Volume 257 — Federal Reporter

Burns, Judge. Suit by the Houston Oil Company of Texas and its receiver against the Keith Dumber Company and others. From judgment for plaintiffs, defendant company appeals.

Van Valkenburgh, Judge. Suit by the Stark Bros. Nurseries & Orchards Company against William P. Stark and others. Decree for plaintiff (248 Fed. 154), and defendants appeal. The appellee instituted this action to enjoin the appellants from infringing its registered trade-mark and from unfair competition, with the usual prayer for damages and an accounting of profits.

<p>Appeal from the District Court of the United States for the District of Porto Rico; Peter J. Hamilton, Judge.</p> <p>Vincente Baibas Capo was convicted of a violation of the Espionage Act, and he brings error.</p>

<p>1. Banks and Banking <@=>11.7—Certificate of Deposit—Issuance for Individual Debt—Risk of Authority.</p> <p>One to whom a bank’s president, in payment of his individual debt, issued its certificate of deposit, accepted with knowledge thereof, took the risk of the president’s authority, depending on whether there had been a contemporaneous deposit, as recited in the certificate; the principle that, his general powers would give apparent authority not applying, where he is known to be acting in his own interest.</p> <p>2. Banks and Banking <@=>118—Certificate of Deposit—Issuance for Individual Debt—Authority—Burden of Proof.</p> <p>One to whom a bank’s president issued its certificate of deposit in payment of his individual debt, accepted with knowledge thereof, seeking to hold the hank thereon, has the burden of proving the making of the recited contemporaneous deposit, necessary for the authority to issue certificate.</p> <p>3. Banks and Banking <@=>118—Certificate of Deposit—Evidence of Deposit.</p> <p>A bank’s certificate of deposit having been issued by its president in payment of his individual debt, and accepted with knowledge thereof, neither recital in certificate nor statement iri letter of president to person receiving the certificate is evidence against bank of deposit having been made, necessary for president’s authority to issue certificate.</p> <p>4. Evidence <@=>244(12)—Statement of Bank President—Past Transaction.</p> <p>Statement of president of hank, to one to whom its certificate of deposit had been issued by its prior president in payment of his individual debt, that its books showed the deposit called for thereby, is not inadmissible against it, in the absence of injury therefrom raising an estoppel; it amounting to an admission that past transactions had occurred and had been evidenced by the bank’s books.</p> <p>Batts, Circuit Judge, dissenting.</p> <p>(Qs=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Evidence <®^96(2)—Action on Contract.</p> <p>A railroad contractor, sued by subcontractors, held to have the burden of proving as an affirmative defense that damage for which it paid a Judgment to a landowner was caused by unsldllfulness or negligence of plaintiffs, Cor which they contracted to be responsible.</p> <p>2. Evidence ®=»332(1)—Record in Another Suit.</p> <p>The record on appeal in an action in n state court, including evidence, held not admissible in an action in a federal court between two of the defendants, in which the issues were not the same.</p> <p><§=^For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Collision @=104—Fault—Burden of Proof—Violation of Harbor Rules.</p> <p>A tug leaving the port of Norfolk, with a tow exceeding by 300 feet the length prescribed by the harbor regulations, held to have the burden of showing that such violation did not cause or contribute to a collision' in Elizabeth river between the tow and another vessel.</p> <p>(gs^Por other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Criminal Law @=242(1)—Federal Courts—Trial of Capital Cases in. County of Offense.</p> <p>Judicial Code, § 40 (Comp. St. § 1022), providing that capital cases shall be tried in the county where the offense was committed, where that can he done without great inconvenience, does not contemplate a transfer of the cause to another court, but a trial by the same court in the county where the offense was committed, and the court where the indictment was found does not lose jurisdiction by ordering such a transfer for trial.</p> <p>2. Criminal Law @=113—Capital Cases in Federal Courts—Where Triable.</p> <p>Judicial Code, § 40 (Comp. St. § 1022), providing that capital cases shall be tried in the county where the offense was committed, “where that can be done without great inconvenience,” does not give a defendant an absolute right to trial in such county, but the matter rests in the discretion of the court.</p> <p>3. Indictment and Information @=86(2)—Offenses Within Federal Jurisdiction.</p> <p>An indictment charging commission of an offense on a parcel of land described by metes and bounds, alleged to have been acquired with the consent of the state for “public purposes” by tbe United States and to be under its exclusive jurisdiction, held sufficiently specific under Criminal Code, § 272 (Comp. St. § 10445), to give jurisdiction to a federal court.</p> <p>4. Criminal Law @=304(14)—Judicial Noticei—Offenses Within Federal Jurisdiction—Place of Offense.</p> <p>Where an indictment in a federal court sufficiently described tbe place where the offense was committed, the court will take judicial notice of facts which vest the United States with exclusive jurisdiction over such place.</p> <p>5. Constitutional Law @=62—Delegation of Legislative Power.</p> <p>Rev. Civ. St. Tex. 1911, art. 5275, authorizing the Governor, on application therefor, to cede exclusive jurisdiction to the United States over lands described in the application and acquired by the United States for certain specified purposes, operates as a blanket consent by the Legislature to such cession, leaving to the Governor only the power to determine when the specified conditions exist, and is not a delegation to him of legislative power.</p> <p>6. Criminal Law @=1169(1)—Harmless Error—Offenses Within Federal. Jurisdiction—Evidence.</p> <p>In a prosecution for murder committed' on land alleged to be within the exclusive jurisdiction of the United States, where the land is described and shown by oral testimony to have been in the exclusive possession of the United States at the time, it was not necessary to prove its title, and introduction of title documents and deeds, eould not have injured defendant, whether technically proven or not.</p> <p>7. Homicide @=118(1)—Self-Defense—Duty to Retreat.</p> <p>One attacked by another with a knife, not in his own house or on his own premises, is justified in fatally shooting his assailant only where apparently he cannot avoid his own injury by retreating.</p> <p>@=For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

' In Error to the District Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge. Action at law by Bertram U. Carter and others against the White Oak Fuel Company. Judgment for plaintiffs, and defendant brings error.'

<p>In Error to the District Court of the United States for the Eastern District of Oklahoma; Ralph E. Campbell, Judge.</p> <p>Criminal prosecution by the United States against Frank Weems and Frank Bussey. Judgment of conviction, and defendants bring error.</p>

<p>Public Lands <@=>120—Suit fob Cancellation of Patents—Fraudulent Entries.</p> <p>• The United States field entitled to cancellation of patents for soldiers’ homesteads which were taken by the entrymen under contracts to convey to another, who paid all expenses and the agreed price on conveyance after final proof.</p> <p><g^>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 Western District of Missouri; Arba S. Van Valkenburgh, Judge.</p> <p>. Bill of interpleader in equity by Oscar T. Hamlin, administrator, against George H. Grogan and others. Decree for defendant Grogan, and complainant and the other defendants appeal.</p>

<p>In Error to the District Court of the United States for the District of South Dakota; Jas. D. Elliott, Judge.</p> <p>Walter Heynacher was convicted of violating the Espionage Act, 'and he brings error.</p>

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

<p>In Error to the District Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge.</p> <p>Action at law by Abraham R. Byrd against Elias Vincent McGrew. Judgment for plaintiff was reversed on error. 255 Fed. 759, - C. C. A.-. .On petition for rehearing.</p>

Dibels by the .¿Etna Insurance Company and another against the Davidson Steamship Company and by the Steamship Company against E. R. Bacon, consolidated. From a decree in favor of the Steamship Company, the Insurance Company and others and respondent Bacon appeal.

<p>1. Parties <@=>19—Joint Contract—Joinder of Obligees.</p> <p>Where a contract is joint, and not several, all the joint obligees or covenantees who are alive must be joined as plaintiffs.</p> <p>2. Tenancy in Common <@=>55(3)—Actions Ex Delicto—Joinder.</p> <p>Tenants in common must join in actions ex delicto for an injury to their common property, though it be real estate, because the damages belong to them jointly.</p> <p>3. Equity <@=>105—Parties—Contract—Joint Remedy.</p> <p>The rule that, where the contract is joint, so also is the remedy, likewise prevails in equity.</p> <p>4. Equity <@=>103—Decree in Absence of Necessary Party.</p> <p>A decree in equity may not be made, in the absence of a party whose rights must necessarily be affected.</p> <p>5. Courts <@=>310—Jurisdiction—Nonjoinder oJf Necessary Party.</p> <p>Bill by one of two co-owners and lessors of a graphite mine for nonpayment of rent, breach of covenant for good mining, and removal of the property of the lessors, was properly dismissed, where brought by one lessor only, though the joinder of the other would oust the jurisdiction of the court as to the parties before it, despite equity rule 39 (198 Fed. xxix, lio C. C. A. xxix).</p> <p>6. Parties <@=>15—Joint Cause of Action-Joinder of Set arate Legal Actions.</p> <p>Where one of two joint lessors sues alone improperly in equity without joining his colessor, joinder in Ms bill of Ms independent legal cause of ac-tlon for an Indebtedness from defendant lessee to him alone, even if proper, cannot convent the inseparable rights of himself and his colessor into separate rights, justifying his suit without joining his colessor.</p> <p><@=>For other caaes see same topic & KEY-NUMBEE, in all Key-Numbered Digests & Indexes</p>

In the matter of the bankruptcy of Gottleib & Co. The order of the referee in proceedings by Edwin R. Semple, trustee, adjudging void transfer of bankrupt’s accounts to Adolph M. Rosenberg, was affirmed on review by the District Court (245 Fed. 139), and Rosenberg appeals.

<p>Appeal from the District Court of the United States for the Eastern District of the Northern District of Ohio; John M. Killits, Judge.</p> <p>Suit in equity by Frank A. Seiberling against the Firestone Tire & Rubber Company. Decree for complainant, and defendant appeals;</p>

<p>1. Patents <§=>102—Application—Verification of Claims.</p> <p>Claims 40 and 41 oí the Green patent, No. 1,180,030, inserted after the original application on request oí the examiner for the purpose oí interference, were within the drawings and specifications of the original application, so that no additional verification thereto was necessary.</p> <p>2. Patents <§=>328—Validity and Infringement—Biscuit Cutter.</p> <p>The Green patent, No. 1.180,080, claims 29, 30, 40-45, inclusive, for a biscuit cutter, especially relating to pan carrier with automatic skip, which could be adjusted without slopping the machine, held valid, as disclosing invention and inlringed.</p> <p><§^=>For other cases see vSaine topic & KEY-NUMBER in ali Key-Numbered Digests & Indexes</p>

<p>Patents <§—>328—Infringement—Shakjpener for Meat-Slicing Machines— Successive Movements.</p> <p>The Stuckart patent, No. 1,039,210, for a sharpening device on meat-slicing machines, by “successive” movements to bring one grinder against the bevel edge, which requires more sharpening, and then to take such grinder out of engagement with such edge and bring the other grinder against the flat edge, held not infringed by a sharpener to grind both edges at the same time, with a stronger spring against the grinder for the bevel side, though the grinder for the bevel edge comes in contact slightly before the other, and can be stopped there.</p> <p><§=aITor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Patents ©^32<8—Infringement—Fike Escape.</p> <p>The Cowles patent. No. 705,042, claims 1 and 2, for improved fire escape, held infringed by ladder which used the same means to effect one of the several purposes which it affected in the patented ladder; but claim 3 of the same patent held not infringed.</p> <p><gs»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & indexes</p>

<p>Ill Equity. Suit for infringement of patent by Heyl & Patterson, Incorporated, against the M. A. Hanna Coal & Dock Company.</p>

<p>Courts <S=»200—Jurisdiction of Federal Courts—Suits Arising under Patent Laws.</p> <p>A suit for an accounting for royalties under a contract granting an exclusive license to manufacture a patented device is not one arising under tlie patent laws, and where the sum involved is less than ,$,‘5,000 a federal court is without jurisdiction.</p> <p>other cases see same topic & KEY-NUMBER in ail Key-Numbered Digests & Indexes</p>

<p>1. Habeas Corpus <®=»85(1)—Apprehension op Alien Enemies—Burden op Proof.</p> <p>Under Rev.. St. § 4067 (Comp. St. 1916, § 7615), authorizing the apprehension of alien enemies in time of war, the proceedings are necessarily • summary, and on habeas corpus by one apprehended thereunder on a presidential warrant the burden is on petitioner to show illegal restraint, by satisfying the court that he is not a “native, citizen, denizen, or subject of a hostile nation or government.”</p> <p>2. Habeas Corpus <@=>85(1)—Apprehension of Alien 'Enemies—Evidence.</p> <p>Evidence in a habeas corpus proceeding held insufficient to establish the claim of petitioner, apprehended as án enemy alien, that he was a citizen of Mexico, where he was born, of German parents, and not a German subject.</p> <p><@s^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Habeas Corpus <§=>13—Apprehension of Alien Enemies—Review.</p> <p>Where a person is apprehended on a presidential warrant in time of war as an alien enemy, under Rev. St. § 4067 (Comp. St. § 7615), a court may inquire on habeas corpus whether or not he is in fact a “native, citizen, denizen, or subject of a hostile nation or government,” since the statute provides for no preliminary hearing; but the proceeding is not further reviewable, being essentially an executive function, within the discretion of the President.</p> <p>2. Citizens <§=313—Expatriation—Naturalization—Abandonment by Return to Native Country—Treaty.</p> <p>Under the treaty of 1868 between the United States and the North German Union, providing in-effect that, if a native of one country natural- ' ized in the other shall renew his residence in the country of his birth without intent to return, he shall be held to have renounced his naturalization, and that “the intent not to return may be held to exist when the person naturalized in the one country resides more than two years in the other country,” as construed by the State Department a two-year residence in Germany of a former German naturalized in this country is only prima facie evidence of abandonment of his American citizenship.</p> <p>3. War <§=>11—Apprehension of Alien Enemies—Evidence of Citizenship Considered.</p> <p>Petitioner, bom in Germany, his father being a German, but a nat- . uralized American citizen, held not subject to apprehension as an alien enemy, or a “native, citizen, denizen, or subject” of Germany, on the evidence, which included proof of his registration under the Selective Draft Act, his acceptance and classification as a citizen by boards which had knowledge of the essential facts, and his induction into the army, where he served until honorably discharged in December, 1918.</p> <p><@35>For’ other cases see same topic & KEY-NUMBER, in all Key-Numbered Digests & Indexes</p>

<p>Shipping <©=>208—Sinking Tow—Limiting Tug Owner’s Liability.</p> <p>' A tug owner, who has agreed to tow a vessel, may under Act June 26, 1884, § 18 (Comp. St. § 8028), limit his liability to the tug’s value, when, in performance of that contract, the tug through her master’s negligence collides with and sinks the tow; the breach being without the owner’s knowledge or privity.</p> <p><§T5>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Admiralty. Libel by Owen McCaffrey’s Sons, as owners of the barge Charles Mulford, against the Staten Island Rapid Transit -Railway Company, in which the Lehigh Valley Railroad Company was impleaded as respondent.</p>

In Equity. Suit by Peter Cooper Bryce and another, as executors of the will of Edith C. Bryce, deceased, against Henry P. Keith, Collector of Internal Revenue for the First District of New York. On plaintiff’s motion for judgment on demurrer to complaint interposed by defendant.

In Bankruptcy. In the matter of Franklin Brewing Company, bankrupt. On motion by the trustees in bankruptcy for an order directing the payment of certain moneys to the trustees.

<p>In Bankruptcy. In the matter of Isaac B. Bass, Herman M. Bass, and Louis Abramowitz, individually and trading as the Triangle Cloak & Suit Company, bankrupts. On certificate of review.</p>

At Law. Separate actions by the Southern Cotton Oil Company against the Atlantic Coast Line Railroad Company, and by W. H. Wade, as administrator of James Henry Petit, against the Seaboard Air Line Railway Company. On traverse of the entry of service.

<p>Bankruptcy <©==>329—Claims Provable—Contingent Claim—Subscription por Corporate Stock.</p> <p>Where a corporation had made an assignment for benefit of creditors before the petition in bankruptcy was filed against a stockholder, the latter’s liability for the difference between the amount of his stock subscription and the value of property transferred in payment thereof had ceased to be contingent, though not yet liquidated, since the corporate debts for which a subscription would be: a trust fund were then capable of determination, and the receiver of the corporation can prove a claim for such liability against the bankrupt’s estate.</p> <p><§ES>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Bankruptcy i®=>60—Act of Bankruptcy—“Applied” for Receiver—Consent to Appointment.</p> <p>Under Bankruptcy'Act July 1, 1898, § 3a, cl. 4 (Comp. St. § 9587), making it an act of bankruptcy that one, being insolvent, has applied for a receiver, “applied” cannot be construed to mean applied for or consented to, so as to authorize bankruptcy proceedings against one who stipulated that a receiver might be appointed in a suit brought against him by creditors.</p> <p><£s»For other cases see same topic ^KEY-NUMBKIt In all Key-Numbered Digests & Indexes</p> <p>2. Evidence <@=>318(8)—Hearsay—Statements in Pleadings. '</p> <p>Allegations of insolvency in a complaint by creditors for the appointment of a receiver, not admitted to be true by the defendant, though he consented to the appointment of the receiver, are hearsay, and not competent to establish insolvency in bankruptcy proceedings against defendant.</p> <p><£=»For other cases see same topic & KEY-NUMBER, in all Key-Numbered Digests & Indexes</p>

In Equity. Suit by the Nueces Valley Town-Site Company against W. G. McAdoo, Director General of Railroads, and others. On motions to remand to state court and to dissolve state court’s restraining order.

In Equity. Suit by Jane W. Muir, executrix of the will of William T. Muir, deceased, against James H. Morris and Fred S. Morris, co-partners as Morris Bros., and James H. Morris and Fred S. Morris.

<p>1. Equity <@=>343—Answer under Oatii—Probative Force—Waiver of Verification.</p> <p>Answer under oath has no less probative force because verification thereof was expressly waived by the bill.</p> <p>2. Equity <@=341—Answer under Oath—Probative Force.</p> <p>Verified answer, so far as responding to charges of the bill, has probative force, if verification be on personal knowledge, but otherwise if the answer professes not to be on personal knowledge.</p> <p>3. Fraud <@=50—Presumption.</p> <p>Fraud is not presumed, and cannot be imputed from circumstances consistent with honesty, but only from a showing of facts not fairly or reasonably reconcilable with fair dealing and honesty of purpose.</p> <p>4. Fraud <@=58(1)—Prima Facie Showing—Rebuttal.</p> <p>A prima facie case of fraudulent intent, made by showing of facts and circumstances, loses its force on a showing of other facts and circumstances sufficient to rebut and overcome it.</p> <p>•6. Injunction <@=155—Preliminary Injunction—Refusal on Giving of Bond.</p> <p>To safeguard the interests of plaintiff stockholder seeking, on the ground of fraud, to enjoin reorganization of defendant corporation, and at the same time to allow it to proceed with reorganization, the bill being met by verified answer and affidavits, and plaintiff’s motive appearing to be to secure for himself the full value of his stock, one of his prayers being that the court ascertain its value and decree that it be paid to him before performance of tho organization agreements be permitted, held, that preliminary injunction will be denied, and temporary restraining order dissolved, on condition of defendant filing a bond in the sum alleged by plaintiff to he the value of the stock, conditioned that 'it he agreed that the court grant such prayer and ascertain the value and order the amount paid to plaintiff.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests &, Indexes</p>

In Bankruptcy. Involuntary proceedings against the Star Spring Bed Company. On petition to review an order of the referee holding that a transaction with the Union National Bank did not constitute a preference.

Edward P. Metcalf and Henry E. De Kay weré convicted of misapplication of funds of a national bank. On demurrer to replication to the plea of Henry E. De Kay in arrest of judgment.

<p>1. Insurance ©=5311(3)—Mortgagee Clause—Failure of Insured to Fully Insure.</p> <p>Provision of mortgagee clause that the insurance as to the interest of the mortgagee shall not be invalidated by any act or neglect of the mortgagor or owner does not protect the mortgagee against neglect of duty with which the insurer has no concern, or which does not invalidate the policy, and cannot be construed to relieve the mortgagee of the effect of insured’s failure, in the first instance, to insure the property to its full value, so that, where fire policy provided insurer should be liable for no greater proportion of loss than amount insured bore to 10(5 percent. of actual cash value of property when loss should happen, assignee of mortgage, to whom, by addition to policy, loss was made payable, as its interest might appear, could recover from insurer, for a loss, such proportion only.</p> <p>2. Insurance ©=>539(5)—Fire Insurance—Proof of Loss—Neglect of Mortgagor.</p> <p>Failure of insured to make proof of loss under fire policy within CO days after fire was neglect, not invalidating insurance as to mortgagee or its assignee, an addition to the policy providing that insurance as to interest of mortgagee should not be invalidated by any act or neglect of mortgagor.</p> <p>gusiFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>3. Insurance <@=>537—Fire Insurance—Proof of Loss—Assignee op Mortgage.</p> <p>Where fire policy provided proof of loss might be furnished by mortgagee of premises within 60 days after failure on part of insured, who also had 60 days to make proof, and insured, not making proof within 60 days allowed, did so at end of 80 days, assignee of mortgage could take advantage of such furnishing of proof of loss, and was not required to do so himself as a condition to holding the insurer.</p> <p>4. Insurance <@=>578—Fire Insurance—Refusal to Have Loss Appraised —Neglect of Mortgagor.</p> <p>Failure or refusal of owner and mortgagor of premises insured against fire to proceed with appraisal of loss as provided by policy, which, by an addition, also provided insurance as to interest of mortgagee should not be invalidated by any act or neglect of mortgagor' or owner, was not an act or neglect invalidating policy as to mortgagee or its assignee.</p> <p>5. Insurance <@=>568, 576(1)—Fire Insurance—Waiver of Appraisal.</p> <p>If a fire insurer desired to hold the mortgagee of the premises or its assignee to an appraisement clause in the policy, it was entitled to do so by written demand; but, no such demand having been made, the appraisement must be held to have been waived against the mortgagee or its assignee.</p> <p>6. Insurance <@=>606(2)—Fire Insurance—Right of Subrogation.</p> <p>Under the subrogation clause of a fire policy, the insurer is not entitled to an assignment of the mortgage on the property, held by an assignee, where it has neither tendered nor paid any amount to the assignee of the mortgage.</p> <p><@=pFor other cases see same topic & KEY-NUMBER in all Key-Numbered. Digests & Indexes</p>

D. F. Robertson was indicted for perjury in making false affidavits relative to applications for passports. On demurrer to the indictment.

