Volume 259 — Federal Reporter

<p>Appeal from the District Court of the United States for the District of Rhode Island; Arthur L- Brown, Judge.</p> <p>Bill by Arthur E. Munro, trustee, against Fred L. Smith and others. From a decree for defendants (243 Fed. 654), complainant appeals.</p>

Rose, Judge. Suit in admiralty by the State of Maryland, to the use of Franciszka Jakubczak and others, against the Atlantic Transport Company, the steamship Monviso, and others. From the decree, the Atlantic Transport Company appeals.

<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>Habeas corpus by William E. Mikell against F. H. Hines, Major Field Artillery, United States army. Judgment granting writ, and respondent appeals.</p>

<p>In Error to the District Court of the United States for the District of Colorado; Robert E. Lewis, Judge.</p> <p>Criminal prosecution by the United States against Charles W. Huffman. Judgment of conviction, and defendant brings error.</p>

J. Cochran, Judge. Suit in equity by H. J. Zeigler and another against James S. Hopkins and others. Decree for complainants (258 Fed. 467), and defendants appeal. Mrs. Emma Hamilton was (for the purposes of this case) the owner of 50 acres of land in eastern Kentucky, in a region adjoining one where oil and gas had been found. On March 2, 1916, she signed the oil and gas lease set out in the margin.1 The rights of Gibson, the lessee, later passed to Zeigler and Howell.

<p>1. Sales <3=474.(2) — Conditional Sales — Validity as Against Creditors. Although a chattel mortgage in Michigan is invalid as against certain creditors, unless recorded, a conditional contract of sale, which reserves title to the vendor, is valid at the suit of the vendor, even as against similar creditors.</p> <p>2. Bankruptcy <3=184(2) — Conditional Sale — Application of Recording Statute.</p> <p>In view of the contract, whereby petitioner had sold a motor truck to a bankrupt, which required petitioner’s written consent to any resale that might be made by the bankrupt, Acts Micb. 1915, No. 64, providing that, where the property sold is intended for resale by the contract vendee, the instrument must be recorded like a chattel mortgage to protect the vendor, held not to apply to the case.</p> <p>3. Bankruptcy <3=184(2) — Conditional Sale — Character as Such and Not as Mortgage.</p> <p>Contract for sale of motor truck to a bankrupt providing for payment in installments, and that title should remain in the seller as his equity appeared from time to time sufficient to secure him, etc., held not a passing of title with a reserved lien (that is, a chattel mortgage), so that the instrument required recording under the Michigan rule to protect the seller against the bankrupt’s trustee.</p> <p>4. Bankruptcy <3=393 — Filing of Claim — Reclamation Petition — Election.</p> <p>Conditional seller of motor truck to bankrupt, by filing general claim against the bankrupt for the purchase price named in the contract, the indebtedness being claimed only if the seller’s petition to reclaim the motor truck failed, held not to have elected his remedy as against the general assets of the estate.</p> <p><gz=olror other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

C. Westenhaver, Judge. Action by Wallace E. Schambs, trustee in bankruptcy of H. D. Eowler, against the Fidelity & Casualty Company of New York. There was a judgment for defendant, and plaintiff appeals and brings error. Tho bankrupt, Fowler, was a surgeon. He carried with the appellee (hereinafter called the company) a policy of so-called liability insurance, limited to $5,000. An action for malpractice was brought against him by one Rains-ford.

C. Westenhaver, Judge. Action by the New York Central Railroad Company against the Lakewood Engineering Company. There was a judgment for plaintiff, and defendant brings error. The plaintiff in error contracted with the French government to manufacture and sell a quantity of portable railway track, and, in executing the contract, had occasion to ship largo quantities of this material over the road of the defendant in error, to New York, for export.

Tuttle, Judge. Action at law by Max Weintrobe, administrator of the estate of Ruben Gorwitz, against the Detroit United Railway. Judgment for plaintiff, and defendant brings error.

Tuttle, Judge. Action at law by Max Weintrobe, administrator of the estate of Ben Kuidd, deceased, against the Detroit United Railway. To review judgment for plaintiff, defendant brings error.

Petition to Revise an Order of the District Court of the United States for the Western Division of the Southern District of Ohio; John E. Sater, Judge. In the matter of the estate of Joseph Diamond and others, copartners doing business as the Eagle Suit & Skirt Company, bankrupts. On petition of Eli G. Frankenstein, receiver appointed by a state court, to revise an order directing him, as receiver of the bankrupts, to pay money to the trustee in bankruptcy. ” Order affirmed.

Petition to Revise and Appeal from an Order of the District Court of the United States for the Northern District of Ohio; John M. Killits, Judge. Petition by the Board of Road Commissioners of Monroe County, Mich., to revise, and appeal from, an order entered on petition of Edwin D. Keil, trustee in bankruptcy of Garrigan Bros. Company, bankrupt.

<p>1. Continuance <@=>7 — Discretion.</p> <p>The matter of granting a continuance to plaintiff, who was not ready when the case came on for trial, was discretionary with the District Court.</p> <p>2. Equity <§=359 — Right to Dismiss Without Prejudice.</p> <p>Whore no claim has been made for cross-relief, plaintiff has an absolute right to dismiss his bill without prejudice at any time before the case is ripe for decision, if not later, and the expense incurred by defendant in preparing for trial, and the resulting delay, do not alone constitute good cause for refusing such dismissal.</p> <p>3. Courts <§=332 — Change in Practice — Adoption of New Rules — Effect.</p> <p>The Supreme Court, in adopting new equity rules in 1912 (198 Fed. xix, 115 C. C. A. xix), and in thus declining longer to retain the English chancery practice of 1842 as a standard, did not intend to abolish the whole body of federal equity practice which had grown up under the old rule 90 and had become the accepted practice in the Supreme and all inferior courts; the old practice continuing, except as it was changed.</p> <p>4. Equity <§=359 — Right Voluntarily to Dismiss — Case Not Ripe for Decision.</p> <p>Case wherein plaintiff ashed leave to dismiss the bill, without prejudice, which was denied, and the bill dismissed absolutely, hold not within any exception to the rule of right to dismiss without prejudice concerning cases which are ripe for decision and where there is proof before the court to justify dismissal on the merits, so that it is too late for a voluntary dismissal without prejudice.</p> <p>5. Descent and Distribution <§=83 — Rescission of Settlement of Estate— Jurisdiction to Dispose of Equities — Tender Back of Consideration.</p> <p>In an equity suit for rescission of settlement of the estate of plaintiff’s mother, the court in its final decree can properly marshal and dispose of any equities that might exist in connection with any duty on the part of plaintiff to tender the consideration back.</p> <p>6. Descent and Distribution <@=83 — Rescission of Settlement of Estate —Sufficiency of Bill.</p> <p>Bill by a daughter for rescission of a settlement of her mother’s estate held not insufficient on its face, and subject to dismissal on motion for failure to allege any necessary tender back of consideration by the daughter to support the rescission, which, under defendants’ answers, evidently would have been refused.</p> <p>7. Descent and Distribution <S=83 — Settlement Among Heirs — Suit for Rescission — Pleading.</p> <p>In a daughter’s suit to rescind a settlement of her mother’s estate, bill and defendants’ pleadings in opposition held to raise an issue of fact whether or not certain stock was or was not a part of the estate of plaintiff’s mother-, to a trial of which plaintiff was entitled, so that dismissal of the bill, after denial of plaintiff’s motion for leave to dismiss voluntarily without prejudice, was erroneous.</p> <p>8. Equity <§=365 — Dismissal on Merits — Claim of Bad Faith — Refusal to Allow Voluntary Dismissal.</p> <p>Though the circumstances tended to persuade the trial court that plaintiff’s suit for rescission of a settlement of her mother’s estate was not prosecuted in good faith, but vexatiously, in the absence of issue upon or trial of the claim of bad faith, final dismissal of the bill on the merits cannot be supported on such ground; plaintiff having bad prima facie an absolute right to dismiss without prejudice, as she asked leave.</p> <p>(gsal^or other cases see same topic & KláY-NUMBiált m all Key-Numbered Digeste & Indexes</p> <p>9. Appeal and Error <§=>1178(1) — Direction of Order — Equity Case.</p> <p>On a writ of error, an appellate court will direct the entry of the order which should have been made by the trial court on the day when it entered the judgment under review; but on appeal in equity there is no such rigid rule, and the appellate court will direct the order which ought to be made as the situation exists after the mandate goes down.</p> <p>10. Equity <§=>859 — Motion fob Voluntary Dismissal — Delay of Decision to Permit Cross-Claim:.</p> <p>In view of the peculiar facts in a daughter’s suit for rescission of settlement of her mother’s estate, held, that the trial court would have been justified, if such course had appealed to its discretion, in delaying decision of plaintiff’s motion for dismissal without prejudice until defendants might have had opportunity to make any cross-claim if they promptly exercised the privilege.</p>

<p>Internal Revenue <S=>39, 40 — Special Tax on Business — “Carrying on Business op Retail Liquor Dealer.”</p> <p>To subject a person to conviction for violation of Rev. St. § 3242 (Comp. St. § 5965), by “carrying on the business of a * * * retail liquor dealer” without having paid the special tax, a single sale is not sufficient, unless made under circumstances which warrant the inference by the jury that defendant either had liquor on hand, or was ready and able to procure it, for purposes of sale.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Cbimixai, Law <3=5419, 420(3) — Admission of Hearsay Evidence.</p> <p>In a prosecution for carrying on the business of a retail dealer without having paid the special tax therefor, it was prejudicial error to permit the prosecuting witness on direct examination to testify that he undertook to buy liquor from defendant because he had been told that defendant was selling.</p> <p>igmoFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Western District of Tennessee; John E. McCall, Judge.</p> <p>Criminal prosecutions by the United States against E. A. Laughter, against E. A. Laughter and W. Newton Fisher, against Alphonso Rivalto, and against A. L. Anderson. Judgment of conviction in each case, and defendants bring error.</p>

<p>In Error to the District Court of the United States for the Western District of Tennessee; John E. McCall, Judge.</p> <p>CriminaJ prosecution by the United States against Joe Robilio and Louis Robilio. Judgment of conviction, and defendants separately bring error.</p>

<p>In Error to the District Court of the United States for the Western District of Tennessee; John E. McCall, Judge.</p> <p>Criminal prosecutions by the United States against Richard D. Turner and against Tom Nesbit. Judgments of conviction, and defendants bring error.</p>

<p>Intoxicating Liquors @=236(1) — Interstate Commerce — Transportation oe Liquor into Prohibition State.</p> <p>Proof that defendants loaded liquor into an automobile in Mississippi, and had carried it across into Tennessee, along the highway to Memphis, when arrested, Held sufficient to sustain a conviction for violation of the Reed Amendment, although in following the road they were about to cross the line again into Mississippi; there being evidence to warrant a finding that their intended destination was Memphis.</p> <p><gx^>For other cases see same topic & KEY-NUMBER, in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Eastern District of Kentucky.</p> <p>Suit in equity by Elihu Mosley and another against the Kentucky Coal Lands Company. - Decree for defendant, and complainants appeal.</p> <p>This is a bill to remove a cloud from title to real estate, and it presents problems-concerning the character, extent, and effect of possession of lands in Kentucky. The title of Mosley, plaintiff below, was based wholly upon adverse possession; the District Court thought it not sufficiently made out, and dismissed the bill, and Mosley appeals.</p> <p>■ The Kentucky statutory period of adverse possession necessary to make title is 15 years. This suit was commenced in 1911. In February, 1882, Lucy iRoberts made a deed to Henry Mosley. She had no title or color of title to the described premises (except as to certain parcels thereof). Henry Mosley moved upon the premises, built a house, and occupied them until his death in December, 1883. He left .a wife and several sons and daughters, who continued the same occupation. Elihu Mosley, a son, purchased the interests of his coheirs (excepting that of one sister, who joined with him as plaintiff), continued the occupation, and brought this suit.</p> <p>The defendant claims under two patents, one of which was issued to William Mattingly, for 100 acres, in 1846, and overlaps and includes the northwesterly part of the tract said to be described by the Roberts-Mosley deed, and the other of which was issued to William Sizemore, for 50 acres, in 1885, and overlaps the southwesterly part of the deeded tract. The questions involved can be better understood by reference to the sketch map here reproduced, showing approximately the relative location of the chief natural objects and lines involved. Muncey’s creek, flowing north and then east, enters the Middle fork of the Kentucky river. About half a mile up the creek, we find a high ridge at right angles to the creek, and which, with, a break where the creek comes through, continues east until it joins the ridge between the creek and the river. Going up the creek from the mouth, and before reaching this ridge, there are two branches on the right and one small one on the left. The ridges which mark the watershed of all these branches, taken in connection with the cross-over ridge just mentioned and the ridge between the river and the creek, make a fairly continuous line of ridges in the approximate form of a horseshoe, closed at the mouth by the river and including about 400 acres; and this is the boundary now claimed by Mosley to be that described in the Roberts deed. The heavy black line indicates the summit of the ridges just recited. True, these natural objects do not form so obvious an inelosure as might be thought if the description went no further, because it includes other ridges among the two branches, because the cross-over ridge is not continuous, but is broken into fan-shaped spurs on both sides of the creek, and because the line F G departs from the main ridge. For 50 years before Mosley took his conveyance, Lucy Roberts’ father, Bowlin, and she and her first husband, Godsey, and she and her second husband, Roberts, had lived upon the bottom lands along the creek or the mouth of these branches, with houses in three different locations, and with a considerable acreage of lands under fence and under cultivation. Henry Mosley and his children continued and extended this occupation, and, for more than 15 years before the suit commenced, had actually occupied, with buildings or cultivation, probably 50 acres. For the whole 80 years before suit commenced, no one other than the Bowlin, Roberts, and Mosley families had ever lived within this external boundary or had any actual possession of any part thereof, excepting that Thomas North, a predecessor of defendant, under the Mattingly grant, had lived thereon for a few years prior to 1864, at which date he permanently moved away, and excepting — if they be exceptions — running of lines and cutting of timber.</p> <p> </p> <p>The greater part of the actual occupation by the Mosleys and their predecessors was within the lines'of a patent to Robert Pace, about simultaneous with that to Mattingly. There is no direct proof that this Pace patent belonged to Lucy Roberts or her predecessors in occupancy; and, if it were a controlling question, we should have to decide whether certain facts indicating such occupancy by her under the Pace patent were sufficient to support a conclusion to that effect. However, for the purposes of this opinion and without intending any decision 'thereon, we assume that it must be considered that when Mosley entered under the Roberts deed, he took a good title to so much of the boundary as was covered by the .Pace patent, and no paper title to the part outside of that patent. The sole question involved in this suit is whether Mosley’s actual possession within his deeded boundary operated to give him that constructive possession to the limits of the boundary which is, under the law of Kentucky as well as other states generally, finally sufficient to overcome a better paper title. It is the settled rule in Kentucky that when the alleged disseisor, with color, has good title to part of his described tract and none to the remainder, such actual possession as he takes within the limits of his good title, will' be referred to that title only, and that outside of such limits he can prevail against an adverse title only by depending upon actual possession within the interference or overlap between such adverse title and that part of his own entire claim which is only color and not title. We, therefore, assume that Mosley can prevail against defendant only by virtue of his actual possession outside of the Pace patent.1</p>

