Volume 258 — Federal Reporter

<p>1. Sales &wkey;>439 — Defects—Burden of Peoop.</p> <p>Where a buyer’s retention and use of a locomotive crane prior to suit for the purchase price were sufficient to reveal the claimed defects, the buyer, who defended on the ground of such defects, has the burden of proving them.</p> <p>2. Appeal and Error <&wkey;>995 — Review—Evidence.</p> <p>On writ of error, the Circuit Court of Appeals will not weigh the evidence.</p> <p>3. Sales <&wkey;>445(l) — Actions—Wabbanty—Jtjby Question.</p> <p>Though Gen. Code Ohio, § 8395, specifies when implied warranties will or will not arise, yet where the facts on which such implied warranties might or might not arise are in conflict, the questions are for the jury.</p> <p>1. Sales <@=5445(1) — Implied Waebanties — Jury Question.</p> <p>In an action for the purchase price of a locomotive crane, where the buyer defended on the ground that the crane did not comply with the implied warranty arising under Gen. Code Ohio, § 8395, because the seller was advised of the buyer’s needs, etc., held, where there was testimony that the crane was sold under its patent or trade-name, and that the buyer’s agents inspected the same, the question whether any implied warranty arose was for the jury.</p> <p>B. Sales <&wkey;425 — Breach op Wabbanty — Rights.</p> <p>Under Gen. Code Ohio, § 8449, relating to breach of warranty, a buyer, on discovery of the breach, is at liberty either to return or offer to return the article and recover any part of the price paid, or to accept and keep the article and set up breach of warranty by way of recoupment, in diminution or extinction of the purchase price.</p> <p>6. Sales <&wkey;287(3) — Bbeach of Wabbanty — Acceptance.</p> <p>Where a buyer of a locomotive crane retained the same and used it for a long time, there was an acceptance, even though the buyer asserted in correspondence that it had not accepted the crane, because it did not comply with an asserted warranty.</p> <p>7. Sales <&wkey;442(14) — Bbeach op Wabbanty — Damages.</p> <p>Where a buyer of a locomotive crane, notwithstanding discovery of alleged defects, retained and used the crane, and as a result of asserted defects it dropped stones on a building when being used, held that, under Gen. Code Ohio, § 8449, relating to breach of warranty, damages arising out of such use of the crane cannot be recovered, where the buyer made no attempt to have the defects remedied.</p>

C. Westenhaver, Judge. Action at law by Mike Zajkowski against the American Steel & Wire Company. To review a judgment for defendant, plaintiff brings error. We understand the theory of this action to be that it is one to recover damages arising under conditions calculated to cause and causing an occupational disease. The case was disposed of below upon the pleadings and the opening statements of counsel.

<p>Appeal from the District Court of the United States, for-the Southern District of Ohio; Howard C. Hollister, Judge.</p> <p>.Petition by William H. Youtsey to reopen bankruptcy proceedings after his discharge and settlement of the estate, against George Nis-wonger, trustee in bankruptcy. From an order denying the petition, petitioner appeals.</p>

Suit in equity by the Paducah Water Company against the City of Paducah. Prom decree for plaintiff, defendant appeals. This suit grew out of a question arising in the city of Paducah, whether as respects streets about to be permanently paved the cost of renewing or replacing therein service pipes connecting the water mains with the property lines of consumers should be borne by the water company or .by the abutting owners.

<p>1. Aliens <&wkey;32(13) — Admission of Chinese — Reversal of Conclusion of Immigration Bureau.</p> <p>If, taking together discrepancies in the testimony of two Chinese applying for admission to the United States as sons of a native-born citizen, the executive officers of the Immigration Bureau and the Department of Labor found the evidence in support of the right to land and enter the United States was so impaired as to render it unsatisfactory, the court, on application of the Chinese for habeas corpus, is not authorized to reverse the conclusion.</p> <p>2. Aliens <&wkey;32(13) — Exclusion of Chinese — Finality of Order of Executive Officers.</p> <p>Where the court cannot say that proceedings relative to the exclusion from the United States of two Chinese, claiming to be sons of a native-born citizen, were manifestly unfair, or that the actions of the executive officers of the Immigration Bureau or Department of Labor prevented fair investigation, or that there was a manifest abuse of the discretion committed to them by the statute, the order of the executive officers within the authority of the statute is final.</p> <p>3. Aliens &wkey;>32(12) — Questions Reviewable — Objection Not Made Below or on Appeal.</p> <p>On appeal in habeas corpus proceedings by two Chinese, seeking admission to the United States as sons of a native-born citizen, a claim or objection as to the proceedings of the immigration officers, not set forth in the petition for the writ, and not made in the court below or on appeal, but made for the first time in the addendum to counsel’s brief after submission of the ease on appeal, cannot be considered, in the absence of a record presenting the proceedings referred to.</p>

Dooling, Judge. Blanche Grancourt was convicted of violating Act May 18, 1917, § 13, and she brings error. Indictment charging violation of section 13 of the Act of May 18, 1917, c. 15, 40 Stat. 83 (Comp. St. 1918, § 2019b, appendix), and section 37 of the Criminal Code of the United States (Act March 4, 1909, c. 321, 35 Stat. 1096 [Comp. St. § 10201]).

<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 Harry Coulby against the United States. There was a judgment for plaintiff, and the United States brings error.</p>

<p>1. Action <&wkey;57(l) — Consolidation—Bills foe Infringement of Patent.</p> <p>Under equity rule 26, a plaintiff may properly join in a single bill two causes of action for infringement of several patents, and bence, where separate suits were brought on a mechanical and a design patent, each for a percolator, it was proper to consolidate them.</p> <p>2. Patents <&wkey;168(l) — Construction—Arguments in Patent Office.</p> <p>Arguments made in the Patent Office by the applicant to the examiners are not to be taken as a measure of his patent, when not accompanied by any changes in the claims, and so need not be considered in construing.the patent.</p> <p>3. Patents <&wkey;35 — Construction—Sales.</p> <p>In an infringement suit, where complainant’s device did not have the structure specified in a claim of the patent, evidence of the sales of the article cannot be considered on the question of the validity of the claim.</p> <p>4. Patents <&wkey;165 — Scope—Limits.</p> <p>The scope of every patent is limited to the invention .described in the claims, read in the light of the specifications, and the inventor is entitled to.nothing beyond the claims.</p> <p>5. Patents <&wkey;l — Effect.</p> <p>A patentee receives nothing from the law which he did not have before; the only effect of his patent being to restrain others from manufacturing, using, or selling that which he has patented, the purpose of the patent law being to protect him in his monopoly.</p> <p>6. Patents <&wkey;174 — Construction—IMPROVEMENTS.</p> <p>Where an improvement is narrow in its character, the invention is ordinarily confined to the specific device, and the patentee receives little aid from the doctrine of equivalents.</p> <p>7. Patents &wkey;>328 — Construction—Infringement.</p> <p>The Ricciardelli patent, No. 1,180,881, claim 3, for a percolator support, if construed as valid, notwithstanding the prior art, held not infringed.</p> <p>8. Patents <&wkey;20(2) — Combination Patents — Validity.</p> <p>Generally speaking a combination of old elements, in order to be patentable, must produce by their joint action a novel and useful result, or an old result in a more advantageous way, and the mere bringing of old devices into juxtaposition, and their allowing each to work outlts own effect, without the production of something novel, is not invention.</p> <p>9. Patents <&wkey;328 — Construction—Validity.</p> <p>The Ricciardelli patent, No. 1,180,881, claim 4, for a percolator support, consisting of a combination of a friable receptacle having an upstanding cylindrical neck and the support therefor an upright, a handle pivotably carried by said upright, etc., held invalid; the combination producing no now and novel result and not showing invention.</p> <p>10. Patents <&wkey;28 — Design Patents — Validity.</p> <p>To entitle a person to a design patent, under Rev. St. § 4929, there must be originality and the exercise of inventive faculty, which will produce something now and beautiful, and the adaptation of old devices or forms to new purposes, however convenient or beautiful, is not invention.</p> <p>11. Patents <&wkey;328 — Design Patents — Construction—Validity.</p> <p>The Ricciardelli and Bleichrode design patent, No. 47,545, for a percolator, held, in view of the prior art not to show invention, and to be invalid.</p>

<p>1. Patents <&wkey;285 — Suit fob Infringement — Joinder of Patents.</p> <p>A mechanical patent and a design patent for the same article may prop- . erly be joined in a suit for infringement. ,</p> <p>2. Patents <&wkey;62 — Anticipation—Burden and Measure of Proof.</p> <p>When an unpatented device, the existence and use of which are proven only by oral testimony,' is set up as a complete anticipation of a patent, the proof sustaining it must be clear, satisfactory, and beyond a reasonable doubt.</p> <p>3. Patents &wkey;>328 — Validity and Infringement — Screw Driver.</p> <p>The Ward patents, No. 737,179, for a screw driver, and No. 37,214, for a design for the same, both held not anticipated, valid, and infringed.</p> <p>4. Patents <&wkey;28 — Design—“Ornamental.”</p> <p>A design may be “ornamental,*’' within Comp. St. § 9475, authorizing patents for ornamental designs, not in the sense of being ornate or bedecked, but in the sense that it has a certain marked appearance which lends beauty or elegance to it.</p>

<p>1. Patents <&wkey;328 — Validity—Vacuum Tanks fob Automobiles.</p> <p>Claim 1 of the Higginson & Arundel patent, No. 1,067,814, claims 1, 3, 9, ■ 13, and 14, of the Jay patent, No. 1,132,275, and claims 1, 2, 4, and 5, of the Jay patent, No. 1,134,457, are valid and disclose invention, but were not infringed, except as to claims 9 and 14 of the Jay patent, No. 1,132,275.</p> <p>2. Patents <&wkey;16 — -Improvement.</p> <p>Where an art has been advanced step by step by a series of inventions, so that no one inventor can claim the complete whole, each inventor is entitled to the specific form of device which he produces, so far as it differs from those of his competitors.</p>

In Admiralty. Libel by W. R. Grace & Co. against the Lucken-bach Steamship Company, Incorporated, and the Luckenbach Company, Incorporated. On exceptions to the commissioner’s report.

<p>In Equity. Suit by the City of Shreveport against the ■ Southwestern Gas & Electric Company. Decree directed, perpetuating preliminary injunction.</p>

In Equity. Receivership suit by the Grasselli Chemical Company against the ¿Etna Explosives Company, Incorporated, wherein Odus C. Horney files a claim against defendant company in the hands of receivers.

<p>In Bankruptcy. In the matter of the Brueck & Wilson Company, a bankrupt. On review of referee’s order expunging the claim of one Rotlienherg.</p>

<p>In Equity. Suit by G. Ricordi & Co., Incorporated, against the Columbia Graphophone Company. Decree for complainant.</p>

<p>In Admiralty. Suit for collision by John J. Matheson and others against the steamship Fake Monroe. On motion for process.</p>

<p>In Admiralty. Libel by Anthony Golden against the steam tugs J. C. Reichert and James Roy. Decree for libelant.</p>

Libel by Anthony J. Golden against the steam tugs J. C. Reichert and J ames Roy, their engines, etc.; the Reichert Towing Line, Incorporated, claimant. Decree for libelant (258 Fed. 79), and claimant appeals.

<p>In Error to the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge.</p> <p>Action at law by the Penn Mutual Life Insurance Company against Ephraim Lederer, Collector of Internal Revenue. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Public Lands <8=»120 — Cancellation or Patent — Good Faith of Entry-men — Evidence.</p> <p>In suit by the United States to cancel defendants’ patents to certain lands, evidence held, not to show that defendant entrymen, at the time of filing upon said lands, entered into an agreement by which tlio title to tlieir respective pre-emption lands would inure to any other person in whole or in part.</p> <p>2. Puní,io Lands <§=jí:Jí> — Pre-Emption,—Disposition Before Final Patent.</p> <p>The pre-emption statute (Rev. St. § 2262) did not require at time of making final i>roo£, as it does at time of filing, that claimant make an affidavit to the effect that application is not made for the use or benefit of any other person or persons, and claimant had full power to dispose ad interim of Ms claim upon final issue of patent; the motive of applicant at time of final proof being irrelevant.</p> <p>3. Public Lands <3^120 — Cancellation of Pre-Emption Patent — Grounds.</p> <p>In suit by the United States to cancel defendants’ patents to certain lands on the ground that defendant entrymen in their affidavits and proofs falsely represented that lands were for their own exclusive use and benefit, the inquiry of the court could not extend beyond the good faith and truth of the statements required by Rev. St. § 2262, of the entry-man at time of making entry.</p>

<p>1. Actions <@=50(2) — Joinder.</p> <p>Minority stockholders, who asserted that they had been induced to purchase their shares through the fraud of the promoter of the corporation, cannot' join actions personal to them with actions against the majority shareholders on which the corporation alone could sue.</p> <p>2. Corporations <@=320(13) — Actions bt Minority Stockholders — Injunction.</p> <p>In a suit by minority stockholders against the corporation officers and others for an accounting for corporate funds that came into the hands of individual defendants and for cancellation of corporate obligation and mortgages on the ground that they were taken fraudulently and without consideration, an order temporarily enjoining foreclosure or disposition of the mortgages is proper.</p> <p>3. Corporations <@=320(13) — Actions by Shareholders — Relief.</p> <p>Where there was no contention that a corporation was not legally organized, or that it was insolvent, held that, in a suit by minority shareholders for cancellation of corporate obligations and mortgages on the ground that they were taken fraudulently and without consideration, the complete stoppage of corporate affairs is unnecessary, and a decree enjoining foreclosure or disposition of the mortgages should not enjoin the corporation from employing any person on a salary other than a watchman : thus stopping all corporate affairs.</p> <p>4. Corporations <@=320(13) — Stockholders—Rishts of..</p> <p>The right of a stockholder to sell his stock is one of the commonest incidents, and such disposition should not be enjoined in a suit by minority shareholders against the promoter and organizer of the corporation' who it claimed misrepresented the number of shares he received, etc., where it did not appear that the promoter was not the owner of the shares with all lawful rights implied by such ownership.'</p> <p>5. Corporations <@=320(13) — Books—Inspections.</p> <p>In a suit by minority stockholders who were denied access to the corporate books, an order providing that they should be allowed access to the books is sufficient in the first instance, and the books of the corpora- • tion should not be ordered by mandatory injunction to be deposited in court for inspection of the parties.</p>

<p>In Error to the District Court of the United States for the District of Vermont.</p> <p>Action at law by Victor A. Agostini, administrator of Divio France-shetti, against the National Metal Edge Box Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal and Errob <§=>1066 — Questions fob Jury — Submission of Issue Unsupported by Evidence.</p> <p>In action for death of passenger, killed when train started suddenly while he was alighting at a dark station, submission to jury of question of defendant’s negligence in failing to provide sufficient train crew with other issues held prejudicial error, where there was no evidence of such insufficiency and a general verdict for plaintiff was returned.</p>

<p>Collision <&wkey;96 — Boat Lying in Slip — Tug with Tow.</p> <p>Evidence held to sustain the claim of libelant that respondent tug or her tow, which she was maneuvering into place in a slip, came into collision with libelant’s canal boat, which was being discharged on a pier in the slip.</p>

<p>Appeal from the District Court of the United States for the Eastern District of New York.</p> <p>Suit in admiralty for collision by the Clyde Lighterage Company against the Pennsylvania Railroad Company. Decree for respondent, and libelant appeals.</p>

<p>Logs and Logging <&wkey;8(l) — Contract to Cut Wood — Construction.</p> <p>A contract by plaintiff to cut as much wood as possible from certain lots of defendant, and deliver tbe same on the cars at a railroad station named, for a stated price per cord, defendant to furnish him provisions at cost during the work, held to require defendant to furnish the necessary cars.</p>

<p>Appeal from the District Court of the United States for the Western District of New York.</p> <p>In the matter of John H. Reilly and Thomas P. Reilly, individually and as copartners under the firm name and style of Reilly Bros., bankrupts. From an order requiring James A. Rowan to pay the-balance of purchase price bid for the bankrupts’ assets, Rowan appeals.</p> <p>An order in bankruptcy was made requiring appellant, a purchaser at a sale of the assets of the bankrupts, to pay the balance of the pur - chase price on the bid made by him for such assets. This appeal is from the order.</p>

Apjieal from the District Court of the United States for the District of Delaware; Charles P. Orr, District Judge, specially assigned. Suit by the Koppers Company against the Otto Coking Company, Incorporated, and the Wilputte Coke Oven Corporation, with counterclaim by defendants.

Suit in equity by the .Ideal Novelty & Toy Company against the Majestic Doll Company, Incorporated. Decree for defendant, and complainant appeals. Action is on all claims of patent 1,149,858, granted August, 10, 1915 to Isaac A. Kommer. The first claim is as follows: “1.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit by George E. Vandenburgh against the Concrete Steel Company. Decree for defendant, and complainant appeals.</p>

<p>In Admiralty. Libel by the United States against the Scandanavia II.</p>

<p>1. Telegramis and Telephones ©=>33(2) — Intebetjption in Service — Contract.</p> <p>A telephone contract, providing that a proportionate part of the subscription price would be rebated for interruptions in service continuing after reasonable written notice to the company, but that no other liability should attach, relates only to interruptions taking place without company's knowledge, and is inapplicable to a stoppage of service for failure to pay disputed charges.</p> <p>2. Damages ©=>91(1) — Punitive Damages.</p> <p>Punitive damages are not allowed, except where defendant recklessly disregards the rights of plaintiff.</p> <p>3. Telegraphs and Telephones <§==>69 — Stoppage of Service — Punitive Damages.</p> <p>Plain! iff telephone subscriber held not entitled to punitive damages because defendant telephone company stopped serving him on account of his failure to pay disputed telephone charges.</p> <p>1. Telegraphs and Telephones <©=>67(1) — Stoppage oe Service — Damages.</p> <p>A telephone company, which wrongfully stopped serving a subscriber because of his failure to pay disputed charges, is liable in damages for the resulting inconvenience, annoyance, and loss of time occasioned the subscriber.</p>

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Habeas corpus proceeding by Frank Shore against Maurice Splain. From a judgment dismissing the petition, plaintiff appeals.</p>

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Action by Cornelia P. McCurley against the National Savings & Trust Company, executor of the estate of Josiah Bellows, deceased. Judgment for defendant, and plaintiff appeals.</p>

<p>Trade-Mabxs and Trade-Names <&wkey;20 — Registration—“Simplex” Part op Corporate Name. '</p> <p>The word “Simplex,” as a trade-mark for brake riggings, was properly refused registration, where several corporations used that word as the predominating one in their corporate names.</p>

Dietrich, Judge. Suit by Beldon M. Delany, for whom Alra G. Farrell was substituted, against the Edward Rutledge Timber Company, and the Northern Pacific Railway Company. Decree for defendants, and plaintiff appeals.

