United States against the steamtug Columbia and dumper scow No. 28; the Coastwise Dredging Company, claimant. Decree for claimant, and the United States appeals. Action was brought to recover (as liens upon the boats proceeded against) tho penalties provided by the Act o£ June 29, 1888, c. 496, § 3, 25 Stat 209, as amended August .18, 1894 (28 Stat. 360, e. 299, § 3 [U. S. Comp.

Three admiralty suits by the New York, Ontario & Western Railway Company against the barges Hatteras, Tampa, and Neuse; the Southern Transportation Company, claimant. Decrees for claimant, and libelant appeals. The Southern Transportation Company of Philadelphia owned all three of the barges above named, and chartered them all to the New York & Boston Transportation Company of New York by a charter party which was not a demise.

<p>In Bankruptcy. In the matter of Simmons & Griffin, bankrupts. Petition of Arthur E. Simmons to revise order of District Court.</p>

Morton, Judge. Petition in admiralty by the McKie Lighter Company for limitation of liability; Charles Collins, claimant. From a decree dismissing the petition, petitioner appeals.

<p>In Error to the District Court of the United States for the Southern Division of the Northern District of Alabama; William I. Grubb, Judge.</p> <p>Action at law by the Mechanics & Metals National Bank of the City of New York against D. W. Enslen. Judgment for plaintiff, and defendant brings error.</p>

Petition to Revise Order of the District Court of the United States for the Southern District of New York. In the matter of John D. Dailey and De Witt C. Ivins, individually and as copartners as Dailey & Ivins, bankrupts. On petition by the City of New York to revise order of District Court.

<p>1. Tenancy in Common @=>55(3) — Title to Support Action.</p> <p>An action at law may not be maintained by one tenant in common for trespass on realty.</p> <p>2. Pleading @=>418(2) — Demurrer—Waiver by Pleading to Merits.</p> <p>Under the 'law of Missouri, pleading over after overruling of a demurrer to the petition is not a waiver of the point made by the demurrer that the petition does not state a cause of action.</p> <p>3. Courts @=>339 — Federal Courts — Conformity to State Practice.</p> <p>Federal courts are not required by the conformity statute (Rev. St. § 914 [Comp. St. 1916, §, 1537]) to follow the rules of practice of the state courts, if in conflict with the well-settled rules of the national courts.</p> <p>4. Pleading @=>433(5) — Defective Pleading — Aider by Verdict.</p> <p>A petition which states no cause of action is not cured by verdict.</p> <p>5. Pleading @=>418(1) — Demurrer—Waiver by Pleading Over.</p> <p>Where exception is reserved to the overruling of a demurrer, although the party answers over, the question whether the demurrer was properly overruled is open on writ of error to the final judgment.</p> <p>@=>ffor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

I. Grubb, Judge. Action at law by 13. D. Perrin, by his next friend and father, W. R. Perrin, against the D. B. Gore Company. Judgment for plaintiff, and defendant brings error.

<p>Evidence <©=>411 — Pakol Evidence — 'W’biting Incomplete on Its Face.</p> <p>A written memorandum, indorsed on a charter party and signed by the parties, that “this charter is hereby canceled by mutual consent,” uocs not exclude parol evidence of the agreement upon which the cancellation was made.</p> <p><©E5>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Western District of Pennsylvania; W. Ii. Seward Thomson, Judge.</p> <p>Criminal prosecution by the United States against Thomas II. Depew and others. Judgment of conviction, and defendants bring error.</p>

In Frror to .the District Court of the United States for the Southern District of Mississippi; Henry C. Niles, Judge. Action at law by P. H. Rahm against the Mayor and Aldermen of the City of Vicksburg. Judgment for defendant, and plaintiff brings error.

<p>1. Evidence <@=3128(11) — Res Gestve — Statements of Agent.</p> <p>Statements made by the driver of a taxicab to a passenger, immediately after an accident in which a pedestrian was injured, are admissible against his employer as part of the res gestee.</p> <p>2. Evidence <@=3-192, 568(G) — Opinion Evidence — Qualification of Witness.</p> <p>Upon the question of the speed of a taxicab no technical knowledge is required to qualify a witness to state his opinion; its weight being for the jury.</p> <p><§^>For other cases sec same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Southern Division of the Northern District of Alabama; William 1. Grubb, Judge.</p> <p>Action at law by G. W. Bell, administrator of the estate of T. R. Bell, deceased, against the Tennessee Coal, Iron & Railroad Company. Judgment for defendant, and plaintiff brings error.</p>

<p>Criminal Law <@=>1144(%) — Review—Presumption.</p> <p>Where the evidence is not in the record, the only complaint being verdict was contrary to the charge of the court, it will be assumed that proof was' adduced to warrant submitting case to jury.</p> <p><§E»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Compromise and Settlement <3=>22 — Pleading.</p> <p>In action on note given to bank, answer pleading set-off of balance due defendant as depositor contained allegations as to note being given for money borrowed while defendant had a balance, but while his passbook was with the bank to be balanced. Held not to show that dispute as to state of account was closed by giving' note.</p> <p>other cases see same topic & K1ÜY-NUMBER in all Key-Numbered Digests & Indexes</p>

. Appeal from the District Court of the United States for the District of - Massachusetts; Frederic Dodge, Judge. Bill by the Draper Corporation against the Stafford Company. From an interlocutory decree for plaintiff, defendant appeals.

<p>Appeal from the District Court of the United States for the District of Massachusetts; Frederic Dodge, Judge.</p> <p>■ Suit by- the- Draper- Corporation against the Stafford Company. From a final decree entered after defendants appeal from an interlocutory decree, which-adjudged'invalid some of the claims of plaintiff’s patent;- plaintiff appeals.</p>

Dyer, Judge. Suit between the Coffield Motor Washer Company and the Wayne Manufacturing Company and others. From a decree overruling exceptions to the report of the master in a patent accounting, both parties appeal.

<p>Appeal from the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge.</p> <p>Suit in equity by Alberta E. Edmands against Henry Perlman, doing business as the Crown Electric Hot Pack Company. Decree for defendant, and complainant appeals.</p>

, Appeal from the District Court of the United States for the District of New Jersey; Thomas G. Haight, Judge. Bill by the Seward Trunk & Bag Company against the RauchbachGoldsmith Company. Prom a decree for complainant, defendant appeals.

Haight, Judge. Suit in equity by the Economy Euse & Manufacturing Company against the Beaver Engineering Company. Decree for defendant, and complainant and defendant appeal.

In Equity. Suit by the American Graphophone Company against the Emerson Phonograph Company and Victor H. Emerson for infringement of claims 1 and 2 of the Jones patent, No. 688,739, for production of sound records.

At Law. This is an action brought by George K. Smith, as trustee in bankruptcy of the Ruddy & Saunders Construction Company, a bankrupt, against Thomas F. Powers, to recover of him the sum of $18,824.-15, besides interest, paid by said Construction Company to said Powers, or to his duly authorized agent, in payment of certain notes of said company given to or held by said Powers and amounting to $13,824.-15, and in payment for certain legal services rendered by said Powers…

<p>In Admiralty. Libel for salvage by Arnette E. Betts against the schooner Wanola; William Levy,, claimant.</p>

<p>In Admiralty. Suit by John H. Hammond against the S. Tuttle’s Sons & Company.</p>

<p>In Equity. Suit by the Railroad Commissioners of the State of Florida, against Albert S. Burleson, Postmaster General, United States Telegraph and Telephone Administration, and the Southern Bell Telephone & Telegraph Company On objection of defendant Burleson to jurisdiction, and motion by Telephone Company to dismiss.</p>

<p>1. Criminal Law <S=»1216(2) — Sentence—Successive or Concurrent Terms.</p> <p>Where a convicted defendant was committed for imprisonment for a stated term on designation by the Attorney General to a prison in which he was at the time serving a sentence from another court, from the time the warden received the commitment the sentences ran concurrently.</p> <p>2. Criminal Law 1210(2) — Sentence—Successive or Concurrent Terms.</p> <p>Ordinarily two or more sentences run concurrently, in (lie absence of specific provision in the judgment to the contrary, and this rule applies where the convictions were in different courts.</p> <p>Walker, Circuit Judge, dissenting.</p> <p><©3=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>L. Public Lands ©=>120 — Suit to Cancel Patent — Fraudulent Entry.</p> <p>Evidence held to sustain a finding that a patent to public land was obtained by fraud, to which defendant, a subsequent purchaser from the ■patentee, was a party.</p> <p>2. Public Lands ©=>123 — Patents Obtained by Fraud — Damages Recoverable.</p> <p>Act March 2, 1896, § 2 (Comp. St. § 4902), limiting recovery from the patentee of land erroneously patented and which has passed to a bona fide purchaser to the minimum government price, does not apply to patents obtained by fraud, and where defendant, who was a party to the fraud, has sold to a bona fide purchaser, the entire amount he received may be recovered.</p> <p>^s»For other capes see same topic & KEY-NXJMBBR in all Key-Numbered Digests & Indexes</p>

B. Sheppard, Judge. Suit in equity by Robert W. Stewart, substituted trustee, against the Florida, Georgia & Western Railway Company and others. Decree for defendants, and complainant appeals.