<p>In Error to the District Court of the United States for the Eastern-District of Kentucky. '</p> <p>Action at law by the Kentucky Coal Lands Company against the Mineral Development Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Judgment <§=654 — Suit to Remove Cloud on Title — Dismissal on Merits —Implied Holding of Possession.</p> <p>Dismissal on the merits of a bill to remove cloud from title must be taken as an implied holding that plaintiffs’ possession, essential to maintenance of the hill, had been sufficiently made out; as otherwise dismissal should be for want of possession, without prejudice.</p> <p>2. Quieting Title <@=.12(1) — Necessity of Possession.</p> <p>Under the federal equity practice, as well as Under Act Ky. July 3, 1893 (Ky. St. § 11), bill to remove cloud or to quiet title cannot be maintained without proof of possession.</p> <p>3. Quieting Title <§=12(7) — Actual Possession — How Shown.</p> <p>Under the Kentucky rule, to constitute actual possession of land one need not have a crop on it or a person living in a house, hut, if he has an inclosure on it, such possession may be shown by any acts indicating his intention to hold exclusive possession of it.</p> <p>4. Quieting Title <§=12(7) — Actual Possession — Sufficiency of Showing.</p> <p>Plaintiffs at time of filing bill to remove cloud on title must, for the purpose of maintaining suit, be deemed to have been in actual possession of all the land within their inclosure, which was intact, though their tenant had left a few months before, after gathering his crop, and they had put no new tenant in possession; they not having affirmatively indicated intention to abandon possession, the time elapsing since the former tenant had left not warranting a presumption of abandonment, and they in their bill asserting possession.</p> <p>5. Quieting Title <§=12(7) — Possession, Actual and Constructive.</p> <p>In ihe absence of conflicting possession, actual possession by plaintiff in suit to remove cloud of part of the land in controversy under their deed, with claim of title to the extent of its boundaries, operates as constructive possession of the remainder; the two being sufficient for maintenance of the bill.</p> <p>6. Judgment <§=675(1) — Persons Concluded — Estoppel—Assuming Defense,</p> <p>One is not estopped by judgment by assuming defense of the suit, his action in that regard not being open and known to plaintiff.</p> <p>7. Judgment <§=675(2) — Persons Concluded — Estoppel—Unauthorized Answer.</p> <p>R., grantee by unrecorded deed from A., was not estopped by judgment for plaintiff in action against A. to quiet title with warning order against R., resident of another state, though A.’s attorney without authority and unknown to R. filed answer In name of R. as well as A.; the general attorneys of R. having objected and been assured answer in R.’s name would be withdrawn, though not having seen to the carrying out of the promise, which was not done.</p> <p>8. Boundaries <§=3(3) — Calls—Course and Distance — Extended Natural Object.</p> <p>Departure from courses and distances required to yield to a call for an extended natural object should not be greater than is reasonably necessary, and, the distance called for being exhausted, a slight and immaterial variation from the prescribed course, whereby the nearest point in the natural object can he reached, should be made, rather than to follow the course precisely and reach the natural object at a much greater distance.</p> <p><©s»For other cases see same xopic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>9. Boundaries <©=337(3) — Relocation—Evidence.</p> <p>Under evidence in suit to remove cloud from title, held, that a surveyor’s location of the patent, under which defendants claimed, carried out, generally, the intent of the original surveyor, the cardinal object of inquiry.</p> <p>10. Quieting Title <@=10(2) — Showing Ownership.</p> <p>Under the Kentucky statutes, plaintiff in bill to quiet title to succeed must prove ownership in himself; any weakness of defendant’s title not being enough.</p>

<p>1. Master and Servant <§=>280(33) — Employers’ Liability Act — Negligence.</p> <p>In action under Employers’ Liability Act (Comp. St. §§ 8657-8665), evidence that plaintiff switch tender was injured by a freight engine just after passing through a string of cars which, contrary to a posted rule, etc., obstructed his passageway, made defendant’s negligence in not providing a safe passageway, a jury question.</p> <p>2. Negligence <§=5103, — Employers’ Liability Act — Contributory Negligence.</p> <p>In action under the Employers’ Liability Act (Comp. St. §§ 8657-8665), plaintiff’s contributory negligence does not defeat his cause of action, but only decreases the damages.</p> <p>3. Master and Servant <§=>286(33) — Employers’ Liability Act — Jury Question.</p> <p>In action under Employers’ Liability Act (Comp. St. §§ 8657-8665), evidence that a freight engine was unexpectedly operated without warning on a track next to which stood a string of cars through which it was known plaintiff switeh tender would have to pass to perform his duties, held to make defendant’s negligence in so operating the freight engine a jury question.</p> <p>4. Master and Servant <§=5137(6) — Employers’ Liability Act — Negligence.</p> <p>Ordinarily it is not negligent for a switching engine in a railroad yard not to give warning by bell or whistle to employés familiar with the operation of the yard.</p> <p>5. Master and Servant <§=>286(33) — Employers’ Liability Act — Jury Question.</p> <p>In such case, evidence held to make defendant’s negligence, in not keeping a lookout on the engine, a jury question.</p> <p>6..Master and Servant <§=>217(29) — Employers’ Liability Act — Assumption oe Risk.</p> <p>Ad employé does not assume a risk due to the negligence of his fellow employes, unless he is aware of it, or the risk is so obvious that an ordi- • narily prudent person would know and appreciate it.</p> <p>7. Master and Servant <§=>288(3) — Employers’ Liability Act — Assumption op Risk.</p> <p>In action under Employers’ 'Liability Act (Comp. St §§ 8657-8665), evidence that plaintiff switeh tender was injured by a freight engine just after passing between a string of cars which obstructed his passageway, • etc., held to make his assumption of risk a jury question.</p> <p>8. Master and Servant <§=>289(30) — Employers’ Liability Act — Contributory Negligence.</p> <p>In action under Employers’ Liability Act (Comp. St. §§ 8657-8665), evidence that plaintiff switch tender was hit by a freight engine just after passing between a string of cars which obstructed his passageway, etc., made his contributory negligence a jury question.</p> <p>^soFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Action by Cornelius Sharkey against the Central Railroad Company of New Jersey. Judgment for plaintiff, and defendant brings error. The action is brought under the federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Sfcat. 65 [Comp.

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Action by Joseph H. Sampliner against the Motion Picture Patents Company and others. A judgment for defendants (243 Fed. 277) was affirmed (255 Fed. 242,-C. C. A.-).</p>

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Action by Sigrid Gustava Nelson, administratrix of Gustave Adolph Nelson, deceased, against the Pennsylvania Railroad Company. Judgment for plaintiff, and defendant brings error.</p> <p>The plaintiff in error, defendant below, is hereinafter referred to as defendant. The defendant is a corporation organized and existing under the laws of the state of Pennsylvania, and is an interstate commerce railroad, which, it is alleged, operates in the states of New York. New Jersey, and Pennsylvania, and in connection with its railroad operations it maintains a freight yard in jersey City and car floats upon which cars are transported to and from the states of New York and New Jersey.</p> <p>The defendant in error, plaintiff below, is hereinafter referred to as plaintiff. The plaintiff is the widow and administratrix of her husband, who was employed by defendant as a conductor of freight trains, and, at the time of his death, was engaged in interstate commerce.</p> <p>The plaintiff’s intestate received the injuries from which he died on October 31, 1917, while he was engaged in loading cars upon a float in the defendant’s yard in Jersey City. It .is alleged that the injuries were due to defendant’s negligence in failing to furnish the deceased with a reasonably safe place in wbicb to work.</p> <p>The jury returned a verdict in favor of the plaintiff in the sum of §12,273.</p>

Rose, Judge. Action by the State of Maryland, to the use of John C. Pantley and Anielia H. Pantley, against the Philadelphia, Baltimore & Washington Railroad Company. Judgment for plaintiff, and defendant brings error.

<p>1. Navigable Waters <g==>20<(2) — Bridges—Approval by Government — Obstruction to Navigation.</p> <p>The official approval by the government of the construction of a bridge is conclusive that the bridge was a lawful structure, though it interfered with navigation.</p> <p>2. Shipping <@=»81(2) — Injuries to Bridge — Duty op Vessel.</p> <p>Where a bridge over a navigable river was a lawful structure, though it obstructed navigation, a vessel must approach it with reasonable skill and care to avoid injuring it, having in view the difficulty and peril occasioned by the bridge itself, but need not guarantee its safety.</p> <p><§zz>For other cases see same topic & KBY-NUMDBR in all Key-Numbered Digests & Indexes</p> <p>3. Shipping <§=386(2) — Injuries to Bridge — Presumption of Negligence.</p> <p>Where a moving vessel collided with a drawbridge, there is a presumption of negligence on the part of the vessel; but that, presumption may be rebutted by proof that the course taken by the navigator in the emergency caused by the location of the bridge was prudent and skillful.</p> <p>4. Shipping <§=>86(2) — Injury to Bridge — Negligence of Vessel.</p> <p>Where a collision occurred between a vessel in tow of a tug and a drawbridge, which, though lawful, was constructed diagonally across the channel, so as to allow very little room for passing vessels, evidence held not to show that the vessel approached_the bridge on a flood tide, or that it was negligent navigation of the vessel to attempt to turn to port, instead of immediately anchoring, after she began to sheer to starboard when passing close to shoals near the bridge, as she was compelled to do to pass through the draw.</p> <p>5. Shipping <§=S1(2) — Injury to Bridge — Care Required.</p> <p>In an emergency created by a sudden sheer of a vessel when approaching a drawbridge, navigator was responsible for reasonable care, not the highest degree of skill and care.</p> <p>6. Shipping <§=>81{1) — Liability of Vessel — Negligence of Pilot.</p> <p>A vessel is liable for the negligence of a mere pilot, even when employed under the compulsion of law.</p> <p>7. Towage <§=319 — Liability of Vessel — Negligence of Contractor.</p> <p>Where a vessel had contracted with a towing company to he towed to dock, and at the time of a collision with a drawbridge was navigated by the master of the tugboat, whose orders were transferred to the crew by the vessel’s master, negligence in navigation of the vessel was negligence of an independent contractor, for which the vessel is not liable.</p>

Action at law by William M. Collins against the Erie Railroad Company. Judgment for plaintiff, and defendant brings error. The action is brought under the federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [Comp. St. §§• 8657-8665]) to recover damages for personal injuries which defendant in error, hereinafter called plaintiff, is alleged to have suffered because of the negligence of the plaintiff in error, hereinafter called defendant.

Action by Antoni Szary against the Erie Railroad Company. To review a judgment for plaintiff, defendant brings error. The action is brought under the federal Employers’ I,¡ability Act, being Act April 22, 1908, c. 149, 35 Stat. 65, amended by Act April 5, 1910, c. 143, 36 Stat. 291 (Comp. St. §§ 8657-8665). The defendant in error, who was plaintiff below, is hereinafter referred to as plaintiff. The plaintiff in error, defendant below, is hereinafter referred to as defendant.