<p>Iii Equity. Suit for injunction by the Napa Valley Electric Company against the Railroad Commission of California.</p>

<p>Habeas Corpus. Application by Edward E. Jochen for writ ofhabeas corpus to secure release from military custody.</p> <p>Upon application for writ of habeas corpus by Edward E. Jochen, it appearing therefrom that applicant is in custody at Brownsville, Tex., more than 300 miles from Houston, where the court is sitting, a rule was issued requiring the respondent, Col. Frank Keller,- to show . cause February 28, 1919, at Houston, Tex., why writ of habeas corpus should not issue. To this rule respondent made return, justifying the detention of applicant upon the following state of facts:</p> <p>That the defendant, as commanding officer of United States troops at Brownsville, Tex., has the applicant in confinement. That applicant from February 12, 1917, to December 24, 1918, served with the United States troops iii the territory embraced in the Brownsville district, namely, from the month o£ the Rio Grande river to Arroyo Del Tigre, as superintendent quartermaster corps, during all of which time applicant was under the direct orders of the commander of the Brownsville district. That on, to wit, December 23, 1918, he was charged with having, during the time of Ms service from September 1, 1917, to December 15, 1918, committed crimes and offenses in violation of the Articles of War (Comp. St. § 2308a), and was taken into custody by the authority of respondent. That these charges were duly referred ' for trial to the General Court-Martial, duly appointed to sit at Brownsville. That the applicant was duly arraigned and tried by said court, and is now held in confinement awaiting tile review of the said proceedings, and that in all matters relating to the arrest, confinement, and trial of the applicant the rules regulating military procedure have been complied with. That the military jurisdiction over applicant as to arrest, detention, and trial is asserted upon the ground that applicant is a person subject to military law, being as claimed by respondent, though a civilian, a person coming within the scope and meaning of subdivision D of the Second Article of War, which provides as follows:</p> <p>“All retainers to the camp and all persons accompanying or serving with the armies of the United States without the territorial jurisdiction of the United States, and in time of war, ail retainers and persons accompanying or serving with the armies of the United States in tile field, both within and without the territorial jurisdiction of the United States, though not otherwise subject to these articles.”</p> <p>That during the period in which the applicant is charged to have committed the crimes and offenses, the United States was at war, and that during ail of said time the armies of the United States with which the applicant was serving, to wit, troops in the Brownsville district, were in the field. That the general orders of the War Department, section 319, Compilation 1881 to 1915, also section 2193, Manual Quartermaster’s Corps, United States Army, provides as follows:</p> <p>“Field service is defined to be service in mobilization, concentration, instruction or manuever camps, as well as service in campaign, simulated campaign, or on the march.”</p> <p>That the duty of the troops in the Brownsville district is to patrol the Texas-Mexican border, for the preservation of life and property in the district. and to enforce the laws of the United States. That, in the performance of said duty, outposts at frequent intervals are maintained at or near the Rio Grande river. That, as supports and reserves for said outposts, squadron stations are maintained at Brownsville, San Benito, Mercedes, McAllen, Sam Fordyec, and Ft. Ringgold. That they are all equipped for field service, wear the field uniform, are supplied under conditions for troops in the field, are housed in the outposts in tents or huts, and at the squadron stations—with few exceptions—in barracks of the cantonment type, and the troops are designated as troops in the field. That the commander of said district had at all times had authority in certain contingencies to cross the river into Mexico, and troops had been prepared to make such crossings at an instant’s notice. That all administrative orders relating to said troops are given to them ns troops in the field. That since 1915 there has been considerable unrest on the border. What were known as bandit raids frequently occurred, and numerous fights took place between bandits, soldiers, and civilian officers, extending to the wrecking of a passenger train and the killing and wounding of several persons. That during 1916, and up to the present, there had been about five distinct invasions of Mexico by our troops following bandits therein. That the soldiers have been greatly needed on the border to protect life and property, and ihat they are at all times maintained and equipped for combat with bandits and law violators in the border section.</p> <p>Attached to the return among other affidavits are affidavits of Col. Hamilton Bowie, commanding United States troops at Ft. Ringgold, Tex., and of Gol. Herbert J. Slocum, commander of the Brownsville district troops from January, 1918, to October, 1918. They establish that, during the time the latter was in command of the district, one officer was killed in Mexico, ami about ten enlisted men were killed by fire from Mexico; that at many times it was unsafe to water the horses in the river; that in the military sense the troops were ready and looking for a fight at any minute; their duties were the same as if opposing a foe, and the troops were frequently on the firing line; that the war with Germany made it necessary for these troops to be in the field along the Southern Texas border for protection against German influences in Mexico, which at times assumed a serious and dangerous aspect, requiring our troops to be on constant patrol duty in the field, at all times fully armed and equipped. By his affidavit, Col. Bowie establishes that the troops under his command at Ft. Ringgold were on “field duty” as defined in the army regulations, as distinguished from garrison duty; that, of the four troops of cavalry under his command, one was constantly on outpost duty on the international border at distances of from 13 to 25 miles from Ringgold, and that frequent patrols were made along the border, and guards were at all times maintained; that these troops were equipped for field service with pack trains at all times ready, together with a wireless station for communications; and that an intelligence department was maintained and civil scouts employed to procure and report information of military value. At the time the troops stationed at Ft. Ringgold, and detached from that station, they were occupied with guard duty, patrols, target practice, and care of animals, incident to field service, to the exclusion of ceremonies and drills of’ precision, which are features of garrison service. All matters of fact thus stated in support of the return, I find to be true.</p> <p>It further appears from the application and the return that, on some of the offenses with which Jochen is held to the military court, he is also charged in this court in the Brownsville division, and has been bound over by the commissioner to the grand jury. It appears with reference to this feature of the case, as shown in the supporting affidavits, that the arrest by the civil court was made on information from the military authorities, and after the military authorities had taken the applicant into actual or constructive custody, and it is apparent that, in so far as the question of comity arises between the military and the civil tribunal, as to many of the matters with which he is charged by the court-martial, no jurisdiction has ever attached in the civil court, and that as to those of which the civil court has jurisdiction the same was acquired under such circumstances as that, if comity alone operated to dispose of this' matter, it would require that applicant not be taken from the military control in which he now is.</p>

<p>Aliens —Naturalization—“White Person”—Hindu.</p> <p>The possession of a common racial stamp being tbe basis of classification, the Hindus of India, as members of Aryan branch of the Caucasian race, are “white persons,” who, under Rev. St. § 2169 (C'omp. St. § 4358), may be naturalized; the meaning to be given the term being that which, from the growth of knowledge, it had when, having accidentally been omitted in revision from the original naturalization law, it was by enactment reincluded.</p> <p>fEd. Note.—For other definitions, see Words and Phrases, First and Second Series, White Person.]</p> <p><§=>For other cases see same topic & KEY-NUMBER in all Key-Numhered Digests & Indexes</p>

<p>In Equity. Suit by the Freeport Texas Company against the Houston & Brazos Valley Railway Company and others, in which the Midland Bridge Company, intervened.</p>

<p>At Law. Actions by the Old Colony Railroad Company and others against James D. Gill and against John F. Malley, each as Collector of Internal Revenue for the Third District of Massachusetts.</p>

<p>At Law. Two actions by the Boston & Providence Railroad Corporation and others against James D. Gill, as Collector of Internal Revenue, heard with actions by the Boston & Providence Railroad Corporation, by the Boston & Lowell Railroad Company, by the Connecticut River Railroad Company, by the Fitchburg Railroad Company, and by the Worcester, Nashua & Rochester Railroad Company against John F. Malley, as Collector of Internal Revenue.</p>

<p>Railroads <@=»369(4)—Moving Trains in Yards—Duty to Trespasser or Licensee—Anticipating Presence.</p> <p>Railroad employes in charge of switching operations must exercise ordinary care to anticipate the presence of, and avoid injury to a boy of tender years, where they have sanctioned his practice of passing through the yard at a particular hour to serve the company’s employés.</p> <p>@soFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Insurance <3=453—Accident Insurance—Change of Occupation—“Occupation of Physician and Surgeon.”</p> <p>A physician, who at the time of insurance and of his death was in the general practice, and was also a medical officer in the state National Guard, with the rank of major, and who on the day he was killed, after visiting liis patients, had gone out, as surgeon only, with a detachment of the guard which was on emergency service at the town of his residence during a strike, held to have been “engaged, in the occupation of physician and surgeon,” within the terms of the policy.</p> <p>[Ed. Note—For other definitions, see Words and Phrases, First and Second Series, Occupation.]</p> <p>2. Insurance <5=453—Accident Insurance—Change of Occupation.</p> <p>To constitute a change of occupation from that specified in a life or accident xmlicy, it must be abandoned and some other calling adopted.</p> <p>3. Insurance <g=146(3)—Accident Insurance—Construction of Policy— Exceptions from Risk.</p> <p>If the language of a life or accident policy does not express an exception, when fairly interpreted, the courts will not write an exception into it by interpretation, for the purpose of exempting the insurer from liability after death or accident.</p> <p>4. Insurance <3=455—-Accident Insurance—Risks—Exposure to Injury os Death.</p> <p>If a xierson holding a policy insuring him against accidental injury does something which culpably provokes or induces the act causing- ids injury or death, then the result is not accidental; but, if he is wholly free from culpability himself, the result is accidental as to him, though it may have been within the deliberate intent of the aggressor.</p> <p>5. Insurance <3=455—Accident Insurance—Death from Accident—“Acc<df.ntal Death.”</p> <p>The death of a physician, who was a medical officer in a National Guard regiment, and who was shot and killed while performing his duly as such officer with a detachment of the guard detailed to preserve order during a si rike, held, accidental, within the meaning- of an insurance policy.</p> <p>[Ed, Note.—For other definitions, see Words and Phrases, First and Second Series, Accident; Accidental.]</p> <p><3zs>For other cases see same topic & KEY-NUMBEIt in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Eastern District of Arkansas; Jacob Trieber, Judge.</p> <p>Action by Lewis A. Stebbins against A. E. Selig. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Sales <3=79—Ambiguity in Contract—Understanding of Parties.</p> <p>Where the application of the facts to the expression “f. o. b.,” used in a contract of sale, was a matter of doubt and controversy, it was a proper subject for an understanding between the parties, and, such an understanding having been reached, it was not in conflict with the effect of tho letters, but merely defined the application of the expression.</p> <p>2. Sales <3=88—Meaning of Contract—Question for Jury.</p> <p>In a railroad’s action to recover from the seller an excess, paid under a contract whereby lumber was purchased “f. o. b.” its rails, issue as to the understanding of tho parties regarding the meaning of the expression “í. o. b.” held for the jury under the evidence.</p> <p>3. Sales <c=87(3)—Construction of Contract by Parties—Sufficiency of Evidence.</p> <p>Evidence held to warrant jury in finding that letters “f. o. b.” were accepted by both parties as referring alone to charges connected with handling and loading the sold lumber at shipping point, and as not having reference to charges conditional in character and the existence of which resulted from the subsequent action of the buyer railroad.</p> <p>4. Sales <3=54—Practical Construction of Contract—Seller’s Right to Accept.</p> <p>A company which sold lumber to a railroad, contracting to supply it “í. o. b.” its rails, had the right to accept and act on a practical construction of the contracts as to the moaning of the letters by tho railroad.</p> <p>5. Estoppel <®=72—Misleading Mistake—Protection of Party Who has Suffered.</p> <p>Where one of the parties to a salo has been misled to his disadvantage by the conduct of the other, based on mistake, when he had a right to assume the other was acting with full knowledge of the facts, and it being impossible for the parties to bo restored to their original condition, the party who has suffered by the mistake will be protected.</p> <p>6. Salks <3=79—Construction of Contract—Right of Reliance.</p> <p>Where a company, which sold lumber to a railroad “f. o. b.” its rails, made its prices with reference to the railroad’s practical construction of the contract, in relation to such letters, by payment of the lumber company’s bill without deduction of payments made by a division of the railroad, and such construction was followed thereafter, the railroad cannot recover back part of the payments made on the ground that the construction was erroneous.</p> <p>7. Sales <3=88—Action for Overpayment—Issue of Estoppel.</p> <p>Iu an action by a railroad to recover from a lumber company alleged overpayments on purchases of lumber, issue of estoppel of the railroad to claim any overpayment, on the ground that it had practically construed tho contracts between the parties, held to be submitted to the jury for determination.</p> <p>Walker, Circuit Judge, dissenting.</p> <p>(gs»Foi otter cases see same topic & KEY-NTJMBER in all Key-Numbered Digests & Indexes</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 Maude Rewis, executrix of John Folger Bailey, deceased, against the Interstate Business Men’s Accident Association. Judgment for plaintiff, and defendant brings error.</p>

Suit in equity by the United States against Benjamin D. Greene and others, in which Daniel J. Leary and George Leary, administrators, intervened. From the decree, interveners appeal.

<p>Internal Revenue ©=s42—Removal of Liquor to Evade Tax—Forfeiture, of Vehicle.</p> <p>An automobile used in removing liquor on which the tax had not been paid, with intent to defraud the government of such tax, held subject to forfeiture under Rev. St. § .3450 (Comp. St. § 6352), providing for forfeiture of every “carriage or other conveyance whatsoever” used for such purpose, as against a mortgage taken by the seller of the machine who voluntarily gave possession to the purchaser, but who had no knowledge of its unlawful use.</p> <p><®s»Eor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Reed, Judge. Action by the United States,' for the use of the Indiana Quarries Company and others, against Isaac N. Salyers and the National Surety Company. Judgment for plaintiffs, and defendants bring error.

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>The Pennsylvania Company was convicted for violation of the Elkins Act, as amended by the Hepburn Act, and it brings error.</p>

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>The Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company was convicted of a violation of the Elkins Act (Act Feb. 19, 1903, c. 708, 32 Slat. 817 [Comp. St. §§ 8597-8599]), and it brings error.</p>

<p>1. Insurance @=3140(1) —Construction of Contract—Elements for Determination.</p> <p>While the terms of an insurance policy framed by the insurer are to be construed, if ambiguous, most strongly against him, even such ambiguous provisions are to be interpreted in the light of surrounding circumstances, with regard to the evident purpose of the parties and the nature of the general undertaking of the insurer towards its policy holders, whether the insurer be a mutual or a stock company.</p> <p>2. Insurance @=367(2)—Construction of Policy—Surrender Values—Deduction of Indebtedness.</p> <p>Where an insurance policy provided that, in case of default by the policy holder, he might accept a cash surrender value, a paid-up life policy, or extended insurance, and at the time of default in the payment of premiums the policy holder was indebted to the insurer for more than the cash surrender value of the policy, the right of the insurer under the policy to deduct the indebtedness applied to the surrender value in terms of extended insurance, and not merely to the cash surrender value.</p> <p>3. Insurance @=367(2)—Construction of Policy—“Indebtedness on Account of Policy.”</p> <p>Where a life insurance contract provided for a cash payment of premiums annually of 50 per cent., the remaining part of the premium to be considered an indebtedness, such indebtedness was an “indebtedness on account of the policy,” within a policy provision for deduction of indebtedness from 1he surrender value of the policy in case of default in payment of premiums.</p> <p><@s;?For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Consolidated Appeals from the District Court of the United States for the Eastern Division of the Northern District of Illinois. Action by the U. P. Larson, Jr., Company against Lamont, Corliss & Co. and others, and action by the Mint Products Company against the L. P. Larson, Jr., Company, with cross-bill by defendant against plaintiff in the last-mentioned action. Erom a dismissal of plaintiff LP.

<p>1. Mines and Minerals @=>42—Validity of Patent—Collateral Attack.</p> <p>A patent to coal land, issued to an entryman. who, after filing his declaratory statement, but before making entry, conveyed the land, is not void, and ifs validity can be questioned only by the government.</p> <p>2. Estoppel @=>27(1)—Coal Land Entryman—Conveyance.</p> <p>A coal land entryman, who conveyed the same for a valuable consideration after filing his declaratory statement, but before completing his entry, and who on receiving the patent delivered it to his grantee, is estopped to deny the validity of his conveyance, and a subsequent grantee from him with notice is equally estopped.</p> <p>3. Estoppel <@=>47—Conveyance by Entryman of Public Land—Subsequent Patent.</p> <p>A patent for coal land, issued to an entryman who has previously conveyed his right in the land, inures to the benefit of his grantee, under Comp. Laws Utah 1907, § 1979.</p> <p>4. Estoppel @=>93(8)—Permittins Improvements or Expenditures.</p> <p>Possession of land by a grantee for more than 20 years, during which time it expended large sums in improvements, is a bar to a suit in equity to recover the land by adverse claimants, who had knowledge of such possession and use.</p> <p><@s»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Indians <8=16(3)—Lands—Lease by Allottee—Approval After Death.</p> <p>The authority of the Secretary of the Interior, under Act April 26, 1906, § 20, to approve and thereby to validate a lease by a full-blood Creek Indian allottee of his or her allotment, continues after his or her death.</p> <p>2. Indians <8=15(1)—Lands—Alienation—Death of Allottee.</p> <p>The provision of Act May 27, 1908, g 9, that the death of any allottee of the Five Civilized Tribes shall operate to remove all restrictions upon the aliena lion of the said allottee’s land, does not remove restrictions upon alienation by the acts of such allottee before his death, but leaves such acts subject to the same restrictions that existed while he lived.</p> <p><®=Foi otiLer cases see same topic & KEY-NUMBEll in ail Hey-NumDered Digests & Indexes</p> <p>3. Indians @=>15(1)—Restrictions on Alienation—Death of Allottee.'</p> <p>The provision in Act May 27, 1908, § 9, that no conveyance of any interest of any full-blood heir in such land shall’ be valid, unless approved by the court having jurisdiction of the settlement of the estate of the deceased allottee, is inapplicable to conveyances made by such heir before its passage and to those made by a full-blood Creek allottee.</p> <p>4. Indians @=>16(3)—Lands—Lease by Allottee—Approval After Death— Effect.</p> <p>Lease of allottee of the Five Indian Tribes of his lands, when approved after his death by the Secretary of the Interior, relates back to and takes effect as of the date of its execution, except as against any persons without notice, though it provides its term shall be from approval by the Secretary.</p> <p>5. Indians @=>16(4)—Lease by Allottee—Ineffective Provision.</p> <p>Restriction on alienation by allottee of the Five Civilized Tribes of his land never being removed, provision in his lease as to what shall happen in that event never becomes effective.</p> <p>6. Indians @=>16(2)—States @=>9—Admission—Repeal of Former Laws— Indian Leases—Record.</p> <p>Act March 1, 1907, declaring the filing in the office of the United States Indian agent, Union Agency, Muskogee, Indian Territory, of a lease of an allotment of Indian land, to be constructive notice, especially in view of it being a special act, is not repealed, annulled, or modified by admission of Oklahoma to the Union, by the recordation statutes of the territory or- state (Rev. Laws Okl. 1910, §§ 1154, 1155), by the Enabling Act, the Constitution, or the Schedule to the Constitution of that State.</p> <p>(gX=»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 Wisconsin.</p> <p>Action by Harry C. Netherwood against Charles W. Raymer. -There was a judgment for plaintiff (253 Fed. 515), and defendant brings error.</p>

<p>1. Master and Servant ©=286(19), 289(1)—Action for Injury to Servant— Question for Jury.</p> <p>Issues of negligence and contributory negligence, in an action by a coal minor against the Employer for personal injury, held properly submitted to the jury.</p> <p>2. Master and Servant ©=146—Hules or Mining Company—Waiver.</p> <p>A rule of a mining company, requiring operators of cutting machines to sound the roof of their working place before beginning work, and to prop it if evidence of weakness is found, may bo waived by the company by employing a separate force to prepare safe places for the machines to work.</p> <p><£z^=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Action by Pearl I. Schooley, administratrix of the estate of Otto Schooley, deceased, against Walter D. Ross, as receiver of the Toledo, St. Louis & Western Railroad Company. Judgment for plaintiff, and defendant brings error.