<p>1. Poisons <S=>9 — Harrison Narcotic Act — Offenses—Indictment.</p> <p>An indictment charging in substance that defendant, did “dispense, distribute and sell” a derivative of opium to persons named without a written order on the prescribed form and not in the course of bis professional practice as a physician hold to charge an offense under Harrison Narcotic Act Dec. 17, 1914, § 2 (Comp, St. § 62S7h).</p> <p>2. Words and Phrases — '“Dispense”—“Distritutte.”</p> <p>To dispense is to deal out or divide out generally, while to distribute is to deal or divide outi in proportion or in shares.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Dispense; Distribute.!</p> <p>3. Internal Revenue <§=^>2 — Harrison Narcotic Act — Constitutionality.</p> <p>The provisions of Harrison Narcotic Act Doc. 17, 1914, § 2 (Oomp. St. § 6287h) which impose, restraints on the disposition of narcotic drugs by one who has registered and paid the] tax as a physician or dealer have direct relation to the revenue provisions of the Act and are within the constitutional powers of Congress.</p> <p>4. Poisons <S=>4 — Harrison Narcotic Act — Offenses—“Sale” of Narcotics.</p> <p>The mere issuance of a prescription by a physician for a narcotic drug, to be filled by any druggist, without participation by the physician in the sale made under it is not a sale or such dispensing or distribution as amounts to a sale within the meaning of Harrison Narcotic Act Dec. 17, 1914, § 2 (Comp. St. § 6287b).</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Sale.]</p> <p><©=s>For other cases see same topic KEY-NUMBER ia all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Northern District of Florida; Wm. B. Sheppard, Judge.</p> <p>Action at law by H. Baars & Co., a corporation, against the North British & Mercantile Insurance Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from the District Court of the United States for the District of Kansas; John C. Pollock, Judge.</p> <p>Suit by Raura A. Curtice and another against F. W. Pollman and others. Decree for complainants, and certain defendants appeal.</p>

<p>Appeal from the District Court of the United States for the Northern District of the Second Division of California; William C. Van Fleet, Judge.</p> <p>Suit in equity by Henry J. Woodward and Francis A. Woodward against the Monetary Trust Company and Henry C. Cutting. Decree for complainants, and defendant Cutting appeals.</p>

<p>1. Bankruptcy <§=>440 — Appellate Proceedings — Mode op Review.</p> <p>An order of a bankruptcy court denying validity of a lien, where the matter was determined on questions of fact, is reviewable by appeal, and not on petition to revise.</p> <p>2. Bankruptcy <§=>467 — Findings op Fact — Review on Appeal.</p> <p>Order of a bankruptcy court, made on report of referee finding that a mortgage on the property of bankrupt corporation, executed when it was insolvent by its president, to secure a past indebtedness to himself as executor, was executed without authority and void, and subject to attack by the trustee, would be affirmed.</p> <p><g=For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Suit in admiralty by H. Olsen and others against the steamship Pinna; Lane & McAndrew, Limited, claimant. Decree for claimant, and libelants appeal.

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

<p>In Error to the District Court of the United States for the Southern District of Iowa; Martin J, Wade, Judge.</p> <p>Action by William A. Walker, administrator of the estate of Allen H. Walker, against the Iowa Central Railway Company and others. There was a judgment for plaintiff, and defendants bring error.</p>

<p>In Error to the District Court of the United States for the District of Minnesota; Page Morris, Judge.</p> <p>Action by the United States against the Northern Pacific Railway Company. Judgment for defendant, and plaintiff brings error.</p>

<p>Mines and Minerals <@=>31(1) — Mining Claims — Extralateral Rights.</p> <p>Under Rev. St. § 2322 (Comp. St. § 4618), which, gives the owner of a mining claim “the exclusive right of possession and enjoyment of all veins * * * throughout their entire depth” which apex in his claim, in following such a vein beyond his side lines he is not confined -to the vein itself, but may extend his workings beyond its walls, if necessary for the proper and economical working of the vein.</p> <p>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

First Division of the Northern District of California; Maurice T. Dooling, Judge. Suit in admiralty by A. H. Bull & Co., Incorporated, against the tug Fearless; the Shipowners’ & Merchants’ Tughoat Company, claimant. Decree for libelant, and claimant appeals.

<p>1. Appeal and Error <@=>927(7) — Review—Refusal op Directed Verdict.</p> <p>Where defendant complains of refusal of trial court to direct verdict in its favor, held, that every material issue upon which there was substantial conflict in the evidence must be treated as decided in favor of plaintiff by the verdict of the jury.</p> <p>2. Negligence <@=>59 — Proximate Cause.</p> <p>An injury that could not have been foreseen or reasonably anticipated by a person of ordinary prudence as the probable result of an act of alleged negligence is not actionable, not is an injury or death that is not the actual or probable consequence of the act, and that would not have resulted from it, but for the interposition of some new and independent cause that could not have been anticipated.</p> <p>3. Death <@=>17 — Actions—Negligence—Proximate Cause.</p> <p>Where plaintiff’s husband, who volunteered to guide the tongue of a wagon which another teamster was trying to draw off of an apron of a wharf boat, was, when the wagon was suddenly and unexpectedly moved, thrown under the team and wagon of defendant, whose driver, knowing the ineffectual attempts to move the wagon, which was fast, proceeded to drive onto the apron, held, that the act of defendant’s driver was not the proximate cause of the accident, for it could not have been anticipated.</p> <p>otter cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

T. Dooling, Judge. Suits in admiralty by the Federal Sugar Refining Company against the American steamship Fyra, and by J. A. McDonald, master of the Lyra, against the Federal Sugar Refining Company. From the decrees, the Sugar Refining Company appeals.

<p>In Error to the District Court of the United States for the Southern District of Texas; J. C. Hutcheson, Judge.</p> <p>Action at law by A. D. Moller against E. E. Herring. From a judgment in his favor, plaintiff brings error.</p> <p>This case concerns a contract between the parties for the recovery and delivery by the plaintiff to the defendant of a lot of stranded cotton, carried away from the Moody & Oo. compress at Galveston, Tex., by the memorable storm of August 16, 1915, and scattered along the coast on the mainland opposite Galveston. The ease was once before here, where the judgment below, dismissing plaintiff’s action, was reversed, 249 Fed. 602, 161 O. O. A. 528. The defendant, Herring, claimed to have lost cotton which had been stored in the compress of Moody <& Oo., and authorized the plaintiff, Moller, in writing, on September 2, 1915, to “collect as much as possible, agreeing to pay salvage therefor at $10 per bale for same f. o. b. cars." Plaintiff proceeded on this authority, and picked up and assembled at Alta Loma, Tex., 578 bales of stranded cotton. Sixty-eight bales were actually delivered f. o. b. cars and received by the defendant September 3d. Fifty-two bales more were loaded on cars at Alta Loma September 4th, but this lot, as well as the residue, 4*58 bales, which had not been loaded on cars, were not delivered to defendant, because same were impounded by a receiver of the United States District Court for the Southern District of Texas in an equity cause therein begun on the 3d day of September, 1915, in which cause, on the same day, a receiver for all the stranded and lost cotton was appointed. It is admitted that the receiver, under orders of the court, took possession of all the cotton collected by the plaintiff and his agents under the agreement, except the 68 bales admitted to have been received by the defendant. The defendant was impleaded in the equity cause for 68 bales of cotton he had received from the plaintiff, and refused to pay the plaintiff for any cotton, including the 68 -bales which had been delivered by the plaintiff.</p> <p>The plaintiff, also impleaded in the equity cause, answered, asserting his lien for salvage, and was awarded, in due course, by the court $2.50 per bale for 510 bales which the receiver had taken over. Subsequently plaintiff brought this action against the defendant for $4,505, claimed as a balance due him for 578 bales of the cotton salved by him at the instance of the defendant, less the «alvage award of $1,020 on 510 bales seized by the receiver.</p> <p>The substantial facts are not controverted, except that plaintiff claims actual delivery to the defendant of 120 bales, while the defendant insists that 52 bales of this lot were not loaded “f. o. b. cars” as required by the contract, and besides was seized by the receiver before shipment. The plaintiff’s action, therefore, is based on the theory that he had a subsisting contract with defendant for the salvage of as many as 1,000 bales of cotton; that he recovered 578 bales and made delivery of the same to the defendant, or to the receiver, whom plaintiff characterizes as defendant’s agent. The defendant insists that the agreement was wholly abrogated by the court’s intervention and rightful possession of the cotton through its receiver. The parties, by stipulation, waived a jury, and, after adducing much testimony, submitted, the cause on final proofs, and the court found that the plaintiff had delivered to the defendant 120 bales of cotton under the contract, for which he was entitled to §10 per bale for that amount, less an award of §2.50 per halo for the 52 bales loaded on cars which were seized by the receiver before shipment, thereupon rendering a general judgment in favor of the plaintiff for $1,070, with interest from September 4, 1915, at 6 per cent, per annum. The plaintiff, dissatisfied with this judgment, sued out his writ of error to this court, and assigns as error, generally, the judgment in his favor for $1,070, which was less than what he claimed under the contract for the amount of cotton recovered and delivered to defendant or the receiver, to wit, 578 bales. Defendant filed cross-assignments, and cites as error tbe judgment against him, and particularly the sum of $7.50 per bale allowed the plaintiff for the 52 hales loaded on cars, and which the receiver seized before shipment. But these assignments cannot bo considered for reasons stated hereafter.</p>

Call, Judge. Suit in admiralty by Thomas S. Davis, master of the tug Taggart Brothers, against the Norwegian steamship Tordenskjold; Anders Kjole, master, claimant.