Petition to Review and Revise Order of the District Court of the United States for the Eastern Division of the Northern District of Illinois. In the matter of Louis Glass and another, bankrupts. Petition of J. M.' Hoyt, C. B. Little, and L. A. Stebbins, trustees, to review an order in favor of William Zibell, ancillary receiver.

<p>1. War <0=4 — Espionage Act — Intent—“Support”—“Favor” ob “Oppose.”</p> <p>Under Espionage Act, § 3, as amended by Act May 19, 1918, § 1 (Comp. St. 1918, § 10212c), declaring a punishment for, by word or act, supporting or favoring the cause of any country with which the United States is at war, or opposing the cause of the .United States therein, intent is a part of the offense; mental attitude being implied in the words “support,” “favor,” and “oppose.”</p> <p>FEd. Note. — For other definitions, see Words and Phrases, First and Second Series, Favor Support; First Series, Oppose.]</p> <p>2. "War <0=4 — Alleging Intmnt — Espionage Act.</p> <p>The offense under Espionage Act, § 3, as amended by Act May 16, 1918, § 1 (Comp. St. 1918, § 10212c), of by word or act supporting or favoring the cause of a country with which the United States is at war, or opposing the cause of the United States therein, being one whose definition necessarily includes intent, indictment therefor need not allege intent, but only the acts done.</p> <p>3. Criminal Law <@=371(1) — Evidence—Intent.</p> <p>Intent being part of the offense, evidence of other acts or words of defendant than those charged are admissible to show his attitude of mind and intent or purpose.</p> <p>4. Criminal Law <0=786(3) — Instructions—Interest of Defendant.</p> <p>Instruction that the interest of defendant in the result should be considered in weighing his testimony, and in determining how far, or to what extent, if at all, it is worthy of credit, is proper.</p> <p>©=For other cases see same topic & KEY-NUMBElt in all Key-Numbered Digests & Indexes</p> <p>5. Criminal Law @=757(1) — Instruction—Credibility of State Witnesses.</p> <p>Instruction that the court sees no reason why the government witnesses should not be believed, but telling the jury that they are the exclusive judges as to the credibility of witnesses and the weight of the evidence and of the facts, does not go beyond the rule of permissible comment in a federal court.</p>

<p>In Error to the District Court of the United States for the Northern Division of the Southern District of Illinois.</p> <p>Criminal prosecution by the United States against Charles H. Kammann. Judgment of conviction, and defendant brings' error.</p>

<p>In Error to the District Court of the United States for the Western District of Tennessee; John E. McCall, Judge.</p> <p>Tom Bishop was convicted of transporting liquor into a prohibition state, and brings error.</p>

<p>Appeal .from the Supreme .Court of Porto Rico.</p> <p>Unlawful detention action by Teresa Lopez against the Central Vannina. A judgment for defendant was reversed by the Porto Rico Supreme Court, and defendant appeals.</p>

<p>Railroads <$==>350(13) — Action for Injury at Crossing — Contributory Negligence.</p> <p>In an action for injury to a passenger on an auto truck, struck by a train at a railroad crossing, evidence hold not to justify direction of a verdict for defendant on tbe ground of contributory negligence.</p> <p><§c»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Trippet, Judge. Charles Berry was convicted of perjury, and he brings error. The plaintiff in error was convicted upon an Indictment charging him with perjury in making an affidavit.

<p>In Error to the District Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge.</p> <p>.Action at law'by Mrs. Susie McC. Emerson against the S. S. Kresge Company. Judgment for defendant, and plaintiff brings error.</p>

<p>In Error to the District Court of the United States for the Western District of Tennessee; John E. McCall, Judge.</p> <p>Bob Berryman, Sam Gold, and J. B. Tucker were convicted of violating the Reed Amendment, and they, severally bring error.</p>

<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 at law by Thomas Cronopolous against the Pennsylvania Company. Judgment for defendant, and plaintiff brings error.</p> <p>In the court below a verdict was instructed in favor of the defendant company in the action which Cronopolous had brought against it to recover his damages for injuries from one of the company’s locomotives. Through some injury to a car or a package, potatoes, which were being transported by the railroad company, had been scattered on the ground alongside of, and perhaps between the rails of, one of its tracks along its private right of way in the city of Canton and in the interval between two streets which crossed the right of way at right angles. In the early evening, but after dark, Cronopolous and a companion were engaged in picking up these potatoes. While they were so engaged and were alongside the track, one of defendant’s yard engines came up in some switching operation; it was pushing four cars and pulling four. Two men on the engine, presumably the defendant’s engineer and fireman, saw and spoke to the two men picking up potatoes. Cronopolous filled the basket and went home with it. He came back after more, and then his companion went home with another basketful, intending to empty it and return. While thus alone, and between or near the rails, and facing west as he was picking up potatoes and progressing in that direction, Cronopolous was struck by freight cars coming from the east making a flying switch, and which approached without light or warning.</p>

<p>In Error to the District Court of the United States for the Western District of Louisiana; Rufus E. Foster, Judge.</p> <p>Action by Stacy & Braun and others against the Parish of Natchitoches. Judgment for defendant, and plaintiffs bring error.</p>

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

McCall, Judge. Sid Mayer and Joe Pérsica were convicted of engaging in the retail liquor business without having paid tax, and they bring error.

<p>1. Bankruptcy <@=351 — Partnership—-Creditors op Partners.</p> <p>Where a bankrupt is a partnership, the members or some of the members of which are themselves partnerships, the creditors of such a constituent firm are entitled to have their debts' first paid out of its assets before creditors of the bankrupt partnership may participate therein.</p> <p>2. Bankruptcy <@=309 — Partnership—Claims Provable Against Partnership and Individual Estates.</p> <p>A creditor, who holds a note of a bankrupt firm upon which a partner has, as joint maker, surety, or indorser, made himself individually liable, is entitled to prove his claim against both the partnership and individual estate.</p> <p><@s»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Evidence <s=>37 — Laws of Republic of Panama — Necessity of Proving.</p> <p>In an action for an injury occurring in the republic of Panama, refusal to direct a verdict for defendant on the ground that no evidence was introduced of the law of Panama held error.</p> <p><©=s>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>2. Appeal and Error <@=1060(3) — Improper Argument of Counsel — Duty of Court.</p> <p>Argument of counsel for a plaintiff to the jury, made with the approval of the court, commenting on the result of a former trial, the poverty of plaintiff, the wealth of defendant, and other matters which could not properly be shown in the case, held prejudicial error.</p>

<p>Post Office <§=>35 — Use of Mails to Defkatjd.</p> <p>One using letters to induce shipments of produce, with the purpose of converting the proceeds, was guilty of a “fraudulent use of the mails,” under Rev. St. § 5480, as amended, hy the adoption of the Criminal Code, March 4, 1909 (section 215 [Comp. St. § 10385]), although the letters useu stated, “You can ship them B. L. attached if you want to, or I will send you check as soon as they come in;” it not being necessary, to render one guilty of such offense, that the letters used disclose a fraud.</p> <p><©cs>For other cases see same topic & K13Y-NUMBEK in all Key-Numbered Digests & Indexes</p>

Suit by Arthur V. Hinman, Ralph R. Hinman, and the Hinman Milking Machine Company, against the Starch Brothers Company. Decree for complainants, and defendant appeals. The appeal is from a decree of the District Court finding valid and infringed four claims of appellees’ reissue patent No. 13,876 for improvements in cow milking machines.

<p>Cross-Appeals from the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Suit by the Hutchins Car Roofing Company against the Standard Railway Equipment Company, the Western Steel Car & Foundry Company, the Union Pacific Company, and the P. H. Murphy Company, with cross-bill by the Murphy Company. From the decree, both parties appeal.</p> <p>Cross-appeals from decree dismissing plaintiff’s bill seeking an injunction to restrain appellees from infringing patent No. 1,058,989, to Latta & Thompson, and also dismissing cross-bill of P. H. Murphy Company, in which an injunction was sought to restrain appellant from infringing Souder patent, No. 763,438, and Murphy patent, No. 946,823.</p>

Hollister, Judge. Suit by Boniface Hehle against the Hudepohl Brewing Company and another. From interlocutory decree for injunction and accounting, defendants appeal.

<p>Appeal from the District Court of the United States for the Southern Division of the Western District of Michigan; Clarence W. Sessions, Judge.</p> <p>Suit by the Marshall Ventilated Mattress Company against the D’Arcy Spring Company and others. Erom a decree for complainant, defendants appeal.</p>

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Ohio; D. C. Westenhaver, Judge. _</p> <p>_ Suit in equity by the Southern Textile Machinery Company against the Day Stocking Company. From a decree dismissing the bill, plaintiff appeals.</p>

<p>1. Patents @=>211(2) — Licensing Agreement — Cancellation.</p> <p>Licensee to manufacture and sell a patented scale held to have effectively canceled its contract with the owner of the patent, under a clause of the contract between them entitling it to do so if the scale failed to be commercially successful to its satisfaction, though its notice was that it considered the device so inoperative or defective as to entitle it to cancellation, a reason which seemed primarily to rest on another clause of the contract.</p> <p>2. Estoppel @=>95 — Cancellation oe Contract.</p> <p>If the owner of a patent knew that his licensee deemed the contract between them ended not later than the end of a royalty period to which his suit for royalties was directed, and realized that a demand by him for royalties would bring a cancellation by the licensee under another clause of the contract, and nevertheless kept silent for the longest period permitted by the statute of limitations, he would be estopped to insist that there had been no effecual cancellation by the licensee.</p> <p>3. Patents @=>211(2) — Licensing Agreement — Construction,</p> <p>Where the contract, whereby the owner of a patent licensed manufacture and sale, gave the licensee right to cancel if the device failed “to be commercially successful to the satisfaction” of the licensee, there was no necessary intent that commercial success could be decided only by actual manufacture and commercial sale, the reasonable meaning being that, if the licensee found itself not satisfied within the time limit specified that the device would be a commercial success, it might cancel.</p> <p>4. Patents @=>219(5) — Licensing Agreement — Cancellation for Lack of Satisfaction — Evidence.</p> <p>In an action for royalties due under an agreement licensing the manufacture a'nd sale of a patented scale, evidence held insufficient to show that defendant licensee was in fact satisfied with the scale as commercially practicable, but only pretended not to be, acting in bad faith and to injure the patent, when it exercised its right to cancel the agreement, under a clause permitting such action if the scale was not commercially successful to its satisfaction.</p> <p><gz^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Sater, Judge. Suit in equity for infringement of patent by the Dunn Wire-Cut Dug Brick Company against the Toronto Fire Clay Company and others. From decree dismissing the bill, plaintiff appeals.

<p>In Error to the District Court of the United States for the Northern Division of the Western District of Michigan; Clarence W. Sessions, Judge.</p> <p>Action by Franck-Philipson & Co. against the Bird’s-Fye Veneer Company. There was a judgment for plaintiff, and defendant brings error.</p>

<p>1. Patents <@=>312(2) — Accounting fob Infringement — Evidence of Royalties.</p> <p>In an accounting for infringement of patent, in determining what is a reasonable royalty for infringing sales, evidence of royalty on another patent would have no bearing.</p> <p>2. Patents <@=>318(1) — Accounting foe Infringement — Damages.</p> <p>To entitle a complainant to recover damages from an infringer, when there is no evidence of an established or a reasonable royalty, it must show that it would probably have made the sales made by defendant but for the infringement, and the profits it would have made thereon.</p> <p>3. Patents- <@=>318(6) — Accounting fob Infringement — Profits.</p> <p>Where the net profits made by the manufacture of an infringing article are shown, but such articles also infringed another patent, for which defendant was compelled to pay, a reasonable royalty for the use of the latter patent, the burden of showing which is on defendant, should be deducted, and the remaining profits are recoverable by complainant.</p>

<p>1. Patents <§=328 — Validity and Infringement — Feed Gearing.</p> <p>The Perrine patent, No. 1,029,313, for a feed gearing for use on lathes, hold valid and infringed.</p> <p>2. Patents <§=16 — Invention—Measure op Advance in the Art.</p> <p>Invention cannot be made to depend upon the length of the advancing step in the art: but if the step he an advance, and the means by which the advance is made are new and beyond the conception of a mechanic trained in the art, invention must be recognized.</p> <p><§£xsFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests. & Indexes</p>

<p>1. Patents <§=>167(1) — Validity of Or,aim — Limitation.</p> <p>A patent claim may he limited by reference to the specifications.</p> <p>2. Patents <§=>328 — Validity—Bifocal Lens.</p> <p>The Connor machine patent, No. 836,486, claim 1, for making bifocal lenses, as limited by its reference to tbe specifications, is not invalid because too broad.</p> <p>3. Patents <§=>328 — Infringement—Making Bifocal Lens.</p> <p>The Connor machine patent, No. 836,486, claim 1, for making bifocal lenses, held infringed.</p> <p>4. Patents <§=>328 — Validity—Anticipation.</p> <p>The Connor machine patent, No. 836,486, claim 1, for producing bifocal lenses, is not anticipated by grinding machines in remote arts, such as grinding buttons, since more than mechanical skill was required to apply the grinding process to lenses.</p> <p><gs»For other cases see same topic & KEY-NUMBER in all-Key-Numbered Digests & Indexes</p>