Sawtelle, Judge. Action by W. Samuel Stevens and Emmet C. Stevens, copartners doing business under the firm name and style of the Stevens Cotton Company, against the Southern Pacific Company, judgment for plaintiffs, and defendant brings error. Tito defendants in error obtained judgment against the plaintiff in error for 85.236.01 damages l'or failure to famish cars under a contract to transport 362 head of dairy stock from Mt. Vernon, Wash., to Phoenix and Gila, Ariz.

f Ohio; Howard C. Hollister, Judge. Action by James O. Cole and others, as executors of Clinton Crane, partners as C. Crane & Co., against the Cincinnati Traction Company. There was a judgment for plaintiffs, and defendant brings error.

Sheppard, Judge. Libel by Horace Turner, managing owner, and J. C. Bush and others, owners, of the American schooner Addison F. Bullard, against Biddle W. Allen and Camille J. Friedrichs, doing business as Allen & Friedrichs, and the M. A. Quina Export Company. From a decree for libelants (252 Fed. 241), defendants appeal,

Foster, Judge. Suit against the Texas & Pacific Railway Company, wherein Pearl Wight was appointed receiver, and Armour & Co., a New Jersey corporation, and Armour & Co. of Texas, a Texas corporation, filed an intervening petition. From a decree dismissing the petition, the in-terveners appeal.

<p>In Error to the District Court of the United States for the Western District of Oklahoma; John H. Cotteral, Judge.</p> <p>Action at law by Walter E. Orthwein against the City of Oklahoma. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Poisons <&wkey;2 — Harrison Anti-Narcotic Act — Validity. .</p> <p>Harrison Anti-Narcotie Act, § 2 (Comp. St. § 6287h), declaring that it shall be unlawful for any person to sell, barter, exchange, or give away enumerated narcotic drugs, except in pursuance of the written order of' the person to whom such article is sold, bartered, exchanged, or given, on a form to be issued in blank for that purpose by the Commissioner of Internal Revenue, but excepting physicians duly registered in the course of their professional practice, is constitutional.</p> <p>2. Poisons <&wkey;4 — Harrison Anti-Narcotic Act.</p> <p>Under Harrison Anti-Narcotic Aet, § 2 (Comp. St. § 6287h), declaring that it shall be unlawful for any person to sell, barter, exchange, or give away certain narcotic drugs, except in pursuance of a written order of the person to whom such article is sold, on a form to be issued by tho Commissioner of Internal Revenue, but which excepts physicians in the course- of their professional practice, etc., it is an offense for a registered physician to sell narcotics.</p> <p>S. Statutes <&wkey;228 — Proviso—Construction.</p> <p>A proviso in a statute must be strictly construed.</p> <p>4. Poisons <&wkey;9 — Harrison Anti-Narcotic Act — Evidence.</p> <p>In a prosecution under Harrison Anti-Narcotie Aet, § 2 (Comp. St. § 6287h), against a physician who sold large quantities of narcotics to habitual users of the drug, medical testimony as to recognized methods among ■ physicians for treating persons addicted to the use of narcotic drugs was admissible, for the purpose of showing that the accused physician did not come within the exception as to physicians dispensing drugs in the course of their practice, for, while the act is in the guise of a revenue measure, it was intended to accomplish a moral purpose.</p> <p>5. Poisons <&wkey;9 — Offenses-—Evidence.</p> <p>. In a prosecution against a physician for violating Harrison Anti-Narcotic Act, § 2 (Comp. St. § 6287h), by dispensing narcotics to habitual users of the drug, the exclusion of a letter from the Commissioner of Internal Revenue in response to a query by defendant physician as to dispensing of narcotics held proper.</p> <p>6. Criminal Law <&wkey;1186(4) — Appeal—Harmless Error.</p> <p>In a prosecution for violating Harrison Anti-Narcotic Act, § 2 (Comp. St. § 6287h), exclusion of a. letter written by the Commissioner of Internal Revenue, in response to an inquiry «of defendant physician as to the dispensing of narcotics, held harmless, under Judicial Code, § 269 (Comp. St. § 1246), as amended by Act Eeb. 26, 1919, if erroneous.</p> <p>7. Criminal Law <&wkey;1178 — Exceptions—Abandonment.</p> <p>Where the only exception to the admission of evidence was that the court erred in receiving over objection prejudicial and harmful evidence, and the point was not presented either in the brief or oral argument, the matter will be deemed waived.</p> <p>8. Criminal Law <&wkey;371(l) — Evidence—Other Offenses — Intent.</p> <p>In a prosecution for violation of Harrison Anti-Narcotie Act, § 2 (Comp. St. § 6287h), evidence that defendant, a physician, dispensed the drug to addicts and to persons other than those specified in the indictment, is admissible to show his intent.</p> <p>9. Poisons <&wkey;9 — Otfknses— Evidence.</p> <p>In a prosecution for violation of Harrison Anti-Narcotic Act, § 2 (Comp. St. § 62871i), by a physician, who dispensed the drug to many habitual users, evidence held sufficient to sustain a conviction.</p> <p>10. Criminal Law <&wkey;815(4) — Instructions—Harrison Anti-Narcotic Act.</p> <p>In a prosecution against a physician for violation of Harrison Anti-Narcotic Act, § 2 (Comp. St. § 6287h), a request to charge that a physician cannot be convicted for dispensing prohibited narcotics in the treatment of a patient whose application is by letter, where the physician reduces the amount of the dose for'purpose of treatment, was properly refused, because omitting the indispensable conditions that the physician must furnish the drug in good faith and keep the required record.</p>

Haight, Judge. Suit in equity between M. Hampton Todd and .Walter Wood, receivers of R. D. Wood & Co., and Heulings Ifippincott and Alfred J. Major, receivers for Camden Iron Works. The receivers for the Wood Company appeal from an order authorizing receivers for the Iron Works to pay a dividend.

In the matter of Heller, Hirsh & Co., a corporation, bankrupt. A petition by the United States attorney for an order directing the trustee of the bankrupt to pay to the collector of internal revenue for the Second district of New York $2,400 as taxes on income under Act Sept. 8, 1916, as a preferred claim, was denied, and the government appeals.

Gustave A. Meyer, Hyman N. Aserson, and Morris E. Schloss were convicted of conspiracy to conceal assets from a trustee in bankruptcy, and bring error.

Bill by Lucy Henry Williams, executrix of the estate of R. R. Henry, deceased, against R. B. Miller, which was removed from the state court. Decree for plaintiff, and defendant appeals.

<p>Appeals from the District Court of the United States for the Southern District of New York.</p> <p>Suit in admiralty for collision by the Mallory Steamship Company, owner of the steamship Brazos, against the steamship Suffolk, the Coastwise Transportation Company, claimant, with cross-libel. Decree holding both vessels in fault, and the claimant of the Suffolk appeals.</p>

Rose, Judge. Suit in admiralty by the Baltimore Dry Docks & Ship Building Company against the steamship Kennebec; the Seaboard & Gulf Steamship Company, claimant and cross-libelant. Decree for libelant, and claimant appeals.

<p>1. Internal Revenue <®=»7 — Income Taxes — “Income.”</p> <p>Where, in 1907, the owner of land leased the same for 23 years, under an agreement requiring the tenant to construct an expensive brick building, and on the tenant’s default the owner retook possession in 1916, the value of the building cannot be deemed income accruing in the year 1917, within Income Tax Law Sept. 8, 1916, § 2a (Comp. St. § 6336b), for under the lease the title to the building vested in the owner immediately upon construction, and the lessee’s, default caused the owner a loss.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Income.]</p> <p>2. Internal Revenue &wkey;>7 — Income Taxes — Income Tax- Law — Construc-</p> <p>tion.</p> <p>Where an income tax law is doubtful, doubts should be resolved in favor of the taxpayer against the government.</p> <p>3. Statutes <&wkey;245 — Levying Taxes.</p> <p>Statutes levying taxes should be construed, in case of doubt, against the government and in favor of the citizen.</p>

Suit in admiralty by the Prebensens Dampskibsselskabet A/S, owner of the Norwegian steamship Falk, against the Munson Steamship Dine. Decree for libelant, and respondent appeals.

<p>Bankruptcy <&wkey;223 — Referee’s Commissions — Statute and General Orders.</p> <p>Under Bankruptcy Act, §§ 40, 48, as amended by Act Fob. 5, 1903 (Comp. St. §§ 9624, 9632), and General Order No. 35, § 2, the District, Court improperly allowed the referee in bankruptcy commissions of 1 per cent, of the total amount of the bankrupt’s estate, amounting to $6,582.08, of which $1,085.60 was paid out for expenses of administration, leaving in excess of $5,000 from which to pay referee’s commissions and for distribution among creditors.</p>

Petition to Revise Order of the Distriit Court of the United States for the Southern District of New YorR In the matter of Harry Jarmulowsky and Rouis Jarmulowsky, individually and as copartners under the firm name and style of S. Jar-mulowsky. From an order granting- the application of Reib Spector for payment of a preferred claim, the trustee appeals. ’ The bankrupts were private bamceis, a business in part regulated by statute in the state of New York.

<p>Abmy and Navy <&wkey;>40 — Espionage Act — Prosecution fob Violation.</p> <p>An indictment under Espionage Act June 15, 1917, § 3 (Comp. St. 1918, § 10212c), for obstructing the recruiting and enlistment service, held sufficient, the trial held without prejudicial error, and a judgment of conviction sustained by the evidence.</p>

Suit in equity by William E- Moran, trustee in bankruptcy of Charles Hobart Morgan and Albert B. Morgan, individually, as composing the firm of Morgan Bros., against Charles Hobart Morgan, Harriet M. Morgan, and the Blue Bird Motor* Cab Company. Decree for complainant, and defendants Morgan appeal.

<p>INTOXICATING LIQUORS &wkey;>236(l)-ILLICIT DISTILLING — SUFFICIENCY OF EVIDENCE.</p> <p>Evidence that witnesses found whislcy, molasses, meal, and an iron pot containing liquid which apparently had been boiled in defendant’s house, etc., held to sustain a conviction for illicit distilling.</p>

Thomas R. Sullivan and others were convicted of a violation of Penal Code, § 37, by having conspired to violate the conscription act, and they bring error.

<p>Appeal from the District Court of the United States for the Eastern District of New York.</p> <p>Suit in equity by Henry W. Egner, trustee in bankruptcy of George P. Foote, against Parshelsky Bros., Incorporated. Decree for complainant, and defendant appeals.</p>

<p>Appeal from the District Court of the United States for the Eastern District of New York.</p> <p>Suit in admiralty by Nicola Capiello against the steam tug Rosabel; George W. Wilson, claimant. Decree for respondent, and libelant appeals.</p>

<p>1. Courts <&wkey;96(l) — Federal Courts — Rulings of Circuit Court of Appeals —Precedence.</p> <p>A federal District Court will follow the ruling of the Circuit Court of Appeals of another circuit, where the matter has not already been before the Circuit Court of Appeals of the circuit in which the trial court is sitting.</p> <p>2. Patents <&wkey;69 — Prior Art — Disclosures—Sufficiency.</p> <p>In patent cases, any printing, writing, or illustration, relied on as part of the prior art, must be such as to make disclosure, not to an inventor, but to the ordinary individual skilled as a workman in the field involved; they must teach the art, and must be such that qualified persons, without the exercise of inventive genius, may produce the device from the disclosures.</p> <p>3. Patents <&wkey;328 — Prior Art — Vacuum Cleaner.</p> <p>The Kenney patent, No. 847,947, for a vacuum cleaner, held not anticipated by prior art.</p>

<p>Customs Duties t&wkey;92 — Treasury Decision — Manufacturing Warehouse— Removal of Cigars — Charge for Stamps.</p> <p>Treasury Decision 34(359, July 22, 1914, instructing collectors to make an arbitrary charge oí $10 per 1,000 for stamps furnished to manufacturers to be affixed to boxes of cigars made in bonded manufacturing warehouses, indicating their character, origin of tobacco, and place of manufacture, as required by Tariff Act Oct. 3, 1913, § 4m (Comp. St. § 5(572), without regard to the cost of such stamps to the government or the reasonable cost of furnishing the same, is not within the powers conferred on the Secretary of the Treasury by the act, and cannot be enforced.</p>

At Raw. Action by Thomas Balfour against the First National Bank of The Dalles. This is an action to recover against the defendant bank for failure to observe the conditions of an escrow agreement, which the plaintiff alleges he had with the bank, in relation to a sale of certain real property which plaintiff had agreed, upon compliance with the conditions imposed, to convey to one Nathan Whealdon.

<p>Criminal prosecution by the United States against Martin Schmaud■er. On demurrer to information.</p>

<p>Criminal prosecution by the United States against E. D. Thompson. On demurrer to information.</p>

In Admiralty. Suit for collision by Nina F. Stokes and John C. Stokes, her husband, against the steamship Van and the gasoline barge Brandon.

<p>In Admiralty. Libel by Walter A. Norton and others against the schooner Puritan.</p>

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Bill by Mary M. Harrison against the Washington Doan & Trust Company, trustee. From a judgment dismissing the bill, plaintiff appeals.</p>

Suit by the Grand Lodge of Knights of Pythias of North America, South America, Europe, Asia, and Africa against the Knights of Pythias of North America, South America, Europe, Asia, Africa, and Australia, S. W. Green, Joseph L. Jones, and others. Decree for plaintiff, and defendants appeal.

<p>1. Wills <S=436 — Construction—What Law Governs.</p> <p>The law of Indiana will govern the interpretation of a will made in that state.</p> <p>2. Wills <@=»601(1) — Construction—Estate—Fee Simple — Repugnant Limitations — “Heirs.”</p> <p>Under a will governed by the Indiana Law, which left the residue of an éstate to a daughter, with a subsequent provision that, if she should die without heirs, the residue in her hands should go to certain persons, held, that the subsequent provision did not cut down the absolute estate previously given, since the word “heirs” was not equivalent to “children.”</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Heirs.]</p>

Mandamus proceeding by the United States, on the relation of the Milwaukee Social Democrat Publishing Company, against Albert S. Burleson, Postmaster General of the United States. From a judgment dismissing the petition, felator appeals.

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Jacob Weisberg was convicted of receiving stolen goods, and appeals.</p>

<p>Makktage <&wkey;>(>0(7) — Annulment—Improper Relations Before Marriage.</p> <p>Where husband and wife sustained improper relations before marriage, the wife’s written confession, made in anger, that plaintiff husband was not the father of her child, does not warrant an annulment decree, in absence of independent corroborating facts, in view of Code of Law 1901, § 901, providing that marriage shall not be annulled without proof, and that admissions in defendant’s answer shall not dispense with necessity of other evidence, etc.</p>

<p>1. CarRiers <&wkey;211 — Live Stock — Feeding—Interstate Shipment — Liability tor Feeding.</p> <p>Act Cong. June 29, 1906 (Comp. St. §§ 8651-8654), “to prevent cruelty to animals in transit,” does not contemplate a divided, dual duty, but a single, unitary one to feed and water cattle in interstate transit, and the shipper may not escape liability for a part of the feed so furnished by the carrier under government inspection, because shipper placed a part of the required feed in the car without such inspection, prior to shipping.</p> <p>2. Carriers <?&wkey;211 — Interstate Shipment of Live Stock — Feeding.</p> <p>A carrier cannot recover from shipper the price of feed placed in the cars by virtue of the provisions of Act Cong. June 29, 1906 (Comp. St. §§ 8651-8654), requiring feeding in transit.</p> <p>3. Carriers <&wkey;211 — Live Stock — Feeding in Interstate Transit — Contract — Implied from Custom — Pleading.</p> <p>A carrier cannot recover from shipper the price of feed furnished and placed in cars upon an implied contract from acquiescence in such practice, where no claim of implied contract was asserted in the statement of claim filed or submitted to the jury and not pleaded, although there was sufficient evidence to warrant the issue.</p>

Youmans, Judge. Action by R. H. Kirkpatrick against Charles C. Issenhuth. Decree for plaintiff, and defendant appeals.