<p>1, Bankruptcy <®=>407(5)—Discharge—Money Obtained by Means of a Material False Statement in Writing.</p> <p>Credit extended to a bankrupt by a bank through its cashier, who knew that the bankrupt was then insolvent, and who was acting solely in his own and the bankrupt’s interest, was fraudulent and voidable, and the hank was not bound by its cashier’s fraud, and could claim that the money was obtained by means of a material false statement in writing as to money not checked out, where the directors of the bank examined note signed by bankrupt and false financial statement attached thereto, and, relying thereupon, approved the loan.</p> <p>2. Bankruptcy <@=»468—Questions of Fact—Remanding Case.</p> <p>On appeal from an order discharging a bankrupt over an objection that the bankrupt had obtained money by means of a materially false statement in writing, where it was found that the master had erred in finding that the false statement was not relied upon' by the bank in extending the credit, and it appeared the master had made no finding as to whether the statement in writing was known to be false by the'bankrupt, a finding by the trial judge from the printed record that the bankrupt did not read the statement or know its contents will not be allowed to stand, and the order of discharge will be reversed, so that the uncontradicted testimony of the bankrupt to such effect can be heard and its truth decided upon an observation of the witness, as well as upon his testimony.</p> <p>@=aFor 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 Eastern District of Oklahoma; Joseph W. Woodrough, Judge.</p> <p>Criminal prosecution by the United States against R. E. Goff. Judgment of conviction, and defendant brings error.</p>

<p>Master and Servant ©=>185(27)—Master’s Liability for Injury to Servant —Safe Place to Work.</p> <p>Whore plaintiff was at work tinder a car, which had boon raised from its trucks and blocked up, Ms employer owed him a positive duty to warn him before the car was moved, which could not be delegated to another employe, so as to relieve Itself from liability for its neglb gence resulting in plaintiff's injury.</p> <p>©=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes'</p>

<p>Criminal Law @=753(1)—Trial @=178—Motion for Directed Verdict— Effect.</p> <p>It is the practice in the Eighth circuit to regard a general motion or request for a directed verdict, in either a civil or criminal case, as challenging the legal sufficiency of the evidence for a contrary conclusion.</p> <p><£=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Bankruptcy <§=>326—Claim of Stockholder—Stock Liability—Set-Off.</p> <p>Where a creditor stockholder of a bankrupt corporation had a claim against tho bankrupt for §20,853.94, and his indebtedness on his stock was $10,000, for which amount corporation's trustee in bankruptcy recovered judgment, after which tho stockholder was himself adjudged a bankrupt, his assignee could not have the amount of the judgment credited on the amount of tho assigned claim and dividends on the balance of the claim paid to it. but dividends on such claim were first applicable on the judgment until that should he extinguished, and then, if there were other dividends, they were applicable to payment of the claim.</p> <p><§r^>For other eases see same topic & KEY-NUMB Bit in all Key-Numbered Digests & Indexes</p>

<p>Bankruptcy <@=>165(3)—Preference—Transfer for Present Consideration,</p> <p>Where one, fraudulently induced to sell goods on credit, accepted from the Buyer, within four months preceding a petition in bankruptcy against the buyer, a transfer of accounts in payment for the goods, the transfer was made in consideration of release of, right to rescind and recover the goods, and was not a preference.</p> <p><§Es>Fór other cases see sainé topic ¿ KEY-NÜMB'ER in alt'Key-Niiinbered Digests & indexed</p>

<p>In Error to the District Court of the United States for the Western District of Missouri.</p> <p>Action at law by William U. Black against Uuther P. Kindred. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Patents <S=>26(1)—Invention—New Combination op Old Elements.</p> <p>A new combination of old elements whereby an old result is obtained in-a more facile, economical, and efficient-way is as securely protected by a patent as is a new machine or composition of matter, provided the discovery and reduction to practice of the novel combination rose above the reach of the skill of the. mechanic trained in the art.</p> <p>2. Patents <@=^243—Patents por Combinations.</p> <p>When the advance toward the desideratum is gradual, and several inventors formed different combinations, which accomplished the result sought with varying degrees of success, each is entitled to Ms own combination, as long as it differs from those of his competitors and does not include theirs.</p> <p><g2=^For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>S. Patents <@=>66--Anth)ipation—Patents fob Combination.</p> <p>That prior patents separately disclosed one or more of the elements of a later patent, while no ono of them disclosed them all, does not necessarily establish anticipation by any of them,</p> <p>4. Patents <@=>324(5)—Decisions Sustaining Validity—Review on Appeal.</p> <p>Where a patent has been granted and sustained by a trial court, the legal presumption is that the decisions of the Patent Office and the court in an infringement case, were right, and they may not lawfully be reversed by an appellate court, unless there is clear and convincing proof in the record that they have made some serious mistake of fact or fallen into fatal error of law.</p> <p>5. Patents <@=>53—Anticipation—Uncompleted Invention.</p> <p>The mere conception of an invention and the drawing of plans and sketches thereof does not constitute one an inventor for the purpose of anticipating a later patent to another.</p> <p>6. Patents <@=>174, 177—Scope—Uses Unknown to Patentee.</p> <p>When a patentee has plainly described and claimed his improvements or combinations, ho has the right to every use to which they can be applied, and to every way in which they can be utilized, whether or not ho was aware of them when he secured his patent.,</p> <p>7. Patents <@=>157(2)—Construction to Give Validity and Effect.</p> <p>It is one of the fundamental rules for the interpretation of contraéis and grants, especially applicable to grants of patents, that in case of doubt or ambiguity that construction should be preferred which sustains and vitalizes, rather than that which strikes down and paralyzes.</p> <p>8. Patents <@=>328—Validity and Infringement—Grain Elevator.</p> <p>The McQueen patent, No. 896,233, for a working elevator, held not anticipated, valid, and infringed.</p> <p><§cs>For other cases see same topic Sc KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Appeals from the District Court 'of the United States for the Northern Division of the Southern District of Illinois. Suit by the Alvey-Ferguson Company against the Peter Schoenhofen Brewing Company for infringement of two patents. From a decree (245 Fed. 762) dismissing the bill as to one patent, and granting relief to complainant as to the other patent, both parties appeal.

<p>Appeal from the District Court of the United States for the Northern Division of the Southern District of Illinois.</p> <p>Suit by the Munson Manufacturing Company, a partnership, against Deere & Co., a corporation, for infringement of patent No. 1,025,420. From a decree dismissing complainant’s bill, complainant appeals.</p>

<p>Patents ©=828—Validity—Poweb Loom.</p> <p>The Patterson reissue patent, No. 12,159 (original No. 722,243), for power loom, held void, as claiming broadly a combination of Jacquard mechanism with a plain power loom equipped with an automatic weft-replenishing device, which was not the patentee’s invention.</p> <p>©=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 Western District of Oklahoma; John H. Cotteral, Judge.</p> <p>Suit in equity by John T. Jackson against the Enid Foundry & Machine Shops and others. Decree for defendants, and complainant appeals.</p>

<p>In Equity. Suit by the London-Arizona Consolidated Copper Company against the Gila Copper Sulphide Company. On motion by the Union & New Haven Trust Company, intervener, for order on receiver.</p> <p>This is a motion to compel the receiver appointed in a sequestration suit against a corporation to pay to the petitioner moneys collected under the following circumstances: The defendant, an Arizona corporation, executed a mortgage to the petitioner on April 1, 1913, of all its property, consisting of a copper mine in that state, then in possession of the American Smelting & Refining Company, under an agreement by which the latter was to extract tlie ore and pay the defendant stipulated sums. This mortgage contained, among other provisions, two: Article 13, permitting the mortgagee upon default to enter and collect the rents and profits and pay the principal and interest due; and article 14, permitting a similar entry with right of sale.</p> <p>The interest upon this mortgage becoming due in April, 1918, a default also occurring in the covenant for a sinking fund, the mortgagee was asked under the mortgage by the bondholders to take possession, and on April 17th appointed an agent to take possession of the mine. The mortgagee on the same day wrote to the American Smelting & Refining Company advising them that it was taking possession through its agent, and demanding payment to itself under the contract between the defendant and the smelting company. To this the smelting company replied on the next day by a mere acknowledgment. On April 20, 1918, the mortgagee notified the defendant that it was taking possession under the mortgage, to which the defendant replied that it would hold the mortgagee responsible.</p> <p>On April 22, 1918, the defendant consented to a judgment creditor’s bill in sequestration of its assets in this district, and a receiver was appointed who was also appointed receiver under a similar bill filed in the United States District Court of Arizona on the 27th. The petitioner’s agent did nothing by way of taking physical possession of the mine, but the petitioner filed a bill to foreclose the mortgage in July, 1918, which is still pending and which prays for possession under article 13 of the mortgage.</p> <p>The moneys in question are those paid in the city of New York by the smelting company to the receiver under the mining contract and now held in a New York bank. They arose after his appointment and up to the filing of Oils motion. In August, 1918, the petitioner moved apparently in the Arizona foreclosure suit to be allowed to take xiossession of the mine under the mortgage, which motion was denied on December 14, 1918. The mortgage was expressly made subject to the contract between the defendant and (he smelting company. '</p>

<p>At Law. Action by the Sponge Divers’ Association, Incorporated, to the use of the Commercial Credit Company, against the Smith, Kline & Drench Company. On motion by plaintiff for new trial.</p>

<p>In Equity. Suit by the United States against the Rock Oil Company and others.</p>

<p>1. Courts <©=343—Federal Courts—Misjoinder of Parties Plaintiff— Suit by Taxpayer Joining All Citizens—Equity Rule—“Joint Causes of Action.”</p> <p>Under equity rules 26 and 380201 Fed. v, 118 C. C. A. v; 198 Fed. xxix, 115 C. C. A. xxix), in suit by a citizen of Ohio and of the United States, joining all citizens of the United States, against the Governor of Ohio, to enjoin transmission by him to the General Assembly of the state of a proposed amendment to the federal Constitution prohibiting the manufacture, sale, etc., of intoxicating liquors within the state, there is a misjoinder of parties plaintiff, as there would be if the suit were brought alone in behalf of plaintiff as taxpayer and all other taxpayers similarly interested ; the causes of action not being joint within the rules.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, Second Series, Joint Cause of Action.]</p> <p>2. Injunction <©=75—Transmission of Proposed Amendment to Federal Constitution to State Legislature—Absence of Emergency.</p> <p>The suit of a taxpayer in a federal judicial district in the state of Ohio, also as a citizen of the state and the United States, joining with him all citizens of the United States, to enjoin the Governor of Ohio from transr mitting fo the General Assembly of the state the proposed amendment to the federal Constitution prohibiting the manufacture, sale, etc., of intoxicating liquors, involves no such extraordinary emergency or irreparable injury to constitutional rights as to induce the court to direct the writ to proceed and make a precedent, if necessary, in the sense of applying old principles to new states of fact.</p> <p><©=For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>3. Injunction <®=»75—Restraining Transmission of Proposed Constitutional Amendment—Absence of Jury.</p> <p>A suit will not lie against the Governor of Ohio in behalf of a taxpayer in a federal judicial district of the state, suing as such and as a citizen of the state and the -United States, and joining all citizens of the United' States, to restrain the Governor from transmitting to the state Legislature the proposed amendment to the federal Constitution prohibiting the manufacture and sale of intoxicating liquors, since the Governor’s threatened act of itself cannot injure plaintiff, as even in the absence of action by the Governor the Legislature can act on the amendment.</p> <p>4. Injunction ®^>75—Transmission of Constitutional Amendment by Governor—Irreparable 1 n jury. •</p> <p>Since, if the proceedings in the federal Senate and House in relation to proposing an amendment to the federal Constitution prohibiting the manufacture and sale of intoxicating liquors were not in accordance with the Constitution, any citizen of Ohio may show to its General Assembly wherein they were violative of the Constitution, the action .of the Governor of Ohio in transmitting to the Legislature for ratification the proposed' prohibition amendment cannot result in irreparable injury to a citizen of Ohio and the United States.</p> <p>5. Constitutional Law <3=>70(1), 73—Separation of Powers of Government —Restraining Transmission of Proposed Constitutional Amendment to Legislature.</p> <p>The District Court of the United States, at suit of a taxpayer and citizen of the state of Ohio and the United States, joining as plaintiffs all citizens of the United States, has no power to enjoin the Governor of Ohio from transmitting to the General Assembly of the state for ratification or rejection the proposed amendment to the federal Constitution prohibiting the manufacture and sale of intoxicating liquors on any ground that the amendment has not been proposed in accordance with the Constitution, as the step would be an interference with the executive and legislative powers by the judiciary.</p> <p>8. Injunction <@=»75—Absence of Adequate Remedy—Prohibition of Transmission of Proposed Constitutional Amendment.</p> <p>Merely because a citizen and taxpayer of Ohio and the United States has no adequate remedy or any remedy at law against an amendment to the Constitution of the United States prohibiting the manufacture and sale of intoxicating liquors, illegal because not proposed by Congress as provided by the Constitution, such citizen and taxpayer is not entitled to injunction restraining the Governor of Ohio from transmitting the amendment to the General Assembly of the state for action.</p> <p>7. States <@=>4—Reservation of Powers Not Delegated to United States.</p> <p>The addition to the Constitution of the United States of an amendment prohibiting the manufacture, sale, etc., of alcoholic liquors, -is an amendment of the organic law, and not prohibited by article 10, reserving to the states or people the powers not delegated to the United States by the Constitution, nor prohibited by it to the states.</p> <p>8. Courts <S=>282(1)—Federal Courts—Suit Not Involving Federal Question.</p> <p>A suit by a citizen and taxpayer of the state of Ohio and the United States, joining as plaintiffs all citizens of the United States, to enjoin the Governor of Ohio from transmitting to the state Legislature for action the proposed amendment to the federal Constitution prohibiting the manufacture and sale of intoxicating liquors, involves no federal question or deprivation of plaintiff's rights prior to the adoption of the amendment.</p> <p>9. Courts <®=»328(1)—B’ederal District Court—Jurisdictional Amount.</p> <p>District Court of the United States hold without jurisdiction of suit by a taxpayer and citizen of Ohio and the United States, joining as plaintiff all citizens of the United States, to enjoin the Governor of Ohio from transmitting to the state Legislature for action the proposed amendment' to the federal Constitution prohibiting the manufacture and sale of intoxicating liquors; the jurisdictional amount of $3,000 not being involved.</p> <p>igzssFor other oases seo same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>10. Constitutional Law <S=10—Amendments—“Two-Thikds of Both Houses”—“House.”</p> <p>The requirement of Const. U. S. art. 5, that “two-thirds of both houses” shall propose amendments for adoption or rejection by the state Legislatures, means two-thirds of a quorum of each house, and not two-thirds of the whole membership of each, since “house” means a body of men united in their legislative capacity.</p> <p>11. Constitutional Law <@=»10—Adoption of Amendment—Subsequent Attack on Adoption.</p> <p>If tbe record of the proposal and adoption of an amendment to the federal Constitution can be attacked at all, it can be attacked after the adoption by the states of the amendment, and proceedings had to enforce legislation enacted to carry the amendment into effect.</p> <p><§r=sFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Aliens @=61—Naturalization—Alien Enemies.</p> <p>Prior to Act May 9, 1918, an alien enemy, filing naturalization petition subsequent to declaration of war, could not be naturalized during war.</p> <p>2. Aliens @=6'8—Naturalization—Declarations.</p> <p>Prior to Act May 9, 1918, declarations of intention made prior to September 27, 1906, were not available unless naturalization petition was filed within seven years from that date.</p> <p>3. Aliens @=68—Naturalization—Dismissing Petition.</p> <p>Dismissal of naturalization petition, on ground not going to petitioner’s fitness, does not prevent another petition from being based on same declaration of intention.</p> <p>4. Aliens @=61—Naturalization—Alien Enemies.</p> <p>Under Act June 29, 1906, § 4, subd. 11, as added by Act May 9, 191S (Comp. St. 1918, § 4352) and section 3 of Act May 9, 1918 (Comp. St. Í918, § 4352a), an alien enemy, filing naturalization petition before January 31, 1918, may avail himself of declaration of intention made prior to September 27, 1906, provided his certificate of naturalization is granted during 1918.</p> <p>5. Aliens @=68—Naturalization—Amending Petition.</p> <p>Alien enemy, filing naturalization petition before enactment of Act May 9, 1918, is entitled to benefit of that act, and may, before hearing, amend his petition accordingly.</p> <p><@z^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Equity. Suit by Ahijah Williams against Tracy Newman and the Bernardin Timber & Manufacturing Company, in which Henry Koeh'ler intervened as a defendant. This is a suit on the part of Ahijah Williams to have the defendants Tracy Newman and Bernardin Timber & Manufacturing Company declared trustees of the land in dispute for his use and benefit.

<p>1. Public Lands <§=>103(1)—Land Department—Notice of Hearing.</p> <p>Any irregularity in serving a notice requiring an entryman to appear at a contest hearing is obviated, where the entryman appears and takes part in the hearing.</p> <p>2. Public Lands <§=>106(1)—Contest—Conclusiveness.</p> <p>Where an entryman, after offering final proof, opposes a contestant’s claim before the receiver, and appeals to the Land Department from an adverse decision, he is concluded by the department’s cancellation of his entry upon issues of fact.</p> <p><@=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Seamen <@=»11—Disabled Seaman—Duty op Ship to Furnish Medical Treatment.</p> <p>A seaman, suffering from injury or illness in the service of a ship, is entitled to medical treatment and attendance, and the master is required to exercise reasonable judgment as to whether the ship shall stop in the nearest port to provide such care and medical attendance.'</p> <p>2. Seamen <§=»11—Disabled Seaman—Liability op Ship por Neglect.</p> <p>Whether a ship has fully discharged its duty of care and medical attendance to a seaman, who is injured or ill, depends upon the peculiar circumstances of each case.</p> <p>3. Seamen <@=11—Illness op Seaman in Service—Liability op Ship por Neglect.</p> <p>A lake steamship held not liable for neglecting to gire medical attendance and care to its steward, who became ill at Duluth with heart trouble, from which he died, where he declined to go to a hospital at Duluth and other ports, continued in service, assured the master that he was suffering from nothing serious, and there were no outward symptoms to advise the master to the contrary.</p> <p><S=»For other eases, see same topie & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Bankruptcy. In the matter of George Pyatt, bankrupt. On motion to dismiss the proceedings.</p>

John F. Downey, Wallace Spink, and George R. Keene were indicted for conspiracy to defraud the United Slates, and for conspiracy to commit an offense against the United States, and defendants Downey and Spink respectively demur.

<p>1. Indictment and Information <@=73(1)—Inconsistency—Fraudulent Procuration of Reward—Place of Offense.</p> <p>In an indictment for fraudulently procuring payment of a reward by the United States for apprehension of a deserter under the Selective Service Act, a description of defendant officer’s place of service is not inconsistent with the express allegations of the place of the commission of the offense.</p> <p>2. Criminal Law <@=113—Jurisdiction of District Court—Fraudulent Procurement of Reward.</p> <p>Under Judicial Code, § '42 (Coinp. St. § 1024), a District Court has jurisdiction of a prosecution for having fraudulently procured payment of a reward by the United States for having apprehended a deserter under the Selective Service Act, though the fictitious claims or vouchers'were made in the district and transmitted to an officer in another district.</p> <p>3. Indictment and Information <@=63—-Conclusion of Law-—Mixed Statement of Law and Fact.</p> <p>Allegation that a certain person was not then and there such a deserter under the Selective Service Act (Comp. St. 1918, §§ 2044a-2044k), etc., as entitled defendant to payment of a reward, in an indictment for having fraudulently procured payment of the reward for apprehension of such a deserter from the United States, held not a conclusion of law, but a mixed statement of law and fact.</p> <p>4. United States <@=123—Procuring Reward for Apprehension of Deserter—Burden of Proof.</p> <p>By alleging that a certain person was not a deserter under the Selective Service Act (Comp. St. 1918, §§ 2044a-2044k), the United States, in a prosecution for having fraudulently procured a reward from it for apprehension of such a .deserter, assumes the burden to show that the person named did not come within the description of a person or deserter for whose apprehension and delivery a reward was legally payable.</p> <p>5. Indictment and Information <@=111(4)—Negative Allegation.</p> <p>An indictment for having fraudulently procured payment of a reward by the United States for apprehension of a deserter under the Selective Service Act (Comp. St. 1918, §§ 2044a-2044k), which indictment stated generally that the person apprehended was not such a deserter that his apprehension entitled defendant to reward, cast upon defendant no undue bunion in preparing bis ease, and was sufficient, though not specifically negativing each provision of the statute or regulations which might justify the presentation of such a claim against the United States.</p> <p><@e»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>6. United States <5=3121—Fraudulent Payment of Reward by United States—Honesty of Claim.</p> <p>To render defendant guilty of having fraudulently procured payment from the United States of a reward for the apprehension of a deserter under the Selective Service Act (Comp. St. 1018, §§ 2(M4a-2044k), it was not essential that a bill, voucher, or other thing used as a basis for the claim should contain fraudulent or fictitious statements, but whether the claim was genuine and honest must he determined in view of all the facts surrounding it.</p> <p>7. United States ©=3123—Fraudulent Procurement of Reward by United States—Indictment.</p> <p>An indictment for having fraudulently procured payment of a reward by the United States for the apprehension of a deserter under the Selective Service Act (Comp. St. .1018, §§ 2044a-2044k) need not state the circumstances surrounding the presentation of the document or voucher which was the basis of defendant’s claim, or the nature of any other document accompanying or supporting it.</p> <p>^zs>S*ot other cases see same topic & KEY-NUMBISB. in all Key-Numbered Digests & Indexes</p>

Bean, Judge. Action by J. E. Ackerman and Max Brummel, individually and as copartners doing business under the firm name and style of Ackerman & Brummel, and Ackerman & Brummel, a copartnership, against the Santa Rosa-Vallejo Tanning Company. To review a judgment for defendant, plaintiffs bring error. This is an action on a contract for purchase and sale of leather backs. The cause was tried without a jury.

<p>In Error to the District Court of the United States for the Eastern District of Oklahoma; John C. Pollock, Judge.</p> <p>Actions by the United States against W. T. Ward and others (two cases), against Ezra Brainerd, Jr., and others, and against R. H. Matthews and others. Judgments for defendants, and the United States brings error.</p>

<p>In Error to the District Court of the United States for the Northern District of Texas; George W. Jack, Judge.</p> <p>G. T. Bryant, Z. D. Risley, and S. J. Powell were convicted of violation of Penal Code, § 6, and they bring error.</p>

<p>1. Criminal Law <@=450—Opinion Evidence—Matter in Issue.</p> <p>On trial of an indictment charging an offer to bribe members of a draft board to exempt a person from service, the understanding of such members as to whether the words used by defendant constituted an offer held properly excluded as incompetent; this being the very matter in issue.</p> <p>2. Criminal Law <@=1055—Appeal—Disregard op Technical Defects— Exceptions to Argument.</p> <p>Under Judicial Code, § 269, as amended by Act Feb. 26, 1919, that “on the hearing of any appeal, certiorari, writ of error or motion for a new trial, in any case, civil or criminal, the court shall give judgment after an examination of the entire record before the court without regard to technical errors, defects or exceptions which do not affect the substantial rights of the parties,” it is the duty of the Circuit Court of Appeals to consider prejudicial remarks of counsel, although no exception was taken.</p> <p>3. Criminal Law <@=723(1)—Improper Argument of Counsel.</p> <p>Argument of counsel for the government in a prosecution for offering to bribe member of draft hoard, referring to the war with Germany, etc., held to contain such an appeal to prejudices of the jurors as was likely to prevent a fair consideration of the issues.</p> <p><®=For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Trade-Marks and Trade-Names <S=»100—Unfair Competition—Sufficiency . of Decree.</p> <p>In suit to restrain unfair competition in the sale of sticky fly paper or fly coils, so as to infringe plaintiff’s rights, decree approving the trade-name, the name of his commodity, and the designs submitted by' defendant under which to continue business, and fixing the amount of bond required as a condition to permit the sale .of stock previously manufactured by defendant, held sufficient as effectively protecting plaintiff’s rights.</p> <p><^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Eminent Domain <§=>148—Jijst Compensation—Interest as Element or Compensation.</p> <p>Ail award for land taken under Reclamation Act June 17, 1902 (Comp. St. §§ 4700-4708), three years before condemnation proceedings were instituted under section 7 of the act (section 4706), held to properly include an amount equal to interest at the legal rate of the state until time of payment of the value of the land fixed by commissioners as of the date of the taking, not for interest as such, but as an element of the ;¡ust compensation to which the owner is entitled under the Constitution.</p> <p>2. United States <§=>110—Liability for “Interest.”</p> <p>In the rule of immunity of the government from liability for interest, the word “interest” is generally used as meaning compensation for the use or forbearance of money, or damages for its detention.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Interest.]</p> <p>3. Eminent Domain <§=>122—“Just Compensation.”</p> <p>“Just compensation” rests on equitable principles, and it means substantially that the owner should be put in as good position pecuniarily as he would have had, if his property had not been taken.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Jnst Compensation.]</p> <p>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 District of New Mexico; Colin Neblett, Judge.</p> <p>Condemnation proceeding by the United States against Margie E. Highsmith and others. B'rom the award of compensation, the United States brings error.</p>

, Judge. In the matter of William B. Pizzini, bankrupt; the Old Dominion Trust Company, trustee. L- R. Page and the Old Dominion Trust Company, trustees for C. D. Eanghorne, appeal from an order denying them a lien.