<p>' 1. Patents <§rm327 — Precedents—Decision of Circuit Court of Appeals.</p> <p>A decision of a Circuit Court of Appeals on tire validity ol: a patent should, in the interest of uniformity of federal decisions; be accepted and followed by a District Court of another district, where the same patent is involved, unless evidence is presented that is essentially different and persuasive of an opposite conclusion.</p> <p>2. Patents <®=x>328 — Validity—Novelty.</p> <p>The Adt patent, No. 1,040,094, claim 12, and reissue patent No. 13,466, claims 28 and 50, etc., as well as patents No. 1,040,096, claims 5 and 18, and No. 1,178,912, all relating to eyeglass mountings, held in view of the prior art, invalid for want of novelty and invention.</p> <p>S. Patents <®=>178 — Mechanical Equivalents.</p> <p>The patent law does not permit an inventor to arrange the various parts to cover the entire idea, and thus exclude mechanical equivalency and the results accomplished.</p> <p><@=mFor otter cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Patents <@=227 — Inf-ringement—What Constitutes.</p> <p>If a machine be capable of such adjustment that it will infringe an earlier patent, and if that adjustment he something which would be advantageous and within the manipulation of an ordinary workman in setting up and operating the machine, the machine is an infringement, irrespective of intention not to infringe.</p> <p>2. Patents <§=226 — Infringement-Injunction.</p> <p>Where a machine is capable of infringing a patent, an injunction restraining the infringement will issue, although it had not been previously used so as to cause injury.</p> <p>3. Patents <@=328 — Infringement—What Constitutes.</p> <p>The Langston patent, No. 1,179,941, claims 6, 16, and 17, for a machine for making double-faced corrugated paper, including means for applying a second facing sheet to a corrugated sheet which has a facing sheet upon the opposite surface, held infringed as to the two latter claims, but not as to claim 6, by machines constructed as a modification of the machine described in the Raffel patent, No. 1,189,737, and designed for making corrugated paper.</p> <p>^z5>For other cases see same topic & KEY-NUMBER in ^11 Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by Joseph J. O’Reilly against the Benjamin Harris Company, Incorporated.</p>

In Equity. Suit by Samuel Sternberger against the Continental Mines, Power & Reduction Company and another, to establish water rights, and for an injunction. Complainant having died, the suit was revived in the name of Leopold Sternberger as his administrator. On motion to dismiss, and to vacate the order of revivor.

<p>t. Shipping <@=>104 — Breach of Contract of Affreightment — Defenses.</p> <p>In a suit for breach of contract to carry cargo, respondent cannot defend on the ground of vis major, of which there is no proof, merely because libelant claimed it in excuse of his breach of contract with the consignee.</p> <p>2. Shipping <@=>104 — Breach of Contract of Affreightment — Defenses.</p> <p>Where the defense pleaded in a suit for breach of a contract to carry ' cargo is a denial of the breach, respondent will not ordinarily be allowed to change his ground to excuse the breach.</p> <p><$s»For other cases see same topic & KEY-NUMBER in all Key-Numhered Digests & Indexes</p>

In Admiralty. Libel by Luis Maresco, master, against the steamship Irishman, to recover for damages sustained by the vessel, of which libelant was master, in a collision.

<p>1. Admiralty <@=20 — Jurisdiction—Torts—Personal Injuries.</p> <p>A" servant’s personal injuries, occurring not only on navigable waters, but while libelant was at work on a vessel, constitute a maritime tort, of which the admiralty court has jurisdiction.</p> <p>2; Admiralty <@=20 — Jurisdiction—Personal Injuries — State Laws not • Exclusive Remedy.</p> <p>As the federal courts, under Act Oct. 6, 1917 (Comp. St. 1918, §§ 991 [3], 1233), have cognizance of all civil causes of admiralty and maritime jurisdiction, exclusive of the state courts, saving to suitors the common-law remedies, and the rights and remedies under the Workmen’s Compensation</p> <p>Act of any state, if they elect to pursue them, the remedy under the Oregon Compensation Act as amended is not exclusive, and the federal courts must administer maritime law unaffected by state statutes.</p> <p>3. Admiralty <@=20 — Maritime Torts — Liability Measured by Federal and Not State Law.</p> <p>Where an employé seeks redress for a maritime ■ tort in an admiralty court, either in rem or in personam, the rights, obligations, and liabilities of the respective parties must be measured by the maritime law, as provided by Congress, or the' general principles thereof, and the right cannot be barred, enlarged, or taken away by state legislatioh.</p> <p>ifessFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Contracts <S=>137(1) — Actions—Imegal Provisions.</p> <p>A party may be relieved from a contract containing illegal provisions, but if he accepts the contract and' retains the consideration he has a right to be relieved only from the amount of damage caused by the illegal provisions.</p> <p><gx^>For other e^s<*s see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Bankruptcy. In the matter of Otto Braun, bankrupt. Sur rule to show cause why respondents should not be held in contempt of court.

<p>In Equity. Suit by the International Fastener Company against the Francis Manufacturing Company. On motion to remand to state court.</p>

<p>1. Bankruptcy ©=>372 — Reopening Closed Estate — Petitioners—Creditors.</p> <p>For the purpose of petitioning for reopening, under Bankruptcy Act, July 1,1898, § 2, cl. 8 (Comp. St. §'9586), a closed bankrupt estate, as haying been closed before being fully administered, persons who were creditors of the estate before bankrupt’s discharge are still such.</p> <p>2. Bankruptcy ©=>372 — Reopening Closed Estate — Notice.</p> <p>As order, under Bankruptcy Act July 1, 1898, § 2, cl. 8 (Comp. St. § 9586), to reopen closed bankrupt estate as closed before fully administered, is limited to distribution purposes, it in no way affects bankrupt, and so need not be on notice to him.</p> <p>3. Courts ©=>508(2) — Restraining Order — Notice.</p> <p>A restraining order in a proceeding in bankruptcy is not within the provisions of Judicial Code, § 265 (Comp. St. § 1242), limiting the granting of injunction by a federal court to stay proceedings in a state court, nor within the scope of equity rule 73 (198 Fed. xxxix, 115 C. C. A. xxxix), requiring preliminary injunction and temporary restraining order to be on notice..</p> <p>4. Injunction ©=>167 — Restraining Order — Motion to Vacate.</p> <p>A motion to vacate or modify a restraining order is one which the court will always entertain.</p> <p>5. Bankruptcy ©=>372 — Reopening Closed Estate — Restraining Order— Vacation.</p> <p>Merely because a restraining order, in connection with an order reopening a closed bankrupt estate as having been closed before being fully administered, was made without notice to bankrupt, he is not entitled to have it vacated; the property to be affected belonging, on the face of the proceedings, to the estate, and bankrupt not averring an interest therein, but repudiating all claim thereto.</p> <p><§z^For other cases see same topic & KEY-NUMBER, in all Key-Numbered Digests & Indexes</p>

<p>In Bankruptcy. In the matter of Abraham Levy, individually and trading as A. Levy & Co., bankrupt. On certificate of review of order of referee.</p>

In Admiralty. Suit by the Interstate Lighterage & Transportation Company against the Newtown Creek Towing Company, and cross-libel. On motion by cross-libelant to continue stay pending giving of security by libelant.

<p>Bankruptcy <®=>154 — Ob,dees—Right op Set-Opp.</p> <p>Where an applicant to a court of bankruptcy for an order requiring a receiver to surrender property to him obtains such order conditioned on payment of a sum to tbe receiver, and no appeal is taken from tbe order, such applicant becomes a party to the bankruptcy proceeding and is bound by the order, and is not entitled to prove damages for nonperformance by bankrupt of bankrupt’s contract with such applicant, and to offset such damages against the sum payable under the order.</p> <p><g=?For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by the Jacob Hoffmann Brewing Company against Richard J. McElligott, Acting and Deputy Collector of Internal Revenue of the Third District of New York, and Francis G. Caffey, United States Attorney for the Southern District of New York. On motion to dismiss amended bill.</p>

<p>1. Wills <@=241 — Probate—Jurisdiction—Foreign Will — Neceesitt of Probate in State of Testator’s Domicile.</p> <p>Under tlie statute of Oregon (L. O. L. § 1141) a county court has jurisdiction to prohate the will of a nonresident testator dying out of the state and distribute his corporate stock, having situs in the county, although the will has not been probated in the state of his domicile.</p> <p>2. Wills <@=269 — Probate—Nature of Proceedings.</p> <p>The probate of a will in common form is ex parte, and no one Is entitled to notice as a matter of right.</p> <p>3. Wills <@=421 — Probate—C'onclusiveness.</p> <p>Under the statute of Oregon (L. O. L. § 756) a judgment or decree probating a will and distributing the estate is conclusive until vacated by appeal or impeached in a direct proceeding, and is not subject to collateral attack.</p> <p><§=»For other oases seo same topic & KEY-NUMBER in ail Key-Numbered Digests & Indexes</p> <p>4. Executors and Administrators <g=o523 — Foreign Administration — Distribution of Estate.</p> <p>Under tbe statute of Oregon (L. O. L. § 1303) regulating distribution of estates, a county court which has admitted a nonresident’s will to probate may either distribute the Oregon property of tbe testator according to bis will, or direct that it be transferred to bis representatives in tbe state of his domicile.</p> <p>5. Executors and Administrators €=»523 — Foreign Administration — Distribution oh Estate — Conclüsiveness.</p> <p>A county court’s decree, distributing stock in an Oregon corporation to legatees in a nonresident’s will admitted to probate by tbe court, vests title in them, and is conclusive in interpleader proceedings to determine a controversy as to the title.</p> <p>6. Interpleader <@=»3 — Corporate Stock — Adverse Claims.</p> <p>Where deceased’s stock in a corporation was claimed by different parties, the corporation may have such claimants interplead.</p> <p>7. Interpleader <@=>35 — Costs.</p> <p>Where deceased’s stock in a corporation was claimed by different parties, and the corporation brought a bill to have the rights of such claimants determined, the corporation will be allowed attorney’s fees and costs.</p>

In Equity. Bill by the United States against the California Midway Oil Company, the Associated Oil Company, and others.

<p>1. War <3^12 — Bill Brought by Enemy Alien — Alien Property Custodian.</p> <p>A bill by an enemy alien, brought against the Alien Property Custodian both individually and officially, must, where it solely complains of acts committed by him in his official capacity, be treated against him in his official capacity, of which the federal District Court would have jurisdiction ; the bill not being regarded as a suit against the United States.</p> <p>2. War <§=»12 — Enemy Aliens — Alien Property Custodian.</p> <p>Under Trading with the Enemy Act Oct. 6, 1917 (Comp. St. 1918, §§ 3115%a-B115%j), creating the office of Alien Property Custodian, and providing for the seizure and administration of alien property, and providing for relief of those .aggrieved by act of tbe President or by suits at law or in equity in the federal District Courts for the district in which the claimant resides, etc., action or suit can be maintained only in the District Court which Congress specified, for the remedy provided is exclusive of all others.</p> <p><@=>For other eases see same topic & KHY-NUMBEil in all Key-Numbered Digests & Indexes</p> <p>3. War @=>12 — War Powers of Congress — Seizure of Alien Property.</p> <p>Trading with the Enemy Act Oct. 6, 1917 (Comp. St. 1918, §§ 3115 %a-3115%]'), passed by Congress after declaration of war with Germany, was a valid exercise of the war power; it being permissible for Congress to provide for the seizure and administration of alien property.</p>

<p>1. Intoxicating Liquors <§=>17 — Constitutional Law — War Time Prohibition Act.</p> <p>The War Time Prohibition Act of November 21, 1918, is constitutional.</p> <p>2. Intoxicating Liquors <§=>184 — War Time Prohibition Act — Construction — Liquors Prohibited.</p> <p>The War Time Prohibition Act of November 21, 1918, preventing the sale of beer, wine, and other intoxicating liquors, etc., refers only to beer and wine which is in fact intoxicating.</p>

<p>1. Railroads New, voi. 6A Key-No. Series — Federal Control — Action Against Director. General — Consent.</p> <p>Though action against the Director General of Railroads, based on his contract or act, be in effect against 1he United States, the requisite consent and authority for such action is given by Federal Control Act March 21, 1918, § 10 (Comp. St. 1918, § 3115% 3).</p> <p>2. Railroads <@=»5y2, New, voi. 6A Key-No. Series — Federal Control — Liability of Railroad for Public Agents’ Acts.</p> <p>Within Federal Control Act March 21, 1918, § 10 (Comp. St. 1918, § 3115%3), subjecting carriers, while under federal control, to all liabilities as common carriers, except so far as may be inconsistent with the provisions of the act, and permitting actions to be brought and judgments rendered as now provided by law, it would be inconsistent with all the provisions of the act to subject a railroad company to liability for acts and conduct of public agents operating its property under federal control.</p> <p>3. Railroads @==»5%, New, voi. 6A Key-No. Series — Federal Control — Liabilities from Operation — Action.</p> <p>Liabilities due to operation of railroad by the agencies having possession by virtue of the acts creating and authorizing federal, control are not those of the railroad company, and suit thereon may not be brought against it and prosecuted to judgment; but a claimant is limited to right of action against the federal control agency and to such sources of payment as are provided by the Federal Control Act (Comp. St. 1918, §§ 3115% a-3115% p).</p> <p>«Sc^sFor other cases see same topic & KEY-NUMBER, in all Key-Numbered Digests & Indexes</p>