Appeals from the District Court of the United States for the Southern District of New York. Suits in admiralty for collision by the Cornell Steamship Company against the ferryboat Musconetcong, the Delaware, Lackawanna & Western Railroad Company, claimant, and by the named Railroad Company against the steam tug Hercules, Cornell Steamboat Company claimant, with cross-libels. From the decree, each libelant appeals.

<p>1. Bankruptcy <@=3140(2) — Equitabue Dien — Trust Arising pe.om Kbaud.</p> <p>Where bankrupts each day overdrew their bank account, which was secured by collateral, and each night made deposits to cover, the fact that money fraudulently obtained from, complainants was from time to time included in such deposits held not to impress the surplus fund arising from the sale of the bank collateral after bankruptcy with a trust in favor of complainants.</p> <p>2. Bankruptoy ®=»140(2) — Subrogation <§=321 — Nature op Right — Pay-</p> <p>ment op Debtor with Money Obtained by Fraud.</p> <p>The fact that money fraudulently obtained from complainants by bankrupts was used in paying overdrafts at a bank did not give complainants by subrogation a lien on collaterals held by the bank as security.</p> <p><@=>ffor other oases see same topic & KEY-NUMBEB in all Key-Numbered Digests & Indexes</p>

States for the Second Division of the Northern District of California; Jeremiah Neterer, Judge. Action at law by Hilmar Stephany against the Southern Pacific Company. Judgment for plaintiff, and defendant brings error.

<p>In Error to the District Court of the United States for the Eastern District of Virginia, at Norfolk; Edmund Waddill, Judge.</p> <p>Criminal prosecution by the United States against Fred B. Morse. Judgment of conviction, and defendant brings error.</p>

<p>United States <§=^67(1) — Contbactobs bob Public Wobks — Suit on Bonds.</p> <p>A suit on the bond of a contractor for public work, in behalf of persons furnishing labor and materials, as provided in Act Aug. 13, 1894, as amended by Act Feb. 24, 1905 (Comp. St. § 6923), cannot be maintained, where the bond does not contain the provisions for the protection of such persons prescribed by that statute.</p> <p><§=^For other eases see same topic & KI^Y-NUMBER in all Key-Numbered Digests & Indi xes</p>

<p>Aijsm <§=>32(8) — Chinese Exclusion — Evidence to Sustain Order oe Deportation.</p> <p>Evidence halé to sustain findings by the immigration inspector and the District Court that defendant was a Chinese alien laborer, and that lie had failed to sustain the burden imposed on him by Act Eeb. 5, 1911, § 19 (Comp. St. 1918, •>§ 42S9%jj), of proving his right to remain in this country.</p> <p><§£5>For other cases see same topic & KEY-NUMBBR in all Key-Numbered Digests & Indexes</p>

<p>Courts <@=>351% — Jurisdiction—Ancillary Surr — Effect of Dismissal of Original Suit.</p> <p>A bill by defendant in an action in a federal court, with, service on attorneys for plaintiff, who is a nonresident, to enjoin plaintiff from maintaining actions in other jurisdictions on the same cause of action, is ancillary, and falls with dismissal by plaintiff of the original action.</p> <p>■'•<®i¿)For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Tbusts <@=344(3) — Establishment—Evidence.</p> <p>Before a written lease or deed showing absolute title can be decreed to be a title in trust, parol evidence thereof must be clear, satisfactory, and convincing.</p> <p><§xs»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Habeas Corpus <®=53 — Jurisdiction oe Federad Courts — Federal Question — Pleading.</p> <p>A petition for habeas corpus held not to state facts sufficient to give a federal court jurisdiction to interfere with the action of a state court, on the ground that it was in violation of the federal Constitution.</p> <p><§3»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by John S. Alexander to the use of Archibald A. Alexander against the Fidelity Trust Company, executor and trustee of the will of John Alexander, deceased. Hearing on accounting.</p>

<p>1. Aliens <@=>58 — Action for Violation of Contract Labor Law — Complaint. i</p> <p>Complaint in an action under Contract Labor Act Feb. 20, 1907, c. 1134, § 5 (Comp. St. § 4250), to recover penalties for violation of tbe preceding section by inducing and encouraging tbe immigration of contract laborers, held insufficient in failing to allege facts showing that tbe aliens were contract laborers as defined in section 2 of tbe act (Comp. St. § 4244).</p> <p>2. Aliens <@=>58 — Violation of Contract Labor Law — Penalty.</p> <p>But one penalty can be imposed under Contract Labor Act Feb. 20, 1907, c. 1134, § 5 (Comp. St. § 4250), for tbe writing of a single letter to encourage the immigration of contract laborers, although more than one came in consequence.</p> <p>^r»For other cases see same topic & KEY-NUMBER in all Key-Numoered Digests & Indexes</p>

<p>At Daw. Action by the Pusey & Jones Company against the Combined Docks Paper Company. On motion by defendant for new trial.</p>

<p>. In Admiralty. Suit for collision by Calvin Austin, receiver, owner of the steamer J. T. Morse, against the steamer Pemaquid.</p>

<p>1. Monopolies ©=>24(2) — Dissolution of Combination — Modification of Decree.</p> <p>Evidence held insufficient to warrant modification oí an injunction, decree in a suit to dissolve a combination of manufacturers as illegal under the Sherman Anti-Trust Act (Comp. St. §§ 8820-8823, 8827-8830).</p> <p>2. Monopolies ©=>24(2) — Dissolution—Injunction—Modification of Decskb.</p> <p>Wnore a decree has been granted by consent, in effect enjoining the defendants, who were engaged in the combination, from granting joint licenses of patents covering parís of automobile bumpers, the injunction will not ho modified upon affidavits that the patents are not competitive, but that one dominates the other, in the absence of the most convincing proof.</p> <p><©=»For otter cases see same topic & KEY-NUMBER, in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of'the United States for the Northern Division of the Western District of Washington; Jeremiah Ncterer, Judge.</p> <p>Suit in admiralty by Lumbermen’s National Bank of Portland against Steamship Aki Maru, Nippon Yusen Kaisha, claimant. Decree for libelant, and claimant appeals.</p>

Van Valkenburgh, Judge. On petition by David Yost, assignee of John B; Henderson, Jr., who had recovered a judgment against the County of Dallas, an alternative writ of mandamus was issued against J. S. Evans, one of the county judges of the County of Dallas. Thereafter a peremptory writ was issued, and J. S. Evans was committed for contempt, and he brings error.

<p>1. Wills <@=a605 — Construction—Estate Taken by Devisee — Failure of Estate Tail.</p> <p>A devise of land in Hawaii to a woman and her husband, “and to the heirs of the body of either, * * * upon default of issue the same to go to my trustees upon the trust below expressed,” held to use apt words to create an estate tail, but, since such estate cannot exist under the law of Hawaii, to vest the devisees with an estate in fee simple.</p> <p>2. Courts <S=»405(3) — Rule of Decision — Hawaii.</p> <p>A settled rule of construction of conveyances and devises in the territory ,of Hawaii must be accepted by the appellate court, in a case coming from that district, as persuasive, if not of binding force.</p> <p>Ross, Circuit Judge, dissenting.</p> <p>igssFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes.</p>