Suit in admiralty for collision by Fred E. Jones, owner of Scow No. 33, against the steam tug New York Central No. 18, with the steam tug Amanda Moore impleaded. Decree for half damages against the Moore, and libelant appeals. Libelant owns the scow No. S3. On a fair summer day, the tide being strong flood, she was in tow of the tug Amanda Moore. It was intended to take the scow into the slip between Piers 32 and 33, East River.

Suit in equity by the Sumpter Dumber Company against the Sound Timber Company. Decree for defendant, and complainant appeals. On motion for substitution of parties, and motion to dismiss appeal.

<p>1. Guaranty @=>25(3)—Consideration—Evidence.</p> <p>The words “for value received,” in an indorsement of guaranty, affirmatively express a consideration, which casts upon the guarantor the burden of proving that there was none, and a mere denial that anything was paid him does not discharge it.</p> <p>2. Corporations @=218—Stockholders—Guaranty of Corporation’s Notií —Consideration.</p> <p>A guaranty of renewal notes of a corporation, of which the guarantor was a stockholder and also a creditor in a substantial amount, by which an extension of the debt was secured, held supported by a valuable consideration.</p> <p>:>. Mortgages @=>25(3)—Validity—Consideration.</p> <p>The release of a guarantor from a valid contract of guaranty and the surrender to him of guaranteed notes to the amount of the mortgage held to constitute a valid consideration for his personal notes for a portion o'f the debt and a mortgage securing the same.</p> <p><§s5»lTor other cases see same topic & KEY-NUMBEK in all Key-Numbered Digests & Indexes</p>

<p>1. Prostitution @=»5—Violation of White Slave Traffic Act—Question for Jury.</p> <p>Evidence in a prosecutioa for violation of the White Slave Traffic Act (Comp. St. § 8812) held sufficient to warrant submission of the ease to the jury.</p> <p>2. Criminal Daw <@=»338(3)—Trial—Evidence.</p> <p>That a defendant could not read or write English did not render letters purporting to have been written by him inadmissible, under instruction that they should be considered only if the jury found that they were written at the direction of and for defendant.</p> <p>3. Criminal Daw <§=^823(2)—Trial—Instructions—Cure of Error.</p> <p>A recital by the judge to the jury of the evidence, although not in all re.spo.cts correct, was not reversible error, where the jury were told that it was only Ms recollection, and not binding on them.</p> <p><£=>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; M. T, Dooling, Judge,</p> <p>Application by Jung Back Sing and Dear Shee for a writ of habeas corpus against Fdward White, as Commissioner of Immigration, Port of San Francisco. From a judgment denying the writ, relators appeal.</p>

<p>In Error to the District Court of the United States for the Southern Division of the Eastern District of Michigan; Arthur J. Tuttle, Judge.</p> <p>Action by Gilbert E. Miller against the Prudential Casualty Company. To review judgment for plaintiff, defendant brings error.</p>

<p>1. Corporations <@=>640—Foreign Corporations—Filing of Reports—Statute—Application.</p> <p>Rev. Codes Mont. § 3850, relating to the filing of reports and affidavits by corporations, was not intended to, and does not, apply to foreign corporations.</p> <p>2. Corporations @=5640—Filing of Reports—Foreign Corporations—“Debt or Judgment.”</p> <p>If Rev. Codes Mont. § 3850, making directors of corporations liable for debts if they do not file certain reports, applied to foreign corporations, the “debt or judgment” specified therein must be limited to a debt, incurred in Montana or a judgment based thereon: a state being without power to make nonresident directors of a corporation of another state liable upon a debt incurred in still another state to another foreign corporation.</p> <p>@=5>F0I otter cases see same topic & KEY-NUMBBR in all Key-Numbered Digests & Indexes</p> <p>3. Pleading <@=>34(3)—Presumptions in Aid oe—Piling of Reports—Liability op Directors of Corporations.</p> <p>Assuming that Rev. Codes Mont. § 3850, making directors of a corporation liable for debts of the corporation if they do not file certain reports, applies to foreign corporations, in a proceeding against directors of a foreign corporation for not filing such reports in Montana, it must be specifically alleged that the debt was incurred in Montana, inasmuch as a judgment rendered in Montana on a .debt raises no presumption that the debt was there incurred.</p>

<p>1. Patents <=327—Validity and Scope—Effect of Pkior Decisions.</p> <p>The sustaining of a patent upon a differentiation from the prior art does not authorize the successful party to gather to himself a monopoly of what was old when he entered the field.</p> <p>2. Patents <=328—Infringement—Mixing Machine.</p> <p>The Smith patent. No. 803,721, for improvements in concrete mixers, construed, and held not infringed.</p> <p><£=»I-’or other cases see samo topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Northern District of Ohio; John H. Clarke, Judge.</p> <p>Suit in equity by the Kellogg Switchboard & Supply Company against the Dean Electric Company. Erom a decree for defendant (231 Fed. 197), plaintiff appeals.</p>

<p>1. Patents <§=»303—Infringement—Preliminary Injunction—Discretion of Court.</p> <p>The exercise of the discretion of the trial court in passing on motion for preliminary injunction in a suit for infringement of patent does not extend to a refusal to apply well-settled principles of law to a conceded or indisputable state of facts.</p> <p>2. Patents <3=^297(2)—Preliminary Injunction—Prior Adjudications.</p> <p>Where plaintiff’s patents have been held not anticipated, valid, and infringed in numerous prior suits, such prior adjudications justify plaintiff in seeking the extraordinary remedy of preliminary injunction against defendant, charged with infringement, unless it may fairly be said that defendant’s device does not infringe the claims in suit.</p> <p>3. Patents <3=»328—Infringement— Electric Light Sockets.</p> <p>Weber patents, No. 713,206, claim 4, and No. 916,812 claim 1 for incandescent electric lamp sockets, held infringed by defendant, so far as shown by the evidence on plaintiff’s motion for preliminary injunction.</p> <p><©=s>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Jury <§=>31(7)—Jury Triad—Judgment Notwithstanding Verdict.</p> <p>Under the seventh amendment to the federal Constitution, preserving the right to trial by jury, a federal District Court cannot enter judgment notwithstanding the verdict.</p> <p>2. New Trial <§=>70'—When Granted.</p> <p>If defendant corporation’s book entries, reciting a profit on property sold another corporation, sustain a verdict for the income tax on the profit, a new trial will not be granted because of the court’s opinion that no income was dntually received; the entries being merely a matter of bookkeeping incidental to a corporate reorganization.</p> <p>3. New Trial <§=>159—Determination.</p> <p>Although the court entertains serious doubt whether evidence sustains-verdict for government in action to collect income taxes, a new trial will be denied, and judgment pro forma entered on the verdict, in order to preserve the government’s rights under the verdict pending appeal.</p> <p><@zs»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Collision @=>71(3)—Anchored Vessels—Improper Anchorage.</p> <p>A collision between tlie steamships Jason and Hésperos, anchored in James river off Newport News, held due solely to the fault of tlie Hésperos, which, coming later, was bound to give the other ample searoom, and did so at first, but anchored so insecurely that she dragged her anchors in a storm, and, although she drifted within a ship’s length of the Jason three hours before tbe collision, and could have moved to a safe distance, did not, and when the wind increased was driven against the other vessel.</p> <p>2. Salvage @=>34—Beaching Sinking Steamship—Amount op Awarb.</p> <p>A tug held entitled to a salvage award of $15,000 for safely beaching a steamship, which was in a sinking condition from collision in a harbor at night in a storm; the service requiring some seven hours, and the value of the tug being $75,000, and of the ship and cargo $3,000,000.</p> <p>@r=For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Moritz Eoewenthal was indicted under the Harrison Narcotic Act. On demurrer to indictment, and motion to quash certain counts.</p>

<p>1. Bankruptcy <@=92—Involuntary Petition—Failure to Prosecute.</p> <p>Involuntary bankruptcy petition might be dismissed for laches in prosecution, where creditors did nothing for six months, except obtain permission to amend petition.</p> <p>2. Bankruptcy <©=11—Courts—(Nature.</p> <p>A court of bankruptcy is a court of equity.</p> <p>3. Equity <©=363—Dismissal—Time.</p> <p>Motion to dismiss, made in good faith and raising substantial Issues vitally affecting the merits, may be entertained by court of equity at any time within a reasonable period.</p> <p>4. Bankruptcy <@=92—Involunatry—Motion to Dismiss.</p> <p>Under Bankruptcy Act July 1, 1898, § 18b (Comp. St § 9602), authorizing creditors to plead to petition within five days after return day, and section 59f (section 9643) providing that creditors other than original petitioners may file answer at any time, a motion to dismiss involuntary petition is not too late, because made more than five days after return day.</p> <p>5. Bankruptcy <@=92—Motion to Dismlss—Vertfication.</p> <p>Bankruptcy Act July 1, 1898, § 18c (Comp. St. § 9602), requiring verification of pleadings setting up matters of fact, is inapplicable to motion to dismiss an involuntary petition made under equity rule 29 (198 Fed. xxvi, 115 C. C. A. xxvi), requiring defenses on matters of law previously made by demurrer to be raised by motion.</p> <p>6. Bankruptcy <@=61—Act op Bankruptcy—Equitable Receivership.</p> <p>A debtor, by admitting allegations of bill requesting an equitable receivership and alleging debtor’s insolvency, does not thereby commit an act of bankruptcy.</p> <p>7. Bankruptcy <@=81(3)—Pleading—Insolvency.</p> <p>Involuntary bankruptcy petition, alleging that debtor was insolvent, is insufficient, because pleading a conclusion.</p> <p><@=For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Dedication <§=>58—Change of Use.</p> <p>A dedication of land to the public for one purpose does not necessarily justify its use for another purpose.</p> <p>2. Public Lands <§=>92—Railroad Right of Way—Effect of Grant.</p> <p>Land granted by Act July 1, 1S62, for a railroad right of way, was dedicated by the government to a use deemed essential to national prosperity and safety, and could not thereafter be alienated or dedicated for any other kind of use, public or private, without the consent of Congress.</p> <p>8. Public Lands <§=>92—Railroad Right of Way—Priority of Grant.</p> <p>The grant of lands for a railroad right of way by Act July 1, 1862, § 2, was a present grant, floating until the route was definitely fixed, but then sufficient to cut off all claims to lands thereby granted which were initiated subsequent to the date of the act.</p> <p>4. Public Lands <@=>92—Grant of Railroad Right of Way—Failure to File Map.</p> <p>The failure of the railroad company to file the map of its located route, as required by Act July 1,1862, § 7, to supply information on which lands could be withdrawn upon entry, does not affect the title of the railroad to the right of way granted by section 2 of the act. p</p> <p>5. Public Lands <@=>92—Railroad Right of Way—Amendatory Acts.</p> <p>Act July 2, 1864, § 16, authorizing the Central Pacific Railway Company to extend its line 150 miles east of the California line, and Act July 3, 1866, § 2, authorizing extension of line with approval of the Secretary of the Interior until it met the Union Pacific, were amendatory of Act July 1, 1862, passed under the power reserved by section 18 of the latter act, and were not intended to forfeit the rights of way granted by section 2 of the act of 1862, and the right of the railroad to the right of way over lands within the limits of construction by the act of 1804 dates from 1862, and not from 1866.</p> <p>6. Public Lands <@=>92—Railroad Right of Way—Exceptions.</p> <p>The railroad right of way granted by Act July 1, 1862, § 2, over public lands, was not impliedly subject to the exception in the grant by section 3 of that act of alternate sections, exempting from the grant lands to which a pre-emption or homestead claim had attached at the time the road was definitely located.</p> <p>7. Public Lands <@=>92—Railroad Right of Way—Lands Affected.</p> <p>Within Act July 1, 1862, § 2, granting a railroad right of way over public lands, the term .“public lands” means such lands belonging to the government as.are subject to sale or other disposal under general laws.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Public Land.]</p> <p>8. Public Lands <@=>92—Railroad Right of Way—Pre-emption—Entry— Retroactive Effect.</p> <p>A pre-emption entry, made in the land office two years after the adoption of Act July 1, 1862, § 2, granting a railroad right of way over public lands, could not in itself have a retroactive effect sufficient to overcome the grant of the right of way.</p> <p>9. Public Lands <§=>114(3)—Railroad Right of Way—Exception from Pat- . ENTS.</p> <p>The failure of the land office to include, in a patent to land over which a right of way had been previously granted to a railroad, an express reservation of the easement, does not impair the easement.</p> <p><@=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>10. Public Hands <@=>41—Pre-emption—Priority—Burden of Proof.</p> <p>Where a congressional grant of railroad right of way antedated a patent two years, the burden is on the patentee, claiming an equity prior to the easement, to establish the equity by competent evidence.</p> <p>11. Public Hands <@=>41—Pre-emption—Declaratory Statement—Contradiction.</p> <p>Heeitals of fact in the declaratory statement of a pre-emption claimant, as against one claiming under a title adverse to the pre-emption, procured by another and a different course of procedure, are no more than ex parte statements by an interested party, which the other is not estopped from contradicting by competent evidence.</p> <p>12. Public Hands <@=>34—Pre-emption—Declaratory Statement—Eights Acquired.</p> <p>Declaratory statement, filed under the pre-emption law (Eev. St. §§ 2204, 2205), sets apart the land to the pre-emptioner’s option to purchase, and severs such land from the mass of public land until tbe entry is canceled or forfeited.</p> <p>13. Public Hands <@=>3-1—Pre-emption—-Unsubveyed Hand—Extent of Claim.</p> <p>Under the pre-emption law (Kev. St. §§ 2264, 2265), a settlement on un«urveyod land does not entitled the pre-emptioner to a floating right to ■ claim after survey any land within the three-quarter mile radius from the 40 on which his house is located, but is confined to the quarter section or sections on which the settlement is made.</p> <p>14. Public Hands <@=>92—Pre-emption—Notice of Olatm—Priority of Grant of Kigiit of Way.</p> <p>Where settlement was claimed on two contiguous quarter sections of unsurveyed land, on one of which the settler was residing and had placed all Ms improvements, his claim to a subdivision in the other quarter section, on which he had made no improvements, on which he had posted no notice that it was claimed by him, and as to which he had given no actual notice of his claim prior to his pre-emption entry in the land office in 1864, must yield to the right of way granted by the act of July 1, 1862, to llie Central Pacific Kailroad Company, even though the actual settlement antedated the act and the subdivision was patented to the settler in I860.</p> <p>15. Public Hands <@=>129—Patents—Quieting Title—-Evidence.</p> <p>In a suit against a city to quiet title to a tract of land claimed by a railroad under its right of way grant, for which the city had paid rental, and against which it had assessed improvement taxes, Hie city cannot object to oral evidence as to the settlement by the pre-emptioner, from whom It derived title, on the ground that too long a time had elapsed since the pre-emption patent was issued.</p> <p>16. Evidence <@=>387(3)—Oral Evidence—Contradicting Hand Office Becobds.</p> <p>Oral evidence that the pre-emption settlement on which the patent through which defendant derived title was based was not made on th« tract in question until after a grant of plaintiff’s right of way by Congress will not be excluded on the ground that the land office records should control.</p> <p><g=px<'or other eases see same topic & KBY-NUMBI5K in all Koy-Nuiahered Digests & InC x ,s</p>

<p>In Equity. Suit by the San Antonio Public Service Company against the City of San Antonio and others. On motion of defendants to dismiss bill.</p>

In Admiralty. Label by Tobias Johnson, as master of the auxiliary schooner Alice M. Guthrie, against the steam tug Anson M. Bangs, to recover for damages sustained by the sinking of the schooner after collision with the tug. Decree rendered, holding both vessels jointly liable.

<p>In Admiralty. Suit for collision by M. H. Lumpkin, master of the schooner Manaway, against the fishing steamship G. S. Allyn.</p>

<p>In Admiralty. Libel by B. Johannesen, master of the steamship Fjell, against the steamship Livingstonia.</p>

<p>1. Taxation ©=>168—Foreign Oil Company—Failure to Fix Cash Value op Income—“Intangible Property.”</p> <p>Under Civ. Code Ariz. 1913, par. 4834 et seq., requiring the assessment of all taxable property at its full cash value, the tax commission and board of equalization of Arizona had no authority to ignore the cash value of a foreign oil company’s property and to tax its intangible property, Iixed with an arbitrary value by capitalizing at 25 por cent, its earnings or income, by assessing the valuation against the company generally, not upon any specific items of its property; there being no authority for taxation of earnings, while “Intangible property” includes only franchises, credits, chases in action, and the like.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Intangible Property.!</p> <p>2. Taxation ©=>498—Restraining Assessment—Inadequacy op Legal Remedy—Multiplicity of Suits.</p> <p>Where an oil company, whose “intangible property” was improperly and illegally assessed by the Arizona tax commission and the hoard of equalization of the state, would become involved in a multiplicity of suits involving a common question of law if it attempted to utilize any remedy under Civ. Code Ariz. 1913, par. 4887, it is entitled to equitable relief by injunction against the tax commission and the board of equalization.</p> <p>3. Courts ©=>335(1)—Federal Courts—Control op State Statute—Collection oí? Tax—Injunction.</p> <p>The federal courts, in the exercise of their equity jurisdiction, are not bound by Civ. Code Ariz. 1913, par. 4939, forbidding injunction against the state or any officer to prevent the collection of a tax levied under provisions of law.</p> <p>4. Taxation ©=>397—Oil Companies—Unit Rule—Statutes.</p> <p>Civ. Code Ariz. 1913, pai-s. 4953-4979, providing for the unit rule of value in the taxation of private car lines, railroad property, and telegraph and telephone lines, do not authorize the unit rule valuation for taxation of the property of a foreign oil company, or for the distribution of the unit value between counties in which the property is situated.</p> <p><Js»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Killits, Judge. Deportation proceedings by the United States against Lo Hop. Defendant was ordered deported by the United States, commissioner, and on appeal to the District Court the order was affirmed, and defendant appeals.

<p>,. In Error to the District Court of the United States for the Northern District of Ohio; D. C. Westenhaver, Judge.</p> <p>Action .by William T. Hodges, administrator of .Susanna Hodges, against the Erie ’Railroad Company.. To review .judgment .for defendant, plaintiff brings error.</p>

<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>In the matter of the Fake Chelan Fand Company, a corporation, bankrupt. The mortgage claim of C. B. Tyler was allowed by the referee and established as a preferred claim, and from an order denying the petition of Walter M. Olive, as trustee in bankruptcy, for review, and confirming the order of the referee, the trustee appeals.</p> <p>This is an appeal by the trustee of the bankrupt corporation from an order of the District Court denying the trustee’s petition for a review, and confirming the order of the referee, sustaining the mortgage claim of one Tyler; Tyler having offered proof of a secured claim, which claim was established ' and allowed as a preferred claim by the bankruptcy court over the objections of creditors. The substance of the referee’s findings, as adopted by the District Court, makes this case:</p> <p>The bankrupt corporation organized in 1909, with a capital of $500,000, to hold, develop, and sell a large tract of land. There were a small number of stockholders, and large sums of money were raised by pro rata assessments upon the stockholders. The company gave its notes for such advances of money, and upon unsecured obligations about $340,000 were borrowed. In addition to these obligations, the company owed debts for money borrowed upon its notes, which were secured by pledges of certain purchase-money contracts, covering lands that the corporation had sold, in the sum of $110,000, $50,000 of which notes were held by the National Bank of Commerce of Seattle, and $60,000 held by certain individuals. In June, 1916, these secured notes were past due, and the bank notified the corporation that payment must be made by January 1, 1917.</p> <p>About that time one Furey became a stockholder and was elected president of the corporation. He held one-fourth of the total amount of stock and one-fourth ($85,000) of the stockholders’ notes that had been issued. After demand was made for payment, Furey assured the stockholders that he could raise the money in the Eastern cities to meet the obligations of the company, but after efforts he failed to do so. To avert the then apparent ruin of the corporation, unless it could borrow money, two stockholders, Green and Tyler, were asked, and agreed, to furnish the needed money to meet the obligations, which by that time amounted to about $116,000, due upon secured notes and other debts, exclusive of notes due to stockholders. After the matter was discussed among the stockholders, it was decided that the corporation should borrow $120,000 from Green and Tyler in order to pay the obligations and to carry the company along for a few months, during which time Furey hoped that he could borrow enough money to save the business. His general purpose was to realize funds through the sale of bonds of an irrigation district to be organized, the district to take over q. water system in which the corporation had an interest.</p> <p>At that time the shares were owned as follows: Tyler had three-eighths, Green one-fourth, Furey one-fourth, and Swalwell one-eighth. There were some shares held by qualifying persons. On December 14, 1916, a stockholders’ meeting was held, at which all of the stockholders, seven in number, were present or represented, and the corporation, by unanimous vote, was authorized to borrow $120,000 of Green and Tyler, and to secure the obligation by a mortgage upon all of the property and assets of the corporation. Upon the same day the trustees met and authorized the mortgage, and with provision therein that all of the income should be applied upon the mortgage. The mortgage was duly executed, and among other things provided that, while the company should continue in business and make sales, the income from sales should be applied in the reduction of the mortgage debt. In carrying out this plan, the $120,000 was paid to the company by Green and Tyler, and the company issued 12 notes, of $10,000 each, payable to bearer, dated December 30, 1916, due on or before one year after date, and executed a real and chattel mortgage, dated December 30, 1916, upon all of its property, which mortgage was recorded January 22, 1917. The notes owned by Green were afterwards transferred to Tyler. The secured obligations were paid, as also were the other obligations, except what was due upon stockholders’ notes, and any sums due as assessments for irrigation purposes upon the cultivated lands of the company, which, under the terms of contracts between tlib company and the water company, were first Hens upon the lands to which the water was furnished. The collateral to secure the old notes was delivered to Furey, president, and by using the Sf.000 over tlie sums paid out on secured claims the corporation ran along with the hope of continuing. About August, 1917, 550 acres of the lands of the corporation, valued at about $93,000, were transferred by Furey, as president, to one Brown. Furey turned over to Brown the stockholders’ note for $84,500, with interest, which was owned by Furey, to enable Brown to turn tlie note into the company as a payment for the 550 acres of land.</p> <p>Tyler, as the holder of all the notes, immediately brought foreclosure proceedings in the United States District Court, alleging that the company had not paid the ini crest on the mortgage, or taxes on its property. Very soon thereafter, September 13, 1917, a voluntary proceeding in bankruptcy was initiated by the secretary by direction of a majority of the trustees. After-wards, at a stockholders’ meeting held October 4, 1917, the action of tlie trustees in directing petition for bankruptcy was fully ratified. Furey protested.</p> <p>After the trustee in bankruptcy was elected, and after the mortgage given to Tyler had been questioned by Furey and others, an order upon Tyler was issued to show cause why the property should not be held by the trustee in bankruptcy fice and clear of the lien of his mortgage. Tyler appeared and propounded his claim. Objections were made by certain creditors and by the water company; the contention of the creditors being that the mortgage was preferential, and not given for a valuable consideration, while the water company claimed rights under its, contract as superior to Tyler’s mortgage.</p> <p>It was also found that at the timo the loan in question was made, and the mortgage was given to secure the same, the corporation was insolvent; that the mortgage was given to secure the money then loaned to the corporation, and was not for any antecedent indebtedness; that Green was an officer of the corporation at the time the loan was made, and knew of its insolvent condition; that, after the disbursement of the fund raised by the loan, the debts remaining unpaid were not pressing for payment, and that the stockholders and directors were fully advised of the purpose of the loan, the apparent necessity therefor, and of the affairs and financial condition of the company; and that the corporation continued its usual course and conduct of business for approximately nine mouths after the loan, when the conveyance of the 500 acres heretofore referred to was made.</p>

<p>SmPHNG <g=ol£>6(4)—-Injuries to Passenger—Negligence—Sufitoíency of Evidence.</p> <p>Evidence held to show that the steamship company, into the hold of whose vessel libelant, a passenger, fell, was guilty of negligence, so that libelant was entitled to recover damages for his injuries, despite libelant’s testimony adverse to himself; he having been rendered at least temporarily insano by his fall.</p> <p><£=oFor other oases see same topic & KEY-NUMBEK in all Key-Numbered Digests & Indexes</p>

Dooling, Judge. Noah F. Hardwick was convicted of perjury by having unlawfully, improperly, and fraudulently endeavored to obtain allowance of his application for exemption and- discharge from the selective service draft, and brings error.