<p>Copyrights <Sx=»40 — Musical Composition — Abandonment to Public.</p> <p>The public performance of a musical composition is not an abandonment of the composition to the public, which will invalidate a subsequent copyright.</p> <p><gs»For other cases see same topic & KEY-NUMBER in ail Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by Dunkin H. Sill against the Kentucky Coal & Timber Development Company for the appointment of a receiver to administer the assets of defendant. On defendant’s motion to dismiss.</p>

<p>In Admiralty. Suit by the Commercial Shipping Company against the steamship Maipo. On motion to discharge respondent vessel from the custody of the United States marshal under process in real on representations that she belongs to the Republic of Chile.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit by Guiseppe Cavallaro against the steamship Carlo Poma; the Kingdom of Italy, claimant. From an order staying execution of process, libelant appeals.</p>

<p>1. Post Office @=>48(4) — Use of Maids to Defraud — Indictment.</p> <p>That allegations, in an indictment, show that representations made by defendants to persons whom they sought to defraud by means of a scheme carried out by use of the mails were inconsistent with each other, does not render the indictment bad.</p> <p>2. Post Office @=35, 49 — Using Maids to Defraud — Evidence.</p> <p>On trial of a defendant for using the mails to defraud by inducing persons to make application through him to purchase public lands under the Timber and Stone Act, evidence that he represented that certain things were not necessary to obtain a patent which were required by the rules of the land office, of which applicants were not told, was admissible, and the representations cannot be justified on the ground that such rules were invalid.</p> <p>3. Criminad Daw @=371(1) — Other Offenses — Intent—'Use of Maids to Defraud — Evidence.</p> <p>On the trial of a defendant for using the mails in carrying out a scheme to defraud, evidence that he had previously defrauded other persons by means of a similar scheme was admissible, where limited to the question of intent.</p> <p>4. Public Dands @=120 — Woods and Forests ©=8 — Effect of Cancellation of Patents — Forest Reserves.</p> <p>On cancollalion of patents to public lands for fraud, the legal title becomes reinvested in the United States, where the equitable title remained, as of the date of the patents, and the laud at once becomes subject to a prior act including it within the limits of a forest reserve.</p> <p>5. Woods and Forests ©=8 — Temporary Withdrawal from Settlement or Sale — Forest Reserves.</p> <p>The authority given the President by Act June 25, 1910, § 1 (Comp. St. § 4523), to temporarily withdraw public lands from settlement or sale, includes such withdrawals for the purpose of including the land in a national forest</p> <p>>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Mike Gurinsky, alias Jack Green, was convicted of embezzling money of the United States while acting as paymaster’s clerk, and brings error.

Appeals from the District Court of the United States for the Eastern Division of the Northern District of Ohio; D. C. Westenhaver, Judge. Bill by the International Banking Corporation against the McGraw Tire & Rubber Company and others, together with a bill by the Robert Morris Trust Company against the same defendants. From decrees dismissing the bills, complainants appeal; the appeals being consolidated. The McGraw Tire & Rubber Company desired to borrow money.

<p>1. Indictment and Information <S=x>60 — Allegation of Facts.</p> <p>An indictment must allege facts sufficient to constitute the crime charged.</p> <p>2. Army and Navy <@=»40 — Espionage Act — Violation by Words Alone.</p> <p>Words alone may constitute the overt act violative of the Espionage Act June 15, 1917, declaring interference or attempted interference with the creation and operation of the armed forces of the country a crime, though words which in their nature under the circumstances could not apparently have such tendency are without the statute; the intent with which they are uttered not alone making them harmful and legally obnoxious.</p> <p>3. Army and Navy <@=»40 — “Espionage Act — Incitement to Mutiny — Utterances.</p> <p>Utterances charged as violations of Espionage Act June 15, 1917, in that by them defendant attempted to cause disloyalty, insubordination, mutiny, and refusal of duty in the military forces of the United States, held not violative of the statute.</p> <p><g=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>4. Army and Navy <S=40 — Espionage Act — Obstruction of Recruiting— Utterances.</p> <p>Utterances charged as violations of Espionage Act June 15, 1917, in that defendant thereby obstructed the recruiting and enlistment service of the United States, held not such as could obstruct recruiting and enlistment.</p> <p>5. Army and Navy <S=»40 — Sufficiency—Truth of Charge.</p> <p>In construing the sufficiency of a charge of violating Espionage Act June 15, 1917, the court is not concerned with the truth or falsity of the statement alleged to have been made by defendant.</p> <p>6. Army and Navy <S=>40 — Espionage Act — Obstruction of Recruiting— Sufficiency of Indictment — “Publicly.”</p> <p>Indictment charging a violation of Espionage Act June 15, 1917, in that defendant, to obstruct the recruiting and enlistment service, publicly stated the war with Germany was unjust, etc., held sufficient; “publicly” meaning in public, well known, open, notorious, common, or general, as opposed to private, secluded, or secret.</p> <p>7. Army and Navy <g=s40 — Espionage Act — Obstruction of Recruiting — Intent — Sufficiency of Evidence.</p> <p>In a prosecution for violation of Espionage Act June 15, 1917, by utterances calculated to obstruct the recruiting and enlistment service, evidence held insufficient to show that defendant spoke with any intent to obstruct the service.</p> <p>8. Army and Navy <©=40 — -Espionage Act — Evidence.</p> <p>In a prosecution for violation of Espionage Act Juno 15, 1917, by utterances calculated to obstruct enlistment and recruiting and to cause mutiny, or refusal of duty, in the military forces of the United States, evidence concerning a certain flag incident, and serving to explain the circumstances under which defendant’s statement covered by certain counts of the indictment was made, and to show that it was merely an angry,, resentful outburst, held admissible under such counts.</p> <p>9. Criminal Law <S=a3.15, 371(1) — Evidence—Intent—Prior Statements—</p> <p>Presumption — Continuance of State of Mind.</p> <p>In a prosecution for violation of Espionage Act Juno 15, 1917, testimony as to statements by defendant made a few weeks before the enactment of the statute, though ordinarily admissible as tending to show defendant’s state of mind, ordinarily presumed to continue, held inadmissible, as it cannot he presumed that a lawful state of mind, unaccompanied by expressions showing willingness to violate law, will change into a criminal intent under a future statute.</p> <p>10. Army and Navy @=»40 — Espionage Act — Evidence,</p> <p>in a prosecution for violation of Espionage Act June 15, 1917, testimony by defendant that he had not advised his sons not to enlist held inadmissible, in the absence of attempt by the government to prove for any purpose that defendant had so advised his sons.</p> <p>11. Criminal Law <S=>812 — Instructions.</p> <p>In prosecution for violation of Espionage Act June 15, 1917, instructions using language by way of illustration and explanation which ordinarily would have been proper, and covering certain situations shown in the evidence, which were not the particular ones covered by the indictment, tending to inflame and divert the jury, held erroneous.</p>

<p>1. Indians <S=>15(1) — Deed of Inherited Land — Approval by Court — Jurisdiction.</p> <p>A deed by the mother of a minor full-blood Creek Indian, who inherited an allotment of land from her daughter, was of no effect, where approved by the county court of a county of Oklahoma in which the daughter was not a resident when she died; the court not having had jurisdiction.</p> <p>2. Indians @=»15(1) — Allotment of Land — Deed—Statutes—“Restrictions.”</p> <p>Deed of. a minor full-blood Creek Indian’s allotment of land, inherited by her mother, executed two days before patent for the land was issued, though the selection of the allotment had been legally made and approved before, held not void under Act April 26, 1906, § 19, and Act May 27,1908, § 5, rendering void a deed of lands of the Five Civilized Tribes, if made before tbe removal of ‘'restrictions”; “restrictions,” as used, referring to prohibitions against alienation.</p> <p><@3»For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Restriction.]</p> <p>3. Indians <@=>15(1) — Deed of Allotment — Approval by County Court — ■ Lapse of Time.</p> <p>Where the mother of a minor full-blood Creek Indian inherited her daughter’s allotment, and deeded it to another in 1909, the approval of the deed l>y the county court of the county of Oklahoma where the daughter was resident when she died was not void because not made until 1913; mere lapse of time not destroying the deed or taking away power to approve it.</p> <p>4. Courts $=>366(30) — Federal Court — Binding Force of State Decision.</p> <p>A decision of the highest court of a state, defining the powers of an inferior court under the state Constitution and laws, is binding on the Circuit Court of Appeals.</p> <p>5. Courts <©=>306(16) — Federal Court — Binding Force of State Decision.</p> <p>Decision of the highest court of a state, determining when an order approving a deed of real property in the state is sufficient to give the deed full validity, constitutes a rule of real property, and probably binds a federal court sitting in the state.</p> <p>6. Indians <@=>15(1) — Inherited Allotment — Approval of Deed in Vacation.</p> <p>Order of the county judge of a county of Oklahoma wherein a minor full-blood Creek Indian was resident when she died, approving deed of the mother of such Indian, who had inherited her allotment, held not void because made at the home of the judge, instead of the courthouse, me judge having been ill, or because the term of the county court had adjourned and the adjournment was entered on its records prior to the approval of the deed, while no other term had been legally called, so mat the order was entered in vacation.</p> <p>7. Judgment <S=>521 — Collateral Attack — Cross-Bill to Set Aside for Fraud — Dismissal on Merits.</p> <p>In suit to quiet title to land formerly the allotment of a minor full-blood Creek Indian, who died, so that the land was inherited by her mother, a defendant, who conveyed it to plaintiffs’ predecessor, in view or defendants’ cross-bill and offer of proof showing that the mother’s attorney, while purporting to act for her in securing the approval of her deed, and in causing decree to be entered in her suit for cancellation against the grantee, forever barring her right, was in fact acting on behalf of the grantee’s successor, etc., held, that a summary disposition of the ease by entry of decree for plaintiffs and dismissal of tbe cross-bill on tbe merits was improper, it being the duty of the court to hear defendants’ proofs; the cross-bill not constituting a collateral attack on the order of the county court of Oklahoma approving the mother’s deed, but standing as an original bill to set aside for fraud tbe order approving the deed.</p> <p>8. Judgment <©=>441 — Vacation for Fraud or Collusion — Jurisdiction of Equity.</p> <p>A court of equity has jurisdiction to set aside judgments obtained by fraud or collusion.</p> <p>9. Attorney and Client <@=>77 — Principal and Agent <©=>162 — Betrayal of Principal or Client — Fruits of Bargain.</p> <p>One who seduces an agent to betray his principal, or an attorney his client, can hold none of the fruits of his bargain.</p> <p>10. Evidence <©=>91 — Burden of Proof — Affirmative Claim.</p> <p>An affirmative claim must be proved by the party who seeks its benefit.</p>

Proceedings to deport Frank R. Lopez for violation of Immigration Act Eeb. 5, 1917. A decree of deportation was approved by the Commissioner General of Immigration and the Acting Secretary of Labor, and a warrant directing Frederick C. Howe, as Commissioner of Immigration of the Port of New York, to deport relator, was issued. From the dismissal of a writ of habeas corpus, relator appeals.

, Judge. Action by Moses L. Thornton against the American Locomotive Company. Judgment for plaintiff, and defendant brings error.

<p>Appeal from the District Court of the United States for the District of Colorado; John A. Riner, Judge.</p> <p>Suit by the Gas Securities Company against the Antero & Lost' Park Reservoir Company and others. Decree for defendants, and complainant appeals.</p>

Appeals from the District Court of the United States for the Western Division of the Southern District of Ohio; Howard C. Hollister, Judge. Suit in admiralty for collision by the Otto Marmet Coal & Mining Company, owner of the steamboat Sallie Marmet, against the FiegerAustin Dredging Company, owner of the dredgeboat Northern No. 2, With cross-libel. From a decree dividing damages, both parties appeal.

Killits, Judge. Suit by Doherty & Co. against the Toledo Railways & Right Company and the City of Toledo. The City appeals from an order granting a preliminary injunction on a cross-bill by the Railways Company. The city of Toledo appeals from an order for temporary injunction which restrained it from certain interference with the street railway system operating in that city.