<p>1. Tenanoy in Common ©=>22 — Mining Claim — Mining by One Cotenant— Accounting.</p> <p>A tenant in common of a mining claim, which extracts and sells ore therefrom, holds the share of its cotenant in trust, and it is its duty to notify the cotenant, to keep the ore separate, and to keep an account of its proceeds, and where, because of its violation of such duty, the amount and value of the ore cannot he accurately ascertained, all doubtful question should be resolved against it on an accounting.</p> <p>2. Appeal and Error ©=>1011(1) — Review—Findings op Fact.</p> <p>Findings of the trial court on an accounting by a tenant in common of a mining claim to its cotenant for ore extracted and sold from the claim, as to quantity and value of the ore, made on conflicting evidence, sustained.</p> <p>3. Tenancy in Common ©=>22 — Mining Claim — Mining by One Cotenant — • Accounting.</p> <p>A cotenant of a mining claim, which secretly extracted and sold ore therefrom, on an accounting to its cotenant, held, not entitled to an allowance, as an expense of extraction, of the cost of cleaning and extending a tunnel, which, although indirectly the means of discovering the ore, was used by it for other purposes, and produced an income exceeding such cost.</p> <p>. 4. Tenancy in Common ©=>22 — Mining Claim — Mining by One Cotenant — 1 Accounting.</p> <p>A cotenaut in. exclusive possession of mining property, who extracts and sells the ore, may charge against its proceeds the reasonable and necessary expense of its extraction and marketing.</p> <p><g^>For other cases see same topic & KEY-NUMBDR in all Key-NumDered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Southern District of Texas; Waller T. Burns, Judge.</p> <p>Action at law by the United States against the Gulf, Colorado & Santa Fé Railway Company for penalties for violation of the Hours of Service Act. There was a judgment for the United States, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the Southern District of Texas; Waller T. Bums, Judge.</p> <p>Action by die United States against the Galveston, Houston & Henderson Railroad Company. Judgment for defendant, and the United States brings error.</p>

<p>In Error to the District Court of the United States for the Southern District of Texas; Waller T. Bums, Judge.</p> <p>Action by the United States against the Gulf, Colorado' & Santa Fé Bail-way Company. Judgment for defendant, and the United States brings error.</p>

<p>1. Ejectment <§=^9(3) — Necessity of Proving Title.</p> <p>It is the settled law of Missouri that in an action of ejectment plaintiff must recover on the strength of his own title, and not on the weakness of his adversary’s title.</p> <p>2. Evidence <§=3342 — Records—Copy—Competency.</p> <p>Under Missouri statutes relating to sale of swamp lands by a county, providing for issuance in triplicate of certificate of purchase by the register, one to be filed by him, that on presentation of a copy to the receiver and payment he should issue a receipt, on which patent should be issued by the county court, a certified copy of a record of a certificate from the books of the register is not admissible to prove title in the purchaser ; there being no provision for such record, nor authority to convey title, except on the receiver’s receipt.</p> <p>3. Ejectment <3=3109 — Trial—Direction of Verdict.</p> <p>Where by the laws of the state a patent of land to a deceased person is absolutely void, and there was substantial evidence that the patentee under whom plaintiff claimed was dead when the patent issued, it was error to direct a verdict for plaintiff.</p> <p>cg^zoFov other cases see same topic & KEY-NUMBER, in all Key-Numbered Digests & Indexes</p>

<p>1. Intoxicating Liquors <@=^138 — Interstate Shipment — Labeling Package — “Consignee.”</p> <p>“Consignee,” in Criminal Code, § 240 (Comp. St. § 10410), declaring it an offense to ship into a state a package of liquors unless labeled to show the name of the consignee, not being defined, must be assumed to be used in its ordinary commercial and legal significance, and so to mean the one to whom the carrier may lawfully make delivery in accordance with its contract of carriage.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Consignee.]</p> <p>2. Intoxicating Liquors <s=»138 — Interstate Shipment — Offenses.</p> <p>In view of Rem. Code Wash. 1915, § 6262 — 15, authorizing a person to bring into the state two quarts of whisky or a dozen quarts of beer, first obtaining a permit giving his name, which shall be affixed to the package, and requiring the carrier before delivering the package to cancel the permit, and section 6262W18, making it unlawful for a carrier to bring liquor into the state otherwise than permitted by the statute, it would be a crime, both under such statute and Criminal Code, § 240 (Comp. St. § •10410), for a carrier to deliver to a transfer company named as consignee in the bill of lading, a carload of liquor made up of packages bearing permits so issued to individuals.</p> <p>3. Carriers <S=>35 — Interstate Shipment — Intoxicating Liquor — Rates Recoverable.</p> <p>Where it would be a crime for carrier to deliver to transfer company named in bill of lading as consignee, a carload of liquor shipped into Washington, and made up of numerous packages for various individuals, bearing their permits therefor, carrier could break up the shipment into individual consignments, deliver each package to the person indicated by permit, and recover of shipper the tariff rate for less than carload shipment, though contract was for carload shipment rate; it being required to collect, the rate applicable to the transportation furnished.</p> <p><§zs>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Dyer, Judge. Suit in equity by Morgan Jones, W. B. Thompson, and others against the Missouri-Edison Electric Company and others. Erank M. Slater, as Public Administrator of the City of St. Louis, appeals from an order denying his petition for intervention. Ón motion by appellees to dismiss appeal, and on motion of James P. Newell, Public Administrator of the City of St. Louis, Mo., to be substituted as appellant.

<p>Appeal from the District Court of the United States for the Southern Division of the Southern District of California; Oscar A. Trippet, Judge.</p> <p>Suit in equity by George J. Henry, Jr., against the City of Ros Angeles. Decree for defendant, and complainant appeals.</p>

Bradford, Judge. Bill by the Davey Tree Expert Company and others against Rue J. Van Billiard and another. From1 a decree which dismissed plaintiffs’ bill in so far as it relied on one patent, because plaintiffs refused to file a disclaimer as to the first claim of said patent, which was found invalid by the trial court, plaintiffs appeal.

<p>L Patents <§=>215 — Contracts—Construction.</p> <p>A contract whereby plaintiffs, owners of a patent for reels for eyeglasses, contracted to sell their entire interest to defendant for $1,500, $300 to be paid in cash and the remainder to be paid as royalties, involved a license to defendant to manufacture the patented article.</p> <p>2. Patents <§=215 — Contracts—Construction.</p> <p>Where plaintiffs, owners of a patent for reels for eyeglasses, contracted to sell their entire interest to defendant for $1,500, $300 to be paid in cash and the remainder to be paid as royalties, and defendant proceeded to manufacture reels, claiming that they were not covered by the patent, and plaintiffs asserted that the reels manufactured were so covered, plaintiffs were not entitled to declare the contract rescinded ana recover for the infringement, for, if the reels manufactured by defendant were covered by the patent, defendant’s refusal to pay the royalties which in time would entitle it to the patent was such a breach as could he compensated by damages.</p> <p>3. Courts <§=290 — Jurisdiction—Federal Courts.</p> <p>Where defendant, sued for infringement of patent, at most was guilty of a breach of contract of sale of patent rights, and the amount plaintiffs were entitled to recover would not exceed $1,200, the federal court was without jurisdiction.</p> <p>4. Courts <§=351% — Dismissal of Suit — Want of Jurisdiction.</p> <p>Where bill in equity does not show jurisdiction of federal court, and cannot be made good by amendment, bill must be dismissed.</p> <p>5. Costs §=48 — Dismissal of Bill for Technical Lack of Jurisdiction.</p> <p>Costs need not be awarded, where the defendant’s course has been' found grossly unfair and inequitable, and the bill has been dismissed for technical lack of jurisdiction.</p> <p><§c»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Bankruptcy. In the matter of the United States Molybdenum Company, bankrupt. On petition by John A. McKay to review the order of the referee, allowing the claim of William H. Edwards.

<p>L,ibel by the United States against One Buick Automobile. On application for issuance of process.</p>

At Raw. Action by Jens Martinius Jensen against the Rehigh Valley Railroad Company. On motion by the defendant to substitute the Director General of Railroads in place of the defendant, Rehigh Valley Railroad Company, as defendant, and to dismiss the action as against the Rehigh Valley Railroad Company. On April 27, 1918, the plaintiff was injured while an employé of the Director General of Railroads upon the Lehigh Valley Railroad Company.

<p>1. Insurance <3=814 — Process—'“Doing Business” in State.</p> <p>A mutual insurance society, organized under the laws of Illinois, which had no paid employés to go about the country soliciting members, and which only accepted members on receiving their application with the first installment of dues at Chicago, held not “doing business” in’the state of Colorado, so that attempted service of summons by leaving a copy with the state insurance commissioner did not give the Colorado court jurisdiction over the society.</p> <p>[Ed. Note. — I’or other definitions, see Words and Phrases, First and Second Series, Doing Business.]</p> <p>2. Insurance <3=814 — Process—Authority of Agent.</p> <p>A member of a mutual insurance society, having its principal office m the state of Illinois, who solicited residents of Colorado to apply for membership, hut received no compensation therefor, etc., held not an authorized agent of the association, and so the association could not be served in Colorado by leaving copies of the summons with such member.</p> <p>cases see same topic & KEY-NUMBHR in all Key-Numbered Digests & Indexes</p>

<p>At Raw. Action by the W. & C. T. Jones Steamship Corporation! against Norman R. Hamilton, Collector of Customs.</p>

<p>1. Appeal and Error <§=>1101(3) — Determination—Theory op Decision.</p> <p>A judgment of Ihe United States Supreme Court held an adjudication that complainant, which had a franchise for the purpose of transacting general electric light business, was entitled to furnish current for heat and power, and a resolution limiting complainant to the heat and power business already existing cannot stand, on the theory that the decision was based on an estoppel.</p> <p>2. Courts <§=>90(4) — Precedence—Stare Decisis.</p> <p>The former decision of the Circuit Court of Appeals, construing a decision of the United States Supreme Court, is conclusive, where the question is a second time raised.</p> <p>3. Equity <©=>295* — Practice—Supplemental Bill.</p> <p>Where a resolution of a city limiting the power of an electric company was in violation of a previous adjudication of the federal Supreme Court, a supplemental bill, setting up the prior adjudication, was proper.</p> <p><©=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Elliott, Judge. Action in equity by James Brown, as trustee in bankruptcy of the estate of Frank E. Pipal, against Max Kossove and Henry A.. Schoenberger. From a decree dismissing* the complaint, plaintiff appeals.