<p>1. Perjury <S^9(2)—1Fax.se Affidavit to Selective Service Questionnaire —Authorization of Oath.</p> <p>Under Selective Service Regulations 1917, §§ 9i, 94, 95, a registrant who swore to the affidavit verifying, his questionnaire, which" falsely stated that he had a wife dependent on him for support, committed perjury, despite his claim that there is no statute authorizing such an oath, and nv authorization by the regulations.</p> <p>2. Perjury <S=>J 9(2)—Indictment—Identity of Person Charged.</p> <p>Indictment for perjury by having sworn falsely that defendant, a registrant; under the Selective Service Act (Comp. St. 1918, § 2044a et; soq.), had a wife dependent on him for support, held sufficient in its charge that defendant was the person who subscribed and took the affidavit.</p> <p>c§X£3Í?1or otilar cases see same topic & KISY-NTJMBIOB. in all Key-Numbered Digests & Indexes</p>

<p>1. Cbeditobs’ Suit <s=>7—Right to Remedy—Judgment Imposing Pine in Criminal Case.</p> <p>Under Rev. St. § 1041 (Comp. St. § 1705), providing that a judgment imposing a fine for an offense against the United States “may be enforced by execution against the property of the defendant in like manner as judgments in civil cases are enforced,” such a judgment may support a creditors’ bill in aid of an execution which has proved fruitless.</p> <p>2. Corporations <£=>259(8)—Stockholders—Liability—Judgment Against Corporation for Pine—Creditors’ Suit.</p> <p>Where a corporation pending a criminal prosecution against it by the United States, resulting in a judgment imposing a fine, sold all of its property and distributed the proceeds among its stockholders, such stockholders may be held liable in a creditors’ suit for the judgment against the corporation to the extent of their distributive share of its funds, and this although the purchaser assumed all of its debts and liabilities.</p> <p>3. Words and Phrases—“Debt.”</p> <p>' In a broad sense a debt may signify any duty to respond to another in money, labor, or service. It may even mean a moral or honorary obligation, unenforceable by legal action. When used restrictively, it may mean, without more, an obligation founded on contract to pay a definite or certain sum of money, and whether the duty to pay a sum of money is or is not a debt depends upon the particular sense in which it is used.</p> <p>[Ed. Note.—Por other definitions, see Words and Phrases, Pirst and Second Series, Debt.]</p> <p>4. Pines <§=»6—Enforcement—Offense Against United States—“Execution.”</p> <p>The word “execution,” as used in Rev. St. § 1041 (Comp. St. § 1705), providing for the enforcement of a judgment imposing a fine for an offense against the United States by execution against the property of the defendant, signifies generally the means for enforcing the judgments of courts in civil cases, and embraces those processes and proceedings in aid of or supplemental to an execution that are customary in civil cases.</p> <p><§x=aFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Execution.]</p> <p>Wade, District Judge, dissenting.</p>

<p>In Error to the District Court of the United States for the Western District, of Arkansas; Frank A. Youmans, Judge.</p> <p>Action at law by Charles B. Thorn and another, copartners as Thorn & Maginnis, against Fred Browne. Judgment for ■ defendant, and plaintiffs bring error.</p>

Wade, Judge. In the matter of the B. A. Lockwood Grain Company, bankrupt; M. McFarlin, trustee. The Central State Bank appeals from an order denying priority to its claim.

<p>Appeal from the District Court of the United States for the Western District of Kentucky; Walter Evans, Judge.</p> <p>In Bankruptcy. Petitions by Thomas Moore and others.for permission to file and prove claims against the bankrupt estate of R. H, Edelen, opposed by Ben F. Simms, 'trustee, etc. From judgment the claims were not provable (248 Fed. 580), petitioners appeal.</p>

McCall, Judge. Action at law by E. R. Parham against H. W. Robinson. To review a judgment for plaintiff, defendant brings error. Parham, a licensed real estate agent aiid broker, brought this action against Robinson to recover $7,500 for finding a purchaser of a plantation, consisting of 3,800 acres, beloging to Robinson and situated on St. Francis river in Arkansas.

C. Westenhaver, Judge. Action at law by Elmer MicEaughlin, administrator of the estate of Naomi Seidner, deceased, against the Pennsylvania Company. To review judgment for defendant, plaintiff brings error.

<p>Appeal from the District Court of the United States for the Southern District of Ohio; Howard C. Hollister, Judge.</p> <p>Petition by the Burroughs Adding Machine Company against George S. Dial, trustee in bankruptcy of George A. Collier, bankrupt. From an order dismissing the petition, petitioner appeals.</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 Maude Lewis, as executrix of the last will and testament of John F. Bailey, deceased, against the Iowa State Traveling Men’s Association. There was a judgment for plaintiff (248 Fed. 602), and defendant brings error.</p>

Haight, Judge. Suit by J. Wadsworth Baldwin, trustee in bankruptcy of Larue H. Kingston and William H. Burnett, individually and as copartners, against Etta C. Kingston. From a decree dismissing the bill (247 Fed. 163), the trustee appeals.

Suit in equity by the Rensselaer & Saratoga Railroad Company against the Delaware & Hudson Company, impleaded, and another. From a decree dismissing the bill, complainant appeals.

<p>Appeal from the District Court of the United States for the Western Division of the Southern District of Ohio; Howard C. Hollister, Judge.</p> <p>Suit by Herbert W. Allen, assignee of William Robinson, against the Miami Cycle & Manufacturing Company. From a decree for complainant, defendant appeals.</p>

<p>1. Patents ©=>90(2)—Assertion of Claim of Right. '</p> <p>An inventor or first discoverer must assert Ms claim of right through the patent laws, or not at all.</p> <p>2. Trade-Marks and Trade-Names <®=>70—Unfair Competition.</p> <p>If no lawful monopoly was possessed by plaintiff through an exclusive right to make and sell its doll babies, given by the patent laws or otherwise, plaintiff could not deny to others the right to make and sell dolls; but if plaintiff, having originated a trade in such dolls, became so associated in the public mind with the doll product that there was a demand for plaintiff’s make of dolls, and another manufacturer sought to share in the trade by imposing on the public a second make of dolls as the first, there was a legal wrong to plaintiff, calling for redress.</p> <p>3. Injunction <®=»129(1)—Motion to Dismiss—Bill and Answer—Determination of Facts.</p> <p>In suit to restrain unfair competition by jobbers in selling doll babies similar in every respect to plaintiff’s, where defendants are unwilling to have the case heard on the averments of the bill as on final hearing, and deny the fact of unfair competition, a trial must be had to determine such essential fact, which cannot be determined on motion to dismiss.</p> <p>®=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Patents <®=»828—Validity—Dotkm-CimTNG Machine.</p> <p>Tiie Ward patent, No. 865,401, Cor a dough-cutting machine, held void for anticipation by a prior patent for a clay-cutting machine, for cutting brick, having equivalent mechanism and mode of operation. Claim 2 also held void as an aggregation of old elements not co-operating to produce any new result.</p> <p>2. Patents <§=>328—Validity—Cbackeb-Ctjtting Machine.</p> <p>The Allison & Pinkney patent, No. 1,112,184, claims 1 and 2, for a cracker-cutting machine, held void as covering an invention not made by the patentees, but by a prior inventor, to whom the Green patent, No. 1,180,030, was subsequently issued on interference proceeding's.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Patents <@=129—Suit fob Infringement—Estoppel by License.</p> <p>Where patents cover two distinct types of a device, a licensee to manufacture one type only, when sued for infringement by making the other type, is not estopped to deny the validity of the patents as to such type.</p> <p>2. Patents <@=328—Validity and Infringement—Friction Draft Gear.</p> <p>The Bitter patents, No. 684,552 and No. 751,943, for friction draft gear for railroad cars, held valid, but not infringed, as to the expansion type shown therein, by a gear having a distinctly different mode of operation.</p> <p><©ss>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Collision <S=j12S—Actions—Burden of Proof.</p> <p>In collision cases, the burden of proving negligence is on the libelant.</p> <p>2. Collision <®==>71(2)—Proceedings—Vessel at Fault.</p> <p>Where a barge, after having taken on a load of coal, cast off from the dock, in order to drift across the slip to take her place in a tow to be made up there, and, after drifting across the slip, was not made fast, and drifted back, and collided with another barge, which had moved up and taken her place at the dumper, held, that the first barge was solely at' fault, though a dredge with a mud scow, apparently moored to her, was moored across the slip from the barge injured.</p> <p><S=s>For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Equity. Suit by N. Coy against the Title Guarantee & Trust Company and others. On objections by the receiver of the Title Guarantee & Trust Company to certain tax proceedings on the part of Coos County.

<p>1. Money Received <@=>1—Grounds of Action.</p> <p>In an action for money had and received, plaintiff may recover only such' money as he is in equity entitled to and as defendant is not entitled to retain.</p> <p>2. Internal Revenue <@=>38—Action to Recover Taxes Paid—Correction of Errors.</p> <p>In an action against a collector to recover internal revenue taxes erroneously assessed and paid, errors in the assessment in plaintiff’s favor may also be corrected; the United States, which is the real defendant, not being affected by any estoppel which might affect the officer making the assessment.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Admiralty. Libel in rem against, the steam lighter Howell. This was a libel in rem in the admiralty for personal injuries to the libelant while discharging a lighter in the harbor of New York as a longshoreman. The libelant, being on board the lighter and in the employ of the claimant, was hit by a falling bolt which had worked loose from a shackle used in discharging her.

In Bankruptcy. In the matter of the bankruptcy of Albert Franklin Madden. On rule to show cause why an order permanently restraining supplementary proceedings in the state court should not be granted.

At Raw. Action by Hyman R. Roberts against the Underwood Typewriter Company, a corporation of Delaware, and others, which was begun in the Supreme Court of New Jersey, but was removed by the named defendant to the federal court on the ground there was a separable controversy. On motion to remand.

In Admiralty. Ribel in rem against the steamship Vigo. This is a suit in rem against the steamer for breach of a provision in the charter party entered into on the 24th day of March, 1917. The charter party was for a voyage from Palamo, Spain, to the port of New York and the libelant, who was the charterer, paid a bill for wharfage at Stapleton Pier, Staten Island, for a period of 6 days, during which the Vigo was discharged and her cargo lay on the pier.

<p>Petition by the United States for cancellation of the certificate of citizenship issued to George James Bragg.</p>

<p>'1. Banks and Banking <®=>116(á)—Representation of Bank by Offigf.rs— Notice to Officers.</p> <p>Knowledge obtained by an officer of a bank as an individual, and not as an officer of the bank, cannot be imputed to the bank, or permitted to operate to its prejudice.</p> <p>2. Bills and Notes <S=3G9—Discount of Note—Rights Against Maker and Indorser.</p> <p>A bank, holding the note of a customer for valuable consideration, is not bound by an arrangement between the maker .and indorser as to its payment, of which the bank had no knowledge.</p> <p>3. Bills and Notes <§=»360—Discount of Note—Effect of Renewal.</p> <p>The rights of a bank up on a renewal note cannot be affected by knowledge which it obtained after it acquired the original note for value and prior to the renewal.</p> <p><§s^For other cases see same topic & KEY-NUMBFR in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Northern Division of the Western District of Washington; Jeremiah Neterer, Judge.</p> <p>Emil Herman was convicted of interfering with the operation and success of the military and naval forces of the United States, and he brings error.</p> <p>The plaintiff in error was found guilty upon two counts of an Indictment, each of which charged: That continuously between April 6, 1917, and April 19, 1918, he published and exhibited in a described room or office in Everett, Wash., a printed circular in the following words: “The Military Ideal. Young Man: The lowest aim in your life is to be a good soldier. The ‘good soldier’ never tries to distinguish right from wrong. He never thinks, never reasons; he only obeys. If he is ordered to fire on his fellow citizens, on his friends, on his neighbors, on his relatives, he obeys without hesitation. If he is ordered to fire down a crowded street when the poor are clamoring for bread, he obeys and sees the gray hairs of age stained with' red and the life tide gushing from the breast of women, feels neither remorse nor sympathy. If he is ordered off as one of a firing squad to execute a hero or a benefactor, he fires without hesitation,' though he knows the bullet will pierce the noblest heart that ever beat in human breast. A good soldier is a blind, heartless, murderous machine. He is not a man, he is not even a brute, for brutes only kill in self-defense. All that is human in him, all that is divine in him, all that constitutes a man, has been sworn away when he took the enlistment oath. His mind, his conscience, aye his very soul, are in the keeping of his officer.. No man can fall lower than a soldier—it is a depth beneath which we cannot go. Young Man Don’t Be a Soldier—Be a Man!!” That said office during said period was visited by a large number of men, their names being unknown to the grand jury, who were between the ages of 21 and 45 years, fit and qualified for military services, and who were citizens of the United States. That every statement in said circular was false and untrue, as the defendant well knew. The intent charged in one count was that the acts so charged were done with the intent to interfere with the operation and success of the military and naval forces of the United States, and in the other count the intent was alleged to be to promote the success of the enemies of the United States. On the conviction on these two counts the defendant was sentenced.</p>

<p>In Error to the District Court of the United States for the Northern Division of the Western District of Washington; Jeremiah Neterer, Judge.</p> <p>Hulet M. Wells and others were, convicted of conspiracy in violation of Criminal Code, §_ 6, and they bring error.</p> <p>The plaintiffs in error, defendants below, were indicted by two counts, charged with conspiracy under section 6 of the Criminal Code (Act March 4, 1909, e. 321, 35 Stat. 1089 [Comp. St. § 10170]). The first count charges that the 'defendants, on April 25, 1917, conspired together and with sundry other persons “to oppose by force the authority of the United States, and by force to prevent, hinder, and delay the execution of a law of the United States; that is to say,” the defendants, naming them, did “conspire, confederate, and agree together, and with divers and sundry other persons to the grand jurors unknown, by force to prevent, hinder, and delay the execution of the joint resolution of Congress of the United States made and approved on the 6th day of April, A. D. 1917 [40 Stat. 1, c. 1], then and there declaring a state of war to exist between the United States and the Imperial German government, and directing and authorizing the President of the United States to employ the entire military and naval forces of the United States and the resources of the government to carry on war against the Imperial German government, and to then and there oppose by force the authority of the United States and the authority of the President of the United States in carrying into force and effect the provisions of the law then existing which related to the armed military and naval forces of the United States, and to then and there by force prevent, hinder, and delay’the execution of such acts of Congress enacted after the adoption of said resolution declaring war between the United States and the Imperial German government, hereinabove referred to, for the purpose of carrying into execution the plan and purpose of said resolution; it then and there being the purpose and intention of the said defendants, and each of them, together with such other persons as they might, or could, induce, incite, and encourage to cooperate with them in their plan, and to join their said conspiracy to oppose by force the authority of the United States, and to prevent, hinder, and delay the execution of the said joint resolution of Congress declaring war hereinabove referred to, together with such other laws as then existed or as might thereafter be enacted in pursuance of said joint resolution of Congress declaring war, and it then and there was the further purpose, plan, and object of the said defendants, and each of them, to prevent by force the proper organization of armed military and naval forces of the United States, and the proper disposition of said force under and by virtue of the authorities of the United States in conducting said war so declared and resolved for by the said Congress of the United States.”</p> <p>The allegations of the second count are of similar import, except that they are more specific as to the laws, the'execution of which it is alleged the defendants conspired by force to prevent, hinder, and delay. These laws, as specified, are: First, the joint resolution of the Senate and House of Eepresentatives declaring war between this country and Germany; second, the act of Congress approved June 3, 1916 (39 Stat. 166, c. 134), entitled “An act for making further and more effectual provision for the national defense, and for other purposes,” special reference being had to sections 57, 59, and 111 of said act (Comp. St. §§ 3041, 3043, 3045); and, third, section 4 of the act of Congress approved January 21, 1903, entitled “An act to promote the efficiency of the military and for other purposes” (32 Stat. 775, c. 196), as amended by section 3 of the act of Congress approved May 27, 1908, entitled “An act to further amend the act entitled ‘An act to promote the efficiency of the militia and for other purposes.’ approved January 21, 1903” (35 Stat. 399, c. 201). And in relation to these laws it is further alleged: “11; then and there being the purpose and intention of the said defendants, and each of them, together with such other persons as they might or could induce,-incite, and encourage to co-operate with them in thoir plan, and to join their said conspiracy, by force to prevent, hinder, and delay the duly authorized officers, agents, and representatives of the United States from putting into effect and executing the said laws hereinabove mentioned, and from calling forth and bringing into the military service of the United States persons subject and liable to service thereunder under the provisions of said laws, and to prevent, hinder, and delay by force the mobilization, organization, control. direction, and disposition of the armed military and naval forces of tin- United States in conducting said war against the Imperial German government.”</p> <p>Tiie cause went to trial upon a plea of not guilty, resulting in a conviction of all the defendants. Prior to trial there was no demurrer or other plea or motion interposed to the sufficiency or regularity in form or otherwise of the indictment. The defendants prosecute a writ of error from the judgment entered upon their conviction.</p>

<p>1. War <§=>4—Espionage Act—Offenses.</p> <p>Espionage Act June 15, 1917, § 3 (Comp. St. 1918, § 10212c), hold to denounce three offenses: First, the willful making or conveying of false reports while the United States is at war, with the intent to interfere with the operation or success of military and naval forces, etc.; second, the attempt to cause insubordination, disloyalty, or mutiny in the military and naval forces of the United States; and, third, the willful obstruction of the enlistment service of the United States, to the injury of the service or the United States—it being unnecessary to the consummation • of the first two offenses that the United States be injured.</p> <p>2. Army and Navy <@=>40—Espionage Act.</p> <p>Assuming that defendant might be loyal, though he characterized the Draft Act as unjust, and stated that he would fight conscription, yet, if he made the statement with evil mind, intending to bring about insubordination, disloyalty, and refusal of duty in the military service, he was guilty of a violation of Espionage Act June 15, 1917, § 3 (Comp. St. 1918, § 10212c), and in a prosecution based on such statement, defendant’s acts, speech, and state of mind are matters for consideration in determining whether he was guilty.</p> <p>3. War <@=>4—Espionage Act—Evidence.</p> <p>In a prosecution under the Espionage Act June 15, 1917, § 3 (Comp. St. 1918, § 10212c), for the making of false statements to the effect that the war was nothing but a capitalists’ war, etc., with intent to promote the success of Germany, with which the United States was at war, a copy of the address of the President of the United States to. Congress, made a few days before that body declared war, setting forth the causes for the declaration of war, held admissible in evidence.</p> <p>4. Criminal Law <§=>371(1)—Evidence—Other Offenses—State of Mind— Espionage Act.</p> <p>In a prosecution under Espionage Act June 15,1917, § 3 (Comp. St. 1918, § 10212c), for making false statements with the intention of promoting the success of Germany, with which the United States was at war, evidence of statements made by defendant prior to the declaration of war was admissible, where limited to the question of the defendant’s state of mind at the time he uttered the statements charged.</p> <p>5. Army and Navy <§=>40—Espionage Act—Offense.</p> <p>The mere utterance of seditious words in the presence of a person subject to military duty under the Selective Service Law (Comp. St. 1918, §§ 2044a-2044k), if intended to induce insubordination, disloyalty, or refusal of duty, is sufficient to constitute an offense under Espionage Act June 15, 1917, § 3 (Comp. St. 1918, § 10212c); so in a prosecution under such section, based on such utterances, an instruction that to constitute an attempt to commit a crime there must be specific intent to commit it, followed by an overt act, was confusing and properly refused.</p> <p>6. Criminal Law <§=>829(3)—Request Covered by Instructions Given.</p> <p>In a prosecution for violation of Espionage Act June 15,1917, § 3 (Comp. St. 1918, § 10212c), where the court instructed that it was necessary for the government to prove that, while the Unitec! States was engaged in war, defendant made false statements with intent to promote the success of the enemy, the refusal of a requested instruction that, unless the jury was satisfied the words spoken were of the character, and of adequate and sufficient magnitude and proximity to the thing intended, to bear out the intent charged, defendant should be acquitted, was properly refused, being covered.</p> <p>tgzsoFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>7. Cbiminai, Law ®=^262—Arraignment—Waives.</p> <p>In view of U. S. Comp. St. § 1698, defendant waived arraignment where, after the indictment was read to the jury, the clerk stated defendant had entered a plea of not guilty, and defendant proceeded to trial without objection, tbe date of which had been fixed by stipulation.</p> <p><5z^>E'or other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

McPherson, Judge. In the matter of the Wallace Automobile Company, bankrupt. Jacob J. Weinstein, trustee in bankruptcy, petitioned for leave to assess its corporate stock in the amount same was not fully paid. From an order of the District Court, Robert Wallace appeals.