<p>In Error to the District Court of the United States for the Western District of South Carolina, at Greenville; Joseph T. Johnson, Judge.</p> <p>Action by Andrew A. Alwang and others against the Charleston & Western Carolina Railroad Company. Judgment for plaintiffs, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the Western District of New York.</p> <p>William Dodge was convicted of violating the Espionage Act, and he brings error.</p>

<p>1. Trade-Marks and Trade-Names <&wkey;>80i4, New, vol. 8A Key-No. Series— Unfair Competition.</p> <p>A finding by the Federal Trade Commission that a mail-order house doing an interstate business was guilty of unfair competition in selling sugars, teas, and coffees under representations that it had obtained special price concessions, because of the magnitude of its purchases, and that it purchased selected brands from abroad, held warranted.</p> <p>2. Trade-Marks and Trade-Names <&wkey;80%, New, vol. 8A Key-No. Series— Proceedings Before Federal Trade Commission — Tnjcjngtional Order.</p> <p>An order issued by the Federal Trade Commission, commanding a mail-order house doing an interstate business to cease and desist from certain unfair practices in connection witii the sale of sugar and other staple commodities, held not to have been improvidently issued because the mail-order house had discontinued such methods, where it was contending that Act Sept. 26, 1914, § 5 (Comp. St. § 88P>6e), creating the Federal Trade Commission, was unconstitutional, or, if valid, had not been infringed, and the government’s control of sugar sales and consumption had temporarily put an end to the objectionable practices in any event.</p> <p>3. Evidence <&wkey;>23(l) — Judicial Notice — Government Control of Trade.</p> <p>On petition to have a cease and desist order issued by the Iiederal Trade Commission vacated on the ground that the unfair practices of petitioner which related to sales of sugar, etc., had ceased, the court will take judicial notice of the government’s control of the salo and consumption of sugar during the war, which temporarily at least put an end to the objectionable practice.</p> <p>4. Trade-Marks and Trade-Names &wkey;>80%, New, vol. 8A Key-No. Series— Unfair Competition — Federal Trade Commission.</p> <p>Act Sept. 26, 1914, § 5 (Comp. St. § 8836e), giving the Federal Trade Commission authority over unfair methods of competition, and declaring the same unlawful, is not void for indeliniteness because the words “unfair methods of competition” were not defined; the trader being entitled to his day in court, where common-law principles would control.</p> <p>5. Constitutional Law <&wkey;62, 80(2) — Unlawful Delegation of Legislative and Judicial Power.</p> <p>Act Sept. 26, 1914, § 5 (Comp. St. § 8836e), giving the Federal Trade Commission power to stop unfair methods of competition in commerce and declaring the same unlawful, is not an unlawful delegation of legislative and judicial power; Congress having by the act declared the public policy-applicable to the situation.</p> <p>6. Trade-Marks and Trade-Names t&wkey;80%, New, vol. 8A Key-No. Series— Powers of Federal Trade Commission — Unfair Competition.</p> <p>Tlie Federal Trade Commission, under its authority to stop unfair methods of competition, cannot prevent a trader from selling a staple article as sugar below cost, although it may prevent such sales accompanied by representations which would injure other traders.</p>

Petition to Revise Order of the Federal Trade. Commission. Petition of Warren, Jones & Gratz, by Anderson Gratz, for an order for the review of the findings and order of the Federal Trade Commission, and for an order setting the same aside, in a proceeding against Anderson Gratz and Benjamin Gratz, copartners doing business under the firm name and style of Warren, Jones & Gratz, and others.

<p>Appeal from the District Court of the United States for the Eastern District of New York.</p> <p>Eibel in admiralty by the Seguranca Steamship Corporation against the steam tug Winfield S. Cahill and James Brooks, its claimant, and the steam tug John E. Wade and William J. Wade, its claimant, and Edward M. Timmins and the Cornell Steamboat Company, ‘and by Robert M. Woodburn against the steam tug Ira M. Hedges and the Cornell Steamboat Company, wherein William J. Wade, as owner of the steam tug John E. Wade, petitions for limitation of liability against the Cornell Steamboat Company, and James Brooks, owner of the steam tug Winfield S. Cahill, petitions for limitation of liability' also against the Cornell Steamboat Company. From the decree, the Cornell Steamboat Company appeals.</p> <p>In daylight and fair weather, with the tide running strong ebb, the steamship Seguranca started, without motive power of her own, and in charge of three tugs (the Wade, the Cahill, and the Timmins) from the anchorage near Bedloe’s Island to a point in the East River. The master of the Timmins was in charge of this operation, his owners having made a contract on the subject with the steamship’s agents. The Cahill went ahead on a short hawser; the Wade and Timmins wore placed one on each side of the steamship. The master of the Timmins was on the bridge of the Seguranca. In this manner steamship and tugs proceeded across the Upper Bay until they were as near to Governor’s Island as was safe, and were skirting the shore of said island slightly below Castle William when the tug Hedges with a tow of about 12 boats, in at least three tiers and a boat tailing on to the last full tier, all upon a hawser of at least 30 fathoms, was seen coming down the North River. The Hedges belongs to a well-known line, and any man experienced in the navigation of this harbor knew that she was intending to round the Battery into the East River.</p> <p>Against (he tide the Seguranca and her tugs were making not over a knot and a half, and probably less. For her, backing was not only difficult, but dangerous, owing to the proximity of the shore on the starboard side. The Hedges had the tide with her, but had no helper; another tug had been in attendance, but had gone away with a boat taken from the tow. When these two flotillas observed each other, the Hedges (had it been night) would have shown the Seguranca her green light only, while the Seguranca had the Hedges at least 2(4 points on her port how.</p> <p>The Hedges had proceeded approximately halfway across the channel be-i ween the Battery and Governor’s Island before she turned to go into the East River. The moment she did so and became broadside to the tide, she was helplessly swept down by the same; and even after getting headed squarely into the tide she could do no more than stand still by the land, and even that is doubtful. Thus the tail of her tow was in the Seguranca’s way. The tugs alongside the latter vessel reversed, and the Cahill for her own safety ceased towing and got out of the way. Collision ensued between the steamship’s stem and the starboard boat in the last full tier of the tow.</p> <p>Both vessels in collision received injury, and actions were begun by the Seguranca against the owners of the Timmins and Hedges and the tugs Cahill and Wade, and by the owner of the injured barge against the Hedges alone. By invoking the fifty-ninth rule all the parties wore ultimately brought in, in respect of all the damage claimed, and the Wade and Cahill, denying all liability, nevertheless took proceedings in limitation. All these matters were tried at one hearing, and one decree entered, in which the court below held the Hedges at fault (apparently) for obstructing the path of the Seguranca, but allotted one-fourth of the damages against the Cahill and one-fourth against the owners of the Timmins, upon the ground that they should have sooner perceived the difficulties and dangers arising from the inability of the Hedges to control her tow in the tideway. From this decree the Hedges alone appealed. In this court, however, both the Cahill and the owners of the Timmins claimed freedom from fault, and all parties against whom any sitare of loss liad been assessed objected to the allowance of “demurrage” or damages for loss of use of the Seguranca.</p>

Action by the Hotel Woodward Company against the Ford Motor Compaii)’. There was a judgment dismissing the complaint, and plaintiff brings error. Writ of error to judgment entered in the District Court for the Southern District of New York. Yery little of an unnecessarily voluminous record was necessary to present the legal questions involved.

<p>Appeal from the District Court of tlie United States for the District of North .Dakota; Charles F. Amidon, Judge.</p> <p>Suit by B. Simonitsch against Alexander Bruce, administrator of H. H. Jenkins, deceased, the Northern Trust Company, Eva M. Jenkins, Iiallett H. Jenkins, Jr., and E. E. Twichcll, guardian of Hallett H. Jenkins, Jr. Decree for respondents, and complainant appeals.</p> <p>This appeal is taken from a decree sustaining a motion to dismiss the plaintiff s bill and dismissing the case. The relief asked by the bill was an injunction against the collection of a sum adjudged to be due by a judgment of the county court of Gass county, N. IX, upon tlie settlement of the accounts of an administrator, pursuant to a determination of the legal rights of the parties by tlie Supremo Court of that state. See Maefadden v. Jenkins, 169 N. W. 151. It appears from the plaintiff’s bill that a partnership existed under the firm name of Ellsworth & Jenkins, the principal place of business being at Fargo, N. P. Tlie members of the partnership were J. II. Ellsworth and H. H. Jenkins, each having an equal interest, and its chief business was the ownership and management of lands and dealing in mortgage securities. Ellsworth was a nonresident partner, and, pursuant to an agreement to dissolve the partnership and to wind up its affairs, Jenkins had been for several years endeavoring to dose up its transactions. Before this was fully accomplished, Jenkins died. Maefadden was appointed as Ms administrator by the county court of Cass county, N. D. Jenkins died intestate. His heirs wore a widow and a posthumous son. A guardian was appointed for the son by the proper probate court. Under the laws of North Dakota a surviving partner succeeds to all of tlie partnership property in trust for the purpose of liquidation and the interest of the deceased partner in the ultimate distribution of the partnership assets passes to those who succeed to his other personal property. Sections (¡425, 8711, 8717, Compiled Laws North Dakota 1913. Notwithstanding these statutory provisions, the administrator proceeded upon the theory that he should manage and dispose of Jenkins’ share of the partnership property. Elis worth was not active in managing the affairs of the firm, the property belonging to it, was somewhat incumbered, and the property was not then readily salable. The widow and the guardian agreed that it was for the best interests of the estate that a corporation then known as the Ellsworth .Ten-kins Company, but since known as the Ellsworth Land Company, and hereafter called the Ellsworth Company, be requested and induced to purchase Ellsworth’s interest in the partnership property. The stockholders of this Ellsworth Company were the plaintiff, who owned a majority of the stock, the widow of Jenkins, and Macfadden, the administrator of Jenkins. The widow, the child’s guardian, and the administrator requested and induced the Ells-worth Company to purchase Ellsworth’s' share in the partnership property, and he made a transfer of his interest accordingly to the Ellsworth Company. Shortly thereafter the Ellsworth Company entered into negotiations looking to the purchase of the Jenkins interests in the partnership estate.</p> <p>It is alleged that it was agreed between the administrator, the widow, the guardian, and the Ellsworth Company, represented by the plaintiff in this transaction, that the Ellsworth Company should buy from the administrator what was supposed to be the Jenkins undivided half of the partnership property, and thereafter it should manage all of the property and should account to the Jenkins heirs for any profits accruing, as if the heirs had continued to be the owners of such share. In accordance with this arrangement the administrator sold at private sale to the Ellsworth Company an undivided half of the personal and real property. The Ellsworth Company then continued the management of the property for several years. An accounting by the administrator was then demanded in the probate court, and the widow and guardian made claim1 that the Ellsworth Company was disqualified from purchasing Ellsworth’s share in the partnership assets because Macfadden. the administrator, was also a stockholder and director in the Ellsworth Company. After an order was entered, an appeal was taken to the District Court, and that court decided that Macfadden was liable in a large amount to Jenkins’ estate, because all the property the Ellsworth Company had purchased, both from Ellsworth and from Macfadden, as administrator, was, as a matter of law, purchased for the benefit of the estate. This decision was modified and affirmed by the Supreme Court in the case heretofore cited, and a final order has been made by the county court in pursuance thereof, directing Macfadden to pay over to Bruce, his successor in the administration, the amount found due. It is averred that Macfadden is not financially responsible, but that the Northern Trust Company, the surety on his bond as administrator, intends to pay the amount found due to Bruce; as administrator; unless it is enjoined from doing so. After the decision by the District Court against Macfadden, and in order that he might appeal to the Supreme Court, the Ellsworth Company and the plaintiff procured the Northern Trust Company to execute a supersedeas bond on behalf of Macfadden, and indemnified it against loss by reason of its execution of such a bond. Some time before this bill was filed the Ellsworth Company sold and conveyed all its property, accounts, and rights of action to the plaintiff, and the plaintiff assumed all of the debts and obligations of the corporation. The plaintiff avers that Macfadden, while administrator, paid all the claims against the Jenkins estate, except two claims held by the widow, and that he turned over to the new administrator property of the estate much exceeding in value the amount due to the widow on these claims. From the decree dismissing -the bill, an appeal is prosecuted by the plaintiff.</p>

<p>1. TRESPASS &wkey;ll — CONVERSION OF “BeALTT”- — STATUI®S—“MUSSEL.”</p> <p>The fresh water “mussel,” a shellfish capable of locomotion, usually living in the bed of streams partially covered with mud, being a live animal, cannot he deemed part of the "realty,” within Kev. St. Mo. 1909, § 5148, allowing treble damages in certain cases for digging up and carrying away any substance or material, being a part of the realty.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Beal Property.]</p> <p>2. Fish <s&wkey;l — Conversiok—Action for Value — Title—“Pearl Fishing.”</p> <p>In view of Bov. St. Mo. 1909, § 6508, declaring that title to all “birds, fish and game” shall be in the state, and one taking or killing them shall be deemed to have consented that title thereto shall so remain for the purpose of regulation and control, and section 6551, prohibiting pearl fishing at certain times, title to fresh-water mussels taken from a non-navigable river could not be acquired by the owner of the bed of the stream, so as to supi>ort an action for the value of the shells; the mussels being animals fera; natura?, title to which remained in the state, the term “fish” including shellfish, and “pearl fishing” referring to the capture of fresh-water, mussels.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Fish.]</p>

<p>Appeal from the District Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge.</p> <p>William B. and Ford W. Thompson appeal from a decree in favor of Anna E. Bomar and others, assessing attorney’s fees among counsel for the minority stockholders of the Missouri-Edison Electric Company and others in the case of Jones v. Missouri-Edison Electric Co. et al.</p>

Hook, Judge. Petition by the Mississippi Valley Trust Company against the Railway Steel Spring Company and others, to vacate an order in the Steel Spring Company’s suit against a railway for marshaling and distribution of assets. From an order denying the petition, petitioner appeals.

<p>In Error to the District Court of the United States for the Eastern District of New York.</p> <p>Criminal prosecution by the United States against Samuel A. Cohn. Judgment of conviction, and defendant brings error.</p>

Suit in equity by the Agency of Canadian Car & Foundry Company Limited, and the Recording & Computing Machines Company, against the American Can Company. Decree for complainants, and defendant appeals. This cause comes hero on appeal from a decree entered In the United States District Court for the Southern District of New York, on August 14, 1918.

<p>1. Shipping &wkey;>!26 — Discharge op Cargo — Negligence of Contracting Stevedore.</p> <p>A stevedore, contracting to discharge a ship into lighters or scows, although his contract does not include trimming cargo, is bound to stop work, if and when it becomes unsafe to continue loading without trimming, and is liable to third parties injured, if ho proceeds.</p> <p>2. Shipping <&wkey;126 — Negligence in Discharging — Liability for Injury to Vessel.</p> <p>A cargo owner, who has agreed to discharge the vessel, is not liable as principal for negligence of a stevedore with whom he contracts for such discharge, but is liable on his contract with the vessel for any injury to her resulting from such negligence.</p> <p>8. Shipping <&wkey;209(l)- — Proceeding for Limitation of Liability — Persons Bound by Decree.</p> <p>Parties to a proceeding for limitation of liability, who voluntarily appear or, after they are brought in, whether rightfully or not, join issues with petitioner and between themselves, and litigate questions of liability, are bound by the decree.</p>

Bledsoe, Judge. Suit by the Pacific Electric Railway Company against M. E. Montgomery and others for an injunction. A preliminary injunction was granted, and defendants appeal.

<p>1. Indictment and Information <Sr^l71- — Failure of Proof of Conspiracy— Effect — Conviction of Crime.</p> <p>Conspiracy alleged may fail in proof, as well as proved conspiracy^ may fail in execution; hence failure to-.prove the existence of a conspiracy alleged to have been formed to defraud the United States cannot affect the right, regardless of conspiracy, to prove that the fraud which was the alleged object of the conspiracy was actually committed.</p> <p>2. Conspiracy <&wkey;37 — Criminal Law <&wkey;876% — Conspiracy to Defraud Government — Inconsistent Verdict.</p> <p>An indictment for conspiracy to defraud the United States and one for the offense which was the object of the alleged conspiracy are for different offenses, and, where the cases are consolidated for trial, a verdict of acquittal under the conspiracy indictment is not inconsistent with a verdict of guilty under the other, although' the overt acts charged in the former are some of acts relied on under the latter.</p> <p>3. Criminal Law <&wkey;195(l) — Former Acquittal — Identity of Offenses.</p> <p>A plea of autrefois acquit is unavailing, unless the offense presently charged is precisely the same in law and fact as the former one relied on under the plea.</p> <p>4. Corporations <&wkey;369 — Corporate Agents — Criminal Responsibility.</p> <p>It is a rule of the criminal law, as well as the Civil, that corporate agencies cannot shield themselves behind the corporation, where they are the actual and efficient actors in committing a fraud or an offense, and an indictment is good which charges defendants with committing an offense “while engaged as "officers, agents, and employSs” of a corporation.</p> <p>5. Criminal Law <&wkey;59(5) — Indictment and Information &wkey;>124(6) — Charging Accessory as Principal — Joinder of Principal.</p> <p>Under Criminal Code,' § 332 (Comp. St. § 10506), making aiders and abettors principals, one formerly known as an accessory may be charged as a principal, without joining the principal offender.</p> <p>6. Criminal Law &wkey;>619 — Consolidation of .Indictments for Trial.</p> <p>Rev. St. § 1024 (Comp. St. § 1690), investing trial judges with discretionary power to require indictments charging one or more persons with different, though connected, acts or transactions of the same class of crimes or offenses to be consolidated for trial, applies to separate indictments of the same persons; one charging conspiracy to commit a substantive offense, and the other charging its actual commission.</p> <p>7. Criminal Law <&wkey;1144(14) — Review—Instructions on Admission and Purpose of Evidence — Presumption.</p> <p>It is not to be assumed in a criminal cas'e, any more than in a civil case, that a jury cannot grasp the meaning of the court’s instructions touching admissibility and purposes of evidence, even though a change in ruling in that behalf be involved.</p> <p>8. Criminal Law <&wkey;1159(2) — Sufficiency of Evidence — Review by Appellate Court.</p> <p>On review of the evidence in a criminal case, it is for the appellate court to determine only whether there was evidence introduced which was proper to go to the jury and legally sufficient to sustain the verdict.</p> <p>9. Criminal Law <&wkey;1151 — Review by Appellate Court — Denial of Continuance.</p> <p>Refusal of the trial court to grant a continuance is reviewable only where it is clearly shown that there was an abuse of discretion.</p>

Safer, Judge. Suit in equity by the Niles-Bement-Pond Company against the Niles Tool Works Company, the Iron Molders’ Union, Eocal No. 68,, and others. From an order granting a preliminary injunction, certain of the defendants appeal.