<p>i: Criminal Law <©=1178 — Appeal and Error — Questions Considered.</p> <p>A proposition in a criminal case, merely mentioned during the argument, but not raised in brief, nor at trial, nor contained in the assignments of error, will not be considered.</p> <p>2. Receiving Stolen Goods <@=>4 — Constructive Possession.</p> <p>The doctrine that one intending to receive stolen goods, but withdrawing before committing the crime, cannot be convicted, is inapplicable, where accused had constructive possession of the property.</p> <p>3. Receiving Stolen Goods <@=8(3) — Constructive Possession — Sufficien-</p> <p>cy of Evidence.</p> <p>Evidence that accused told boys who had stolen a bale of silk that his place was being watched, that he showed them where to hide the silk, etc., held to sustain jury finding that the silk passed to accused’s constructive possession.</p> <p>4. Receiving Stolen Goods .<©=1 — Elements—Theft.</p> <p>In a prosecution for receiving stolen goods, under Act Feb. 13, 1913 (Comp. St. §§ 8603, 8604), the purchase of property not actually stolen is not criminal, even if the accused buyer believed it to have been stolen.</p> <p>5. Receiving Stolen Goods <©=8(3) — Sufficiency of Evidence.</p> <p>Evidence that accused, when offered a stolen bale of silk by express employes, told them to drive to a dump and throw it off, which they did, leaving it among bushes and weeds, etc., held to sustain a conviction for receiving stolen goods under Act Feb. 13, 1913 (Comp. St §§ 8603, 8604).</p> <p>6. Receiving Stolein Goods <®=>3 — Belief That Goods were Embezzled.</p> <p>When goods actually stolen came into accused’s possession, the possibility that he considered them embezzled, instead of stolen, does not invalidate a conviction for receiving stolen goods, in violation of Act Feb. 13, 1913 (Comp. St. §§ 8603, 8604).</p> <p>7. Criminal Law <©=370 — Admissibility of Evidence — Similar Transactions.</p> <p>In prosecution for receiving stolen goods, in violation of Act Feb. 13, 1913 (Comp. St. §§ 8603, 8604), testimony relating to a similar transaction a few days before held admissible to show accused’s acquaintance with the thieves.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Southern Division of the Northern District of Alabama; William I. Grubb, Judge.</p> <p>Action by the City Ice Company against the York Manufacturing Company. Judgment for defendant, and plaintiff brings error.</p> <p>This was an action by the plaintiff in error, City Ice Company, against the defendant in error, York Manufacturing Company, to recover damages for the alleged breach of a written contract to sell and deliver certain ics manufacturing machinery. The parties will be referred to as the Ice Company and the York Company, respectively. The case was tried on issues joined on pleas of non est factum and the general issue, with leave to present thereunder any special defense.</p> <p>The following state of facts was shown by undisputed evidence: During the period covered by the dealings between the parties the lee Company was a manufacturer of ice, doing business at Mobile, Ala., and the York Company was a manufacturer of ice-making machinery, having its factory and main office at York, Pa. Several months prior to the signing, as hereinafter stated, by an agent of the York Company, of the alleged contract, the Ice Company made it known to several manufacturers of ice-making machinery, including the York Company, that it contemplated the purchase of an ice manufacturing plant, consisting of two refrigerating machines, each having a capacity of 50 tons of ice per 24 hours, and additional capacity to maintain a temperature of 28 degrees Fahrenheit in storage room having 100,000 cubic feet capacity. A representative of the Ice Company visited York, and had interviews with representatives of the York Company, in which the former’s desire to buy a 100-ton plant was mentioned. Following this, the York Company, on October 23, 1914, made and transmitted to E. R. Feagin, to be submitted by the latter to the Ice Company, two alternative estimates, consisting of lists of machinery and equipment, stating price for the same, but not mentioning capacity. Feagin was a traveling salesman of the Southern Construction & Supply Company of Atlanta, which was the York Company’s agent for territory including Mobile, the terms of the agency being expressed in a written contract between the principal and agent, a provision of that contract being that among the duties to be performed by the agent are “to solicit orders for the machinery and apparatus which is manufactured, sold, or handled by the principal, and to submit the same to the principal for acceptance.” On November 5th the York Company sent to Feagin three additional estimates, consisting of lists of machinery and prices for same, no mention being made of capacity. In a communication of the York Company to Feagin dated November 12th, inclosing a blueprint referred to as showing the 100-ton plant, it was said: “You will understand that these layouts are only preliminary, and, of course, are subject to change in case the proposition goes through.” For about two weeks prior to November 27, 1914, Feagin was in Mobile, negotiating with representatives of the lee Company for the sale of an ice plant to the latter. During most-of that time the lee Company was negotiating with other manufacturers of ice-making machinery, and the agents of the several manufacturers were actively competing for the business. While such negotiations were in progress the following correspondence took place:</p> <p>“Day Letter.</p> <p>“Mobile, Ala., Nov. 16th, 1914.</p> <p>“York Mfg. Co., York, Pa.</p> <p>“Mail special delivery today care Battle House detail prices your several estimates City Delivery Co., dated October twenty third propositions A and B also November fifth alternates Number one and two. Must have this information in order to make omissions as may be required give power requirements for auxiliaries in each case also best shipment and completion. Rush.</p> <p>“E. R. Feagin.”</p> <p>“Western Union Telegram.</p> <p>“Mobile, Ala., Nov. 16th, 1914.</p> <p>“York Mfg. Co., York, Pa.</p> <p>“Our price is about 10 per cent, higher. Will be offered contract below your price. Are you willing to accept. Advise by mail. See Day Letter.</p> <p>“E. R. Feagin.”</p> <p>“Battle House.</p> <p>“Mobile, 11-16-14.</p> <p>“York Mfg. Co., York, Pa.</p> <p>“Gentlemen:</p> <p>“Attention Mr. Striekler.</p> <p>“I wired yon today regarding the City Delivery Co. proposition.</p> <p>“Had a long talk with Mr. Holcombe this morning and he says that everything being equal we will get the contract, however, the present prices are entirely out of the question. Hence my wire. I feel sure that we will have a little preference shown us, but not as much as the present propositions call for.</p> <p>“I think the oil engines will be used, and it looks as if Nordberg has the advantage over Snow. It will also probably be a belt drive.</p> <p>“Contract for engines will be let Wednesday, I think, and ice machinery on Thursday or Friday next, as mentioned in my wire, and think they will make me an offer on the job, if the price is out of line, before closing. And if it is anywhere near reasonable, I will sign it and send it in for your approval or disapproval.</p> <p>“We must get it if there is a possible chance.</p> <p>“Mr. Holcombe also advises that our regular terms, viz.: % cash on shipment, Vi on completion, balance in 6, 12 and 18 months, would very likely ho satisfactory.</p> <p>“I hope to send in the contract before leaving here.</p> <p>“Yours truly, E. E. Feagin.”</p> <p>“November 16, 1914.</p> <p>“Mr. E. E. Feagin, Care Battle House, Mobile, Ala.</p> <p>“Dear Sir: We are in receipt of your Day Hotter, also Telegram relative to the proposition for Mobile, Ala. We note in your telegram that our price is about 10 per cent, high, and that in all probability they will make you an offer on this proposition. We also note in your Day Hotter that you want detailed estimates, also power required for the auxiliaries.</p> <p>“This proposition is a large one and we feel that we should have all the information right here at the factory before we make any revised prices to these people.</p> <p>“Immediately upon receipt of 1his letter, kindly wire us what proposition appears favorable to these people, and what omissions or additions they intend to make to the same. We will then be in a position to give yon our best figure, also the horse power required for the different various auxiliaries.</p> <p>“You will understand that a proposition of this nature should be gone into very carefully and you should not make any hasty guarantees or prices, and for this reason we feel that you should supply us with all the information, as fast as you receive it from these people, and keep us posted continually so that we can revise our quotations and give you the information in sncli a manner that we will at least be in the running, and if possible, secure the order. Yours truly, York Manufacturing Co.”</p> <p>“Western Union Night Uetter.</p> <p>“Mobile, Ala., Nov. 18 — 14.</p> <p>“York Mfg. Co., York, Pa.</p> <p>“Your letter sixteenth. At present bids are being received on original specifications using oil engines belted compressors drop pipe freezing system as per your estimate dated Nov. fifth marked alternate Number one with following changes: Use horizontal machines twenty standard condensers erecting engineer only omit electric generator and board insulation of tanks. This bid is for comparison with others my alternate proposition to them is (1915) system your alternate numbers two November fifth with above omissions and following changes use vertical high speed direct connected compressors hundred sixty revolutions they furnish oil engines on this also give price belted compressor contract probably be let Friday. Wire me detail follow with letters if you had given information as I asked in my wire I could have handled job as it is you have probably lost it by the delay. I am afraid I can’t hold them off until mail reaches here. If I don’t hear from you will do best I can to get it. Advise as soon as possible. E. E. Feagin.”</p> <p>“Telegram.</p> <p>“York, Pa., November 19, 1914. “Mr. E. R. Feagin, Care Battle House, Mobile, Ala.</p> <p>“Our estimates Mobile proposition dated October twenty-third. Proposition A deduct for gas engines, generator, switchboard and engine for same Thirty-six Thousand Dollars. If erecting engineer only furnished Three Thousand Dollars. Proposition B deduct for Snow oil engines, generator and engine for driving same Thirty-two Thousand Dollars; erecting engineer only Three. Thousand Dollars. Original price did not include tank insulation.</p> <p>“York Manufacturing Company.”</p> <p>“November 19,1914.</p> <p>“Mr. E. R. Feagin, Care Battle House, Mobile Ala.</p> <p>“Re: City Ice Delivery Co.</p> <p>“Dear Sir: We are in receipt of your day letter relative to the above proposition. We have just wired you as per the enclosed confirmation.</p> <p>“We note in all your correspondence you refer to our estimate of November 5th. We are unable to locate this estimate, as our proposition is dated October 23rd.</p> <p>“Proposition ‘A’ covers the ‘1915’ style raw water freezing system, with 16-inch x 24-inch belt driven compressors, and Rathbun-Jones Gas Engines, with Smith Producers. We instructed you that if the gas engines for driving the machines were omitted, also the generator and switchboard, as well as the gas engine for driving the generator, and if we furnished an erecting engineer only, in place of complete erection, you could deduct a total of $39,000.00.</p> <p>“Proposition ‘B’ is for same outfit, using, however, high speed vertical compressors, direct connected to oil engines, and on this proposition if the engines were omitted, also the generator and switchboard, and engine for driving the generator as well as complete erection, you could make a reduction of $35,-000.00.</p> <p>“Our original proposition did not include any insulation for the freezing tank.</p> <p>“We are enclosing photographs of a 50-pound block of ice which we made from the water sent us. The water above the squaring plates as the block was frozen was almost the color of coffee, but you will note, however, that the block is very clear. We packed this block in a barrel, surrounded with granulated cork, and are shipping the same to the City Ice Delivery Company today, by express. Of course, we cannot guarantee that the same will arrive in good condition.</p> <p>“Of course, if they make you an offer on this proposition you had better sign up, and we can then take the specifications, go over the same very carefully, and can either accept or reject the proposition according to the price secured.</p> <p>“Yours truly, York Manufacturing Co.”</p> <p>“Battle House, Mobile.</p> <p>“11-20-14.</p> <p>“York Mfg. Co., York, Pa.</p> <p>“Gentlemen:</p> <p>“Attention Mr. Strickler.</p> <p>“Enclosed find copy my estimate for the City Delivery Co.</p> <p>“The price of $37,095.00 is about $3,150.00 too high, as compared with Frick. Triumph is still lower, but his price and proposition I don’t think will be seriously considered.</p> <p>“Are you willing to meet Frick on this job?</p> <p>“You will note that my estimate I have taken off the extra 5 per cent, in nearly all figures, but still can’t get down. I hope to hold it open till Monday although it is very likely the contract will be let Saturday. I understand that Frick has instructions to get the contract, and they are figuring accordingly.</p> <p>“The job is too good for us to pass up if possible to get it.</p> <p>“If they decide on my proposition as per estimate I think they will no doubt change to the ‘1915’ raw water system, at the higher price, viz., about $3,300.00 more than my estimate, and also put 32,000 ft. of coils iu tank at an extra price.</p> <p>“Kindly check over the estimate and see if you will he willing to make a better price.</p> <p>“Will wire you night letter Sunday night, if proposition is still open.</p> <p>“Yours truly, 11. R. Feagin, Battle House, Mobile, Ala."</p> <p>[Enclosed with the letter last above copied was a list of materials ana machinery, with the prices therefor. (Record, pp. 188-9)J</p> <p>“11-21.</p> <p>“York Mfg. Co.</p> <p>“Gentlemen:</p> <p>“Attention Mr. Strickler.</p> <p>“Reference City Del. Co. job.</p> <p>“Wish to advise I have, had another session with them today since writing you last night enclosing my estimate, as a result I fiud out that Ue La Vergne is high. Our price $38,000.00 is next; the next price is $33,950.00 (either Frick or Artie), and Triumph $31,000.00 and each one has asked for a chance to cut it. Necessary to secure the order. Where in H- do we get off?</p> <p>“Mr. Holcombe promised me the refusal of the job before finally closing, and he personally would give me the order at my present price but our Austrian friend says we must meet the lower price. So you see what I am up against.</p> <p>“Yours truly, B. R. Feagin.”</p> <p>‘“Western Union Night Letter.</p> <p>“Mobile, Ala., Nov. 22nd, 1914.</p> <p>“York Mfg. Co., York, Pa.</p> <p>“Referring to my estimate mailed twentieth will you be willing to make ten per cent. cut. Will take at least this much to get contract. If possible to do so wire me quick. Also see my letter twenty-first. Must have this business. Answer care Battle House. E. R. Feagin.”</p> <p>“W. U. Telegram.</p> <p>“York, Pa., November 23, 1914. “Mr. E. R. Feagin, Care Battle House, Mobile, Ala.</p> <p>“Can close City Ice Delivery proposition per your estimate at Thirty-four Thousand Dollars, subject to our approval.</p> <p>“York Manufacturing Company.”</p> <p>“Western Union Night Letter.</p> <p>“Mobile, Ala., Nov. 23,1914.</p> <p>“York Mfg. Co., York, Pa.</p> <p>“Have refusal, Thirty-Thousand even as per my estimate mailed you. Above is Vilter proposition. Have compared specifications personal. They furnish Twenty-two Thousand feet extra heavy coils, Sixteen Thirty Two compressors balance same as ours using either drop pipe or hexamer patent pump as selected. Vilter making this offer personally. Shall I sign. Must know by noon Tuesday. Answer quick. E. R. Feagin.”</p> <p>“Western Union Day Letter.</p> <p>“Nov. 24, 1914.</p> <p>“Mr. E. R. Feagin, Care Battle House, Mobile, Ala.</p> <p>“Get contract best figure possible, take thirty thousand if can do no bettor. Vilter is undoubtedly figuring on steel pipe, light covers and gang air connections to cans. Do not specify any more details than necessary so we can furnish same class material as Vilter. Get copy their specifications if possible. York Manufacturing Co.”</p> <p>“Western Union Night Telegram.</p> <p>“Mobile, Ala., Noy. 23rd, 1914.</p> <p>“York Mfg. Co., York, Pa.</p> <p>“Will you consider splitting contract with Yilter, each taking complete fifty ton. Answer. E. R. Feagin.”</p> <p>“Western Union Telegram.</p> <p>“Nov. 24, 1914.</p> <p>“Mr. E. R. Feagin, Card Battle House, Mobile, Ala.</p> <p>“Do not care to split contract with Vilter unless we can get good price for plant ' York Manufacturing Co.”</p> <p>“Western Union Telegram.</p> <p>“Mobile, Ala., Nov. 24-14.</p> <p>“York Mfg. Co., York, Pa.</p> <p>“Must have authority to close contract without delay fully guaranteeing acceptance. Financial conditions considered good. Competitors have given this. Answer quick. ' E. R. Feagin.”</p> <p>“Western Union Day Letter.</p> <p>“Nov. 25, 1914.</p> <p>“Mr. E. R. Feagin, Care Battle House, Mobile, Ala.</p> <p>“Have wired City Ice Delivery Company guaranteeing to accept contract signed by you provided satisfactory financial report accompanies same. As this gives you full authority be careful not to tie us up on special apparatus or guarantees. York Manufacturing Co.”</p> <p>“Western Union Day Letter.</p> <p>“Nov. 25, 1914.</p> <p>“City Ice Delivery Company, Mobile, Ala.</p> <p>“We hereby authorize Mr. Feagin to sign contract with you and will guarantee to accept contract so far as price is concerned, but satisfactory financial reports must accompany contract as we have no statement of your financial condition, nor are you rated in Bradstreets. York Manufacturing Co.”</p> <p>“Western Union Night Letter.</p> <p>“Mobile, Ala., Nov. 26, 1914.</p> <p>“York Mfg. Co., York, Pa.</p> <p>“Before I can get signatures to contract they Insist on absolute guarantee of acceptance financially and otherwise. Have gotten following reports. City Ice Co. organized and charted December last. Reorganized this Fall. Have Twenty-Five Thousand paid in capital. Tripo Chiepalich President and principal owner, M. Chiepalich Yice-President, R. L. Holcombe, Secretary and Treasurer. Banks advise Tripo Chiepalich worth about Seventy-Five Thousand and all concerned considered good moral risks. Am getting further reports from Bradstreet and Banks. Wire full authority to sign at once. Must leave here noon Friday. Wire me personally quick. E. R. Feagin.”</p> <p>“Western Union Telegram.</p> <p>“Nov. 27, 1914.</p> <p>“Mr. E. R. Feagin, Care Battle House, Mobile, Ala.</p> <p>“We hereby give you full authority to sign City Ice Company contract provided they give bonds in security for deferred payments, or officers personally guarantee payments, bonds,in ten per cent, in excess of amount of deferred payments to be given. ’ York Manufacturing Co.”</p> <p>“Western Union Telegram.</p> <p>“Mobile, Ala., Nov. 27-14.</p> <p>“York Mfg. Co., York, Pa.</p> <p>“Party will not sign except on straight proposition no bonds or personal guarantees. Terms payment to be fourth cash, fourth completion, balance six and eighteen months. Answer quick. E. R. Feagin.”</p> <p>“Western Union Telegram.</p> <p>“Nov. 27, 1914.</p> <p>“E. B. Feagin, Battle House, Mobile, Ala.</p> <p>“You are authorized to sign City Ice Company contract in our name.</p> <p>‘York Manufacturing Co.”</p> <p>Where the name City Delivery Company appears in the above correspondence it means the Ice Company. The latter conducted a department of its business under the first-stated name. On November 27tlr a written contract for the sale by the York Company to the Ice Company of two ice-making units was signed in the name of the former by Feagin, and in the name of the latter by its president and secretary and treasurer. That instrument contained the following provisions: “The York Manufacturing Company hereby guarantees that each machine consisting of the herein described engine andigas pump, under test will give a duly equal to the manufacture of 55 tons of ice in twenty-four hours, when operating under 15.67 pounds back pressure and 185 pounds condensing pressure, and at 68 B. P. M. [meaning revolutions per minute]. * * * The York Manufacturing Company guarantees that the above freezing system (can system Nos. 1 and 2) under test will have an ice-making capacity of 110 tons of ice per day of 24 hours each, each ton ro consist of five blocks, with the water entering the case at 40 degrees or less, when properly and continuously operated, and said ice to be suitable and merchantable for all domestic purposes. * * * 1292 galvanized freezing cans, size 14%"xl4%/'x necessary length. Cans will weigh about 100 pounds each, and have a capacity to make a block of ice to weigh about 440 pounds in cans.”</p> <p>Following provisions for the York Company furnishing a specified number of feet of piping, to be so connected with the refrigerating system that when such system is operated as specified it would maintain a stated temperature in an ice-storage room having a capacity of 100,000 cubic feet, and for that company furnishing a machine for holding such temperature in that room ‘when large machines are not running,’ the contract contained the following provision:</p> <p>“The York Manufacturing Company guarantees the following performance: That the said piping, under test, when operated in full and continuous operation, will cool the rooms, apartments, cellars, or spaces as specified in the preceding table, and aggregating in the sum total 100,000 cubic feet of space provided that the rooms, apartments, cellars, or spaces are properly insulated and used with proper care, that the work be properly distributed throughout, and that the total work to be done in same does not exceed 12 tons of ice melting capacity per twenty-four hours of coniinuous operation. * * * The party of the second part (the Ice Company) has the option for fifteen days from this date within which to change this agreement in such manner as to substitute for the machinery and equipment herein contracted for like machinery of sufficient capacity to produce 55 tons of ice per day of 24 hours, and to that end only such of the machinery described in the attached specifications as is necessary to complete one unit instead of two units as there provided for shall be furnished and installed, except, however, that if such change be made the following stipulations aro agreed to.”</p> <p>The “following stipulations” provided for stated changes in equipment, and for the amount to he paid by the Ice Company being one-half of what that amount was to he if the change should not be made, with 850 added to such one-half. When the York Company was apprised of the contents of the instrument signed in its name by Feagin it refused to comply with it and gave notice of such refusal to the Ice Company. The following are extracts from the testimony of George Branngart, a witness for the York Company: “This contract calls for a 16% by 24 vertical single acting compressor, running at 68 revolutions, with 15.67 pounds back pressure and 185 pounds head pressure. Under those conditions the machine would have an actual ice-making capacity of 49 tons.” “There is nothing, as a practical proposition, to prevent them from running the machine faster than 68 revolutions a minute, and if they would run it faster it would produce more ice.” Testimony of other witnesses for the York Company was to the effect that the capacity of each of the two ice-making units mentioned in the contract, when the ammonia air compressor is operated at 68 revolutions per minute, and under other conditions stated, had a capacity of 49 tons of ice a day; that by increasing the number of revolutions. per minute more ice would be made, and less would be made if the number of revolutions is decreased; and that each unit would make 55 tons of ice per day with the required Increase of the number of revolutions of the compressor, such increase being practicable, but requiring the use of more power. The court refused to give the following charge requested by the plaintiff, the Ice Company: “The court charges the jury that if you believe the evidence in this ease your verdict must be in favor of the plaintiff.”</p> <p>At the request of the defendant, the York Company, it gave the following charge: “The court charges the jury that if they believe from all the evidence in this case that E. B. Feagin had no authority to bind the defendant under contract, their verdict must be for the defendant.” Exceptions were reserved to the above-mentioned and other rulings, the effect of which was to leave it to the jury to determine whether Feagin was authorized to bind the defendant by the contract the alleged breach of which was complained of.</p>