<p>1. Bankruptcy @=3166(3)—Preference—Knowledge of Insolvency.</p> <p>A creditor of one member of bankrupt partnership, which was hopelessly insolvent, who. received from Ms debtor in partial payment of notes not due merchandise bought to his knowledge entirely on credit of the firm, and who also had intimate knowledge of its affairs, held to have such knowledge of its insolvency as rendered the payment a voidable preference.</p> <p>2. Bankruptcy @=3293(2)-—Suit by Trustee—Equity Jurisdiction.</p> <p>With defendant’s consent a bill in equity by a trustee to recover a preference may be entertained by a District Court.</p> <p>¡ga»For other cases see same topic & KEY-NXJMBBR in all Key-Numbered Digests & Indexes</p>

Van Fleet, Judge. • . Suit by the United States against the Union Dand & Stock Company, a corporation. From a decree for tire United States, defendant appeals. The appellee brought a suit in equity to declare forfeited a right of way and easement for the storage of water.

<p>In Error to the District Court of the United States for the Northern Division of the Western District of Washington; Jeremiah Neterer, Judge.</p> <p>W. E. Mead was convicted of violating the Espionage Act, and brings error.</p>

<p>War <3=»4—Espionage Act—Seditious Statements.</p> <p>Statements made by defendant, in each case to a single person in the course of a private conversation relating to the war, held mere expressions of opinion, not made in violation of section 3 of the Espionage Act.</p> <p><gzs>i!'or other eases see same topic k KiflY-NTjMBJill in all Key-Numbered Digests & Indexes</p>

<p>1. Banks and Banking <@=>257(3)—Offenses.</p> <p>In a prosecution against the president of a national banking association and his successor, under Rev. St. § 5209 (Comp. St. § 9772), for directing false entries in the books with intent to deceive and for misapplication of funds, evidence held, sufficient to sustain a conviction.</p> <p>2. Banks and Banking <@=>250(1,3)—Offenses—Intent.</p> <p>In a prosecution, under Rev. St. § 5209 (Comp. St. § 9772), against the president and another officer of a national banking association for misapplication of funds and for directing false entries in the books, a showing that the false entries were made with intent to deceive, and that the misapplications were made to injure or defraud bank, is essential to conviction.</p> <p>3. Banks and Banking <@=>257(4)—National Banking Association—Offenses.</p> <p>In a prosecution, under Rev. St. § 5209 (Comp. St. § 9772), against the president and another officer of a bank for making false entries in the books and misapplying funds, evidence held sufficient to carry to the jury the question whether the entries were made with intent to deceive and the misapplications with intent to injure or defraud the bank.</p> <p>4. Banks and Banking <@=>256(3)—National Banks—Offenses.</p> <p>An intent to injure or defraud a national banking association by misapplication of funds, which offense is defined by Rev. St. § 5209 (Comp. St. § 9772), is not inconsistent with the desire for the ultimate success and welfare of the bank, and such intent may, within the meaning of the law, result from an unlawful act voluntarily done, the natural tendency of which is to injure the bank.</p> <p><g£5>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>5. Criminal Law @=>1144(17)—Appeal—Presumptions—Judgment.</p> <p>Where there is one good count in the indictment, and the evidence is sufficient in law to support it, and judgment is such as might have been imposed upon it alone, the presumption is that it was imposed upon the good count, supported by evidence, and will not be reversed, though there are bad eounts, or counts unsupported by evidence.</p> <p>6. Banks and Banking @=>237(3)—National Banks—Offenses—Evidence.</p> <p>In a prosecution under Sev. St. § 5209 (Comp. St. § 9772), against the president and another officer of the national bank for misapplying funds and making false entries in the books, which practices occurred in connection with loans and advances to a company in which those officers were interested, the admission in evidence of parts of the record in bankruptcy proceedings of such company, showing it was adjudicated a bankrupt on’admission in writing that it was entirely insolvent, and that dividends of only 10 per cent, were paid, was proper, though the last transaction charged in the indictment occurred six months before the bankruptcy.</p> <p>7. Criminal Law @=>369(1)—Evidence of Other Offenses—Remoteness.</p> <p>In a prosecution under Rev. St. § 5209 (Comp. St. § 9772), against the president and another officer of a bank for misapplying its funds and making false entries in Hie books in connection with loans and advances to a company which became insolvent, evidence of similar transactions occurring two or three years before those set forth in the indictment is admissible, over the objection of remoteness.</p> <p>8. Criminal Law @=>1153(6)—Review—Evidence—Secondary Evidence.</p> <p>The sufficiency of proof of loss of records to warrant the admission of secondary evidence of their contents is primarily addressed to the trial judge, whose findings should not be disturbed, unless plainly wrong.</p> <p>9. Criminal Law @=>402(1)—Secondary Evidence—Loss of Books.</p> <p>In a prosecution against the president and another officer of a bank for misapplication of funds and the making cf false entries in the books in connection with loans and advances to a corporation which became bankrupt, testimony by an expert accountant, who had examined the books and records of the company which became a bankrupt, and had made summaries thereof, held admissible on proof of loss of such books and records.</p> <p>10. Criminal Law ©=>1169(5)—Harmless Error—Evidence—Instructions.</p> <p>In a prosecution against the president and director of a bank for making false entries and misapplication of funds in connection with loans to a company which became bankrupt, the admission of evidence of the contents of books and records of snch bankrupt was not error, where the court charged there was no presumption that defendants knew the contents of such books, and that the evidence could be considered only to the extent it was shown defendants did have knowledge of the contents.</p> <p>11. Criminal Law @=>400(8)—Evidence—Secondary Evidence.</p> <p>In a prosecution against officers of a national bank, who were charged with making false entries, etc., an expert accountant may testify as to summaries which he made of the contents of such books, in connection with loans to a company which became bankrupt and whose books were lost; the fact that the accountant reversed certain items in making his summary not rendering the testimony inadmissible, where the changes were explained to him by the jury.</p> <p>@=>For oilier cases see same topic & KEY-NUMB SR in all Key-Numbered Digests & Indexes</p>

<p>1. Appeal and Error @=>1064(1), 10CS7—Harmless Error—Instructions.</p> <p>In an action by a negro passenger, wounded in an exchange of shots between the conductor and another negro passenger, giving of instructions on the conductor’s right to shoot in self-defense, and the refusal to charge thereon as requested, held not error jjrejudicial fo the street railway company.</p> <p>2. Carriers @=»321(23)—Carriage op Passengers—Action for Injuries—Instruction.</p> <p>In an action against a street railway for the wounding of a negro pas- . senger in a shooting affair between the company’s conductor and another negro passenger, instruction held not erroneous, in view of all the facts and circumstances, and a discussion beiween counsel, as telling the jury it was a proven or admitted tact that the conductor came into the car without reason and deliberately started a fight with the negro.</p> <p>3. Trial @=>293(1)—Instructions—Consideration as a Whole.</p> <p>Instructions must be considered as a whole.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

of Tennessee; John E. McCall, Judge. Action by Hugh Pettit and the Newberger Cotton Company against 'the Southern Railway Company. There was a judgment for plaintiffs, and defendant brings error.

<p>1. Master and Servant <g=>28!5(7)—Injury to Railroad Employe—Moving Defective Oar—Proximate Cause—Question for Jury.</p> <p>In an action by a conductor, injured when lie missed the grabiron on the caboose, from which the rear lights had been removed, and fell under the following car, on which the caboose fights had been -placed, and which was at. the rear of the train because it had no drawbar or coupler at ifs rear end, such hauling of the crippled car being unlawful under Act March 2, 1893, § 2 (Comp. St. § S606), Act March 2, 1903, § 1 (Comp. St. § 8(113), and Act April 14, 1910, § 5 (Comp. St. § 8622), and constituting negligence, question of whether the transportation of the defective car was the proximate cause of the conductor’s injury held for the jury.</p> <p><0^3For other casos see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>3. Master and Servant ©=111(1)—Injuries to Railroad Employé—Hauling Defective Oar.</p> <p>A railroad was negligent in hauling at the rear of a freight train, back of the caboose, a freight car, defective in that it had no drawbar or coupler on its rear end, an act unlawful under Act March 2, 1893, § 2 (Comp. St. § 8606), Act March 2, 1903, § 1 (Comp. St. § S613), and Act April 14, 1910, § 5 (Comp. St. § 8622).</p> <p>3. Master and Servant ©=111(1)—Injuries to Railroad Employé—Hauling Defective Car.</p> <p>The effect of a railroad’s violation of its duty under Act March 2, 1893, § 2 (Comp. St. § 8606), Apt March 2, 1903, § 1 (Comp. St. § 8613), and Act April 14, 1910, § 5 (Comp. St. § 8622), in hauling at the rear of a freight train, back of the caboose, a freight car, defective, in that its rear end was without drawbar or coupler, and also any liability arising therefrom, extended to an employé, such as the conductor of the train.</p> <p>4. Master and Servant ©=204(2), 228(2)—Railroad Employés—Employees’ Liability Act—Safety Appliance Act—Contributory Negligence and Assumption of Risk.</p> <p>The purpose of Congress, through the Employers’ Liability Act (Comp. St. §§ 8657-8665), and the Safety Appliance Acts (Comp. St. § 8605 et seq.), considered together, is not only to make a railroad’s duty absolute, but also, where the injury is in part occasioned by the failure of the road to comply with the acts, to excuse employés from the effect alike of the rules of contributory'negligence and assumption of risk,</p> <p>5. Trial ©=343—Verdict—Eorm and Effect.</p> <p>Arerdict for plaintiff, under instructions that only three issues were to he considered, must be treated as general in form, and as finding all the submitted issues in favor of plaintiff.</p> <p>6. Appeal and Error ©=1078(4)—Assignment of Error—Waiver by Failure to Mention in Brief.</p> <p>Where nothing is said in the brief in support of an assignment of error to the reception of evidence, it must be regarded as waived.</p> <p>«grxoFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

C. Westenhaver, Judge. Action at law by Charles Robbins, administrator of the estate of Dinna Beamer, deceased, against the Pennsylvania Company. To review a judgment for defendant, plaintiff brings error.

<p>1. Railroads <@=>350(1)—Injuries at Crossing—Negligence—Proximate Cause—Question fob Jury.</p> <p>In an action against a railroad for injuries to a motor truck owner and driver at a crossing, questions of the railroad’s negligence and its effect in producing the accident held for the jury.</p> <p>2. Appeal and Error <@=>1064(1)—Harmless Error—Instruction.</p> <p>In an action against a railroad for injuries to a motor truck owner and driver at a crossing, where the evidence fairly admitted finding that, the view was not so obstructed, and there was not so much noise, as to prevent a careful and prudent person from discovering the train, held not prejudicial error to qualify the railroad’s requested instruction on plaintiff’s duty to stop-before crossing to the extent that was done by the court.</p> <p>3. New Trial <@=>72—-Trial <@=>139(1)—Consideration of Motion—Weighing of Evidence.</p> <p>It was not the province of the trial court to weigh the evidence when passing on motion to direct verdict, but when he came to consider the motion for new trial he was required to weigh evidence.</p> <p>4. Railroads <@=>350(13)—Injuries at Crossing—Contributory Negligence —Question for Jury.</p> <p>In an action against a railroad for injuries at a crossing to the owner and driver of a motor truck, question of plaintiff’s contributory negligence held for the jury.</p> <p>5. Railroads <@=>327(7)—Injuries at Crossing—Duty to Stop.</p> <p>The owner and driver of a motor truck along a good road, so that the truck was not noisy, in approaching a single-track railroad crossing, was not required as a matter of law to stop to avoid the implication of negligence contributing to his injuries, when struck by a special train running at an unusual time; the view not being so obstructed as to require plaintiff to stop.</p> <p>6. Railroads <@=>346(2)—Injuries at Crossing—Contributory Negligence— Burden of Proof.</p> <p>In the federal courts, ihe burden to prove the defense of contributory negligence rests upon defendant in a suit for injuries at a crossing.</p> <p>7. Appeal and Error «=>1003—Review of Evidence by Federal Court.</p> <p>A federal appellate court does not weigh ihe evidence, though it must be satisfied that there is proper evidence in law sufficient to support the verdict.</p> <p>«gsaFor other cases see same topic & KEY-NTJMBER iu all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Southern Division of the Western District of Michigan; Clarence W. Sessions, Judge.</p> <p>Intervening petition by the City .of Holland and Evert P. Stephan to vacate and set aside an order adjudging the Holland City Gas Company a bankrupt, as well as the bankruptcy proceeding itself, against the Gas Company and the Grand Rapids Trust Company, trustee in bankruptcy. Erom an order dismissing the petition, petitioners appeal.</p> <p>Appeal from dismissal of Intervening petition to vacate and set aside order adjudging Holland City Gas Company a bankrupt, and the bankruptcy proceeding itself. The city of Holland, a municipal corporation of Blichigan, through ordinance approved March 10, 1903, granted permission to Bascom Parker and his assigns for a period of 30 years to lay and maintain gas pipes, mains, conduits and service pipes in the city streets and highways to supply manufactured gas for illuminating and fuel purposes both to the city and its inhabitants, at prices and subject to conditions therein provided. In September following, the rights thus granted were transferred to the Holland Gas Company, a Michigan corporation, and, in August 1905, to the Holland City Gas Company, another Michigan corporation; and the gas works and plant were thereafter, at least until commencement of the bankruptcy proceeding in question, maintained and operated and gas was supplied and sold in the name of appellee, the Holland City Gas Company.</p> <p>However, on June 17, 1912, a corporation was organized under the name of American Public Utilities Company and pursuant to the laws of the state of Delaware, for purposes of production, distribution, and sale of artificial gas and electricity, and also the purchase of shares of stock in any corporation of' “the state of Delaware, or of any other state, territory, or country.” Hater in that month this Delaware company purchased from the holders thereof a majority of the corporate shares in the Holland City Gas Company, and has purchased since then nearly all the rest of such shares, the total capital stock being $200,000 par value, divided into shares of $100 each, and prior to November, 1912, acquired from the various owners $100,500 par value' of the gas company’s outstanding first mortgage bonds, and since that time has purchased further bonds of the gas company, until the total holding is upwards of $298,000 par value, principally upon advances made by the Delaware .company, some of them being on account of acquisition of what are known as the Zeeland properties for supplying gas in territory adjacent to the city of Holland. Through the shares of stock so obtained the Delaware company has ever since chosen and kept in place the directors, 5 in all, composing the board provided for the Holland City Gas Company, and these directors have from time to time selected from, their number the officers of the company, viz. president, vice president, secretary, and. treasurer.</p> <p>In February, 1918, when the intervening petition was filed herein, the directors of the Holland City Gas Company were stockholders and directors of the Delaware company, though the latter company appears to have had 14 directors; the office of president of each company was held by the same person, and this is true of the positions of secretary and treasurer. The president of the two companies holds 1,932 shares of stock in the gas company in trust for the Delaware company, and the remaining directors of the gas company each hold one share of stock in that company.</p> <p>The Delaware company owns and votes a large interest, doubtless a controlling interest, in the stock of various other corporations, viz. Albion Gas & Light Company, at Albion, Mich.; Elkhart Gas & Enel Company, at Elk-hart, Merchants’ Heat & Light Company, at Indianapolis, Valparaiso Lighting Company, at Valparaiso, all of Indiana; Wisconsin-Minnesota Light & Power Company, at La Crosse and other localities in Wisconsin and Minnesota; Jackson Light & Traction Company, at Jackson, Miss.; Utah Gas & Goke Company, at Salt Lake City; and Boise Gaslight & Coke Company at Boise, Idaho. The total assets of the Delaware company are valued at upwards of $32,845,000, admittedly comprising a “large percentage of the stock and of the bonds of the corporations” just mentioned.</p> <p>A firm, Kelsey, Brewer & Co., composed of directors common to both the Holland City Gas Company and the Delaware company and claimed to bo experienced in the operation and management of public utilities companies, is retained to give to all the companies above named the benefits of its experience. '</p> <p>On hfovember 7, 1917, the Holland City Gas Company sent a communication to the mayor and council of the city, stating in substance that the operation of the gas properties at the prevailing prices could be continued only at an actual loss of money; that this was a fact under normal business and price conditions; that unless relief were provided at once it would he impossible under the present abnormal conditions to continue the operation of the plant; that from the 10th inst. the charge for gas in the city would ho at the rate of $1.25 per thousand cubic feet, with a discount of 10 cents per thousand upon payment by the 15th of the month following that in which the gas would he consumed; that this price would “continue throughout the period affected by the duration of the war”; and that, should this increase fail to produce the necessary revenue to meet actual expenses, the company would he “compelled to close the plant and stop the supply of gas.” This was 25 cents per thousand cubic feet in excess of tho price then prevailing.</p> <p>On December 1, 1917, the present appellants commenced suit against the gas company, and the Delaware company in the Ottawa circuit court, in chancery, setting up the facts touching the gas grant in question and its ultimate transfer to the Holland City Gas Company, alleging that this was the only source of gas supply for the inhabitants of the city; that títere wore upwards of 1,790 consumers dependent on gas for fuel, for cooking purposes, heat, and light; that in June, 1913, the gas company, its franchises and property, became the property of the Delaware company, which had ever since dominated the affairs and conducted the business of the gas company; that the price of gas was fixed by ordinance; that the Delaware company, through the gas company, sent the communication above pointed out to the mayor and council of the city; that such threatened increase in price was contrary to equity and good conscience, and would cause irreparable injury; and praying an order restraining defendants from exacting the threatened increase in price and also a mandatory injunction directing them to manufacture and supply gas to the city and its inhabitants in compliance with the provisions and rates of the ordinance. On December 3, 1917, an order was entered enjoining defendants from collecting a rate in excess of that fixed by the ordinance, and from closing the gas plant and stopping the supply of gas, until the further order of the eonrt.</p> <p>During the oral argument in the instant case we understood counsel to concur in the statement that the suit in the state court was commenced and the order of injunction granted without notice to the defendants in the case. It is to be inferred from one of the answers that nothing further was done in the case prior to the bankruptcy. The defendants filed separate answers, though it is not shown at what time. However, in the answer of the gas company, it is alleged that “since the time of the filing of the bill of complaint” it liad “entered into voluntary bankruptcy” and had “been adjudged a bankrupt.” The petition in bankruptcy was filed and the adjudication made February 1, 1918. It is stated in the opinion below that it was upon the voluntary petition of the Holland City Gas Company that the company was adjudged a bankrupt, and the parties stipulate that the petition as well as the adjudication was in the usual form. ■ Appellants’ intervention in the proceeding occurred later in the month, February 22d.</p> <p>It is in effect alleged in the intervening petition, and admitted in the answer herein, that, through either the receiver or the trustee in bankruptcy, gas is being supplied to meet the requirements of the inhabitants of the city of Holland. The answer alleges without denial that this is being done under a license from the city and at the rate of $1.25 per thousand cubic feet, which “was estimated to be the actual cost of production of the same without profit to the said trustee.” Moreover, we understood at the oral argument that this was also sanctioned by an order of the court below, entered after hearing from both sides, and that the price was subject to the old discount of 10 cents per thousand cubic feet.</p> <p>It is difficult to ascertain some of the relevant facts because of the omission to include in the record in addition to proofs of claims a further transcript of the bankruptcy proceedings (particularly a copy of the gas company’s petition), and the dates of filing answers in the state court. The case was presented here upon the intervening petition, the joint answer of the bankrupt and trustee, certain exhibits, and a stipulation.</p>

<p>1. Poisons <8=2—Federal Narcotic Drug Act—Validity of Administrative Provisions. .</p> <p>The administrative provisions of Harrison Narcotic Drug Act, § 1 (Comp. St. § 6287g), relating to taxation and registration, are valid.</p> <p>2. Indictment and Information <8=111(4)—Federal Narcotic Drug Act— Negativing Exceptions.</p> <p>An indictment for violation of the Harrison Narcotic Drug Act (Comp. St. § 6287g et seq.), which described defendant as not being then and there an officer of the federal government or state government engaged in making purchases of the specified drug, and not being any other officer entitled to make such purchases, held not insufficient, as failing to negative all statutory exceptions from the operation of the statute by section 1.</p> <p>3. INDICTMENT AND INFORMATION <3=71—CERTAINTY.</p> <p>An indictment is sufficiently certain if it fairly informs accused of the crime intended to be charged, so as to enable him to prepare his defense, and so as to make the judgment a complete defense to a second prosecution.</p> <p>4. Indictment and Information <8=111(2)—Federal Narcotic Drug Act— Negativing Exceptions.</p> <p>Count of indictment for violation of the Harrison Narcotic Drug Act (Comp. St. § 6287g et seq.) held not bad, as not negativing the exception of section 6 (Comp. St. § 62871), that the provisions of the act shall not be construed to apply to the dispensing of remedies not containing more than a quarter of a grain of morphine, etc.</p> <p>5. Indictment and Information <8=111(2)'—Negativing Exceptions.</p> <p>An exception in the enacting clause of a penal statute must be negatived by the indictment, hut an exception in a later section need not be negatived.</p> <p>6. Indictment and Information <8=110(8)—Description of Statutory Offense.</p> <p>Description of a statutory offense in the language of the statute is sufficient, provided the Language used according to its natural import fully describes the offense.</p> <p>7. Indictment and Information <3=110(3)—Federal Narcotic Drug Act— Description of Offense—Sufficiency—Statutory Language.</p> <p>Indictment for violation of the Harrison Narcotic Drug Act (Comp. St. § 6287g et seq.), stating the charge substantially, though not literally, in the language of section 1 of the act, fully defining the offense, and also alleging the sale of morphine in certain so-called morphine checks ami olher forms, held sufficient.</p> <p>«gssFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>■8. Poisons <@=>4—Federal Narcotic Drug Act—“Preparations and Remedies.”</p> <p>“Preparations and remedies,” contained in Harrison Narcotic Drug Act, § 6 (Comp. St. § 62S7Z), held not to include clear morphine, but to relate to actual medicinal preparations and remedies not containing more than a quarter of a grain of morphine, remedies such as a physician or druggist would normally dispense.</p> <p>9. Poisons <@=>9—Federal Narcotic Drug Act—Evidence.</p> <p>In a prosecution for violation of the Harrison Narcotic Drug Act (Comp. St. § 6287g et seq.), defendant not being charged as a physician or a druggist, and the indictment not negativing the exception of section 6 of the act (Comp. St. § 6287Z), it was open to him to show he was merely dispensing medicinal preparations and remedies containing not more than the amount of morphine permitted by section 6.</p> <p>10. Criminal Law <@=>1186(4)—Reversal—Technical Objection to Indictment.</p> <p>Objection to indictment for violating the Harrison Narcotic Drug Act (Comp. St. .§ 6287g et seq.), in that it did not negative the exception of section 6 (Comp. St. § 62S7Z) relative to the dispensing of preparations and remedies not containing more than a quarter of a grain of morphine, held technical, unsubstantial, and unprejudicial, and within the terms of Comp. St. § 1691, and Judicial Code, § 269 (Comp. St. § 1246), as amended February 26, 1919.</p> <p>11. Criminal Law <@=>1144(17)—Appeal—Presumption as to Sentence—Imposition Under Valid Count.</p> <p>In the absence of evidence to the contrary, sentence which could have been imposed on conviction under either count of an indictment will be presumed to have been imposed under the valid count.</p> <p>12. Poisons <@=>4—Harrison Narcotic Drug Act—Application op Section.</p> <p>Harrison Narcotic Drug Act, § 8 (Comp. St. § 6287n), applies to the business of selling narcotic drugs as distinct from mere possession.</p> <p>13. Criminal Law <@=>1090(8,11)—Matters Not Reviewable—Absence op Bill op Exceptions.</p> <p>On appeal from a conviction, crieitisms of alleged lack of evidence in certain respects, of asserted erroneous proceedings on trial, and of the introduction of certain undisputed evidence, cannot be considered, where the record contains no bill of exceptions, and thus no evidence.</p> <p>@E»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 Eastern District of New York.</p> <p>Isabelle Feder and Michael Polsky were convicted of conspiring to defraud the United States, and they bring error.</p>

Suit in equity by Nelle E. Finnie, administratrix of the estate of David T. Finnie, deceased, against Alfred P. Walker and George K. Morrow. Decree for defendants, and complainant appeals.