<p>In Error to the District Court of the United States for the Southern District of Obio; Howard C. Hollister, Judge.</p> <p>Criminal prosecution by the United States against William West. Judgment of conviction, and defendant brings error.</p>

H. Seward Thomson, Judge. In the matter of the bankruptcy of C. Jutte & Co. From an order dismissing the petition of E. B. Gribble and another, creditors, for leave to intervene, they appeal.

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Action by the Snare & Triest Company against the St. Paul Eire & Marine Insurance Company. Judgment for defendant, and plaintiff brings error.</p> <p>In October, 1913, the Snare Company (plaintiff here and below) owned a certain scow lying at the time in the harbor of Havana, Cuba, where she had been for some time. Plaintiff employed Johnson & Higgins to procure marine insurance on this scow, which they intended to bring back to the United States. These brokers made written application on behalf of plaintiff to the general agent of defendant insurance company for $4,000 on hull, etc., of scow, to cover “at and from Havana to Charleston direct or otherwise (in) tow (of) the Barnett,” a tug.</p> <p>This application the insurer declined until it had been amended or changed by the insertion of the following words: “Warranted dkd and overhauled 1913.” As changed or amended, insurance was granted, and one copy of the application was kept by the insurer and the other delivered to Messrs. Johnson & Higgins. The date of written application was October 9, 1913. On October 16th the insured issued its “certificate of insurance,” under the “office policy” of defendant’s general agent, which certificate, for the purpose of this case, may be taken as the policy of insurance. Neither in words nor substance was •the phrase “Warranted dkd and overhauled 1913” inserted or expressed in said policy.</p> <p>Ón October 30th the Barnett took this scow in tow and started from Havana to Charleston. Forty-eight hours after leaving a storm arose, said to have been of great severity, which “finally washed to pieces” the scow, which thus became a total loss. This action was brought to recover upon the' policy.</p> <p>There was evidence tending to show that the scow had been thoroughly caulked, overhauled, and painted, hatches secured with tarpaulins and put in “seaworthy and * * * first-class condition” before starting upon the voyage on which she was lost. But she had not been dry-docked in the year 1913, and before leaving Havana. Evidence was also introduced or offered to show that the overhauling and repairing of the scow put her in as good condition as she would have been had a dry dock been used.</p> <p>The trial court-took evidence tending to show that the word “dkd” was not only an abbreviation for “docked,” but meant “dry-docked,” and refused to submit any question to the jury, except the authority of Johnson & Higgins to apply for or accept insurance after making such representation or warranty as is embodied in the phrase “Warranted dkd and overhauled 1913.” The jury found in favor of the authority of Johnson & Higgins by rendering a general verdict in favor of defendant on the single question submitted to them. Plaintiff took this writ.</p>

Jr., Judge. Action at law by Vernon Halstead, by Nora Halstead, his next friend, against the Virginian Railway Company. Judgment for plaintiff, and defendant brings error.

Keller, Judge. Action in ejectment by John Q. Dickinson and another against Ara-bella D. Huntington and others. Judgment for plaintiffs, and defendants bring error.

<p>1. Witnesses <@=3414(1) — Prosecutions Under Espionage Act — Credibility op Accused — Corroboration—Admissibility.</p> <p>In a prosecution for violating Espionage Act June 15, 1917, wherein defendant asserted that he had always been a loyal citizen, and that he had tendered his services to the government in the war before charges were brought against him, it was error to exclude evidence as to whether he had received an acknowledgment from the government for offering his services, and whether he had it with him; the case turning on defendant’s credibility.</p> <p>2. Criminal Daw <@=3338(1) — Prosecutions por Violating Espionage Act —Evidence—Admissibility.</p> <p>In a prosecution for violating Espionage Act June 15, 1917, testimony by a witness that he had been asked by the commissioner at the preliminary examination, if what he knew was not practically the same as that testified to by another witness, and that he responded in the affirmative, and that such evidence was true, was inadmissible, being irrelevant and collateral.</p> <p>3. Criminal Law <@=3778(5) — Instructions — Espionage Act — Burden of Proof — Presumption of Innocence. ■</p> <p>In a prosecution for violating Espionage Act June 15, 1917, an instruction, at the close of an extended charge, that a man “comes in clothed with the presumption of innocence, and that presumption continues until, in the opinion of the jury, the evidence is sufficient to show that he is guilty beyond a reasonable doubt, and from that time the burden is on him to establish his innocence,” was misleading and prejudicial; the burden always being on the prosecution.</p>

<p>1. Cram Nal Law <&wkey;1329(2) — Aph sax, — Assignments oi? Ekror.</p> <p>A criminal ease record, containing superfluous and .overlapping assignments of error, disapproved.</p> <p>2. Receiving Stoeen Goods <&wkey;8(3) — Sueeiciencv ok Evidence — Ownership by United States.</p> <p>In prosecution under Renal Code, § 48 (Comp. St. § 10215), for having possession with intent to convert property stolen from United States, evidence held to sustain jury finding that property belonged to United States, despite mistaken references in shipping orders to date of contract under which government secured title.</p>

Appeals from the District Court of the United States for the Eastern District of New York.

Rose, Judge. Habeas corpus proceeding by Samuel Arbitman against Capt. H. N. Woodside, commanding First Separate Detachment Company, 154 Depot Brigade, and the military authorities of Camp Meade, Md. Application for writ dismissed, and petitioner appeals.

Dickinson, Judge. Actions by,the United States against the Fidelity & Casualty Company of New York as surety for Rose Jacobson and against the same company as surety for Eva Melsker. Erom orders refusing to remit 'forfeitures of recognizances (257 Fed. 760), the surety brings error.

<p>Appeal from the District Court of the United States for the Eastern District of New York.</p> <p>Suit by Peter Rucas and Gustav Blixt against the steamship West-meath; J. M. Thompson, claimant. Decree for libelants, and claimant appeals.</p>

Pardee, Circuit Judge, dissenting. In Error to the District Court of the United States for the Northern District of Alabama; William I. Grubb, Judge. Action by Pauline Beavers against Illinois Central Railroad Co. Judgment for plaintiff and defendant brings error.

<p>1. Patents @=>328 — Infringement—Collapsible Stove.</p> <p>The Eerdon patent, No. 1,199,257, for a collapsible stove, is limited to the -particular means shown for keeping the legs in open position when in use, and, as so construed, held, not infringed.</p> <p>2. Patents @=>226 — Infringement—Practical Identity.</p> <p>Infringement should not be determined by the mere decision that the terms of a claim of a valid patent are applicable to defendant’s device, but the question involves considerations of practical utility and substantial identity, and that must be quantitátive as well as qualitative.</p> <p>3. Patents @=>328 — Validity and Infringement — Collapsible Stove.</p> <p>The Eerdon patent, • No. 1,229,432, for a collapsible or knock-down stove, held void for lack of invention, and also not infringed.</p>

<p>Patents <S=138(2) — Intervening Claims — Validity.</p> <p>Where one defendant simply copied from original patent, and never in good i'airh produced a tool of its own, but took the one invented, knowing that the inventor had the right of reissue, defendants are in no position to claim intervening rights, claimed to have been acquired between dates of original patent and reissue.</p>

In Equity. Suit by Leonard M. Smith, substituted for C. A. Bryant, as trustee in bankruptcy of the estate of B. Alvin Seibel, bankrupt, against Cecil Seibel and B. Alvin Seibel.

<p>Petition for mandamus by the United States, on the relation of Prank Pierce, against H. W. Cargill, Assessor, and others.</p>

<p>In Equity. Suit by H. J. Zeigler and Dee Howell against James S. Hopkins, A. J. Iiopkins, A. R. Putnam, and Emma Hamilton.</p>

<p>3 Weapons <&wkey;18(l) — -Negligent Sale or Air Rifle by Manufacturer.</p> <p>A manufacturer, who, without examination, sold to a wholesaler a loaded air rifle, discharged at a retailer’s employé by a prospective customer, believing that it was not loaded, both vendees being ignorant of its condition, held guilty of negligence.</p> <p>2. Weapons <&wkey;18(l) — Negligent Sale of Air Rifle — Proximate Cause of Injury.</p> <p>Where defendant manufacturer of air rifles negligently permitted a loaded rifle to be sold to a wholesaler, who resold it to a retailer, in whose store it was discharged at a clerk by a prospective customer ignorant of its condition, defendant’s negligence was the proximate cause of the injury, and the customer’s act was not an independent intervening cause.</p> <p>;>. Negligence <&wkey;61(l) — Proximate Cause — Concurrent Causes.</p> <p>One who negligently puts into operation a train of events which if. likely to lead, in a continuous sequence, to an injury which-is the natural and probable result of the original act, is liable, although the injury was immediately caused by last link in chain of events.</p> <p>4. Weapons <&wkey;18(l) — Manufacturer’s Liability for Negligent Sale of Air Rifle — Privity.</p> <p>A manufacturer, failing to make proper inspection before selling a loaded air rifle discharged at a retailer’s employé by a prospective customer of the retailer buying it from a wholesaler without knowledge of its condition, is liable for the injury, although there is no privity of contract between the person injured and the manufacturer.</p>

<p>1. States <&wkey;4 — 1Treaties and Laws — Wild Animals.</p> <p>Primarily the state, botli as trustee for the rights of its people and in the exercise of its police power, has control over the right to reduce animals ferae naturae to possession, and the federal government, in absence of treaty, has no paramount authority therein.</p> <p>2. Treaties &wkey;>ll — Operation in States.</p> <p>The treaty making power is one of the highest degree, delegated by the states to the federal government by the terms of the Constitution, and is superior to state Constitutions, state laws, and all other state powers, including police powers, but the subject-matter must not be arbitrary, disconnected, and remote from international intercourse.</p> <p>3. Treaties <&wkey;l — Definition.</p> <p>A treaty is a compact between two or more independent nations, with a view to the public welfare, or entered into for the common advancement of their interests and the interests of civilization.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Treaty.]</p> <p>4. Constitutional Law <&wkey;4i3 — Constitutionality op Treaty — Power op Court to Declare Invalid.</p> <p>If a treaty is invalid because in violation of, or inconsistent with the Constitution, the court, in a proper case where the rights of citizens are involved, may so declare.</p> <p>5. Game <&wkey;4 — Treaties (&wkey;2 — Validity—Protecting Migratory Birds— Validity op Statutes.</p> <p>The protection of migratory birds is properly the subject of negotiation between the United States and Great Britain and the treaty of December 8, 1916, is valid, and Act July 3, 1918 (Comp. St. 1918, Append. §§ 8837a-8837m), enacted to give effect to the treaty, is constitutional and valid.</p> <p>6. United States <&wkey;!25 — Consent to be Sued.</p> <p>The United States cannot be sued without its consent.</p>

<p>1. Gas <&wkey;7(2) — Franchise — Acceptance by Public Utility Company — Binding as a Contract.</p> <p>Where a municipality, under proper authority of the state, granted a gas franchise to a public utility company, conferring upon the latfer for a definite period, on definite terms and conditions, the right to use public streets for supplying inhabitants, and the franchise was accepted and used, it became mutually binding upon the two parlies, and cannot be amended or abrogated by either without the consent of the other.</p> <p>2. Municipal Corporations <&wkey;285 — Public Gas Franchises — Contract-Power to Grant.</p> <p>A defendant city of the fourth class had the power, in view of Pub. Acts Mich. 1895, No. 215, c. 27, § 8, and Pub. Acts Mich. 1905, No. 259 (Comp. Laws Mich. 1915, §§ 3183, 3298), to make a franchise contract for 10 years with a public service corporation to furnish its inhabitants with gas at rates fixed by the franchise.</p> <p>3. Courts &wkey;>282(l) — United States District Court — Jurisdiction—Federal Question.</p> <p>Where plaintiff public utility corporation brought an action to restrain a city from enforcing gas rates, prescribed in a franchise alleging that such enforcements would violate Const. U. S. art. 1, § 10, also Amendments 5 and 14, the case is one arising under the laws of the United States.</p>

<p>Bankruptcy <&wkey;140(%) — I'koperty—Title.</p> <p>Under contract with county commissioners, providing that contractor, now bankrupt, should furnish all materials and labor and complete highway, and that estimates should be made once a month of the amount and value of “material in place on the ground,’’ title to brick which had been bought by bankrupt, delivered and stacked in piles, partly on and partly off the highway, in position to be used, was in the bankrupt, though included in estimate made, even if regarded as a sale, in view of Uniform Sales Act (Gen. Code Ohio, §§ 8381-8456).</p>

<p>In Equity. Condemnation proceeding by the Postal Telegraph-Cable Company against the Florida East Coast Railway Company, in which the American Telephone & Telegraph Company intervenes. Hearing on questions of necessity, propriety, etc.</p>

<p>At Law. Separate actions by the United States against F. Romeo & Co., Incorporated, and another, and against Scaramelli & Co., Incorporated, and another, upon a bond given in each case.</p>

<p>Shipping <&wkey;75 — Repairs to Vessel.</p> <p>Contract for repairs to a vessel construed., and held- not to require libelant for the lump sum named to make all the repairs which were made, but only such as had been specified by the surveyor,, which entitled him to extra pay for additional work done with respondent’s approval.</p>

<p>In Admiralty. Two libels, one by Ira S. Bushey & Sons, Incorporated, against the hoister Kid, and the other by the Benn Rigel Contracting & Supply Company against Ira S. Btishey & Sons, Incorporated.</p>

In Admiralty. Suit by Henry B. Nevins against the yacht Lady Rasendyll. Heard on motion to dismiss libel, on the ground that the supplies and repairs were furnished the vessel in her home port, and hence are not a maritime lien, and cannot be enforced in admiralty.

Action by the Virginia Portland Cement Company, a corporation, against S. Dana Lincoln, trading and doing business under the name of the National Mortar Company. Judgment for plaintiff, and defendant appeals.

<p>1. Extradition <&wkey;26 — Federal Offenses — District of Columbia.</p> <p>In view of Code of Laws D. C. 1901, § 930, a person may be arrested in the District of Columbia on a warrant from a federal District Court and held for a reasonable time for extradition papers.</p> <p>2. Criminal Law &wkey;>105 — Jurisdiction-—-Waiver of Objections.</p> <p>1 A person who, while at large on bail given in habeas corpus proceedings instituted by him after his arrest on a warrant from another federal jurisdiction, was rearrested on a commissioner’s warrant, by appearing and after a hearing giving bail for his appearance in the other jurisdiction, waived any objection to the jurisdiction of the commissioner over his person pending the habeas corpus proceeding.</p>

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Action by Reu Hughes against Abram Lisner and Michael Cohen. Judgment for plaintiff, and defendant Risner appeals.</p>

<p>At Taw. Action by William Robison against the Washington Railway & Electric Company and others. On application by plaintiff for leave to docket special appeal.</p>

<p>1. Divoece <&wkey;243, 302 — Suit for Limited Divorce — Denial or Divorce— Alimony and Custody of Children.</p> <p>In a suit by the wife for limited divorce, where the court finds that her allegations are not sustained, it is without power to award her the exclusive custody of children and permanent alimony for her and their support.</p> <p>2. Husband and Wife ¡&wkey;288(l) — Separate Maintenance — Statutory Eight.</p> <p>Code of Laws D. 0- 1901, § 980, providing that wherever a husband shall fail or refuse to maintain his wife and minor children, although able to do so, the court, on application of the wife, may commit the children to her care and award her a sum for maintenance, authorizes such relief only on a finding of the husband’s dereliction.</p> <p>3. Divorce <&wkey;221 — Suit by Wife — Costs and Attorney’s JTees.</p> <p>Under Code of Laws D. C. 1901, § 975, a wife is entitled to costs and reasonable attorney’s fees in a suit for divorce brought by her, although unsuccessful.</p>

Mandamus proceeding by the United States of America, on the relation'of C. F. Sykes, against Franklin K. Fane, Secretary of the Interior. From a judgment denying the writ, relator appeals.