■In Error to the District Court of the United States for the Southern District of New York. Action at law by Mary J. Gallagher, administratrix of Charles G. Gallagher, deceased, against the Erie Railroad Company. Judgment for plaintiff, and defendant brings error. This cause comes here on writ of error to the United States District Court for the Southern District of New York.

Dooling, Judge. Action in admiralty by Antone Garcia, administrator of the estate of Manuel Sousa, deceased, against the Western Fuel Company. Decree for libelant, and respondent appeals.

<p>In Error to the District Court of the United States for the District of New Mexico; Colin Neblett, Judge.</p> <p>Action by Barney P. Silva, as administrator, etc., against the Ozark Smelting & Mining Company, together with an action by Juanita Luna de Lopez, administratrix, etc., against the same defendant, which were tried together. There were judgments for plaintiff in both cases, and defendant brings error.</p>

St. §§ 5971, 5973, of selling whisky in less quantities than five wine gallons without paying the tax as a retail liquor dealer, and he brings error.

<p>In Error to the District Court of the United States for the Eastern District of Arkansas; Jacob Trieber, Judge.</p> <p>Homer Heard was convicted of stealing and carrying away from a mail and express car three interstate shipments of money, in violation of Act Feb. 13, 1913, c. 50, 37 Stat. 670 (Comp. St. §§ 8603, 8604), and William W. Dunn was convicted of aiding, abetting, and procuring the commission of the crime, etc., and both were convicted of conspiring to commit the offense above described, and they bring error.</p>

Cotteral, Judge. In the matter of the bankruptcy of the Oklahoma City Times Company. The claim of C. B.- Edgar was denied, and the claim of C. B. Ames and others, as bondholders, was allowed, and claimant Edgar appeals, and Norman H.' Wright, trustee in bankruptcy, also appeals.

<p>In Error to the District Court of the United States for the Eastern District of Oklahoma; Joseph W. Woodrough, Judge.</p> <p>Action by Oscar Shriver against the American Glycerin Company. There was a judgment for plaintiff, and defendant brings error; George S. Hill, administrator of the estate of plaintiff, who died after granting of the writ, being substituted as defendant in error.</p>

<p>In Error to the District Court of the United States for the Southern District of Mississippi; Henry C. Niles, Judge.</p> <p>Action at law by Aaron Grace against the Rouisville & Nashville Railroad Company. Judgment for defendant, and plaintiff brings error.</p> <p>The record shows plaintiff in error, hereinafter styled plaintiff, being lawfully and by permission of defendant’s agent on and aboard a moving train, was violently thrown off and ejected by the defendant’s agents, to his great damage, etc., resulting in his falling under the moving train, being severely injured, mainly by loss of both of his legs. The defendant answered, specifically pleading the general issue and by notice as to evidence to be offered thereunder substantially pleaded that the plaintiff through his own negligence contributed to the injuries sued for.</p> <p>The case was brought to trial before the court and a jury duly impaneled, and thereupon the plaintiff testified in his own behalf, substantially establishing the facts set forth in his declaration. This was followed with evidence to the contrary on the part of the defendant, mainly denying the facts testified to by piaintiff, and with evidence tending to show contributory negligence on the part of the plaintiff and impeaching the credibility of plaintiff and his witnesses. Then followed counter evidence in rebuttal, impeaching the credibility and character of the defendant’s witnesses, and thereafter, according to the bill of exceptions, the following proceedings were had:</p> <p>“Whereupon, both the defendant and the plaintiff having rested, the court charged the jury in substance that if they believed the testimony of the plaintiff, and believed that the plaintiff had made out his case by the preponderance of the evidence, and that the plaintiff had been thrown from the train, then the jury would find a verdict for the plaintiff in such a sum as would compensate him, etc.; but, on the other hand, if was the duty of the plaintiff to satisfy the minds of the jury by a preponderance of the evidence that his theory of the case was true, and that .if he had failed to meet this burden, it was the duty- of the jury to find a verdict for the defendant.</p> <p>“Thereupon, at about 4 p. m., the jury retired to consider of their verdict, and the attorneys both for the plaintiff and the defendant, after having waited in the courtroom for fully an hour in anticipation of the verdict, agreed that the verdict of the jury might be received by the clerk in the absence both of themselves and the court. Plaintiff’s attorneys then left for Gulfport. Afterwards, about 7 p. m., the jury notified the clerk that they were unable to agree upon a verdict, and the clerk notified the court of this fact. Whereupon the court came to the courtroom, ordered the jury into their box, ascertained that they were unable to agree upon a verdict, reviewed the facts of the case to them, and then ascertained that they were still unable to agree upon a verdict. Thereupon the court peremptorily instructed the jury to find a verdict for the defendant. All of which proceedings were had and done in the absence and without the knowledge or consent both of the plaintiff and his attorneys, and none of which became known to the plaintiff or his attorneys until the convening of court upon the following morning, when plaintiff was notified what proceedings had taken place, and that the following order had been entered on the minutes, to wit:</p> <p>“ ‘Aaron Grace v. L. & N. R. R. Company. No. 317.</p> <p>“ ‘Came the plaintiff in person and his attorneys, and came the defendant by its attorneys,. and a jury having been duly selected, and both parties having offered- evidence, and the jury, having considered of their verdict, returned into, court and reported that they were unable to agree and thereupon the court charged the jury to find for the defendant and thereupon the following verdict was entered: “We, the jury, find for the defendant.” And thereupon it is considered, ordered, and adjudged by the court that the defendant go hence without day, and have and recover against plaintiff its costs in this behalf. It is further ordered that plaintiff have sixty days within which to present, a bill of exceptions. To all of which proceedings of the court the plaintiff then and there excepted and still excepts.</p> <p>“ ‘Whereupon counsel for plaintiff prays that this bill of exception may be sealed and signed by the judge of this honorable court, and same is signed] and sealed accordingly this the 26th day of March, 1918.</p> <p>“ ‘H. O. Niles, Judge.’ ”</p> <p>Among the errors assigned in this court are the following: ^</p> <p>“Til. The United States District Court erred in directing a verdict for the defendant. At the conclusion of this trial hy the court and jury, the court Instructed the jury both pro and con as set out in the bill of exceptions, and thereupon, about 4 o’clock p. m., the jury retired to consider of their verdict, and the attorneys both for the plaintiff and the defendant, after having waited in the courtroom for an hour in anticipation of the verdict, agreed that the verdict of the jury might be received by the clerk in the absence both of themselves and the court. Plaintiff and plaintiff’s attorneys then left for Gulfport. Afterwards, about 7 o’clock p. m., the jury notified the clerk that they wore unable to agree upon a verdict and the clerk notified the court of this fact. Whereupon the court came to the courtroom, ordered the jury into their box, ascertained that they were unable to agree upon a verdict, reviewed the facts of the case to them, and then ascertained that they were still unable to agree upon a verdict. Thereupon the court peremptorily instructed the jury to find a verdict for the defendant. All of which was done in the absence, and without the knowledge or consent, either of the plaintiff or Ills attorneys, and none of which became known to the plaintiff or his attorneys until the convening of court upon the following morning, when plaintiff was notified what proceedings had taken place, and that the following order had been entered on the minutes, to wit:</p> <p>“ ‘Aaron Grace v. D. & X. It. it. Company. Xo. 317.</p> <p>“ ‘Came the plaintiff in person and his attorneys, and came the defendant by its attorneys, and a jury having been duly selected, and both parties having offered evidence, and the jury, having considered of their verdict, returned into court and reported that they were unable to agree, and thereupon the court, charged the jury to find for the defendant, and thereupon the following verdict was entered: “We, the jury, find for tile defendant.” And thereupon it is considered, ordered, and adjudged hy the court that the defendant go hence without day, and have and recover against plaintiff its costs in this behalf. It is further ordered that the plaintiff have sixty days within which to present a bill of exceptions.’</p> <p>“The District Court erred in not discharging the jury and entering an order of mistrial. The jury had been out of their box with the case under advisement for several hours, and announced that they wore still unable to agree upon a verdict. Thereupon the court promptly instructed the jury to find a verdict for the defendant, instead of discharging the jury and entering an order of mistrial.</p> <p>“IV. The United States District Court erred in directing a verdict for the defendant when the testimony was directly in conflict, and when the testimony for the plaintiff, if believed by the jury, made out a perfect case for the plaintiff. The plaintiff testified that ho was riding upon the defendant’s freight train by consent and with permission of the head brakeinan; that while he was so riding he was mercilessly ejected from the train while it was running at a rapid rate of speed, contrary to all the laws of decency and humanity. Certain features of the plaintiff’s testimony were supported by several other witnesses. This testimony was denied hy, and was directly in conflict with the testimony of, the witnesses for the defendant. Instead of leaving the decision of this conflict in the facts to the jury, the court resolved the conflict in favor of the defendant, and instructed the jury to And for the defendant, thereby usurping the province of the jury.</p> <p>“The United States District Court erred in directing a verdict for the defendant, where there was a material conflict in the testimony as above stated, and violated the right of the plaintiff under the Seventh Amendment to the Constitution of the United States.</p> <p>“V. The United States District Court erred in directing a verdict for the defendant in the absence both of plaintiff and plaintiff’s attorneys. This deprived plaintiff of his right to take a nonsuit. If plaintiff had been present when the court indicated its purpose to direct a verdict for the defendant, ir would have been open to the plaintiff to take a voluntary nonsuit, which would have enabled him to make fuller and better presentation of his ease, if the facts permitted, at another trial in another suit. But plaintiff and his attorneys being absent, they were wholly deprived, of their right to adopt this course.” (</p>