<p>1. Army and Navy <©=>20—Selective Service Act—Violations—Information.</p> <p>An information charging a violation of the Selective Service Act (Comp. St. 1918, §§ 2044a-2044k), in that defendant willfully failed and refused to present himself for registration on June 5, 1917, is not fatally defective for want of an allegation that defendant is a citizen of the United States.</p> <p>2. District and Prosecuting Attorneys <S=‘i(4)—Indictment and.Information <s=>52(3)—-Verification by Assistant District Attorney.</p> <p>Under Rev. St. § 363 (Comp. St. § 538), giving the attorney general power to employ, in the name of the United States, attorneys to assist the district attorney In the discharge of his duties, an Information is not open to attack because verified by an assistant United States district attorney, for such assistants come within the general rule that an assistant duly appointed to prosecute is clothed with all of the powers and privileges of the prosecuting attorney.</p> <p><§s»For other cases see same topic & KEY-NUMBEIt in all Key-Numbered Digests & Indexes</p> <p>3. Indictment and Information <§=> 52(4)—Verification—Information and Belief.</p> <p>It is only where it is sought to issue a warrant that the Constitution requires that the affidavit must be by one knowing the facts; therefore, as there is no statute requiring the verification of an information, an information is not open to attack because verified on information and belief.</p> <p>4. Army and Navy <@=>20—Selective Service Act.</p> <p>In a prosecution under the Selective Service Act (Comp. St. 1918, §§ 2044a-2044k) for failure to present himself for registration on June 5, 1917, evidence held not to show that defendant was entitled to the direction of a verdict in his favor, on the ground that he was not bound to register under Selective Service Regulations, § 56, pt. 3, declaring that citizens and persons who have declared their intention to become citizens, residing abroad, are not required to register.</p> <p>5. Army and Navy <§=>20—Selective Service Act—Failure to Register—■ Evidence.</p> <p>An opinion by the local legal advisory board to the effect that defendant was not required to register is no defense to a prosecution for failure to register on June 5, 1917, as required by the Selective Service Law (Comp. St. 1918, §§ 2044a-2044k); the advisory boards not being created until November of that year, when the Selective Service Regulations were promulgated.</p> <p>6. Army and Navy <@=>20—Selective Service Act—Failure to Register— Evidence.</p> <p>In a prosecution under the Selective Service Act (Comp. St. 1918, §§ 2044a-2044k) for failure to register on June 5, 1917, vouchers given to .defendant in February, 1917, which on their face indicated that he was at that time' acting as deputy sheriff for Lincoln county, Mont., held admissible in evidence; defendant’s contention being that he was then a resident of Canada.</p> <p>7. Criminal Law <@=>1054(1)—Appeal—Exceptions—Evidence.</p> <p>Rulings on evidence, not presented by an exception, cannot be considered on appeal.</p> <p><£;;»Foi other cases see same topic & KEY-NUMBER, in all Key-Numbered Digests & Indexes</p>

<p>Bankruptcy ©=>143(10)—Property Passing to Trustee—Property Held in Trust por Bankrupt.</p> <p>. Trustee of a bankrupt corporation held entitled to recover real estate held in the name of a person who, with his family, owned all the stock of the corporation, on the ground that it was held in trust for the company, but not entitled to such person’s homestead and other property in which funds of the company were not invested.</p> <p>®=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Injunction <3=34—Bights of Seller—Injunction Against Bemoval of Marks.</p> <p>A manufacturer of underwear, despite its claim of. preservation of good will, could not restrain a jobber who purchased the goods from others from removing secret marks on each carton, placed there by the manufacturer to enable it to detect those of its selected list of jobbers to whom it sold who were cutting prices, since the manufacturer parted with all control over the merchandise and cartons by absolute salo.</p> <p>2. Contracts ©=116(1)—Bestbaint of Trade—Injunction Against Bemoval of Secret Marks.</p> <p>A manufacturer of underwear, which sold only to selected jobbers, could not restrain a jobber, unable to buy directly from it, and who bought from others, from removing certain secret marks on the bottom of each carton ot‘ goods, where one of the purposes of the manufacturer in so marking the cartons was to enable it to determino which of its wholesalers cut prices, so that such wholesalers might be stricken from the selected list of jobbers, an unlawful restraint of trade which equity will not aid.</p> <p><S=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Seamen <@=>23—Wages—Payments at Intermediate Ports.</p> <p>Advance wages paid seamen on a foreign ship, who signed in a foreign port, where such payment was legal,' are to be deducted in computing the half wages due at an intermediate port, under Seamen’s Act, § 4 (Comp. St. § 8322).</p> <p>2. Seamen <@=>4, 21—Forfeiture of Wages—Desertion—Seamen’s Act.</p> <p>The offense of desertion in the mercantile marine is not abolished by Seamen’s Act, § 4 (Comp. St. § 8322), and such desertion entails a forfeiture of all wages due.</p> <p>3. Seamen <@=>34—“Desertion.”</p> <p>“Desertion,” in the sense of the maritime law, is a quitting of the ship and her service, not only without leave and against the duty of the party, but with an intent not again to return to the ship’s duty.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Desertion.]</p> <p>4. Seamen <@=>24—Wages—Part Payment at Intermediate Ports.</p> <p>A demand is essential to the right to half wages at an intermediate port, under Seamen’s- Act, § 4 (Comp. St. § 8322), and such demand must be made while the seaman is still in the ship’s service.</p> <p>5. Seamen <@=>24—Half Wages—Payment at Intermediate Ports.</p> <p>As seamen on foreign vessels have no rights under Seamen’s Act, § 4 (Comp. St. § 8322), until they arrive within a harbor of the United States, the five-day period which must elapse before demand for half wages may be made thereunder begins to run on the arrival of the ship in such harbor.</p> <p><@c=For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

McCall, Judge. The claim of the Royal Insurance Company was allowed in receivership proceedings against the Gulf Compress Company, and C. C. Hanson, the receiver, appeals.

<p>1. Equity @=>345—Evidence—Verified Answer.</p> <p>The doctrine that, where an answer under oath is not waived in the bill, the denials in a verified answer as to all matters within the personal knowledge of the party answering must be overcome by the evidence of witnesses, or by one witness corroborated by circumstances equivalent in weight to another witness, did not rest upon any specific rule promulgated by the Supreme Court, but upon the general equity practice.</p> <p>2. Equity @=>345—Verified Answer—Evidence to Overcome.</p> <p>Regardless of any change which the new equity rules of 1912 might have had on a sworn answer, a decree for complainants in a suit to set aside deeds on the ground that grantor was old and feeble and unduly influenced held not open to attack on the theory that a verified answer was filed and such decree could not be based on the testimony of a single witness; it appearing that the testimony was adequate to support the decree, though more than one witness, or one witness corroborated by circumstances equivalent in weight to another witness, be deemed required.</p> <p><gs»For other cases see same topic & KIPY-NUMBER in all Key-Numbered Digests & Indexes</p>

Suit by the Red, Star Towing & Transportation Company against the steam tug Ganoga, the Uehigh Valley Transportation Company, claimant, with the boat Bessie, McWilliams Bros., Incorporated, claimant, impleaded. Decree for claimants, and libelant appeals.

<p>Petition for Revision of Order of the District Court of the United States for the Southern District of New York.</p> <p>In the matter of the Hudford Company of New York, Incorporated, bankrupt. Petition by Harry Zalkin, trustee, to revise order of District Court.</p>

<p>Appeal from the District Court of the United States for the Eirst Division of the Northern District of California; Edward S. Farrington, Judge.</p> <p>Karl Shilter was convicted of attempting to cause insubordination, disloyalty, and refusal of duty in the military and naval forces of the United States, in violation of the Espionage Act, and he brings error.</p>

<p>Appeal from the District Court of the United States for the Northern District of New York.</p> <p>Suit in_ equity by the Westinghouse Electric & Manufacturing Company against the Binghamton Railway Company. The City of Binghamton and Town.of Union appeal from an order made on application of William G. Phelps, receiver.</p>

<p>Appeals from the District Court of the United States for the Southern District of New York.</p> <p>Suits for collision by the Lehigh Valley Transportation Company and by Lewis J. Schussler against the steam tug Thomas J. O’Brien, O’Brien Bros., claimants, with the steam tug Perth Amboy impleaded. Decree holding the Perth Amboy solely in fault, and her claimant ap-. peals.</p> <p>On a March evening, after running lights were lit, but before night had really set in, with the tide flood and the wind strong from the northwest, the ocean-going tug Perth Amboy, bound into New York Harbor, was approaching Throgg’s Neck with a tow whose length from bow of tug to stern of last boat was approximately 900 feet. At the same time the tug Gallagher was also approaching Throgg’s Neck from New York. She had in tow five light sand scows arranged tandem .in such wise that from the bow of the tug to the end of the last boat' was not over 700 feet. Simultaneously the tug O’Brien, with one boat- on a hawser (length of tow measured as above not over 300 feet), was traveling in the same direction as the Gallagher, slightly astern of that tug’s tow, and overtaking the Gallagher rather rapidly.</p> <p>For the -heaviest vessels of this flotilla the channel off Throgg’s Neck is upwards of three-eighths of a mile wide, and all boats either entering or leaving Long Island Sound and following the customary channel must round the red buoy off Throgg’s Neck. The Gallagher and Pérth Amboy saw each other timely and agreed to pass starboard to starboard. Consequently the Gallagher kept as close’to the Throgg’s, Neck side of the channel as was proper and rounded the red buoy close to; but the Perth Amboy scarcely changed her course. She did go slightly to port, but substantially navigated as she would have done, had neither the Gallagher nor the O’Brien been about to pass her. Some time after the exchange of whistles between Perth Amboy and Gallagher, similar whistles were blown by the Perth Amboy and O’Brien.</p> <p>While rounding the red buoy aforesaid, the wind naturally caused the light tow of the Gallagher to stream over toward the Perth Amboy’s course, while the same wind, acting on the Perth Amboy’s tow before she rounded the buoy,' tended to keep that tow in line with its own tug. Thus, while the tugs Perth Ambóy and Gallagher passed each other with a good clearance, their tows were bound to pass by a comparatively small margin, and there was nothing to prevent the O’Brien perceiving that such would be the case. Nevertheless the O’Brien did not keep behind the Gallagher, but continued into the narrow, and probably narrowing, channel way between the two tows. In result her tow came in collision with one of the boats in charge of the Perth Amboy, both vessels were injured, and these libels were filed to recover damages therefor.</p> <p>The Perth Amboy and her tow are owned by the same corporation. The court below held the Perth Amboy solely at fault, and dismissed the libel of her owners, and sustained that of the owner of the O’Brien’s tow against the Perth Amboy alone. Thereupon the owner of the latter tug took these appeals.</p>

<p>Appeal from the District Court of the United States for the Southern District of Ohio; John E. Sater, Judge.</p> <p>Suit in equity by the First National Bank of Cincinnati against Edmund S. Beaman, Auditor, and Charles Cooper, Treasurer, of Hamilton County, Ohio. From a judgment for defendants (First Nat. Bank of Cincinnati v. Durr, 246 Fed. 163), plaintiff appeals.</p>

<p>Army and Navy <@=o40—Violation of Espionage Act—Sufficiency of Evidence.</p> <p>Evidence held to sustain a conviction for violation of the Espionage Act (Comp. St. 1918, § 10212c), by using language with intent to obstruct recruiting and enlistment.</p> <p>other cases see same topic & KBY-NUMBBIt in all Key-Numbered Digests & Indexes</p>

<p>1. Aliens <§=*54—Deportation—Dismissal op Proceedings in Territorial Court.</p> <p>Dismissal of proceedings in the district court of Honolulu under the laws of Hawaii against a Japanese woman on the charge she was keeping a house of ill fame, resorted to for the purpose of prostitution, was not necessary to give the immigration officials the right to proceed against the woman for her deportation, and her acquittal by a jury, had she been tried, would have been no obstacle to her deportation, so that dismissal of the proceedings in the territorial court did not deprive her of her constitutional right to trial by jury.</p> <p>2. Aliens i@=»51—Deportation—“Enter.”</p> <p>A Japanese prostitute, a resident of Hawaii before the treaty of annexation, was not immune from deportation under the statute on any ground that she did not “enter” the United States, within its purview.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Enter.}</p> <p><©s»For other cases see same topic & KEY-NUMBER in all Key-Numhered Digests & Indexes</p>

<p>1. Patents ©=>328—Tibe-Wrapping Machine—Infringement.</p> <p>The DeLaski and Thropp patent, No. 1,011,450, relating to a tire-wrapping machine, claims 1, 2, 3, 4, 7, 8, 10, 11, 13, and 20, held infringed by defendant by the use of a machine purchased by, and of two machines built for, it.</p> <p>2. Patents ©=>317—Infringement—Injunction.</p> <p>Where the evidence warrants the conclusion that the infringement of patent involved in the construction and use of machines by defendant was purposeful and inexcusable, and committed under circumstances calculated to arouse just apprehension that it would be persisted in, the remedy is to be found in equity and injunction.</p> <p>tgsaFor other cases see same topic & KEY-NUMBER in fill Key-Numbered Digests & Indexes</p>

<p>1. Patents <§=>328—Validity—Tank Heater.</p> <p>The Nelson patent, No. 836,526, for a tank heater, held void for anticipation and lack of invention.</p> <p>2. Costs <§=>13—Discretion of Court in Equity.</p> <p>Costs in equity cases are within the sound discretion of the court.</p> <p><§s»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Clarke, Judge. Suit in equity for the infringement of a patent by the Berger Manufacturing Company against the Trussed Concrete Steel Company. From a decree dismissing the bill, plaintiff appeals.

<p>1. Patents <5=291—Trade-Marks and Trade-Names <3=95(1)—Suit for Infringement—Preliminary Injunction.</p> <p>A preliminary injunction will not be granted, in a suit for infringement of a patent or trade-mark, where both validity and infringement are doubtful.</p> <p>2. Courts <3=292—Jurisdiction of Federal Courts—Suit for Unfair Competition.</p> <p>Jurisdiction of a suit for unfair competition is not conferred upon a federal court by joining with it a separate cause of action for infringement of a patent or trade-mark.</p> <p><®S5>For other capes see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Trade-Marks and Trade-Names <§s»93(3)—Uiwair Competition.</p> <p>• Evidence held not to sustain a claim of unfair competition by defendant in tbe manufacture and sale of desk stationery boxes; it not appearing that there was any intention to deceive purchasers, or that there was such resemblance as in fact resulted in deception.</p> <p>2. Patents <@=>328—-Validity and Infringement—Stationery Box.</p> <p>The Ehmiing patent, No. 1,014,581, for a stationery box, held valid, and infringed by defendant by one style of box made by it, which was discontinued on notice by complainant but not infringed by a later style.</p> <p><gs7>For other eases see same topic & KEY-NÜMI3EK in all Key-Numbered Digests & Indexes</p>

<p>Patents <S=>328—Infringement—Apparatus for Cooling Water—Circulating System.</p> <p>The Brinkman patent, No. 843,864, for apparatus for cooling one fluid by another, particularly the cooling of water pipes by means of air pass- • ages between them, held not infringed.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Patents <@==>328—Validity and Infringement—Motor Trucks.</p> <p>The Ross patent, No. 1,209,209, for a motor truck for picking up and moving piles of lumber, held valid, but not infringed.</p> <p><§x=jFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>At Law. Action by Mrs. W. C. Johnson against William G. Mc-Adoo, Director General of Railroads, and the Morgan’s Louisiana & Texas Railroad & Steamship Company. On the company’s exception to the petition of no cause of action.</p>

<p>Telegraphs and Telephones <@=26% New, vol. 7A Key-No. Series—Federal Control—Establishment op Liability por Delay.</p> <p>Under tlie joint resolution of Congress of July 16, 1918, authorizing the President to take over telephone and telegraph systems, a suit for damages was maintainable against a telegraph and cable company for delay in delivering a cable while the company was under federal control; it being proper that plaintiff be allowed to establish his liability against the company despite federal control.</p> <p><§=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Bail <S=»79(1)—Forfeited Recognizance—Remission oe Penalty.</p> <p>A court will not remit the penalty of a forfeited recognizance under Rev. St. § 1020 (Comp. St. § 1684), where it cannot find that there has been no willful default, and it further appears probable that the penalty will ultimately fall on parties who were indirectly responsible for the offense charged.</p> <p>other cases see same topic & KEY-NUMBEK in all Key-Numbered Digests & Indexes</p>

<p>Towage ©=»11(4)—Injury of Tow by Ice—Liability of Tubs.</p> <p>Tugs, which on their own initiative took a tow of light barges, two in a tier, through ice in the Kills, held liable for injury of one of the front tier l),y tho ice.</p> <p>^c»Por other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Admiralty. Suit for collision by W. A. Bodden, master of the schooner Stimson, against the steamship North Land.</p>

<p>Bankruptcy <@=140(1)—Sales <@=90—Property Passing to Trustee—Conversion or Executory Sale Contract into Bailment.</p> <p>Where an order for machinery to be delivered to a common carrier under a conditional sale contract was so modified by the seller, with the acquiescence of the purchaser, as to retain possession in the seller as consignee after shipment until a lease was executed by the purchaser, under which delivery was made, the bailment superseded the executory contract of sale, and the rights of a trustee in bankruptcy of the purchaser are subject to the terms of such bailment.</p> <p>*gzx»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Collision <@=5134—Suit fob Damages—Rule of Damages.</p> <p>The measure of damages for injury to a vessel in collision is the amount necessary, to restore the vessel to the condition in which she was at the time of collision, regardless of enhancement in value.</p> <p>2. Shipping @=>58(2)—Damages—Burden of Proof—Liability of Bailee.</p> <p>Where a vessel is injured in collision through the negligence of a bailee, who has it in his custody, he has the burden of showing that the damage sustained .was not the result of his fault.</p> <p>3. Navigable Waters @=>26(3)—Damages—Vessel Striking Sunken Dredge.</p> <p>Report of a commissioner upon damages recoverable for injury of a sunken dredge in collision with a passing vessel reviewed and revised.</p> <p>cgr^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Sales <3=»54—Construction oe Contract.</p> <p>In the construction of written contract of sale, deliveries under which were to be made during a series of months, the subject-matter of the contract, its purpose, and the situation of the parties are material, to determine their intention, the meaning of the words used, and in interpreting their conduct during the time of deliveries.</p> <p>2. Sales <®=>71(4)—Delivery in Installments—Effect oe Orders for Less Than Installment Due.</p> <p>A contract between a newspaper publisher and a paper manufacturer for the purchase and sale of 900 tons of paper, to be delivered within 20 months, approximately 45 tons per month, construed to be in effect one to supply the purchaser’s monthly needs, within the limit of 900 tons, and his action in ordering usually less than 45 tons monthly, which was furnished without objection, held a waiver as to the remainder, and not to entitle him to demand delivery of' the remainder of the 900 tons during the last month.</p> <p>3. Contracts <§=»247—Modification—Inference from Conduct of Parties.</p> <p>Modifications of a written contract ought not to he inferred from conduct of doubtful significance.</p> <p><§ss>For other cases see same topic & KEY-NUMBER in all Key-Numbered “Digests & Indexes</p>

<p>In Admiralty. Suit by the New England Fuel & Transportation Company, owner of the tug Juno, against the City of Boston, with the steamer Currier, the Gulf Refining Company, claimant, impleáded.</p>

<p>In Equity. Suit by the City of Monroe against the Detroit, Monroe & Toledo Short Dine Railway. On motion to remand to state court.</p>

<p>In Bankruptcy. In the matter of the Springfield Realty Company, bankrupt. On review of order of referee.</p>

<p>In Equity. Suit by Francis C. Adler against the Campeche Laguna Corporation. On motion to dismiss the bill.</p>