<p>1. Public Lands <@=>106(1) — Proceedings op Department — Ground op Decision — Appeal.</p> <p>Where plaintiff claimed a deceased soldier’s additional homestead right under Key. St. §§ 2306, 2307 (Comp. St. §§ 4594, 4602), had been conveyed to him by the guardian of the soldier’s alleged grandchildren, the Department of the Interior is not precluded from denying that its records estaD-lished the descent of the alleged grandchildren from the soldier by fact that it had rejected the claim on other grounds.</p> <p>2. Descent and Distribution,<&wkey;71(6) — Soldier’s Additional Homestead— Evidence op Relationship.</p> <p>Where plaintiff claimed a deceased soldier’s additional homestead- right under a conveyance from a guardian of the soldier’s alleged grandchildren, an abandoned pension application by the soldier’s alleged son has no probative value in establishing the applicant’s relationship to the soldier.</p> <p>3. Public Lands <&wkey;41 — Soldier’s Additional Homestead Right — Evidence.</p> <p>Assuming that a soldier’s additional homestead right under Rev. St. §§ 2306, 2307 (Comp. St. §§1 4594, 4602), is so clearly descendible that a ruling by the Department of the Interior to the contrary amounts to ar-. bitrary action, controllable by injunction or mandamus, plaintiff must first establish in the Interior Department that the persons he claims under are the soldier’s descendants.</p>

<p>Public Lands <&wkey;108 — Lieu Lands — Cancellation.</p> <p>Where land within a forest reserve was relinquished and application filed for other land in 1911, pursuant to Act June 4, 1897, as amended by act June 6, 1900, providing that land within a forest reserve may be exchanged for other nonmineral public lands, etc., and the new selection was included in a petroleum reserve in 1914, the applicant being notified that he might show selected land was in fact nonmineral, or apply for surface patent, under Act July 17, 1914 (Comp. St. §§ 4640a-4640c), held that no vested rights were secured which prevented Department of Interior from canceling the lieu land selection before taking final action upon it.</p>

<p>Appeal from Commissioner of Patents.'</p> <p>Application by Getz Bros. & Co., to register a trade-mark, opposed by Alaska Packers’ Association. From a decision of the Commissioner of Patents, denying registration, the applicant appeals.</p> <p>The opinion of the Commissioner of Patents, mentioned by the court,, is as follows:</p> <p>. This is an appeal from the decision of the Examiner of Interferences, sustaining the opposition of the Alaska Packers’ Association to the registration by Getz & Co. of the word “Premium” for canned salmon. The opposition is based .on what opposer claims to be the prior use of the word “Premier,” registered December 4, 1894, No. 25,610, for the same goods.</p> <p>Although these marks have been used side by side for many years, and there is no proof of any actual confusion, still I hold with the Examiner of Interferences that the words are too close together, having much the same sound and appearance, and a similar meaning. See the very recent decision of the Court of Appeals of the District of Columbia in Goodrich Drug Co. v. Cassada Mfg. Co., 237 O. G., 918, holding “Velvelite” too' close to “Velvetina.”</p> <p>The goods being the same and the marks too nearly alike, it only remains to be decided who first adopted the mark. Opposer claims to have acquired its mark “Premier” from the Kodiak Packing Company, which it bought out in 1893, having at the same time consolidated four or five other salmon packing companies into opposer company, and with this business acquired its trademark (Exhibit No. 2), which included 244 Premier labels and 714 Premier boxes. Indeed, applicant does not contest these facts, or that opposer has used “Premier” on canned salmon since May, 1893.</p> <p>Getz, president of the applicant company, was formerly one of the principal owners of the Kodiak Packing Company; but he says that the Kodiak Packing Company had no such mark as “Premier” (Getz record, page 273). In this he is probably mistaken, since the Kodiak Packing Company registered “Premier” in Great Britain, January 6, 1892. This, together with the “Premier” labels taken over from the Kodiak Packing Company by the op-poser company, fortified by the testimony of Eortman, president of'the op-poser company, makes it very probable that opposer company bought “Premier” from the Kodiak Packing Company in 1893.</p> <p>There is no record evidence of the use of “Premium” by applicant prior to 1908. Applicant’s records, however, were burned in the San Francisco fire of 1906; but there is no showing why some records between 1906 and 1908 have not been produced. Applicant’s witnesses, Stimson, Phillips, and Getz, testify from memory that “Premium” was used by the applicant company as far back as 1886 or 1887: but such testimony, without any record, of sales, after the lapse of 80 years, is liable to be wrong. There even may have been ephemeral use, but not enough to establish trade-mark rights. Furthermore, the Kodiak Company, with which Getz was connected, had used “Premier,” and they may have confused the two. An illustration of how they may have confused matters after so long an interval is shown in Getz’s testimony. He seemed quite positive (applicant’s record, page 273) that the Kodiak Packing Company had never used “Premier” back in 1893, when the record shows th¿t in all probability it had.</p> <p>Furthermore, as brought out in the Examiner’s decision, unlabeled salmon was not generally sold to Jobbers until 1898. The applicant company was a jobber, and probably got salmon already labeled from the packer. And, lastly, applicant in its application only alleges use back to 1896.</p> <p>A careful review of all these circumstances leads to the conclusion that there is no error in the Examiner’s decision giving opposer prior use, and, since the marks are too near together, the opposition is sustained, and the decision of the Examiner of Interferences is affirmed.</p>

Application by Getz Bros. & Co. to register a trade-mark, opposed by the Alaska Packers’ Association. From a decision of the Commissioner of Patents granting the application, the opposing party appeals.-

Warren Davis, Judge. Edward Moynihan was convicted of violating Act Feb. 13, 1913, making it a crime to steal or unlawfully carry away or conceal, or by fraud or deceit obtain from any railroad car, etc., any goods or chattels moving as or which are a part of or which constitute an interstate or foreign shipment, and he brings error.

<p>1. INTERNAL REVENUE &wkey;>4-STATUTE-CONSTRUCTION-PURPOSE.</p> <p>In construing Act Sept. 8, 1916, tit. 3, § 301 (Comp. St. § 6336%b), the court must put himself in the position of Congress when it enacted the law, and from the circumstances and surroundings then existing, and the general purpose then in view, ascertain what was meant to he done.</p> <p>2. Internal Revenue &wkey;>ll — -Taxation or Ammunition Manufacturers.</p> <p>The broad general purpose of Act Sept. 8, 1.916, was to include in the field of taxation all such specified articles or parts thereof as were either made for war purposes, or were withdrawn from the general field o£ commerce and used for the malting of war articles.</p> <p>3. Internal Revenue &wkey;s9 — “Manufacturing Shells” — Persons Subject to Tax — “Making.”</p> <p>A steel company, contracting to deliver shells to a foreign government, which manufactured in its own plant bars for which shells were made, and turned them over to subcontractors for completion, retaining ownership and control of the work, and afterwards delivering shells under its contract, realizing a net profit','was “manufacturing shells.” and therefore subject to the tax imposed by Act Sept. 8, 1916, “making” being manufacturing.</p> <p>flirt. Note. — For other definitions, see Words and Phrases, First and Second Series, Making.]</p> <p>4. Internal Revenue <&wkey;9 — “A Person Manufacturing Shells * * * or Any Part of Any of the Articles Mentioned.”</p> <p>A company which contracted with another company, having a contract with a foreign government, to sell and deliver high explosive shells, to ‘furnish the steel, and complete six of the initial steps, representing about 40 per cent, of cost of shells, held “a person manufacturing * ® ® shells * * * or any part of any of the articles mentioned,” and to he subject to the tax imposed by Act Sept. 8, 1916.</p> <p>5. Internal Revenue &wkey;>9 — Manufacturing Munitions — -“A Person Manufacturing Shells * * * or Any Part.”</p> <p>A subcontractor which agreed with contractor, having contract with a foreign government to supply high explosive shells, to furnish to contractor rough steel shell forgings, and which to fulfill its contract made, had made, or bought in the market steel required, held “a person manufacturing * * * shells * * * or any part,” thereof and to be subject to the tax imposed by Act Sept. 8, 1916.</p>

<p>1. Money Received <&wkey;>l — Grounds of Action.</p> <p>Assumpsit for money had and received will lie in general, whenever defendant has received money which is the property of plaintiff, and which the defendant is obliged by natural justice and equity to return; it being unnecessary that there be an actual contractual relation.</p> <p>2. Payment <&wkey;82(l) — Recovery—Voluntary Payments.</p> <p>One cannot recover money voluntarily paid with full knowledge of all the facts, although no obligation existed; but money may be recovered where paid under circumstances of fraud, misrepresentation, and threats amounting to duress, which prevents the free exercise of the will, or where it is paid on a wrongful demand to save the party paying from some great or irreparable mischief or damage, from which he could not otner-wise be saved.</p> <p>3. Payment <&wkey;89(3) — Recovery—Complaint—Sufficiency.</p> <p>Complaint seeking to recover from an insurance company an amount which the inexperienced officers of plaintiff corporation repaid to the company, when they were threatened by a committee of the leading insurers with publication of charges that the insurance money had been fraudulently obtained, etc., held to state a cause of action.</p> <p>4. Limitation op Actions <&wkey;28(l) — Running op Statute — What Statute Governs.</p> <p>An action to recover from an insurance company moneys repaid to it by plaintiff, because of threats of a committee of leading insurers that they would publish charges that the money had been fraudulently obtained, falls within the six-year period of limitation established by L. O. L. § 6, for actions upon contracts or liability express or implied, and not within the two-year period prescribed by section 8 for injuries not arising on contract..</p>

Appeals from the District Court of the United States for the Eastern District of New York. Suits in admiralty for collision by John D. T,ohman against the steamtug Daniel McAllister with others impleaded, and by Charles H. Castle against the steamtug Daniel McAllister and others. Decree for libelants, and McAllister Bros., claimants, appeal.

<p>1. Collision <&wkey;50 — Inland Rules — Overtaking Vessel — “Finally Past and Clear..”</p> <p>An overtaking vessel, which had passed the one overtaken half or three-quarters of a mile before changing course, and was then 300 to 500 feet ahead, was “finally past and clear,” within article 24 of the Inland Rules (Comp. St. § 7898), and relieved of the burden of keeping out of the way.</p> <p>2. Collision &wkey;>102 — Overtaking Vessels — Negligent Navigation.</p> <p>A collision between a ferryboat and steam lighter, both passing down Hndson river, held due to faults of both vessels; the ferryboat, which was ahead, for unnecessarily changing her course across that of the lighter, and the latter for proceeding at full speed, without paying any attention to the passing signals and positions of the vessels ahead.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in equity by J. Hartley Manners against Oliver Morosco. Decree for defendant, and complainant appeals.</p>

Grubb, Judge. In the matter of the bankruptcy of the Standard Home Company. Petition by the United States that an order be made .requiring the Birmingham Trust & Savings Company, as trustee of the bankrupt estate, to pay the amount of a fine and costs adjudged against the •bankrupt on its conviction under an indictment. From a decree denying the petition, the United States appeals.

John Fitter and others were convicted of conspiring to defraud the United States, and the named defendant alone brings error.

Suit by the Provident Life & Trust Company and Catherine Stewart Wood, as executors under the last will and testament of William Brewster Wood, deceased, against Austin B. Fletcher, as testamentary trustee of Conrad Morris Braker, under the last will and testament of Conrad Braker, Jr., deceased, and Conrad Morris Braker and Daniel P. Ritchey. Decree for complainants (237 Fed. 104), and defendants Braker and Ritchey appeal.

Arthur C. Gilson and Thomas J. Duffy were convicted of conspiring to defraud the United States, and they bring error. The Indictment is against numerous persons and corporations for a conspiracy (Criminal Code [Act March 3, 1909, c. 321] § 37, 35 Stat. 1096 [Comp. .St. § jOüOlJ) to defraud the United States.

<p>1. Navigable Waters &wkey;>19 — Obstructions—Duty.</p> <p>Any one placing an obstruction such as a breakwater in a navigable lake outside of a much-used harbor is bound to exercise reasonable care for the safety of all persons making use of the harbor, and such duty requires the placing and maintaining of a suitable warning light at night.</p> <p>2. Negligence <&wkey;55 — Contractors—Liability of Owner.</p> <p>After a contractor has turned over the work and it has been accepted by the owner, the contractor incurs no further liability to third persons; the responsibility for maintaining it and of giving notice or warning of dangers being then shifted to the owner.</p> <p>3. Navigable Waters <&wkey;19 — Contractors—Liability of Owner.</p> <p>The United States government, which engaged a contractor to construct a breakwater outside the Cleveland harbor, held to have accepted the section of the breakwater already constructed, so that the contractor was not liable for the death of one on a vessel which struck the breakwater, due to the absence of warning lights.</p> <p>4. Evidence <&wkey;245 — Admissions—Statements of Government Engineer.</p> <p>In an action against a contracting company, which was building a breakwater for the government, evidence that the government engineer in charge of the work, after the accident, stated that the government was maintaining a light on the end of ilie breakwater for the accommodation of the defendant, is admissible only for the purpose of impeaching -the testimony of the government engineer that the section of the breakwater against which the vessel collided had been accepted by the government, •etc.</p>

Van Valkenburgh, Judge. R. B. Sales was convicted of mailing an obscene, lascivious, and filthy letter, contrary to Criminal Code, § 211 (Comp. St. § 10381), and he brings error.

Cotteral, Judge. In the matter of tbe Gage Roller Mills, bankrupt; H. W. Patton, trustee. Prom an order denying a lien, G. M. Rader appeals; and from an order establishing a lien in favor of the Star Mill & Elevato: Company, tbe trustee appeals.

<p>In Error to the District Court of the United States for the Eastern District of South Carolina, at Charleston; Henry A. Middleton Smith, Judge.</p> <p>Criminal prosecution by the United States against A. R. Maupin. Judgment of conviction, and defendant brings error.</p>

<p>1. Internal Revende <&wkey;>47 — -Prosecution foe Illicit Distilling- — Sufficiency of Evidence.</p> <p>Evidence held sufficient to support a conviction for illicit distilling.</p> <p>2. Criminal Daw <&wkey;778(2) — Instructions—Rueden of Proof.</p> <p>That an instruction charges that it devolves on the government to prove “every material fact” necessary to constitute the offense, instead of “every material ingredient,” does not constitute error.</p>

, Judge. Suit in admiralty by the Norfolk Shipbuilding & Dry Dock Corporation against the steamer Elizabeth Monroe Smith; the Martinez-Butler Navigation Corporation being claimant. Decree for libelant, and claithant appeals.

<p>Appeal from the District Court of the United States for the District of Kansas; John C. Pollock, Judge. °</p> <p>Suit in equity by A. C. Houston against Richard D.. Harlan, executor of the will of Phineas Prouty, deceased, J. G. Hutchison, intervener. Decree for complainant, and defendant appeals.</p>

-In the matter of the libel and petition of O’Brien Brothers, Incorporated, as owner of the steam tug O’Brien Brothers her engines, etc., for limitation of, liability. On exceptions to awards for damages caused by the death of two married women, the report of the Commissioners was affirmed (253 Fed. 855), and from the decree the peti- ' tioner appeals. At dnsk of July 28, 1906, with the weather fair, the tug O’Brien Bros, was entering Hempstead Harbor.

<p>Petition to Review and Revise Proceedings of the District Court of the United States for the Eastern District of Wisconsin.</p> <p>In the matter of one Stern, bankrupt. Petition by M. Eisenberg and S. Gorenstein against Ignatz Weisskopf, trustee, etc., to revise an order of the District Court.</p>

<p>Habeas Corpus <&wkey;25(l) — Exclusion op Aliens.</p> <p>Where claim of right under Bev. St. § 1998 (Comp. St. § 3947), to enter the United States, made by appellant, a Chinese person alleging himself to be a citizen, was not first determined by a special board appointed under Act Eeb. 20, 1907, appellant is entitled to a writ of habeas corpus, unless within a reasonable time proceedings are instituted against him in accordance with law.</p>

<p>1. Appeal aot Error &wkey;107 — Right oe Review — Judgment Entered on Report of Referee.</p> <p>Where an action at law is by consent referred to a referee “to hear and determine” in accordance with the New York statute, it is the practice of the federal court to make an order for judgment on the referee’s report; but such order is pro forma only, and the fact that the judgment is entered by the clerk without an order does not deprive the defeated party of the right to have the same reviewed on error.</p> <p>2. Shipping <&wkey;39 — Charters — Expiration-—-Failure to Load Within Lay Days.</p> <p>A charter does not terminate at the expiration of the lay days for loading because loading has not then begun; but where the agreement is to load at a certain'rate and thereafter pay demurrage, the ship must wait thereafter for a reasonable time, the demurrage being the agreed compensation.</p> <p>3. Damages <&wkey;62(4) — Breach of Charter — Mitigation of Damages.</p> <p>To get another cargo as good as can be obtained and as quickly as is reasonably possible is the extreme measure of a shipowner’s obligation to mitigate damages on notice by the charterer that he will not load.</p> <p>4. Shipping <&wkey;52 — Breach of Charter — Mitigation of Damages.</p> <p>Where a charterer refuses to load the cargo contracted for, the owner is under no obligation to accept a different cargo from him on different terms.</p> <p>5. Shipping c&wkey;i83 — Demurrage—Interest.</p> <p>Interest is allowable on demurrage based on charter party agreement, whatever the form of action.</p>

At Caw. Action by Mountford S. Orth against Edward D. Steger and others, composing the firm of Steger & Co. Judgment was rendered for plaintiff, and defendants move, by way of order to show cause, to stay execution pending application to the Supreme Court for a writ of certiorari.

<p>1. Patents <&wkey;.‘J28 — Validity and Infringement — Hair Waving.</p> <p>Aldworth patent, No. 1,186,538, relating to compound tube used in so-called permanent hair waving, held valid and infringed.</p> <p>2. Patents <&wkey;283(2) — Infringement—Right to Injunction — Abandonment.</p> <p>That a patent infringement, testified to and proven, was abandoned before suit was brought, does not take away right of injunction in order to prevent repetition.</p> <p>3. Patents <&wkey;328 — Infringement—Haib Waving.</p> <p>Aldworth patent, No. 3,180,533, covering a compound tube used in so-called permanent hair waving, held not infringed by a device consisting of a borax pad to be wrapped around the coiled hair, and covered with a heat conducting, but noninflammable, tube impervious to water.</p> <p>4. Patents <&wkey;328 — Infringement—Apparatus—Hair Waving.</p> <p>Nesslor apparatus patent No. 1,052,166, claims 3 and 6, relating to the art of so-called permanent hair waving, held not infringed.</p> <p>5. Patents <&wkey;328 — Validity—Apparatus—Hair Waving.</p> <p>Nessler apparatus patent, No. 1,052,166, claim 5, relating to the art of so-called permanent hair waving, held void as made up of a combination all old but a single element.</p> <p>6. Patents <&wkey;26(l) — Validity—Combination of Apparatus and Process.</p> <p>If a process displays invention over the prior art, it does not necessarily follow that the apparatus wherewith to practice it required invention also, still less is it a result that the combination claimed is valid.</p> <p>7. Patisnts &wkey;>328 — Combination of Process and Apparatus — Infringement.</p> <p>Nessler process patent, No. 1,052,167, in combination with Nesslor apparatus patent, No. 1,052,166, claim 4, relating to the art of so-called permanent hair waving by the vaporization of a lotion in a heated tube, held not infringed.</p>

In Equity. Suit by Cassius S. Chase against the Union & New Haven Trust Company, trustee of the estate of Henry Horton, for infringement of United States letters patent, reissue No. 14,361. Decree for defendant.