Action by Edward Smith against the Cunard Steamship Company, Limited. There was. a judgment for plaintiff, and defendant brings error. This cause comes here on writ of error to the United States District Court for the Southern District of New York. The plaintiff is a subject of the provisional government of Russia and is a resident of the borough of Brooklyn, city and state of New York.

<p>1. Railroads <@=>5%, New, vol. 7A Key-No. Series — Government Control-Stay oe Actions — Condemnation oe Right oe Way for Telegraph Line.</p> <p>Under Act March 21, 1918, § 16, providing that actions at law or suits in equity may be. brought against carriers under federal control and judgments rendered, but no process shall be levied against any property under federal control, an action by a telegraph company to condemn a right of way for a telegraph line along the right of way of a railroad company under federal control will not be stayed because the latter company was under federal control.</p> <p>2. Telegraphs and Telephones <§=>26%, New, 7A Key-No. Series — Authority of Telegraph Company under Federal Control.</p> <p>Though the United States has taken over the operation of telegraph lines, a telegraph company may institute and continue condemnation proceedings to acquire new rights of way; the company’s franchise and corporate entity not having been affected by the government’s action.</p> <p>3. Mandamus <@=>31 — Refusal to Proceed with Cause — Railroad—Federal Control.</p> <p>Where the federal District Judge stayed proceedings in an action by a telegraph company to condemn a right of way for its line over a railroad right of way because the railroad was under federal control, held, that mandamus to compel the District Judge to proceed with the case will not be denied on the theory that the government might never surrender control of transportation systems, for Act March 21, 1918, § 16, relating 'to litigation against railroad companies, contemplated no delay in litigation, but merely a stay of process, and, in event private operation of railroads be resumed, it would be to the interest of the telegraph company to have the condemnation action disposed of.</p> <p><@=>For other eases see same topic & KEY-NUMBER in all Key-Numbered. Digests & Indexes</p>

<p>1. Courts <@=>359, 365 — Federal Courts — State Laws as Rules of Decision —Construction of Wills.</p> <p>In the absence of any question of violation of the federal Constitution or a federal statute, or of commercial law, a will must be interpreted by a federal court in accordance with the law of the state where made, as it existed at the time of testator’s death, as evidenced by statute or rules of interpretation of the highest court of the state.</p> <p>2. Wills <@=3601(2) — Construction—Devise of Real Estate.'</p> <p>Under Gen. St. Kan. 1909, § 9831, providing that every devise.shall be construed to convey all the estate of the testator, unless it clearly appears that testator intended to convey a less estate, where a paragraph of a will conveys all the title to real estate which testator could devise, and gives the devisee absolute power of disposition, a request, contained in a subsequent paragraph, that devisee devise to specified persons what might remain of the property at devisee’s death, is ineffective.</p> <p><§^5>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (</p>

<p>Appeal from the District Court of the United States for the First-Division of the Northern District of California; Maurice T. Dooling, Judge.</p> <p>Suit in admiralty by the Steamer Avalon Company against the American steamer General Hubbard; Hubbard Steamship Company, claimant. Decree for libelant, from which it appeals.</p>

<p>In Bankruptcy. In the matter of Meyer Prussian, bankrupt. On review of order of referee.</p>

At law. Action by Edward F. Hutton and others against Archibald S. Terrill. On motion by plaintiff for judgment on the pleadings, after demurrer by. defendant.

<p>Army and Navy G=»20 — Draft—Authority of Bocal Board.</p> <p>As Tinder Presidential Regulations, § 61, promulgated under the? Selective Service Act, (Comp. St. 1918, §§ 2019a, 2019b, 2044a-20141c), a local board, whenever there is a claim made that through error or fraud a person is registered who is not subject to registration, can only require such, person to submit his claim in writing and transmit the same to the adjutant general oí the state, mandamus or certiorari will not lie to compel the local board to strike from the draft list the name of one who claimed to have registered through error; it not appearing that he had submitted his claim in writing for transmission to the adjutant general.</p> <p><@zz>Fo? other cases see same topic & KEY-NUMBER in all Key^Numbered Digests 6 Indexes</p>

<p>In Error to the District Court of the United States for the District of Oregon; Charles E. Wolverton, Judge.</p> <p>Criminal prosecution by the United States against Julius Rhuberg. Judgment of conviction, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the District of New Hampshire; Edgar Aldrich, Judge.</p> <p>Action/at law by George H. Gagne against the Burgess Sulphite Fibre Company. Judgment for plaintiff, and defendant brings error.</p>

In Error and Gross-Error to the District Court of the United States for the Northern Division of the Western District of Washington; Edward E. Cushman, Judge. I Action, at law by G. Noots against Andrew Peterson, the Aberdeen Shipbuilding Company, and the Seattle National Bank. Erom the judgment, defendants Peterson and the Aberdeen Shipbuilding Company bring error, and plaintiff assigns cross-error.

<p>In Error to the District Court of the United States for the Southern Division of the Eastern District of Washington; E'rank H. Rudkin, Judge.</p> <p>Actions at law by Preston Royer and by W. J. Wasson and Mabel Wasson against the Oregon-Washington Railroad & Navigation Company. Judgments for plaintiffs, a.nd defendant brings error.</p>

Criminal prosecution by the United States against Erank Shaffer. Judgment of conviction, and defendant brings error.