<p>In Error to the District Court of the United States for the District of New Jersey; J. Warren Davis, Judge.</p> <p>Action by Robert J. McKibbin against the Philadelphia & Reading Railway Company. Judgment for plaintiff, and defendant brings error.</p>

Dooling, Judge. Arthur Crane was convicted of devising a scheme and artifice to defraud and using the mails in carrying out the scheme, and he brings error. The defendant was indicted under section 215 of the Criminal Code of the United States (Act March 4, 1909, c. 321, 35 Stat. 1130 [Comp.

<p>Appeal from the District Court of the United States for the District .of Montana; George M. Bourquin, Judge.</p> <p>Suit by Florence E. Edwards against David L- S. Barker. Decree for complainant, and defendant appeals.</p>

Tuttle, Judge. Libels by Charles T. Moore and others against the Chicago, Duluth & Georgian Bay Transit Company, sole owner of the steamship South American. Erom decrees for libelants, respondent appeals.

<p>L Internal Revenue <§=>47 — Ltqtjor Tax — Evidence—Sufficiency.</p> <p>Evidence held to warrant defendant’s conviction on the charge that he was carrying on a retail liquor business without having paid the required special tax.</p> <p>2. Criminal Law <§=>330 — Evidence—Defensive Matter Peculiarly Within Knowledge of Defendant.</p> <p>Where defendant was charged with carrying on the business of a retail liquor dealer without having obtained a federal license and paid the special tax, the government need not prove the nonpayment of tax, for the matter was peculiarly within the knowledge of defendant, and he might prove payment without inconvenience.</p> <p>oFor other cases see same topic & KEY-NUMBER in all Key-Numbercil Digests & Indexes</p> <p>3. Internal Revenue <@=>47 — Liquor Tax — Evidence—Reputation.</p> <p>In a prosecution for carrying on the business of a retail liquor deader without having paid special federal tax, the refusal of the trial court to allow proffered witnesses to testify as to whether they had. ever heard of liquor being sold at defendant’s place of business cannot be held error, where the record did not disclose the opportunity such witnesses had for knowing the defendant’s reputation or the reputation of his place of business.</p> <p>4. Internal Revenue <@=>47 — Liquor Tax — Instructions.</p> <p>In a prosecution against defendant, a grocer, for carrying on a retail liquor business without paying the special federal tax, a special charge that, if the sales téstified to by the prosecuting witness were made by defendant’s clerk, it was necessary to prove that the clerk was his agent .and acted with his knowledge, was properly refused, for, while defendant could not be convicted on proof of sales made by his clerk without his knowledge, yet the vital question in the case was not whether any particular' sales were made, but whether defendant was carrying on the business of retail liquor dealer without payment of the special tax, and hence the request was predicated on a false issue.</p> <p><§saFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Western District of Tennessee; John E. McCall, Judge.</p> <p>E. K. Brafford was convicted of a violation of Criminal Code, § 32, and he brings error.</p>

<p>1. Injunction <§=>75 — Internal Revenue Collector — War-Time Prohibition.</p> <p>Where the Internal Revenue Department refused to license or sell revenue stamps to concerns which it claimed were violating the War-Time Prohibition Act of November 21, 1918, but this refusal was later abandoned, held that an acting deputy collector may be enjoined from reverting to the original practice of the department.</p> <p>2. United States <§=>125 — Suits Against.</p> <p>The United States may not be sued except with its consent.</p> <p>3. Indictment and Information <§=>28 — Federal Courts.</p> <p>A criminal suit in the federal courts must he brought in the naine of the United States and by the United States attorney.</p> <p>4. United States <§=>125 — Suits Against.</p> <p>A suit to enj'oin a United States attorney from instituting criminal proceedings under a federal statute is a suit against the United States, which cannot he maintained unless property rights are threatened with irreparable damage, and the statute Is either unconstitutional or the attorney is transcending his authority under a valid statute.</p> <p>5. Intoxicating Liquors <§=>134 — War-Time Prohibition Act — Construction.</p> <p>The War-Time Prohibition Act of November 21, 1918, prevents only the manufacture and sale of beer, wine, etc., which is in fact intoxicating.</p> <p>6. Injunction <§=>105(1) — Criminal Proceedings — War-Time Prohibition Act.</p> <p>A federal district attorney cannot be enjoined from instituting criminal proceedings under the War-Time Prohibition Act of November 21, 1918, against concerns manufacturing and selling nonintoxieating beer, upon the ground that the attorney had transcended his authority by invoking the act against nonintoxicating liquors.</p> <p>Rogers and Hough, Circuit Judges, dissenting in part.</p> <p><g=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Dayton, Judge. Ejectment by Edward É. Thomas and others against Charles Edward Etikens. Judgment for defendant, and plaintiffs bring error. This is an action of ejectment, instituted in the United States District Court for the Northern District of West Virginia, to recover from the defendant 207 acres of land situated in Randolph county, W. Va. The 207 acres consist of two smaller tracts, one for 163, and the other for 44, acres.