<p>In Equity. Suit by the T. E. Smith Company and others against the Cement Tile Machinery Company. On exceptions by both plaintiffs and defendant to master’s accounting and report thereof.</p>

<p>In Equity. Bill by the Sandusky Foundry & Machine Company against D. Seusaud De Eavaud and others. Decree for defendants.</p>

<p>Patents <§=3828 — Validity and Infrinotsment — Plaste® Board.</p> <p>The Ulzman patents, No. 1,029,328 and No. 1,034,746, respectively for a process of making plaster board and a plaster board product, disclose invention, which is in the turning over and, sealing the edges of the bottom layer of paper, to prevent the breaking of the edges in handling the board; also held infringed.</p>

<p>1. Patents <§=>287 — Infringement—Joint Tort-Feasobs.</p> <p>An infringement is a tort, and any one wbo aids in it is answerable.</p> <p>2. Patents <§=>316 — Infringement—Injunction.</p> <p>Where thawing shed, as originally constructed and experimentally used by contractors, was equipped with certain dampers, which were removed before the shed was turned over to defendant, and the dampers could be put back in a few hours at a trifling expense, plaintiff is entitled to an injunction forbidding replacement of dampers or the equivalents, certain claims of plaintiff’s patent being infringed if dampers are replaced.</p> <p>3. Patents <§=>319(1) — Infringement—Recovery.</p> <p>Where, with full knowledge of plaintiff’s patent and that it would be infringed, defendant gave the contract for erection of thawing shed to another, because the latter was willing to put up the structure at a less cost and to furnish a bond against the consequences of infringement, plaintiff is entitled to be made whole.</p>

<p>In Bankruptcy. In the matter of Henry Kappes, bankrupt. On application for discharge.</p>

In Equity. Suit by Frederick Kessler and others against William Necker, Incorporated, for the appointment of a receiver. On petition by a receiver appointed in chancery to have the federal receiver turn over to him for administration the property of the corporation.

<p>1. Witnesses <®^>21 — Contempt—Refusal to Obey Subpcena — Defenses. In proceedings for contempt against 'a witness for refusal to obey a subpoena of a federal court issued pursuant to a commission granted by a court of another district to take depositions under Rev. St. § 866 (Comp. St. § 1477), the court cannot inquire into the jurisdiction of the court which issued the commission.’</p> <p>2. Witnesses <3^21— Contempt — Disobedience or Subpcena — Advice of Counsel.</p> <p>That a witness, in refusing to testify in obedience to a subpoena, acted on advice of counsel, is no defense to a proceeding for the contempt, although it may be considered in determining the punishment.</p> <p>8. Contempt <S=>2 — Proceedings for Punishment — Defenses.</p> <p>The question whether an act is or is not a contempt does not depend upon whether there was an actual intent to embarrass the due administration of justice, but may be determined from the nature of the act and by the presence or absence of any sound reason for it</p>

<p>At I,aw. Action by Edgar Levinstein against K. I. Du Pont de Nemours & Co., Incorporated. On motion to vacate order for taking depositions.</p>

In Equity. Suit by John W. Scott and others, on behalf of themselves and all other taxpayers of the state of. North Dakota, against Lynn J. Frazier, William Langer, and John N. Hagen, acting and pretending to act as the Industrial Commission of North Dakota, and others.

At Raw. Action by the Fairview Fluorspar & Read Company, a corporation domiciled in Illinois, begun by attachment in the circuit court of the city of St. Louis, Mo., against the Bethlehem Steel Company, a corporation domiciled in Philadelphia, removed to the United States District Court of the Eastern District of Pennsylvania. On motion to remand.

In Bankruptcy. In the matter of Arctic Stores, bankrupt. On review of a referee’s order denying the claim of William Silver & Co. to recover the value of certain goods sold by the bankrupt’s receiver.

In Admiralty. Libel by the George W. Rush & Sons Company, owner of barge No. 9, against the steam tug Alex Y. Hanna and the members of the Levy Court of New Castle County, Del. Decree dismiss?-ing libel as to the Levy Court members, and adjudging the tug Alex Y. Hanna liable for damages and costs.

<p>In Admiralty. Consolidated suits by the United States against the Standard Oil Company of New Jersey and another, by the Maryland Transportation Company against the United States, and by the Maryland Transportation Company against the Standard Oil Company of New Jersey and another. Decree for plaintiffs.</p>

In Equity. Suit by Jewel Carmen against the Fox Film Corporation and the William Fox Vaudeville Company. Decree for complainant. On the 31st of July. 1917, the plaintiff, an actress who performed with considerable success in motion pictures, contracted with the William Eox Vaudeville Company for her services for a period of two year's commencing on the 17th of October, 1917, at $100 per week.

<p>In Admiralty. Suit for collision by the Commonwealth & Dominion Riñe, Rimited, owner of the steamship Port blunter, against the Seaboard Transportation Company, owner of the tug Covington. Decree dividing damages.</p>

<p>1. Bankruptcy <&wkey;186(l) — Costs of Administration — Allowance to General Assignee.</p> <p>The rule that a general assignee will be allowed from the estate in bankruptcy for- such expenses as were reasonably incurred in the care and preservation of the property will be strictly applied as to expenditures made after the bankruptcy.</p> <p>2. Bankruptcy <&wkey;186(l) — Claims against Trustee — Expenses of Assignee.</p> <p>An assignee of a mercantile firm held entitled to reimbursement from its estate in bankruptcy for money paid employés in continuing the business until the appointment of a receiver in bankruptcy, except so much as was paid to the bankrupts for their personal services.</p> <p>3. Bankruptcy <&wkey;186(l) — Claims against Trustee — Expenses of Assignee.</p> <p>An assignee of a mercantile firm held entitled to allowance of his claim for rent paid, although after filing of petition in bankruptcy, where the receiver succeeding continued to occupy the premises.</p> <p>4. Bankruptcy <&wkey;>378 — Rejection of Offer of Composition — Right to Deposit.</p> <p>Money obtained by bankrupts after filing of petition against them and deposited with an offer of composition does not belong to the estate, and lí the offer was made in good faith, although rejected for insufficiency, should not he retained because the continuance of the business pending disposition of the offer resulted in loss to the creditors.</p>

<p>Salvage <&wkey;>34 — Rescue or Water-Logged Steamship — Compensation.</p> <p>Services rendered by an ocean tug in towing a lumber-laden steamship, which was water-logged and helpless in the Cult of Mexico, and, after being towed a distance by a motor schooner, had been anchored where she was in great peril, and by another tug which assisted in bringing her into Mobile Bay to port, heId entitled to a salvage award of $10,000; the steamship and cargo being valued at $250,000 and the tugs $130,000,, and the services being efficiently rendered, but without great danger.</p>

In Bankruptcy. In the matter of James A. Holden, bankrupt. On petition of a creditor to review an order of the referee refusing to remove the trustee, who was selected by about 90 per cent, of the creditors.

<p>In Equity. Bill by the Montgomery Light & Water Power Company against T. T. Charles and others. Order for permanent injunction.</p>

<p>1. Courts @=343 — Federal . Courts — Parties Defendant — Equity Rule.</p> <p>Under equity rule 26 (201 Fed. v, 118 C. C. A. v), providing that several defendants may be joined to promote administration of justice, etc., three corporations were properly made parties defendant in suit seeking their dissolution under Sherman Anti-Trust Act (Comp. St. §§ 8820-8823. 8827-8830) and Clayton Act, where transactions involved all related to conducting fish business in Boston and were so interwoven that three suits, instead of one, would cover substantially same ground and occasion unnecessary expense.</p> <p>2. Monopolies @=»24(2) — Bill—Sueeicienoy.</p> <p>Allegations that control obtained through stock ownership of certain fish dealers violated Sherman Anti-Trust Act (Comp. St. §§ 8820-8823, 8827-8830), and supplementary acts, held sufficiently broad to charge violation of Clayton Act, which supplements Anti-Trust Act.</p> <p>3. Courts @=347 — Federal Courts — Bill—Amendment.</p> <p>Under equity rule 19 (38 Sup. Ct. xxiii), relating to amendments, a bill brought under Sherman Anti-Trust Act (Comp. St. §§ 8820-8823, 8827-8830), and supplementary acts, may be amended to also seek relief under Clayton Act, where that phase of case was fully covered at trial.</p> <p>4. Monopolies @=20 — Clayton Act.</p> <p>The Boston Fish Pier Compa’ny, by acquiring stock of 25 wholesale fresh fish corporations and thereafter conducting the business so that competition between them ceased, violated Clayton Act, § 7 (Comp. St. § 8835g), and combination should be dissolved.</p> <p>6. Monopolies <&wkey;20 — Clayton Act.</p> <p>The Bay State Fishing Company, by acquiring stock of 8 wholesale fresh fish corporations and eliminating competition between them, violated Clayton Act, § 7 (Comp. St. § SS35g), and combination must be dissolved.</p> <p>6. Monopolies <&wkey;17(l) — Sherman Anti-Trust Law — Violation.</p> <p>Action of Boston fish dealers in securing control of a fish pier and fish exchange, which enabled them to centralize and control the interstate trade in fresh fish, held to violate the Sherman Anti-Trust Law (Comp. St. §§ 8820-8823, 8827-8880).</p> <p>7. Monopolies <&wkey;24(2)- — Sherman Anti-Trust.Law — Remedy.</p> <p>The Boston Fish Market Corporation, although operating a fish pier so as to unduly restrain trade in violation of Sherman Anti-Trust Act (Comp. St. §§ 8820-8823, 8827-8830), will not be dissolved, if it opens the pier to all persons desiring to purchase fish under reasonable regulations.</p> <p>8. Monopolies <&wkey;24(2) — Sherman Anti-Trust Act — Remedies.</p> <p>The New England Fish Exchange, which provides a place in Boston where fishermen and dealers may transact business, will not be dissolved because it violates the Sherman Anti-Trust Act (Comp. St. §§ 8820-8823, 8827-8830), if its rules are reformed, so as to permit all applicants to become members under reasonable regulations.</p> <p>6. Monopolies <&wkey;17(l) — 'Fish Exchange — Charge on Sales.</p> <p>Since the New England Fish Exchange is an agency for common benefit of those doing business there, burden of maintaining it should be fairly apportioned, aftd fishermen should not be charged a higher fee on their sales than is necessary to pay expenses and reasonable return on money invested.</p> <p>10. Monopolies <&wkey;.l7(l) — Restraint of Trabe — Fish Exchange.</p> <p>A rule of the New England Fish Exchange requiring fishermen to pay • a certain percentage on the. highest bid made for their fish, although the bid be not accepted, tends to compel a sale, whether fishermen be satisfied with bid or not, and unreasonably restrafrs trade.</p> <p>11. Monopolies <&wkey;17(l) — Restraint of Trade — Fish Exchange.</p> <p>A rule of the Now England Fish Exchange assessing dealers a certain amount on fish purchased tends to increase price of fish, and unreasonably restrains trade.</p> <p>12. Monopolies <&wkey;17(l) — Restraint of Trade' — Fish Exchange.</p> <p>A rule of the New England Fish Exchange, which was construed to preclude commission men from selling fish, except to wholesalers doing business on the Exchange, unreasonably restrains interstate trade.</p> <p>13. Monopolies <&wkey;17(l) — -Restraint of Trade — Fish Exchange.</p> <p>A rule of the New England Fish Exchange, precluding commission men having privileges of the Exchange from selling to retailers, should be amended to allow sales to all dealers.</p> <p>14. Monopolies <&wkey;17(l) — Restraint of Trade — Fish Exchange.</p> <p>The purchase and sale by the New England Fish Exchange of fish on its own account and for others unreasonably restrain trade.</p> <p>15. Monopolies <&wkey;17(l) — Restraint of Trade — Fish Exchange.</p> <p>A rule of the Now England Fish Exchange, providing that members shall not agree to divide purchases of fish until after purchase has been made, should be strictly enforced, since agreements to refrain from bidding would unreasonably restrain trade.</p> <p>16. Monopolies <&wkey;17(l) — Restraint of Trade — Fish Exchange.</p> <p>Rules of Now England Fish Exchange, limiting its privileges to wholesale fresh fish dealers, unreasonably restrain trade.</p> <p>17. Monopolies <&wkey;17(l) — Sherman Anti-Trust Act — Violation.</p> <p>The Boston Fish Pier Company, composed of 28 out of 40 fresh fish dealers and controlling the fish pier and fish exchange, violates Sherman Anti-Trust Act, §§ 1, 2 (Comp. St. §§ 8820, 8821).</p> <p>18. Monopolies &wkey;>17(l) — Sherman Anti-Trust Act — Violation.</p> <p>The Bay State Fishing Company, composed of 8 out of 40 fresh fish dealers in Boston and a trawling fleet which is the only dependable source of supply at certain seasons, violates Sherman Anti-Trust Act, §§ 1, 2 (Comp. St. §§ 8820, 8821).</p>

<p>1. Habeas Corpus <®=»54 — Sufficiency of Petition — General Allegations.</p> <p>In a petition for a writ of babeas corpus for release of petitioner from confinement as an insane person, a general allegation that the commitment is void, without the allegation of facts to support it, is insufficient.</p> <p>2. States <S==>4 — Commitment of Insane Persons — Powers.</p> <p>The state alone is charged with the duty of caring for the insane within its borders, and may adopt whatever method of procedure it may desire for inquisition into their condition and the necessity for their confinement, provided the same is not in contravention of the Constitution of the United States.</p> <p>3. Habeas Corpus . <S=»45(2) — Federal Courts — Discretion in Exercise of Jurisdiction — Persons Confined by State Authority.</p> <p>To guard against unnecessary conflicts between the federal and state courts, both of which are equally bound to guard and protect rights secured by the Constitution, it is necessary that one who alleges that he has been deprived of his liberty in violation of his constitutional rights by state authorities should have exhausted all his remedies in the state courts before a federal court will exercise its jurisdiction in habeas corpus proceedings.</p>

<p>Habeas Corpus (&wkey;45(2) — Judgment ' <&wkey;828(3) — Fedeeai, Courts — Insane Persons — Cohmitmiont by State Authorities.</p> <p>Tlie question whether a warrant or order under which a person was committed as insane is in conformity to state laws should first be presented to a state court, and the decision of that court is binding on a federal court, unless the state proceedings do not comply with the requirements of the federal Constitution.</p>

<p>1. Removal op Causes <&wkey;102 — Remanding Cause to State Court.</p> <p>Where the facts upon which the right to have a case tried in the United States District Court are not clear, a motion to remand to the state-court should he granted.</p> <p>2. Removal op Causes <&wkey;14 — Place op Removal — “Pkopek District.”</p> <p>Under Judicial Code, § 28 (Comp. St. § 1010), providing that certain cases may he removed from state courts to District Courts of the United States for the “proper district,” a cause can only be removed to the federal court for the district in which the state court is situated, in view of sections 29, 51 (Comp. St. §§ 1011, 1033), no other United States District Court having jurisdiction.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, Second Series, Proper District.]</p> <p>3. Removal op Causes <&wkey;88 — Bond.</p> <p>The filing of the bond referred to in Judicial Code, § 29, is a condition precedent, and essential to the enjoyment of the right of removal of a cause from a state court to a United States District Court.</p>

<p>At Law. Action by W. H. Jones, by M. K. Taylor, C. C. Taylor, and Inez Seufert, by Joseph X. Claverie, by Robert Bruce Smith, by Allen Kennedy, and by Wayne K. Smith, respectively, against the Delta Land & Water Company, H. B. Front, and A. M. McPherson. Orders were entered in each case to remand on motions by plaintiffs, and the defendants appeal from taxation of' costs by the clerk.</p>

<p>Prosecutions by the United States against Charles N. Jenks, and against Charles N. Jenks and Elmer E. Patton. Upon motions to quash and demurrers.</p>

<p>1. Seamejí &wkey;>21 — Wages—Deductions of Forfeitures by Fines — Invalid Fines.</p> <p>In a libel by seamen against a steamship for wages, the controversy arising from the master imposing fines under the Danish law, which he deducted from tbe wages, where the fines were not imposed in conformance with sections 102, 103, of the Danish law relating to seamen, on which the master relied, the seamen not being given full opportunity to present their defense, the fines were invalid and could not be thus collected.</p> <p>2. Seamen &wkey;21 — Wages—Fines—Fixing by Danish Consul.</p> <p>In a libel by a seaman for wages, where the defense was that the Danish consul had assessed a fine upon a seaman for disregard of chief officer, hold, that the Danish law relied upon by the vessel does not give the consul a right to judge the seaman’s conduct and fix the amount of the fine.</p> <p>3. Seamen <&wkey;23 — Wages—Advance—Payment of Wages.</p> <p>An advance payment of wages to seamen, made upon their employment for the purpose of reimbursing a boarding house keeper, is illegal under Seamen’s Act Gong. March 4, 1915, § 11 (Comp. St. § 8323).</p>

<p>1. Shipping <&wkey;3%, New, vol. 8A Key-No. Series — Liability to Seizure op Vessels Requisitioned by Government.</p> <p>Tlie provision of Shipping Board Act Sept. 7, 1916, § 9 (Comp. St. 1918, Append. § 8146e), making Shipping Board vessels, while employed solely as merchant vessels, subject to all laws, regulations, and liabilities governing merchant vessels, applies to vessels requisitioned under Act June 15, 1917, § 1.</p> <p>2. Shipping <&wkey;3%, New, vol. 8A Key-No. Series — Government Vessels— Seizure on Process in Rem — “Employed Solely as Merchant Vessel.”</p> <p>A vessel requisitioned and operated by the government under authority of the Shipping Board, assigned to carry food products to the Swiss government, held “employed solely as a merchant vessel,” within Shipping Board Act Sept. 7,1916, § 9 (Comp. St. 1918, Append. § 8146e), and subject to process in a suit in rem, although officered and manned by naval men</p>

At Law. Separate actions by the Fidelity Trust Company of Baltimore, Md., a body corporate, and by the Baltimore Trust Company, against Joshua W. Miles, Collector of Internal Revenue for the District of Maryland, to recover taxes paid. Tried together by agreement. Judgment for defendant in each case.