<p>Appeal from the District Court of the United States for the Southern District of Florida; Rhydon M. Call, Judge.</p> <p>Petitions by J. J. Williams and F. P. Mills for writs of habeas corpus for discharge from the custody of N. H. Boswell, United States Marshal for the Southern District of Florida. From judgments denying the writs, petitioners appeal.</p> <p>The following is the opinion of Call, District Judge:</p> <p>Four persons, A. D. Wright, Gabe Lippman, E. P. Mills, and J. J. Williams, each ffied his petition for a writ of habeas corpus seeking to be discharged from the custody of the marshal of this district. The petitions in each case allege, and the marshal’s returns show, that he holds each of the defendants by virtue, of commissioner’s commitments for removal to the Southern district of Georgia.</p> <p>The proofs introduced before the commissioner on the hearing were certified copies of indictments found in the Southern district of Georgia, the warrants -of arrest issued thereon, and the admission of the defendants of their identities. One Indictment is against Wright for aiding and. abetting, a copy of which is made a part of his petition. Four indictments are against Lippman, one for aiding and abetting and three for conspiracy. Six indictments are against Mills, three for aiding and abetting and three for conspiracy. Two indictments are against Williams, one for conspiracy and one for aiding and abetting.</p> <p>The charging part of these several indictments, except the names of the defendants and dates, are the same. The cases of these petitioners may therefore be considered together, and the decision of one will govern the others.</p> <p>The attack made upon all the indictments is that no violation of law is stated.</p> <p>The statute involved in these indictments is the Reed-Jones Amendment to the Post Office Appropriation Bill of March 3, 1917, c. 162, 39 Stat. 1069. ■ The portion applicable reads as follows:</p> <p>“Whoever shall order, purchase, or cause intoxicating liquors to be transported in interstate commerce except for scientific, sacramental, medicinal and mechanical purposes, into any state or territory the laws of which state or territory prohibit the manufacture or sale therein of intoxicating liquors for beverage purposes, shall be punished as aforesaid.” Comp. St. 191S, § 8739a.</p> <p>Then follows some provisos which are not material to this investigation.</p> <p>There is no question but that this law was adopted to prevent the violation of the prohibition laws of the states and territories through interstate shipments of liquor for beverage purposes. Nor can it be questioned, 1 think, that an indictment to charge a violation of this act must by apt words show that the liquor shipped in interstate commerce was intended for use in the state prohibiting the manufacture or sale for beverage purposes.</p> <p>It is contended for the petitioners that none of these indictments do make this charge. The indictment in the Williams case, taken as an example, is as follows:</p> <p>“That heretofore, to wit, on the second day of March, in the year of our Lord one thousand nine hundred and eighteen, one J. J. Williams, * * * all late of said division and district, unlawfully, knowingly, and feloniously did within said division and district, and within the jurisdiction of this court, conspire, combine, confederate and agree together to commit an offense against the United States; that is to say, to cause intoxicating liquors to be transported in interstate commerce from Jacksonville in the state of Florida to Beaulieu in the county of Chatham, state of Georgia, the laws of which state of Georgia did prohibit the manufacture and sale therein of intoxicating liquors for beverage purposes, said intoxicating liquors not then and there to be transported for sacramental, medicinal, mechanical or scientific purposes, as they, the said conspirators, then and there well knew.”</p> <p>It is insisted that there is no charge contained in these indictments that the liquor agreed to be transported in interstate commerce was finally destined for Beaulieu, but, admitting the truth of the allegation, it might still be a shipment passing through the dry state to a state allowing the sale and manufacture of intoxicating liquors. This contention does not seem to me to be tenable. It is charged that the conspiracy was to ship liquors from Jacksonville in Florida, to Beaulieu in Georgia. If the proof should show that the agreement was to ship liquors through Beaulieu to some other point, the defendants would be entitled to have a peremptory instruction for acquittal. The language used must receive a reasonable construction, and a construction of the language used making it apply to a through shipment would in my judgment be unreasonable.</p> <p>The destination of the shipment would have been no more definite had a consignee, with his resident in the prohibition state, been named, than is expressed by the language of the indictment.</p> <p>It is also insisted that it is not sufficient for the indictment to state that said liquors were not to be transported for sacramental, etc., purposes, but that the purpose should have been stated. The indictment negatives the only legal purposes for which the liquor could have been shipped. If shipped for any purpose other than those enumerated in the statute, the shipment is illegal and an agreement to do so is a criminal conspiracy. As I understand the argument of counsel, it is contended that, because the act in question was intended to prevent the violation of the prohibition laws of the states through interstate shipments of liquor, therefore it is necessary for the indictment to allege that the liquor so shipped was for beverage purposes, and the negativing of the lawful purposes for which liquor could be shipped into the prohibition state is not sufficient. That contention is disposed of by what I have said above.</p> <p>What I have said above, I think, disposes of the main objections to the conspiracy indictments. Any minor objections which go to the form of the indictment rather than to the substance are to be determined in the court where they were found. Haas v. Henkel, 216 U. S. 481, 30 Sup. Ct. 219, 54 L. Ed. 569.</p> <p>What I have said in regard to the conspiracy indictments disposes of the main objections urged against the aiding and abetting indictments. It is, however, further urged against these indictments that,, since section 332 of tlu> Criminal Code (Act March 4, 1900, c. 321, 35 Stat. 1Í52 [Comp. St. § 10506]) makes the aider and abettor a principal, it is not sufficient to charge him in the language used in these indictments. The language used in these indictments is that usually set forth in the forms to charge one with aiding and abetting, and this was held sufficient in Coffin v. U. S., 156 U. S. 448, 15 Sup. Ct. 384, 39 L. Ed. 481. But it is not necessary for me to decide upon this sufficiency of the aiding and abetting indictments except in the Wright case.</p> <p>It is also urged that these indictments and admission of identity are not sufficient to make a case of probable cause, which is all that is necessary to authorize a commitment for removal. This contention is disposed of by Price v. Henkel, 210 U. S. 491, 30 Sup. Ct. 257, 54 L. Ed. 581.</p> <p>The writs of habeas corpus will bo, therefore, dismissed, and the petitioners remanded to the custody of the marshal.</p> <p>It will be so ordered.</p>

Borquin, Judge. Action by Zavier Servel against G. R. Jamieson and Mathieson Murray, partners as Jamieson & Murray. Judgment for defendants, and plaintiff brings error. The plaintiff in error brought an action against the defendants in error to recover damages for their failure to deliver sheep in accordance with the terms of a contract made March 14, 1917. The parties will be named plaintiff and defendants as in the court below.

<p>Appeal from the District Court of the United States for the District of Arizona; William H. Sawtelle, Judge.</p> <p>Suit in equity by the Coca-Cola Company against The Koke Company of America, The Southern Koke Company, Limited, The Koke Company of Texas, The Koke Company of Oklahoma, and The Koke Company of Arkansas. Decree for complainant, and defendants appeal.</p>

Suit by the Insurance Press against the Ford Motor Company. From the decree, complainant appeals. The opinion of Augustus N. Hand, District Judge, in the District Court, is as follows: The defendant printed in a booklet which it circulated among agents and owners of its automobiles an article entitled “Nerve,” copyright of which belonged to the complainant.

<p>Appeal from the District Court of the United States for the Eastern District of Pennsylvania: Oliver B. Dickinson, Judge,</p> <p>Suit in equity by the JEolian Company against the Cunningham Piano Company. Decree for complainant, and defendant appeals.</p>

<p>In Equity. Suit by the Homer Brooke Glass Company and the Owens Bottle Machine Company against the Hartford-Fairmont Company.</p>

<p>1. Patents ©=>191 — Natub® of Ghant.</p> <p>A patent conveys to the patentee only the negative right of exclusion, not the natural original right to make, use, and sell the device covered by it.</p> <p>2. Patents ©=>212(2) — Licenses—Rights Acquired by Licensee.</p> <p>A licensee under a patent obtains only immunity from an injunction suit, against him by the patentee or owner.</p> <p>3. Patents ©=>202(1) — License—Construction.</p> <p>Under a shop license granted by patentees to complainant for the term of the patents, with the sole right to maintain infringement suits and, a limited right to grant licenses, reserving to patentees only the right “to themselves make, use, and sell the inventions,” such reserved right was not assignable, and did not pass by an assignment of the patents.</p> <p>4. Patents ©=>112(4) — Priority of Invention — Decision on Appeal from Patent Office.</p> <p>While decisions of the Court of Appeals of the District of Columbia in interference proceedings are not conclusive in the courts, they are presumptively correct on questions of fact, and not subject to collateral impeachment, except for gross mistake or fraud.</p> <p>5. Patents ©=>328 — Validity and Infringement — Elf.ctbical Ignition Device.</p> <p>The Kano patent, No. 1,280,105, for electrical ignition device for internal combustion engines, claims 3, 7, and 8, held valid and infringed.</p> <p>8. Patents ©=>125 — Validity—Delay in Issuance.</p> <p>Mere delay between the application and issuance of a patent does not affect the validity of the patent.</p> <p>7. Patents ©=>328 — Infringement—Electrical Ignition Device.</p> <p>The Podlesak patents, reissue No. 13,878 (original No. 1,055,076) and No. 1,101,956, for electrical ignition devices, held infringed.</p> <p><gss>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Manuel Buchanan was charged with unlawfully attempting to export munitions of war into Mexico. On motion to set aside judgment of forfeiture of bail bond entered at former term, on the ground that the bond was void and the final judgment entered a nullity.

<p>1. Admiralty <§=36 — Scorn on Jurisdiction — Set-Off.</p> <p>A set-ol'f is unknown, to the admiralty law, except as a credit on the transaction which forms the subject of the libel.</p> <p>2. Shipping <§=151 — Lien for Freight — Storage of Cargo.</p> <p>A ship does not lose her lien on a cargo for freight by delivery to a public warehouse for storage without intention to deliver to the consignee.</p> <p>3. Maritime Liens <§=! — -Favored by Courts — Acts Which Will Defeat.</p> <p>A maritime lien is one favored by the courts and will be enforced, unless clearly displaced by the acts or agreements of the parties.</p> <p><§=a3Tor other caaes see same topic & KEY-NUMBER, in all Key-Numbered Digests & Indexes</p>

In Equity. Suit by the City of Moorhead against the Union Eight, Heat & Power Company, with cross-bill. On motions by each party for preliminary injunction and by complainant to dismiss cross-bill.

<p>In Bankruptcy. In the matter of the Boston-West Africa Trading Company, alleged bankrupt. On review of the referee’s report in favor of an adjudication in involuntary bankruptcy.</p>

Daniel J. Hoyt was indicted for violating the Harrison Anti-Narcotic Daw, by selling less than an ounce of heroin, which sale was not made in pursuance of a written order, etc., on a form issued in blank for that purpose by the Commissioner of Internal Revenue. On demurrer to the indictment.