<p>1. Salvage ©=>48—Proceedings—Evidence.</p> <p>On libel on behalf of the owner of tugs which towed burning steamship from a burning pier, held, that the service was meritorious, and It was to the interest of the ship to be removed from the pier as soon as possible.</p> <p>2. Salvage ®=>21—Awards—Abandonment of Vessel.</p> <p>Where a tug removed a burning steamship from a pier that was on Are to a point of safety, held, that the tug should not leave it without making certain that it is secure, and where it left the ship without making the same secure and the services of another tug were necessary, the value of such service should be deducted from the salvage award in favor of the first.</p> <p>S. Salvage ©=>31—Awards—Services.</p> <p>Where a vessel which, with her cargo of naphtha, was worth $3,500,000, caught fire from a burning pier, and- though the naphtha and munitions on board were liable to explode, tugs removed the vessel from the pier to a point where the fire was extinguished, held, that the salvors should be awarded $50,000 to be apportioned as stated between the several tugs and the owners, master, and crow.</p> <p>4. Salvage ©=>38—Award—Distribution.</p> <p>Whenever a sum is awarded to the master and the crew of salving vessels, it will in the absence of special circumstances, be shared among them in proportion to the wage bill.</p> <p>©=>For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Shipping <@=>51—Charters—Breach—Requisition by Admiralty.</p> <p>On a libel by the American charterer of a British vessel, which had been requisitioned by a firm of Admiralty agents, held, that the requisition must be treated as an act of the Admiralty.</p> <p>2. Shipping <@=>51—Charters—Requisition by Admiralty.</p> <p>Where the British Admiralty in a Spanish port requisitioned a British vessel under charter to an American firm, held, that the British owner was not required to resist the requisition for the benefit of the charterer, and the requisition must be treated as a restraint of princes, regardless oí whether the right to requisition vessel in foreign waters existed, for as spon as the vessel put to sea it could have been taken in charge by the first British man-of-war.</p> <p>3. Shipping <@=>51—Charters—Requisition op Vessel by Admiralty.</p> <p>In determining the effect of the requisition of a chartered vessel by the British Admiralty, noi distinction should be made on the question whether the charter was a voyage or time charter.</p> <p>4. Shipping <@=>51—Charters—Requisition op Vessel by Admiralty.</p> <p>Though the charter party of a British vessel to an American firm contained the usual clause as to restraint of princes, yet where vessel was requisitioned by the Admiralty at a rate in excess of the rate fixed by the charter parly, and the Admiralty retained control of the vessel until after the expiration of the charty party, held, as the charterer would have made a profit despite the requisition, such requisition cannot be accepted as a frustration of the contract, and the charterer is entitled, the owner having repudiated the charter party, to the difference between the rate fixed in the charter party and the hire paid by the Admiralty.</p> <p><.^ Shipping <@=>58(2)—Requisition op Vessel—Action—Libel.</p> <p>A charterer of a British vessel, which was requisitioned by the Admiralty during the life of the charter, held not to be in any wise estopped from asserting rights based on the validity of the requisition, notwithstanding the original libel was on the theory of the owner’s repudiation of the charter party.</p> <p>6. Shipping <@=>38—Charter—Requisition op Vessel.</p> <p>Where the British Admiralty requisitioned a vessel under charter to an American corporation at a rate in excess of the rate fixed by the charter, the American corporation cannot insist that the charter party should remain in force, so that it might be entitled to the excess, and at the same time claim the right to refuse to take the ship, if the requisition was of short duration and ended at a time when market rates were below that fixed in the charter party.</p> <p>7. Shipping <@=>58(1)—Charter op Vessel—Coal—Requisition.</p> <p>Where the British Admiralty requisitioned a British vessel under charter to an American firm, and paid the British owner for coal found in the bunkers, which belonged to the charterer, but which the owner was entitled to buy under the charter party, held, that the charterer was entitled to recover for the value of the coal.</p> <p>8. Shipping <@=>51—Charter—Owner’s Refusal to Allow Vessel to Visit Port op Warring Nation.</p> <p>The owner of a British vessel, under charter containing the usual restraint of princes clause, properly declined to allow the vessel to proceed to the German port of Bremen at a time when a state of war between England and Germany existed,</p> <p>■<gE»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>9. Shipping <©=3.51—Charter—Breach—Objection to Voyage to Port oe Warring Nation.</p> <p>Where the port of Rotterdam was a safe port, held that, though a state of war between Germany and Knglund existed, the owner of a British vessel under charter to an American firm was not warranted in refusing to allow the vessel to proceed to Rotterdam, and where his refusal lost the charterer a chance at the Rotterdam cargo, the charterer was entitled to deduct from the charter hire for the delay of the vessel occasioned by the unwarranted, refusal.</p> <p>10. Shipping g=»50—Charters—Insurance—Allowance.</p> <p>Whether or not a vessel under charter is insured against war risk was a matter solely for the owner, and though the owner obtained such insurance because the charterer desired to send the vessel to a Dutch port, though the voyage was not made such sum cannot be charged against the charterer.</p> <p>11. Shipping <g=>49(2)—Charters—Paymknt oe Compensation—Right to Deduction—Waiver.</p> <p>Where a charterer, on demand of the owner, paid amounts which it had withhold in order to save the vessel and prevent the owner from declaring the charter party at an end, held, that such payments did not operate as a waiver of claims to amounts which the charterer was entitled to deduct.</p> <p>)@T(For£)ttier cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

At Law. Action by the Northern Trust Company and Henry R. Zesinger, executors under the will of Lewis W. Klahr, deceased, against Ephraim Lederer, Collector of Internal Revenue. On trial by the court without a jury.

<p>In Equity. Suit by the Northern Iowa Gas & Electric Company against the Incorporated Town of Euverne, Iowa. On motion for preliminary, injunction.</p>

<p>Removal of Causes —Right of Removal—-Nature ok Suit—Probate Proceedings.</p> <p>A suit in a state court by administrators for directions in the distribution of the estate, authorized by Park’s Aim. Civ. Code Ga. § 4597, is a part of or ancillary to the probate proceedings, and is not removable into a federal court.</p> <p><§zz>Fot other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Equity. Suit by John A. Boykin, Solicitor General of the State of Georgia, on relation of Linton Johnson and others, against the Morris Fertilizer Company and the Armour Fertilizer Works. On motion to remand to state court.

<p>1. Equity <§=>149—Multifarious Bill—Joinder of Complainants.</p> <p>Bill against a cotton mill company and individuals for specific performance of agreement between plaintiff and defendant individuals, wliereby plaintiff, on account of Ms experience in weaving, should become largely interested in the mill company, etc., held multifarious; the causes of action against the defendant individuals being intermingled with whatever cause of action there was against the mill company.</p> <p>2. Specific Performance <§=>128(1)—Bill for Specific Performance and Damages—Right to Maintain.</p> <p>Plaintiff cannot maintain a bill for specific performance of a contract between him, defendant individuals, and a cotton mill company, whereby, on account of Ms experience in weaving, he should become largely interested in the company without subscribing for stock, where such bill in the alternative seeks judgment against the individual defendants for the sum of $50,000; it being impossible under the facts to decree specific performance, wMle any right to damages exists at law.</p> <p>3. Specific Performance <§=>114(1)—Promotion of Mill Company—Pleading.</p> <p>Bill alleging agreement between plaintiff, the individual defendants, and a cotton mill company, whereby, by reason of plaintiff’s experience as a man familiar and expert in weaving, he was to become interested largely in the mill company without subscribing for stock, the bill praying separately for specific performance or money judgment against the individual defendants, held not to allege facts justifying any interference by a court of equity at all.</p> <p><@s»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Criminal prosecution by the United States against Tom Caplis and others.</p>

<p>In Admiralty. Libel by the Interstate Lighterage & Transportation •Company against the steam tug Convoy.</p>

<p>1. Fraudulent Conveyances @=47—Sale in Bulk—Presumptive Fraud.</p> <p>A sale of a stock of goods in bulk, where no list of tbe seller’s creditors was furnished tbe buyers, was presumptively fraudulent under tbe New York Bulk Sales Law (Personal Property Law-, § 44), though the buyers asked perfunctory questions as to-the amount.of debts outstanding, and embodied the replies in the bill of sale.</p> <p>2. Courts @=366(14)—State Decisions—Controlling Effect.</p> <p>New York decisions that the question of fact as to whether a sale in-bulk was fraudulent, under New York Bulk Sales Law (Personal Property Law, § 44), is largely a matter of intent, are controlling in suit by the seller’s trustee in bankruptcy to recover the proceeds of the goods sold by the bankrupt and resold by the buyers.</p> <p>3. Fraudulent Conveyances @=289(1)—Intent—Evidence.</p> <p>In determining whether a sale of goods was fraudulent as to creditors, although generally the sale must be viewed from the standpoint of the evidence bearing on the intent of the parties at the time, if the evidence shows ¡a continuous transaction in which the intent relates back to the time of the purchase, the rule does not apply, and subsequent events can be coupled with events preceding the acts, if there is such connecting evidence as to throw light on the original intent.</p> <p><gs^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Insurance <3=»103(%)—Boiler Insurance—Construction of Policy— “Boiler.”</p> <p>A policy insuring a steam boiler against explosion or rupture, which defined “boiler,” as used therein, as “any vessel * * * which is used for the generation of steam, and shall include * * * all connecting pipes and fittings up to and including the valve nearest the boiler,” held not to cover a rupture of the whistle pipe above the whistle valve.</p> <p>[Ed. Note.—Dor other definitions, see Words and Phrases, Second Series, Boiler.]</p> <p><3=»For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Equity. Suit by James A. Keown against Mary E. Keown and others. On defendants’ motion to dismiss. Motion of all parties defendant except the named defendant allowed, and bill dismissed as to them.

<p>1. Equity <§=395—Power of Master—Amendment of Pleadings.</p> <p>A master is without power to allow an amendment of the answer by setting up a counterclaim which enlarges the issues referred to him, which can only be done by the court.</p> <p>2. Equity <§=>283—Amendment of Pleadings—Laches.</p> <p>Amendment of an answer by setting up a counterclaim and asking a general accounting, which goes beyond the transactions in issue, will not be allowed, where application therefor is not made until the conclusion of a long hearing before a master and his report thereon.</p> <p><£=s>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>At Law. Action by Francis W. Hunnewell and others against James D. Gill and others, former and present Collectors of Internal Revenue.</p>

<p>Criminal prosecution by the United States against Everett E. Simpson. On demurrer to indictment.</p>

<p>Shipping <@=^3%, New, vol. 8A Key-No. Series—Jurisdiction of Admiralty— Suit Against Railroad Under Federal Control.</p> <p>Under Federal Control Act March 21, 1918, § 10 (Comp. St. 1918, § 3115%j), and General Orders Nos. 50 and 50A thereunder, a suit in admiralty may be maintained against the Director General of Railroads upon a cause of action existing against a railroad company while under federal control.</p> <p><g=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Shipping <§=>3%, New, vol. 8Á Key-No. Series—Property Under Federal Control—Suit Against Vessel.</p> <p>The provision of Federal Control Act March 21, 1918, § 10 (Comp. St. 1918, § 3115%j), that “no process, mesne or final, shall be levied against any property under such federal control,” does not prevent the arrest of a vessel in a suit in rem in admiralty, although owned by a railroad company under federal control.</p> <p>2. Shipping <@=w3:/¿, New, vol. 8A Key-No. Series—Effect of Federal Control—Suit in Admiralty.</p> <p>Where a railroad company under federal control, as owner of a vessel, brought suit against another vessel for collision, the claimant, on the filing of a cross-libel, is entitled to the usual order, under admiralty rule 53 (29 Sup. Ct. xiv), staying suit on the original libel until security is furnished by libelant.</p> <p>3. Shipping <3=»3%, New, vol. 8A Key-No. Series—Federal Control—Suit Against Vessel—Substitution of Director General as Respondent.</p> <p>In a suit in rem in admiralty against a vessel owned by a railroad company under federal control, the Director General will not be substituted as respondent, on motion of claimant or on his own motion.</p> <p>other cases see same topic & KEY-NUMBJSH in all Key-Numbered Digests & Indexes</p>

In Admiralty. Libel by the C. F. Harms Company against the Brooklyn Ash Removal Company, which by petition brought in the City of New York, together with a libel by the Brooklyn Ash Removal Company against the C. F. Harms Company.

<p>At Law. Action by Henry A. Lewis and Laura F. Lewis against the Erie Railroad Company and the Delaware & Hudson Company. On motion to remand to state court.</p>

<p>Equity <S=>392—Rehearing—Grounds.</p> <p>A motion for a rehearing in equity should show either newly discovered evidence, or some manifest misapprehension on the part of the court as to the law of the case, or some mistake as to the facts involved.</p> <p><£s»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Bankruptcy. In the matter of Camille Weidenfeld, alleged bankrupt. On motion for order adjudging the alleged bankrupt a bankrupt as of a particular date.

<p>1. Maritime Liens <®=^30—Supplies—Vessel undeb CuAssrrEB.</p> <p>A fuel company, which had previously furnished coal to a tug while being operated by her owner, on orders from her engineer, held entitled to a lien under Act June 23, 1910, § 1 (Comp. St. §■' 7783), for coal furnished on orders of the same engineer, althought she was then under a charter which required the charterer to furnish the ®oal, hut of which ■ fact it was not informed until afterward.</p> <p>'2. Maritime Liens <®=40—Supplies—Waiver of Lien...</p> <p>A libelant, who furnished coal to a tug on orders of her engineer, anff was then told by bim to charge the coal to her charterer, which he did, and attempted to collect from it until it became- insolvent, held to have waived his lien on the tug..</p> <p><gssjFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Bankruptcy. In the matter of David Schloss and Max Schloss, trading as Schloss Plumbers’ Woodworking Supply Company, alleged bankrupts. On motion of the trustee for an order directing a final dividend to be paid.</p>

<p>Trial <S=>4—Release as Defense-—Separate Trial of Issue.</p> <p>In an action at law for damages, for which plaintiff has executed a release, the validity and effect of which are in controversy, such issues should be tried first by the court sitting as a court of equity.</p> <p><£=oFor other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Action by G. M. Wood against the Clyde Steamship Company. On motion to quash summons.</p>

<p>1. Commerce <@=69—Interstate Commerce—Interference by State—CORPORATIONS.</p> <p>Pub. Acts Mich. 1907, No. 310, declaring that no foreign corporation shall be capable of making a contract within the state until compliance with provisions of the act, does not impose or attempt to impose a tax on all the capital of a foreign corporation, whether employed in state or interstate commerce, or to tax property permanently without the state, or to impose a fee upon its business done in the state, without distinction between state and interstate, and is not otherwise invalid.</p> <p>2. Corporations <S=661(2)—Foreign Corporations—Right to Sue.</p> <p>Plaintiff, a foreign corporation, held to have a substantial local and domestic business entirely separate from, and not merely incidental to, its interstate business, so that it could not, where it liad not complied with Pub. Acts Mich. 1907, No. 310, maintain suit for unpaid commissions, as well as anticipatory damages on account of cancellation of contract for sale on commission “for the entire United States” of automobile wheels manufactured by defendant, a Michigan corporation, in view of Comp. Laws Mich. 1897, § 10467.</p> <p>3. Trial <@=141—Questions op Law or.Fact.</p> <p>Whether plaintiff, a foreign corporation, was doing business in Michigan, so as to be subject to the taxing laws of Michigan, held one of law: the evidence not being conflicting.</p> <p>4. Courts <s=95(2), 366(7)—Decision op State Supreme Court—Following by Federal Court.</p> <p>The Supreme Court of Michigan having construed Pub. Acts Mich. 1907, No. 810, as making unenforceable a contract made by a foreign corporation before compliance with the act, notwithstanding compliance had while contract is still in force, the declaration of invalidity must be recognized by courts, state or federal, wherever suit may be brought for enforcement of contract.</p> <p><&=^For other eases see same topic & KEY-NUMEBR in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Southern District of Ohio; John E. Sater, Judge.</p> <p>Action by John E. Eyons against the Empire Fuel Company. There was a judgment for plaintiff, and defendant brings error, and plaintiff also brings error, asserting that the award of damages was insufficient.</p>

Appeals from the District Court' of the United States for the Western District of Michigan; Clarence W. Sessions, Judge. Suit in equity by Joseph Burns and others against the Escanaba Traction Company; the Escanaba National Bank, and others. From the decree, plaintiff Joseph Burns and defendant Traction Company appeal.

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Ohio; D. C. Westenhaver, Judge.</p> <p>Action by the Hale & Kilburn Company against John T. Gill and Kermode F. Gill, copartners doing business under the name of John Gill & Sons, who counterclaimed. There was a judgment for plaintiff, the counterclaim being dismissed, and defendants bring error.</p>

<p>Appeal from the District Court of the United States for the Southern District of Ohio; J ohn E. Sater, Judge.</p> <p>Suit in equity by the Iierold China & Pottery Company against John J. Herold and the Guernsey Earthenware Company. From a decree for plaintiff, defendants appeal.</p>

<p>1. Appeal and Error @=334(3)—Writ of Error Taken by Trustee—Abatement by Death.</p> <p>Writ of error taken out by plaintiif. “D. R. Howard, trustee,” held, not taken by him as sole trustee so as to have been abated by his death, and not to be revived in the name of his personal administrator.</p> <p>2. Judgment <@=531—Judgment Against Trustee—Personal Liability.</p> <p>Where the decree did not run against plaintiff trustee in a representative capacity, he being styled therein “D. R. Howard, trustee,” prima facie indicating the word “trustee” was merely descriptive, while the order for execution was directed against “D. R. Howard, trustee,” he was personally liable.</p> <p>3. Equity @=39(4)—Relief—Judgment on Notes Sought to be Canceled— Jurisdiction.</p> <p>In suit by trustee to cancel promissory notes given for coal-mining property, and for relief from liability thereon, the District Court had jurisdiction, on finding for defendant holders of the notes, to render judgment against plaintiff trustee on the holders’ counterclaim on the notes, since equity will retain jurisdiction of subject-matter properly acquired to do complete justice, though it involves determination of legal rights.</p> <p>4. Courts @=311—Eederal Court—Diversity of Citizenship.</p> <p>District Court sitting in Kentucky held vested with jurisdiction over plaintiff, a trustee, and a citizen and resident of Ohio, suing to cancel notes given for the purchase price of coal-mining property, on the cross-suit of defendants, the holders of such notes, residing in and citizens of Virginia, to recover thereon against plaintiff trustee.</p> <p><§=For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>5. Courts <§=>332—Power, of Supreme Court—General Equity Bule.</p> <p>The Supreme Court of the United States has power to confer by general equity rule No. 30 (118 O. C. A. v, 201 Fed. v) a right to relief on counterclaim which the trial court has undoubted power to give on actual hearing, and which it is its settled practice to give without its being affirmatively asked for.</p> <p>6. Courts <®=»347—Equity Rule—Counterclaim—Suit to Cancel Notes.</p> <p>In view of the policy disclosed by general equity rules Nos. 22, 23 (115 C. O. A. xxiv, 198 Fed. xxiv), under No. 30 (118 O. C. A. v, 201 Fed. v), as to counterclaims, the District Court had jurisdiction to entertain defendant holders’ counterclaim on the notes sought to be canceled in suit by plaintiff trustee, the purchaser of mining property, to rescind the purchase and cancel the purchase-money notes.</p> <p><£=5>For other cases see same topic & KEY-NUMBBR in all Key-Numbered digests & Indexes</p>

<p>In Error to the District Court of the United States for the District of New Jersey; Thomas G. Haight, Judge.</p> <p>Action at law by Catherine Post, as administratrix, against the Public Service Electric Company. Judgment for plaintiff, and defendant brings error.</p>

Appeals from the District Court of the United States for the Southern District of New York. Suit by the Scandinavia Belting Company against the Asbestos & Rubber Works of America, Incorporated, for an injunction to- restrain the use of a trade-mark and unfair competition. From a decree denying complainant’s right to a trade-mark, but granting injunction on the ground of unfair competition, both complainant and defendant appeal.

<p>In Error to the District Court of the United States for the Western District of Arkansas; Frank A. Youmans, Judge.</p> <p>Criminal prosecution by the United States against T. W. M. Boone. J udgment of conviction, and defendant brings error.</p>

<p>1. Damages <@=>82—Liquidated Damages os Penalty—Breach of Contract.</p> <p>In a contract for lease of machines, a provision that on failure to pay rent by the 10th of each month for the preceding month it should be increased 10 per cent, held void, as for a penalty.</p> <p>2. Patents <@=>216—Lease of Machines—Royalty—Provision for Minimum.</p> <p>In a contract for leasing solder-saving machines, providing for the payment as rental of one-third the saving of the machines each month, a provision immediately following, “But the minimum amount of rent or royalty paid in any calendar year, after the year in which the machines are installed, shall be $300 for each machine,” held not ambiguous, and reasonable and valid; it being shown that, if a machine was continuously used, the royalty would much exceed such sum.</p> <p>3. Estoppel <S=>70(2)—Equitable Estoppel —Delay in Asserting Rights.</p> <p>Where a lease of machines for a term of years, subject to their return at any time by lessee, provided for payment of rental monthly on a royalty basis, but contained a plain and unambiguous provision fixing a minimum annual rental for each machine, and each party had a copy of the contract, neither the failure to demand the annual minimum at the end of each year, nor the acceptance of monthly rentals thereafter, estopped lessor to demand the deficiency on termination of the contract by lessee.</p> <p>4. Estoppel <@=>54—Equitable Estoppel—Equal Knowledge of Facts.</p> <p>Where the facts are known to both parties, or both have the same means of ascertaining the truth, there can be no estoppel.</p> <p>5. Limitation of Actions <@=>46(6)—Accrual of Right of Action—Continuing Contract.</p> <p>Where a lease of machines for a term of years provided for monthly rental on a royalty basis, but fixed a minimum annual rental for each machine, without stating when any deficiency should be payable, a cause of action for such a deficiency arose on the lapse of a reasonable time after expiration of the year, and from that time limitation ran against an action therefor.</p> <p>6. ' Patents <@=>216—Lease of Machines—Construction—Rental.</p> <p>Contract for leasing of machines on royalty, with a fixed minimum annual rental for each machine, construed with respect to rental due on machines for the year in which they were returned under the contract.</p> <p><@=s>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Patents <@=>26(2)—Invention—Combination—New Results.</p> <p>Invention may exist, even though every element is old, provided the combination either produces a new result or effects an old result in a new and materially better way.</p> <p>2. Patents <©=>26(1)—Lack of Invention-^-Elements of Prior Art.</p> <p>All elements of the prior art have a bearing on the question of invention, and it is unnecessary to a finding of lack of invention that every element be found in one embodiment.</p> <p>3. Patents <@=5328—Lack of Invention—Combination qf Elements in Prior Art.</p> <p>The Edwards patent, No. 890,626, for an improvement in window holding and fastening devices, held void for lack of invention, consisting merely in a combination of the desirable elements of different devices in the same art.</p> <p><§=s>For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Admiralty. Suit by Charlés N. Moller against the French bark Boildieu.</p>

<p>1. Attorney and Client <@=175—Attorney’s Lien—Lien on Costs.</p> <p>Though attorneys for defendants were not such until after the Appellate Division of New York had rendered judgment for costs for defendants, having been retained to represent defendants in the appeal taken by plaintiffs to the New York Court of Appeals, since the attorneys were protecting the j’udgment for costs awarded by the Appellate Division, their lien extended to such costs, while they clearly had a lien on the costs awarded by the Court of Appeals.</p> <p>2. Attorney and Client <@=191—Attorney’s Lien—Superiority to Eight op Set-Off.</p> <p>The liens of defendant’s attorney on judgments of the Appellate Division of New York and the Court of Appeals in favor of defendant for costs were superior to the right claimed by plaintiffs to set off a judgment held by their firm against defendant.</p> <p><©=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Criminal prosecution by the United States against Jacob Ackerman for illegal sale of liquor to a soldier. Judgment of conviction, and defendant brings error.

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

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

<p>Appeal from the District Court of the United' States for the Eastern District of Missouri.</p>

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

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

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

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

<p>In Error to the District Court of the United ■ States for the District of North Dakota.</p>

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

<p>In Error to the District Court of the United States for the District of No3*th Dakota.</p>

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

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

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

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

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

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

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

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

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

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

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

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

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

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