<p>At Law. Actions by the Title Guarantee & Trust Company against Joshua W. Miles, Collector of Internal Revenue, to recover special taxes paid under protest.</p>

In Bankruptcy. In the matter of Rouis Schwab, bankrupt. On motion to reverse and vacate an order of the referee finding that a mortgage was invalid as preferential.

<p>1. TReatxes <&wkey;2 — Subject—Migratory Birds.</p> <p>Regulation oí the taking of migratory birds which pass between the United States and Canada is a matter for treaty, power to make which is by Const, art. 2, § 2, el. 2, granted to the United States, and by article 1, § 10, cl. 1, denied to the several states.</p> <p>2. Game <&wkey;4 — Regulation—Giving Effect to Treaties.</p> <p>The treaty of August 16, 1916, with Great Britain for the protection of migratory birds (39 Stat. 1702), being within power of United States to make, Act July 3, 1918 (Comp. St. 1918, § 8837a, appendix), enacted to give effect to that treaty, is also within its power.</p>

<p>1. INJUNCTION <&wkey;52 — TrMBEB TRESPASS — INSOLVENCY.</p> <p>Insolvent trespassers may be enjoined from cutting and destroying standing timber.</p> <p>2. Mortgages <&wkey;536 — Foreclosure—Innocent Purchaser.</p> <p>A conveyance of standing timber rights, not executed in the form necessary to pass interest in real estate, never recorded, and by its terms made void upon the incorporation of another company, held inferior to rights secured by a purchaser for value at a sale foreclosing a mortgage given by the grantor.</p> <p>3. Lis Pendens <&wkey;24(2) — Foreclosure—Rights Secured.</p> <p>Any rights secured from a mortgagor after institution of foreclosure proceedings and filing of lis pendens are subject to the rights secured by a bona fide purchaser at the foreclosure sale.</p> <p>4. Vendor and Purchaser <&wkey;231(16) — Standing Timber — Conveyance.</p> <p>Standing timber is considered real estate under the South Carolina recording statute (Civ. Code 1912, § 3542), and a conveyance thereof must be recorded to bind subsequent purchasers for value.</p> <p>5. Vendor and Purchaser &wkey;>232(l) — Recording—Necessity.</p> <p>Under Civ. Code S. O. 1912, § 3543, notice of real estate sales is given only by actual record, and mere possession of the land is insufficient to charge subsequent purchasers with notice.</p> <p>6. Mortgages <&wkey;497(2) — Foreclosure—Estoppel.</p> <p>A grantee of mortgaged premises, who joined with the mortgagor in securing a postponement of the foreclosure sale, held estopped to contest the binding effect of the foreclosure upon the ground that it was not formally made a party defendant.</p> <p>7. Mortgages <&wkey;427(4) — Foreclosure—Parties.</p> <p>One who purchases from a mortgagor, after institution of foreclosure proceedings and filing of lis pendens notice, need not be made a party defendant.</p>

<p>Appeal from the District Court of the United States for the Eastern District of South Carolina, at Charleston; Henry A. Middleton Smith, Judge.</p> <p>Bill by the Savannah Timber Company against the Deer Island Dumber Company and another. Decree for complainant, and defendants appeal.</p>

Killits and Arthur J. Tuttle, Judges. Action by Gaetano Curcuru, administrator of the estate of Vincenzo Curcuru, deceased, against the Peninsular Electric Eight Company, a Michigan corporation. There was a judgment for defendant, and plaintiff brings error.

<p>1. Aliens <®=»32(13) — Chinese Exclusion — Review by Courts.</p> <p>Immigration officers have exclusive jurisdiction over Chinese exclusion cases, providing they give the applicant a fair hearing and do not abuse their discretion.</p> <p>2. Aliens <S=»32(!>) — Chinese Exclusion — Heaping.</p> <p>A Chinese exclusion hearing before immigration officers, which resulted iu excluding a Chinese woman and her children upon ground that her husband had not satisfactorily established his status as a merchant, instead oí a laundryman, held not to show abuse of dis retion or denial of fair hearing.</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>Habeas corpus proceeding by Eouie Share Gan against Edward White, as Commissioner of Immigration at the Port of San Francisco. From an order denying a writ, the petitioner appeals.</p>

<p>In Error to the District Court of the United States for the Second 'Division of the Northern District of California; William C. Van Fleet, Judge.</p> <p>Action by the United States against the Associated Pipe Line Company. Judgment for the United States, and defendant brings error.</p> <p>Action by the United States against the Associated Pipe Line Company, a California corporation, to recover $1,423.56 for excise taxes for 1909, assessed under subsection 1 of section 38 of the Act of Congress of August 5, 1909, the Corporation Tax Law, 36 Stat. Ill, 112, c. 6. Tbe United States recovered judgment. Among other things the act provides: “That every corporation * * * organized for profit and having a capital stock represented by shares * * * and engaged in business * * * shall be subject to pay annually a special excise tax with respect to the carrying on or doing business by such corporation * * * equivalent to one per centum upon the entire net income over and above $5,000 received by it from, all sources during such year. * * * Such net income shall be ascertained by deducting from the gross amount of the income of such corporation * * * received within the year from all sources, * * * (third) interest actually paid within the year on its bonded or other indebtedness to an amount of such bonded and other indebtedness not exceeding the paid-up capital stock of such corporation * * * outstanding at the close of the year.” The defendant below denied that it is a corporation organized for profit, and alleged that it never has and never could earn any profits; that it never had any net income and has no income; that its income never exceeded its expenses of maintenance and operation; that its income was derived solely from stockholders; and that the stockholders have always severally paid all excise and income taxes assessed against them respectively by the United States.</p> <p>The facts found by the District Court and as agreed upon are, in substance, as follows: The Associated Oil Company was incorporated in 1901, and the Kern Trading & Oil Company was incorporated in 1903. The Associated Oil Company has always been a purchaser, producer, and seller of crude petroleum and its products, and the Kern Company has been an agent of the Southern Pacific Company, a railroad carrier, for the purpose of developing, handling, and furnishing to the Southern Pacific Company fuel oil for its locomotive engines engaged in interstate and intrastate commerce. In 1907, these companies made an agreement containing the following matters: The Kern Company was then the owner of and operating a pipe line, together with pnmping stations, tanks, and appurtenances, between Volcan and Delano, in California, about 31 miles; the pipe line being laid on the right of way of the Southern Pacific Company. The Associated Company and the Kern Company proposed to extend this pipe line from Delano to Port Costa along the right of way of the Southern Pacific Company between Delano and Goshen, and Fresno and Port Costa, and on the right of way of the Central Pacific Railway Company between Goshen and Fresno; the said line from Volcan to Delano and from Delano to Port Costa to be owned by a corporation in which the Associated Company and the Kern Company should be equally interested. It was agreed that a California corporation should be created to own, lease, and operate pipe lines, but not as a common carrier, for the transportation and movement of oil, etc., to ho named Associated Pipe Lino Company, with a capital of $7,000,000, or of 70,000 shares of $100 each. Directors were to he selected by each of the parties to the agreement. A president and superintendent were to be agreed upon. The Associated Pipe Dine Company was to have vested in it, by purchase from the Kern Company at actual cost, the ownership of the pipe line, stations, tanks, and appurtenances between Vol-can and Delano. The pipe line company was to construct and own the extension of the pipe line from Delano to Port Costa, together with statious and appurtenances, and might construct and own additional pipe linos that the parties desired jointly to build and operate.</p> <p>It was agreed that the cost of the pipe lines, tanks, and appurtenances between Delano and Port Costa and all expenses of construction should be advanced by the Kern Company. The Associated Oil Company agreed that it would pay the Kern Company one-half of the entire total cost to it of the pipe lines, tanks, and appurtenances between Volean and Port Costa within three years from the date of the agreement, and that on one-lialf of all the sums paid by the Kern Company, comprising such total cost, the Associated Oil Company would agree to pay interest. One-half of the entire capital stock of the Associated Pipe Dine Company was to he issued to the Kern Company, and one-half to the Associated Oil Company. Expenses for repairing. operating, and maintaining were to he divided monthly between the Associated and Kern Companies in proportion to the amount of oil moved for either party to tidewater or intermediate points. Betterments and improvements, together with taxes and assessments upon the property of the Associated Pipe Dine Company, were to be apportioned between the Associated Oil Company and the Kern Company. The pipe lines were to be exclusively used for the movement of oil belonging to the Associated and Kern Companies. They wore so used, and the Associated Pipe Dine Company has never been engaged in any business other than that of transporting oil through such pipo lines for the two above-named companies.</p> <p>The Associated Pipe Dine Company, plaintiff in error here, was incorporated in 1907, pursuant to the agreement just referred to, and the stock subscribed as follows: Calvin, 34,980 shares; W. F. Herrin, 10 shares; George D. King, 10 shares; W. S. Porter, 34,990; Buck, 10 shares. On August 27, 1907, the capital stock was issued to the nominees of Associated Oil Company and Kern Trading & Oil Company as subscribed for. In February. 1910, 34.980 out of the 34,990 shares issued to Porter were transferred to the-Associated Oil Company, and on July 17, 1913, 34,970 of the 34,980 shares issued to Calvin were transferred to the Kern Company, while 20 shares remained with Calvin and Porter and their successors, as directors, and 30 shares remained in Herrin, King, and Buck, as directors, and the Kern Company and tho Associated Company were the owners of the entire capital stock in equal proportions, except 50 shares held by the five directors; each director holding 10 shares. The purposes of the incorporation of the Associated Pipe line Company were: “The acquisition, construction, owning, maintenance and operation, but not as a common carrier, of pipe line for transportation of oil within the state of California, together with necessary pumping stations therefor.”</p> <p>Pursuant to the agreement of April, 1907, the pipe lines, tanks, and appurtenances between Volcan and Delano were conveyed to Associated Pipe Dine Company after the organization thereof, and that company constructed an extension of the pipe line from Delano to Port Costa, together with stations and appurtenances, and also an additional pipe line from Maricopa to Port Costa. The ICem Company advanced the costs of construction. between Delano and Port Costa and half the cost "of the additional line from Maricopa to Port Costa, and the Associated Oil Company advanced the other half of the cost of the last-mentioned line.'</p> <p>Up to December 31, 1909, the Kern Company had advanced $4,978,401 for cost of the pipe line between Volcan and Delano and for cost of construction of extension lines from Delano to Port Costa; and on December 31, 1909, one-half of the sum so advanced by the Kern Company was owing to it by the Associated Oil Company, together with interest in the sum of $149,352. For convenience the account of such advances and interest was carried on the books of the Associated Pipe Dine Company. The necessary expenses of maintenance and operation for 1909, inclusive of the sum of SI49.352. was $674,232.23, which sum, together with $99,542.58 depreciation charged on the books of the Associated Pipe Dine Company for 1909, made a total of $775,-774.81, which was charged by the Associated Pipe Dine Company against the Kern Company and the Associated Oil Company for 1909, and was reported by the Associated Pipe Dine Company to the United States as its gross income for 1909. The return made for that year also showed: ‘‘Total amount of paid-up capital stock at close of year, not adjusted.” It showed no net income for 1909 and no tax payable by the Associated Pipe line Company for 1909 under the act of August 5, 1909. The Commissioner of Internal Revenue disallowed the interest charge of $149,352, and, after deducting $5,-000 allowed by the provision of the act of Congress, assessed the Associated Pipe Dine Company a special excise tax of 1 per cent, on the balance of $144.-352, amounting to $1,443.52, which the Associated Pipe Line Company paid under protest. Claim for refund was made in 1912 and was allowed on August 13, 1912, but in December, 1915, the commissioner concluded that he had erred in the refund for the reason that the Associated Pipe Dine Company had no paid-up capital stock in 1909 on which to base a legal right for the deduction of interest, and after correction of the figures he demanded payment of $1,423.56. The Associated Pipe Dine Company has never declared or paid any dividends on its stock, and the finding is that none of the capital stock of the Associated Pipe Dine Company was paid until December 31, 1911.</p>

Trippet, Judge. Action by Robert U. Brown against the San Pedro, Los Angeles & Salt Lake Railroad Company. Judgment for plaintiff, and defendant brings error. The San Pedro, Tos Angeles & Salt Take Railroad Company brought writ oí: error to review a judgment of the District Court in favor of Brown, de-fcndrmt In error, upon a verdict for damages for»personal injuries. The railroad company denied negligence and pleaded contributory negligence.

<p>1. Criminal Daw <§=1134(7) — Review—Appellate Procedure — Use of Wrong 1'J‘IMEDY.</p> <p>Act Sept. 6, 1916, § 4 (Comp. St. § 1649a), providing that no reviewing court shall dismiss an appeal solely because a writ of error should have been sued out, but that “when such mistake or error occurs it shall disregard the same and take the action which would be appropriate ■ if the proper appellate procedure had been followed,” does not authorize an appellate court, where a criminal case has been brought up by appeal, to exorcise the same comprehensive powers of review which it is entitled to exercise when an appeal is rightfully taken, and review both the law and facts.</p> <p>2. Criminal Daw <§=31090(1) — Appellate Proceedings — Bills of Exceptions.</p> <p>A statute which authorizes a writ of error to be sued out thereby allows a bill of exceptions to be signed and used in connection therewith, for it is only through such bill that the rulings of the judge made at the trial become a part of the record to bo reviewed.</p> <p>3. Criminal Daw <§=1090(19) — Appellate Proceedings — Record.</p> <p>Where there has been an actual trial, the parties are not at liberty to substitute a written stipulation or agreed statement of facts as to what occurred at the trial in lieu of the hill of exceptions required.</p> <p>4. Criminal Daw <§=1090(8,14) — Appellate Proceedings — Record.</p> <p>The general rule has been that in actions at law evidence introduced or offered and rejected at the trial, and rulings thereon, can be brought before the appellate court only by bill of exceptions, and unless a statute otherwise provided such bill has been necessary to bring into the record for review the instructions and requests to charge; and such rules apply to criminal as well as to civil cases.</p> <p>5. Criminal Daw <3=1091(10) — Appellate Proceedings — Review.</p> <p>The rule has been elementary, and applicable in criminal proceedings as well as in civil, that a ruling of the trial court upon the admission of evidence will not be reviewed in the appellate court, unless the hill of exceptions shows that an exception was taken thereto.</p> <p>6. Courts <3=356 — Federal Courts — Conformity Statute.</p> <p>The Conformity Statute (Comp. St. § 1537) has no application to bills of exceptions, or to the mode of reviewing a decision once made in a federal district court.</p> <p>7. Criminal Daw <§=1090(2) — Appellate Proceedings — Record.</p> <p>Judicial Code, § 269, as amended by Act Feb. 26, 1919, requiring appellate courts to “give judgment after an examination of the entire record before the court without regard to technical errors, defects or exceptions which do not affect tho substantial rights of the parties,” does not dispense with the necessity of a bill of exceptions to bring into the record matters which would not otherwise be a part thereof; hut the record to which the act refers is that which is legally the record.</p> <p>8. Criminal Daw <§=1090(5) — Appellate Proceedings — Record.</p> <p>A demurrer to an indictment is a part of the record proper, and is not dependent on a bill of exceptions.</p> <p>9. Criminal Daw <§=984 — Sentence on Different Counts.</p> <p>Unless a court, imposing sentence under each of several counts in an indictment, otherwise directs, the sentences under all run concurrently, and the fact that one count is defective does not entitle defendant to release from imprisonment.</p> <p>10. Indictment and Information <&wkey;>203 — -Verdict on Good and Bad Counts.</p> <p>Where an indictment contains good and bad counts, a general verdict of guilty will be referred to the good counts, if sustained by the evidence, and the judgment will be affirmed.</p> <p>11. Courts <&wkey;356 — Appeals in Equity — Record of Evidence.</p> <p>Under equity rule 75b (198 Fed. xl, 115 C. C. A. xl), until the statement of the evidence in an equity case has been approved by the trial court or judge, it is not a part of the record for purposes of appeal.</p> <p>12. Criminal Law <&wkey;1090(l) — “Bill of Exceptions” — Definition.</p> <p>“A bill of exceptions” is a formal statement in writing of the exceptions duly taken at the trial to the decisions and instructions of the judge, with as much of the testimony as is necessary to enable the court to say whetner error at law was committed in respect to the particular decisions or instructions as to which the exceptions were taken.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Bill of Exceptions.]</p> <p>Ward, Circuit Judge, dissenting.</p>

Judgment for plaintiffs, and defendants bring error. This was an action by two receivers oí nine corporations appointed by tlie court below in one proceeding in equity, in which these nine corporations were defendants.

Dooling, Judge. Habeas corpus proceeding by Chin Fong against Edward White, Commissioner of Immigration at the Port of San Francisco, to se■cure the discharge of petitioner, held by the Commission of Immigration for deportation as a Chinese person not entitled to re-enter the United States under the provisions of the Exclusion Act. From the ■order discharging the writ, and remanding petitioner for deportation, petitioner appeals.