<p>1. Insurance <@=>695 — Agency Contracts — Construction.</p> <p>A contract between a fraternal insurer and agents held not to include and provide for commissions on certificates designated as stipulated premium and annuity certificates'.</p> <p>2. Contracts @=>147(2) — Construction—Intention.</p> <p>A court can seek outside of the written contract for the intention of the parties only when it is not clearly expressed.</p> <p>3. Contracts @=>166 — Exhibits—Construction.</p> <p>Where exhibits attached to a contract relating to commissions were subordínate,, and merely explanatory of details dealt with in general terms in the contract, only such portions thereof as perform that function can be regarded as intended to be operative.</p> <p>4. Insurance @=>695 — Fraternal Insurance — Contracts—Construction.</p> <p>A contract between a fraternal insurer and agents held unambiguous, and not to allow compensation “tm certificates designated in exhibits attached merely for illustration as stipulated premium and annuity certificates.</p> <p>5. Contracts @=>166 — Construction—Exhibits.</p> <p>The mere statement that an exhibit is made a part of the contract is not controlling in determining whether the terms of the contract can be violated by the exhibit.</p> <p><gz»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Adulteration <S=»4 — Insecticide Act.</p> <p>In determining whether an insecticide is adulterated or misbranded within Act April 26, 1910 (Comp. St. §§ 8765-8777), where words in everyday use are put upon the labels, they are to be given their ordinary meaning so far as they have one, unless it is disclosed that their use was under such circumstances that they conveyed a different meaning.</p> <p>2. Adulteration <@==>4 — Insecticide Act — Construction.</p> <p>The use of the name “Insect Powder” on labels does not constitute a profession of standard or quality, nor that the package does not contain ingredients lacking in purity or insecticidal value, so as to constitute either adulteration or misbranding because of the presence of such ingredients within Insecticide Act April 26, 1910, §$ 7, 8 (Comp. St. §§ 8771, 8772).</p> <p>Sheppard, District Judge, dissenting.</p> <p>«grsaFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the District of Minnesota; Wilbur F. Booth, Judge.</p> <p>Action by Gus Eggen against the Canadian Northern Railway Company. There was judgment for defendant, and plaintiff brings error.</p>

<p>Appeal from the District Court of the United States for the District of South Dakota; James D. Elliott, Judge.</p> <p>Suit in equity by the South Dakota Central Railway Company against the Continental & Commercial Trust & Savings Bank and others. Decree for defendants, and complainant appeals.</p>

<p>1. Equity ©=>61 — Maxims—Claims.</p> <p>When equities are equal, the legal title must prevail.</p> <p>2. Receivers ©=>152 — Claims—Preference—Excess Freight Paid.</p> <p>A shipper, who through fraudulent acts of its own employd and a station agent overpaid thd railroad company, is entitled in receivership-proceedings to a preference on account of such payment over other creditors, on the theory of a trust, only on establishing that in equity and good conscience its claim ought to be paid in preference to other creditors.</p> <p>S. Carriers ©=>200 — Overcharge—Fraud of Agents — Liability.</p> <p>While there is a presumption that knowledge of an agent is that of the principal, such presumption does not apply where the agent is engaged in a scheme to defraud his principal, and so a railroad company will not he charged with a scheme between its station agents and an employs of a shipper, whereby freight in a greater amount than was earned was collected, and the two divided the surplus.</p> <p>4. Trusts ©=95 — Constructive Trusts — Notice.</p> <p>Where a railroad company’s agent and the agent of a shipper united to défraud the shipper by collecting freight in excess of that earned, and they divided ihe surplus between them, the shipper could not recover on the theory of a constructive trust, on the ground that the railroad company, by examination of its hooks and checks deposited by its own agent, might have discovered the fraudulent scheme.</p> <p>5. Receivers ©=>152 — Claims—Preference.</p> <p>Where a shipper’s agent conspired with the agent of a railroad company to collect freight in excess of the amount due, and the two wrongdoers divided the surplus, held, under the circumstances, that the railroad company was not chargeable with notice of the amounts collected on the shipper’s checks, so as to entille the shipper in receivership proceedings to priority over other creditors; it appearing that the railroad was in no wise enriched by the scheme.</p> <p><@z^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the District of Kansas; John C. Pollock, Judge.</p> <p>Action by B. F. Bush, receiver of the Missouri Pacific Railway Company, against Wallingford Bros. There was a judgment for plaintiff, and defendants bring error.</p>

<p>1. Contracts <@=»199(1) — Construction—Contract por Rebuilding Barge.</p> <p>Contract for rebuilding of a barge, made by correspondence, construed, and held to include specifications contained in the owner’s final letter of acceptance.</p> <p>2. Contracts <©=»211 — Construction—Tuns as op Essence op Contract.</p> <p>A contract for rebuilding a barge, although the owner in accepting stated the builder’s offer to be to rebuild the barge “and hand same over ready for sea in seven weeks,” held, under the facts shown, not to make time of its essence.</p> <p><©cs>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeals from the District Court of the United States for. the Southern District of New York.</p> <p>Dibcl for collision by the Reichert Towing Dine, Incorporated, against the steamer North Star, her engines, etc., claimed by Calvin Austin, as receiver of the Eastern Steamship Corporation, and by the New York. Stockyards Company, against the steamer Nortlj Star, her engines, etc., also claimed by Calvin Austin, as receiver, and the steam tug Francis J. Reichert, her engines, etc., claimed by the Reichert Towing Dine, Incorporated. From decrees finding both vessels at fault, the Reichert Towing Dine, libelant, which was claimant of the steam tug Francis J. Reichert, and Calvin Austin, receiver, claimant of the steamer Nor ill Star, appeal.</p>

r Appeal from the District Court of the United States for the Western District of Missouri; Joseph W. Woodrough, Judge. Bill by Frederick A. Bruckman and others against the Roberts Cone Manufacturing Company and others. Decree for complainants, and defendants’ motion to direct the court below to reverse its decree and transfer the case to the law side of the court was denied. On motion for rehearing of the motion to direct the court below to reverse its decree, etc.

<p>1. Courts <@=>280: — Federal Courts — Duty to Determine Jurisdiction.</p> <p>It is the duty of every federal court to inquire into its jurisdiction of a cause, whether or not that question is raised by the parties.</p> <p>2. Courts <@=>329l — Jurisdiction oe Federal Courts — Amount in Controversy.</p> <p>It is not the amount claimed in the prayer for relief which determines the jurisdiction of a federal court; but, if it unmistakably appears from plaintiff’s pleading that the amount recoverable is not within the jurisdiction of the court, it is its duty to dismiss the action.</p> <p><gz=pFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Libel and Slander <§=»9(1) — Words Tending to Injure in Profession or Business.</p> <p>The publication of false words or statements concerning one in relation to his profession, trade, or business, which are calculated to cause, and which do cause, him pecuniary loss in the practice of his profession, trade, or business, is actionable.</p> <p><§=»For other cases see same tapie & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

" Appeal from the District Court of the United States for the District of Delaware; Edward G. Bradford, Judge. Suit by the Union Sulphur Company against the Freeport Texas Company for infringement of patents, '['here was a decree (251 Fed. 634) in favor of plaintiff as to a part of its claims, and in favor of defendant as to the remainder, and both parties appeal.

<p>In Equity. Suit by N. C. Morse, trustee, against Jesse M. Smyth, Douglas B. Grained, and F. B. Creamer. On motion to dismiss bill. Denied.</p>

At Law. Action by Russell E. Poorman against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company and Oscar Macey, begun in state court, and removed to the federal court by the filing of a transcript therein, etc., after' the state court denied the petition for removal.

<p>At Taw. Action by Russell Poorman and Omer Poorman, partners doing business under the name of Poorman Bros., against the Cleveland, Cincinnati, Chicago & St. Touis Railway Company and another, begun in state court and removed to the federal court. On motion to strike the plea in abatement to the jurisdiction of the federal court.</p>

<p>Appeal from the District Court of the United States for the District of Maryland, at Baltimore, in bankruptcy.</p>

<p>Application for leave to file a petition for a writ of mandamus directed to Hon. Alston G. Dayton, United States District Judge for the Northern District of West Virginia.</p>

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

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

<p>In Error to the District Court of the United States for the Southern District of New York. Action by Ray Steele against Jules Glorieux. Judgment for plaintiff, and defendant brings error.</p>

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

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

<p>In Error to the District Court of the United States for the Southern District of New York. Action by the Chemical Products Company of Canada, Limited, against Herman & Herman, Incorporated. Judgment for plaintiff, and defendant brings error.</p>

Suit by the Joseph Lay Company against the American Broom & Brush Company for infringement of the Lay patent, No. 916,234, for metal case broom. Decree for defendant holding patent void (248 Fed. 5.13), and complainant appeals.

<p>In Error to the District Court of the United States for the Southern Division of the Eastern District of Washington.</p>

<p>Appeal from the District Court of the United States for the District of New Jersey. Suit by Daniel .1. Leary against the Mayor and Aldermen of Jersey City and others. Decree for defendants, and complainant appealed.</p>

<p>In Error to the District Court of the United States for the First Division of the Northern District of California.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Virginia, at Richmond. Habeas corpus.</p>

<p>Appeal from the District Court of the United States for the Eastern District of South Carolina, at Charleston, in Bankruptcy.</p>

<p>In Error to the District Court of the United States for the Western District of Virginia, at Lynchburg. After judgment of District Court (251 Fed. 83,- C. C. A.-) was affirmed in 254 Fed. 379,-C. C. A.-, order allowing writ of error to Supreme Court was filed.</p>