<p>In Error to the District Court of the United States for the Eastern District of New York.</p> <p>Joseph F. Rutherford and others were convicted of violating Espionage Act June 15, 1917, tit. 1, §§ 3, 4, and they bring error.</p>

<p>In Error to the District Court of the United States for the Western District of South Carolina, ai Rock Hill; Charles A. Woods, Judge.</p> <p>Criminal prosecution by the United States against F. C. Hickson. Judgment of conviction, and defendant brings error.</p>

<p>1. Public Lands <&wkey;120 — Suit fob Cancellation of Patent — Fraud.</p> <p>While the United States has the same remedy in equity for cancellation of a patent for fraud that an individual would have in case of his own deed, it has the burden of proof, and is subject to the same rule tliat the evidence must.be clear-and convincing.</p> <p>2. Mines and Minerals <&wkey;45 — Cancellation of Patent — Proof of Fraud.</p> <p>Evidence in a suit for cancellation of a mineral patent for fraud held insufficient to overcome the presumption in favor of the validity of the patent, or to show that representations made in the application for patent were willfully and knowingly false, or that they were relied on by the government officers.</p> <p>3. Mines and Minerals <®=»17(1) — Mining Claims.</p> <p>The words “discovery of the vein or lode,” as used in- Eev. St. § 2320 (Comp. St. § 4615), in prescribing the prerequisites of a valid mineral location, owing to the varying conditions to which the expression must be applied, has no rigidly fixed meaning.</p> <p>4. Public Lands <&wkey;120 — Suit for Cancellation of Patent — Issues.</p> <p>Where a suit by the government for cancellation of a patent is based upon fraud, plaintiff will be confined as a general rule strictly to that issue.</p> <p>Garland, Circuit Judge, dissenting.</p>

Application by the National Brake & Electric Company for an order directing dismissal of a bill brought in the United States District Court by Niels A. Christensen and another against petitioner for patent infringement.

Appeal to the District Court of the United States for the Eastern Division of the Northern District of Illinois. Suit by the Chicago Lino-Tabler Company of Chicago, Ill., against the Morey Dinotyping Company of Chicago, Ill. From a decree for complainant, defendant appeals.

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Action by Harry M. Eevengston against James Plunkett and Wil - liam Young Conn Humes. Judgment for plaintiff, and defendants bring error.</p> <p>Defendant in error, herein called “plaintiff,” was persuaded by plaintiffs in error, herein called “defendants,” to purchase a collection of books called a “historical library,” for the sum of $65,000. This action is brought to recover damages by reason of fraud alleged to have been practiced by defendants in making the sale.</p> <p>Plunkett, one of the defendants, met plaintiff in New York state and persuaded him to go to New Orleans where the library was located, the same having been collected by a librarian named Beer. Upon arriving at New Orleans, plaintiff met Humes, who, it was represented, held an option to purchase the books and therefore controlled the sale. Although traveling many miles to personally examine the collection, plaintiff never saw the library; but upon representations made, now in this action asserted to be false and which induced him to buy, plaintiff purchased the library for $65,000.</p> <p>Plunkett represented that he was to receive 5 per cent, commission for making the sale, but proposed to apply this commission upon the purchase price, provided plaintiff gave him the right to resell the library and share equally in the profits of the resale. The agreed price less the 5 per cent, was thereupon paid by plaintiff and the books were sent to New York.</p> <p>There is evidence tending to show that the entire library was not worth more than a thousand dollars, and it also appeared that only about $15,000 of the purchase price went to Mr. Beer; the balance being divided among the defendants.</p> <p>After the sale was made, Plunkett represented that he had prospective buyers from one of whom only a definite offer was submitted. This buyer, it was claimed, would give $150,000 for the library, but payment was to be made by unsecured notes. As a part of the deal, plaintiff was to pay Plunkett a commission of $50,000 cash. Inquiry as to the responsibility of the party who was to execute the $150,000 notes materialized an unnamed woman whose exact residence was unknown. ■</p> <p>When the books reached New York City, steps were taken to catalogue them. During this period, while plaintiff was still ignorant of the nature or value of his collection, Humes advised him that a fraud had been committed and proposed to disclose certain information upon condition that plaintiff would agree not to sue Humes or Tomlinson. Thereupon plaintiff executed to Humes and Tomlinson the desired agreement. All defendants rely upon this agreement as a bar to plaintiff’s recovery. It reads as follows:</p> <p>“It is hereby agreed that no action shall be begun against William Y. C. Humes and Herbert O. Tomlinson, or either of them, by reason of any matters existing at this date by the undersigned.</p> <p>“Given for a good consideration.</p> <p>“Saratoga Springs, N. Y., January 21, 1911. H. M. Levengston.</p> <p>“Witness: W. T. Butler.”</p> <p>The jury rendered a verdict in plaintiff’s favor for $73,423.12, which sum included interest from the date of the transaction to the day of the rendition of the verdict. Thereafter, upon order of the court, this sum was reduced to $65,000 and judgment entered therefor against defendants. Tomlin-son has not attacked the judgment in this court, having sought immunity through a discharge in bankruptcy. Defendants assign error:</p> <p>(a) In not directing a verdict for defendants.</p> <p>(b) In receiving evidence against objection.</p> <p>(c) In instructions to the jury.</p>

<p>Wharves <&wkey;20(l) — Collapse or Coal Unloading Bridge — Act oe God.</p> <p>The collapse during a storm of a steel unloading bridge on respondent’s coal dock weighing 1,200 tons, new and of approved and modern construction, by which libelant’s vessel was injured, held hot due to negligence which rendered respondent liable, but to the entirely unusual violence of the storm which could not reasonably have been anticipated.</p>

<p>INSURANCE &wkey;>446 — Life Policy — “Suicide, Sane ob Insane.”</p> <p>An exception from liability for death by “suicide, sane or insane,” in a life policy includes self-destruction irrespective of the assured’s mental condition at the time of the act.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Suicide, Sane or Insane.]</p>

<p>In Error to the District Court of the United States Cor the Northern Division of the Western District of Washington; Edward E. Cushman, Judge.</p> <p>Action by Estelle M. Blum against the Penn Mutual Life Insurance Company. Judgment for plaintiff, and defendant brings error.</p>

Dickinson, Judge. Libel in rem by H. Baars & Co. and the Export Terminal & Shipping Company against the British steamship Adriatic, and in per-sonam against the owners, W. H. Cockerline & Co., to recover damages. From a decree in favor of the respondents (253 Fed. 489), the libelants appeal.

Dyer, Judge. Action by Jacques Setton, doing business as Jacques Setton & Co., against the Eherle-Albrecht Flour Company, for breach of contract. Judgment for defendant on a directed verdict, and plaintiff brings error.

<p>1. Army and Navy <&wkey;40 — Interference wth Armed Forces'op United States —Offenses.</p> <p>The exhibition of a picture during the existence of the war with Germany, calculated to sow discord between the people of the United States and the British Empire by arousing feelings of indignation by portraying scenes in which British soldiers were depicted during the Revolutionary War as murdering noncombatant Americans, is a violation of Act June 15, 1917, tit. 1, § 3 (Comp. St. 1918, § 10212c), mating it an offense for any person when the United States is at war to willfully cause or attempt to cause insubordination, mutiny, or refusal of duty in the armed forces of the United States, for the depicting of such scenes might, cause insubordination, etc., of armed forces operating in connection with the British.</p> <p>,2. Army and Navy <&wkey;40 — Interference with Armed Forces of United States — Offenses.</p> <p>An indictment, charging that defendant, by the exhibition of a moving picture calculated to cause feelings of indignation against England, violated Act June 15, 1917, tit. 1, § 3 (Comp. St. 1918, § 10212c), making it an offense for any person to cause, or attempt to cause, insubordination, mutiny, or refusal of duty in the armed forces of the United States, held sufficient, in view of the fact that millions of men were being drafted, though it did not aver that soldiers witnessed the exhibition of the picture; it being alleged that the picture was publicly exhibited.</p> <p>3. Army ahu Navy &wkey;>40 — Esiuonage Act — Indictment—Sufficiency.</p> <p>An indictment held to charge a violation of the Espionage Act, in that it alleged that defendant in aid of the German government had control of and was using a motion picture calculated to arouse feelings of enmity between the people of the United States and the British Empire, for the purpose of violating Act June 15, 1917, tit. 1, § 3 (Comp. St. 1918, § 10212c), making it an offense for any person to cause or attempt to cause any insubordination or refusal of duty in the armed forces of the United States.</p>

New Jersey; John Rellstab, Judge. Philip Chass was convicted of violating Act Cong. Eeb. 13, 1913, in feloniously having in his possession certain plush knowing it to have been stolen from an interstate shipment of freight. A new trial was denied, and he brings error.

Sawtelle, Judge. Suit by Hugh Mackay against the Norma Mining Company. From an order confirming a sale under decree of foreclosure, defendant appeals. This is an appeal from an order confirming a sale under a decree of foreclosure of two mortgages. The cause has been before this court before in the case of Norma Mining Company v. Mackay, 241 Fed. 640, 154 O. C. A. 398.

<p>In Error to the District Court of tlie United States for the Western District of -Pennsylvania; Charles P. Orr, Judge.</p> <p>Action by Martha C. Cranston and James Cranston against the Kaufman Department Stores, Incorporated. Judgment for plaintiffs, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the First Division of the Northern District of California; Maurice T. Dooling, Judge.</p> <p>Criminal prosecution by the United States against August Blanc. Judgment of conviction, and defendant brings error.</p>

Chatfield,’ Judge. Suit for collision by the Central Railroad Company of New Jersey against the steam tug North America, William A. Jamison, and others, claimants, with the scow P. R. R. No. 8 and the steam tug Interstate impleaded. Decree against the North America, and her claimant appeals.

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Suit by the Gordon Dry Gin Company, Limited, against John C. Righeimer and John C. Righeimer, a corporation. Decree for defendants, and complainant appeals.</p>

Action by the Blumenstock Bros. Advertising Agency against the Curtis Publishing Company. Judgment of dismissal, and plaintiff brings error. On motion by defendant to dismiss writ of error.

<p>Maritime Liens <&wkey;65 — Repair Work — Evidence. ■</p> <p>Evidence that a boiler was inspected and licensed after being repaired, etc., held to establish that libelant repaired boiler in a workmanlike manner, although it subsequently developed leaks and defects.</p>

<p>1. Patents <&wkey;328 — Validity and Infringement — Combined Jab and Dipper.</p> <p>The Faries patent, No. 779,271, for a jar and dipper for serving crushed fruit, etc., claim 3, held not infringed. Claims 4 and 5 held invalid for Indefiniteness, in view of the prior art.</p> <p>‘2. Patents <&wkey;105 — Measure of Invention-Definiteness of Claims.</p> <p>A patent is sustained, not for what the inventor may have done in effoei, bnt for what is pointed out dearly and distinctly in his claims. As much as is not so claimed belongs to the public.</p>

<p>In Equity. Bill by the Double Fabric Tire Company against the General Tire & Rubber Company.</p>

<p>Wharves @=>16 — Statute—Construction—Government Use of Dry Docks for Vessels “Belonging” to United States.</p> <p>Act Cong. June 19, 1878, granting to libelant a portion of the Et. Mc-Henry reservation on condition that grantee construct a dry dock and afford the United States the right to use the same for examination and repair of vessels “belonging to the United States free from charge of docking,” held, to include a vessel in United States service under a charter amounting to a demise, although being repaired for immediate return to the owner upon leaving the dock; the word “belonging” not meaning absolute and unqualified ownership.</p>

At Law. Action by the Mound Valley Vitrified Brick Company against the Mound Valley Natural Gas & Oil Company and the Bankers' National Development Company. On separate motions of defendants in arrest of judgment and for new trial. Sustained as to the Gas Company, and denied as to the Develpoment Company.

<p>At Law. Action by Earle J. Mardis against Walker D. Hines, •Director General of Railroads, and the Missouri Pacific Railroad Company. On separate demurrer of the Missouri Pacific Railroad Company. Demurrer sustained.</p>

Iti Admiralty. Dibel by one Paramor, master o£ 'the steamship Djerissa against the steamship Newa, to recover damages sustained in collision. Decree for libelant.

At Law. Action by Hatcher &'Snyder, a copartnership composed of J. S. Hatcher and W. A. Snyder, against the Atchison, Topeka & Santa Fé Railway Company. On motion to substitute as defendant the Director General of Railroads and to dismiss as to the Railway Company.

In Admiralty. Two libels, one by L,. A. Outten, master of the Nannie May, against the Royster Guano Company, and the other by the Royster Guano Company against the Nannie May, to recover damages for injury received in collision and for salvage services. Decree for libelants.

<p>Appeal from the Supreme Cpurt of the District of Columbia.</p> <p>Action by Margaret R. Brayshaw against Ida J. Maxwell. Judgment for plaintiff, and defendant appeals.</p>

Landlord and tenant proceeding to recover possession of leased premises by Emma J. Dickens against Roy A. Gilder. Judgment for plaintiff, and defendant appeals.

<p>War &wkey;>4 — Saulsbury Resolution — District or Columbia — Rent Peoit-theeing.</p> <p>Joint resolution of May 31. 1918, relating to rent profiteering in District of Columbia, does not prevent the purchasers of premises subject to a lease from ousting the lessee at the expiration of the lease, irrespective of fact that two of the purchasers were employed by the government, or that, the lessee was caring for persons employed by the government.</p>

<p>War <&wkey;4 — Salisbury Resolution — District op Columbia — Rent Profiteering.</p> <p>Joint Resolution of May 31,1918, relating to rent profiteering in tbe District of Columbia, does not prevent tbe purchaser of premises subject to a lease from- ousting- lessee at termination of lease, although lessee was harboring war workers.</p>

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Landlord and tenant proceeding to recover possession of leased premises by Andrew W. Sparks and Mary Sparks against Albert Biggs. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Suit by the New Arcade Company against Ernest V. Owens. Judgment for defendant on its plea of set-off, and plaintiff appeals.</p>

<p>Appeal from the Commissioner of Patents.</p> <p>Interference proceeding in the Patent Office between Charles E. Derr and James E. Gleason. From a decision by the Commissioner of Patents in favor of Gleason, Derr appeals.</p>

<p>Appeal from the Commissioner of Patents.</p> <p>Interference proceeding in the Patent Office between George L. Ballard and Harry Swinglehurst. From a decision by the Commissioner of Patents in favor of Ballard, Swinglehurst appeals.</p>

<p>Appeal from the.Commissioner of Patents.</p> <p>Patent application by Elihu C. Wilson. From a decision by the Commissioner of Patents, rejecting certain claims, the applicant appeals.</p>

Interference proceeding in the Patent Office between Floyd W. Hart and Orren E. Barber, senior parties, and Adolph Wiig, William J. Braden, and Fee R. Prather, junior parties. From a decision of the Commissioner of Patents in favor of the junior parties, the senior parties appeal.

<p>Appeal from Supreme Court of the District of Columbia.</p> <p>Bill by- the State of New Mexico against Franklin K. Dane, Secretary of the Interior, and Clay Tallman, Commissioner of the General Land Office. Decree for plaintiff, and defendants appeal.</p>

<p>Appeal from the Commissioner of Patents.</p> <p>Interference proceedings in the Patent Office between Arthur S. Dwight and John E. Greenawalt. From a decision by the Commissioner of Patents, both parties appeal.</p>

<p>Appeal from the Commissioner of Patents.</p> <p>Interference proceeding in the Patent Office between Pred S. Ellis and Art Hadley. From a decision by the Commissioner of Patents in favor of Ellis, Hadley appeals.</p>

Interference proceeding in the Patent Office between Leonard A. Young and Charles H. and Harry C. Leonard From a decision of the Commissioner of Patents in favor of Young, the other parties appeal.

<p>Patents &wkey;>91(3) — Interference Proceeding — Evidence of Diligence.</p> <p>Evidence that the junior parties to an interference proceeding were inactive for several months at about the time the senior party entered the field, etc., held, to sustain concurrent decisions by the Patent Office tribunals that such delay constituted a lack of diligence.</p>

<p>Appeal from the Commissioner of Patents.</p> <p>Application by the Dink-Belt Company to register a trade-mark. From a decision by the Commissioner of Patents, refusing registration, the applicant appeals.</p>

<p>Appeal from the Commissioner of Patents.</p> <p>Interference proceeding in the Patent Office between Frederick R. Parker and Edward B. Craft and John N. Reynolds. From an order of the Commissioner of Patents, dissolving the interference proceeding, Parker appeals.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York. Suit in admiralty by the Standard Varnish Works against the steamship Bris; Rederiaktiebolaget, claimant. Decree for claimant, and libelant appeals.</p>

<p>In Error„ to the District Court of the United States for the Eastern District of Wisconsin. Action by the Pusey & Jones Company against the Combined Locks Paper Company. Judgment for plaintiff, and defendant brings error.</p>

Tn Error to the District Court of the United States for the Eastern District of Virginia, at Norfolk; Edmund IVaddill, Jr., Judge. Criminal prosecution by the United States against Samuel Edwards and Lee Edwards. Judgment of conviction, and defendants bring error.

<p>Petition for Writ of Mandamus.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York. Suit in admiralty by Henry Crew and others against the steam tug Morristown; the Delaware, Lackawanna & Western Railroad Company, claimant. Decree for respondent, and libelants appeal.</p>

<p>Appeal from the District Court of the United States for the Eastern District of South Carolina, at Charleston; Henry A. Middleton Smith and Henry G. Connor, Judges. Suit by the Norfolk Bank for Savings &. Trusts against C. S. Whipple. Bill dismissed, and complainant appeals.</p>

Rose, Judge. Suit in admiralty by John Siebert against the Patapsco Ship Ceiling & Stevedore Company and others. Decree for libelant against the first-named respondent, and it appeals.

<p>Suit by Parker Stennick, trustee in bankruptcy of the Hamilton Creek Timber Company and the Rainier Lumber & Shingle Company, against Willard N. Jones, Fred A. Kribs, and the J. K. Lumber Company. From the decree, complainant appealed. On appellant’s motion in respect to the item of $50,000, referred to in the memorandum opinion filed on motions and counter motions for modification of original opinion and decision of this court, and appellees’ motion with respect to costs.</p>

<p>On motion to vacate order for taking depositions.</p>