Woodrough, Judge. Action by Carroll S. Rainbolt, doing business as the Rainbolt Corn Company, against Damson Bros, and others. Judgment for defendants, and plaintiff brings error.

H. Seward Thomson, Judge. Suit by the Smith-Webster Company against Simon John and others, partners trading as Simon John & Bros. Erom a judgment for plaintiff for less than the amount of its claim, plaintiff brings error.

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

<p>1. Bridges @=>39(5) — Unsafe Condition — Liability of Independent Contractor.</p> <p>An independent contractor for repairing a city bridge is liable for an injury to a person crossing the bridge, caused by his negligence in leaving it in an unsafe condition.</p> <p>2. Damages @=163(1) — Personal Injury — Necessity of Proof as to Damages.</p> <p>To entitle plaintiff in an action for personal injury to compensatory damages for loss of time, there must be evidence of his earning capacity.</p> <p>@=For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Eastern District of Oklahoma; Joseph W. Woodrough, Judge.</p> <p>Suit in equity to foreclose a mortgage by the Alliance Trust Company and G. A. Ramsey against Willie Grace Penny. Prom a decree-of foreclosure, defendant appeals.</p>

<p>In Error to the District Court of the United States for the District of Nebraska; Joseph W. Woodrough, Judge.</p> <p>Action by Kenneth B. Ward against Frank W. Bacon. Judgment for plaintiff and defendant brings error.</p>

<p>Appeal from the District Court of the United States for the Western District of New York.</p> <p>Suit by Leo F. Adt against the E. Kirstein Sons Company. From a decree for defendant (259 Fed. 277), complainant appeals.</p>

<p>Appeal from the District Court of the United States for the District of Colorado; Robert E. Lewis, Judge.</p> <p>Suit by Joseph H. Schulte and Henry Kaiser, doing business as the Detroit Leather Works, against the Colorado Tire & Leather Company and others. Decree for defendants, and complainants appeal.</p>

<p>1. Patents <®=»328 — Infringement—Disclosure.</p> <p>The Willis and Felix patent, No. 1,045,234, for a process for rubber sponges, held invalid; the disclosure of the patent not being sufficient to enable one skilled in the art to manufacture sponges with commercial success.</p> <p>2. Patents <@=»116 — Disclosure—Sufficiency.</p> <p>While no hard and fast formula need be given and experimentation may be necessary to get the best results, the disclosure in a process patent must be sufficient to enable those ordinarily skilled in the art to produce the substantial result desired.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Patents <@=>328 — Validity and Infringement — Building Blocks.</p> <p>The Straub patent, No. 1,212,840, for building block and method of making the same, the block being composed of a mixture of coarse and fine coal cinders and ashes, retaining all the original mass, cemeht, and water, discloses novelty and invention of a meritorious character; also held infringed.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Patents ©=328 — Infringement—Road Gradee.</p> <p>The Wold patent, No. 918,633, for a road grader, held not infringed.</p> <p>2. Patents ©=238 — Infringement—Omission of Element.</p> <p>A claim is not infringed, if one of its elements is omitted, without the substitution of an equivalent.</p> <p>3. Patents ©=246 — Infringement—Omission of Element.</p> <p>In an overcrowded art, where a broad generic invention is not possible, a defendant, who omits altogether one element of a combination, cannot be held as an infringer, even though he makes another element do the double work.</p> <p><£cs>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Patents <©=>328 — Infbingement—Police Whistle.</p> <p>Decree holding O’Beilly patent, No. 1,094,006, for a police whistle, not infringed affirmed.</p> <p>©ssFor other cases see same topic & KEY-NUMBER In all Key-Numbered Digests & Indexes</p>

<p>Patents <@=»328 — Validity and Infringement — Concrete Reinforcing Bah.</p> <p>The Vandenburgh reissue patent, No. 14,182 (original No. 841,741),_ ior a reinforcing bar for concrete structures, held void for lack of invention; also not infringed, if conceded validity.</p> <p><S=>For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by William I. Zidell against Mrs. Billie Dexter, trading as the Billie Bumps Manufacturing Company, and Arthur Letts, trading as the Broadway Department Store.</p>

At Law. Proceeding by the United States against A. G. Forbes to condemn land for military purposes. On motion by the government to strike certain pleas.

<p>In Equity. Suit by Florence Akeley Quirk against James Quirk and another. Plaintiff filed, under equity rule 58, interrogatories addressed to the defendants, to which they filed objections.</p>

<p>Bankruptcy <@==>348 — Debts Entitled to Priority — Wages—“Workman, Clerk, Traveling or City Salesman, or Servant.”</p> <p>• Services rendered by claimant to bankrupt under a contract by which he sold a business to bankrupt and agreed to conduct it ior three years at an annual salary, which covered, not only his services, but the price of the business sold, held not those of a “workman, clerk, traveling or city salesman, or servant,” and not entitled to priority of payment under Bankruptcy Act, § 64b (4), being Comp. St. § 9648.</p> <p><gss>For other eases see same topic & KEY-NUMBER in ail Key-Numbered Digests & Indexes</p>

<p>1. Ejectment <©=>81 — Pleading—Statute.</p> <p>Under Acts Pa. May 8, 1901 (P. L. 142), and Act Pa. June 7, 1915 (P. L. 887), providing for a declaration and a statutory plea of not guilty in ejectment cases, and authorizing court to enter judgment for person entitled, thereto, a plea setting forth federal acts, under which the property was condemned by defendants, held not to present validity of condemnation proceedings, except possibly as a trial question.</p> <p>2. Ejectment <©=>75 — Pleading—Replication—As Demukree.</p> <p>A so-called replication, which challenged the sufficiency in law of a plea in an ejectment case and also denied the fact allegations of the plea, cannot be treated as a demurrer.</p> <p>©=»For other case's see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Admiralty. Libel by James Duggan, an infant, by Mary Duggan, his guardian ad litem, against the steamer Joshua W. Rhodes, claimed by the Valley Steamship Company.</p>

<p>Bankruptcy <§=>404(2) — Discharge—Denial.</p> <p>Under Bankruptcy Act July 1,1898, § 14b, as amended (Comp. St. § 9598), and in view of General Order 31 and Official Form No. 57 (89 Fed. xii, lvii, 32 C. O. A. xxxi, lxxxi), held, that an application for discharge will he denied, where the application was made within six years after previous discharge on a voluntary petition, notwithstanding hearing on the application was not had until after expiration of the six-year period counting backward; for, while the discharge is initiated by the act of the bankrupt, the six-year period prescribed is measured back from the filing of the application, and not from the hearing.</p> <p><§zs>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Mortgages <@=125- — Attorney’s Eee.</p> <p>Under a bond and mortgage providing that an attorney’s fee should be payable upon writ of fieri facias being issued, allowance of fees is not dependent upon the actual collection of the mortgage debt.</p> <p>2. Mortgages <@=98 — What Law Governs.</p> <p>A mortgage provision regarding payment of attorney’s fees is governed by state law.</p> <p>3. Mortgages <@=581(1) — Attorney’s Fee.</p> <p>Stipulated attorney’s fees must be included in the mortgage judgment and not collected as costs, since fees belong to creditor and not the attorney.</p> <p>4. Mortgages <S=581(,5) — Attorney’s Fees.</p> <p>A stipulated attorney’s fee of 5 per cent., payable upon issuance of writ of fieri facias upon a §10,000 mortgage, held reasonable to the extent of §300.</p> <p><§55>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Bankruptcy. In the matter of John K. Swift, bankrupt. A motion to set aside the adjudication was made, and the bankrupt moves to strike such motion.

At Law. Three suits by Agnes R. Vadner against Charles S. Vadner and others, in which W. E. Pruett, trustee of the estate.of Charles S. Vadner, bankrupt, intervened, were brought in a state district court of Utah, and after consolidation were removed to the District Court of the United States in and for the District of Nevada, where bankruptcy proceedings against Charles S. Vadner were pending. Charles and Agnes Vadner were married October 1, 1895, in Massachusetts.

<p>'At Law. Proceeding by the United States for the forfeiture of one seven-passenger Paige car. On demurrer to portions of the interplea of L. N. Jerome.</p>

<p>At Law. Proceeding by the United States for the forfeiture of one five-passenger Lord automobile. On demurrer to portion of interplea of T. A. Harwell.</p>

<p>1. Corporations §=563(1) — Unlawful Dividends — Liability of Directors —Action by Receiver — Oklahoma Statute.</p> <p>Under Rev. Laws Okl. 1910, § 1254, prohibiting directors from making dividends, except from surplus profits, and providing that for its violation they shall be individually “jointly and severally liable to the corporation, and to the creditors thereof, in the event of its dissolution,” to the full amount of the capital divided, as the provision was construed by the Supreme Court of the territory, an action at law cannot be maintained by a receiver against directors thereunder for the benefit of either the corporation or its creditors, unless the corporation has been dissolved as provided by statute.</p> <p>2. Statutes §=231 — Construction—Adoption of Provisions Previously Construed.</p> <p>A statute of Oklahoma Territory, continued in force by the state Con- ■ stitution and afterward carried into the statutes of the state in their revision by the Legislature, carries with it the construction placed upon it by the Supreme Court of the territory.</p> <p>3. Corporations §=563(1) — Receivers—Powers—Action to Enforce Statutory Liability of Directors.</p> <p>A receiver for a corporation cannot maintain an action to enforce the statutory liability of officers or directors, unless expressly so authorized by statute.</p> <p>/> — 'For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Equity. Suit‘by E. E. Brunson and others against the Carter Oil Company. On motion to strike answer. This case is here on removal from the district court of Stephens county, Okl.

<p>Albert Paul Fricke was indicted -for treason.</p>

At Law. J. Willard Robinson was indicted for treason. On motion to direct a verdict at the close of the government’s case. This is a motion to direct a verdict at the close of the government’s case. The defendant'was indicted on January 20, 1919, for treason under three counts.

<p>In the matter of the determination of the heirs of Harper Jessie,‘deceased, a full-blood Creek Indian, wherein petition was filed for reproval to the District Court. On motion to remand.</p>

<p>1. Intoxicating Liquors <@=>2%, New, vol. 8A Key-No. Series — Constitutionau Law — War-Time Prohibition.</p> <p>War-Time Prohibition Act Nov. 21, 1918, does not violate the Tenth Amendment to the Federal Constitution, which reserves to the states powers not delegated to Congress.</p> <p>2. Intoxicating Liquors <@=5132 — War-Time Prohibition — Duration of Act.</p> <p>Act Nov. 21, 1918, prohibiting the manufacture and sale of intoxicating liquors “until the conclusion of the present war,” is applicable to a sale on July 8, 1919, since no treaty had then been signed with Austria, and the army had not been entirely demobilized.</p> <p>«gssFor other cases see same topic & KEY-NUMBElt in all Key-Numbered Digests & Indexes</p> <p>3. Intoxicating Liquors <S=»13 — Constitutional Law — War-Time Prohibition.</p> <p>The Eighteenth Amendment to the federal Constitution, providing for national prohibition in 1920, does not invalidate War-Time Prohibition Act Nov. 21, 1918, upon ground that prohibition legislation is precluded until 1920.</p> <p><g^Por other cases see same topic & KEY-NUMBER, in all Key-Numbered Digests & Indexes</p>

In Equity. Petition by the Alaska Steamship Company and others against the United States, in which the Interstate Commerce Commission intervened. On petitioners’ motion for an injunction pendente lite and respondents’ motion to dismiss the petition.

<p>1. Intoxicating Liquors @=>2%, New, vol. 8A Key-No. Series — Constitu- ■ tional Law — Prohibition During War Time.</p> <p>Congress has constitutional power to prohibit the manufacture and sale of intoxicating liquors during war.</p> <p>2. Intoxicating Liquors @=>134 — War-Time Prohibition — Liquors Prohibited.</p> <p>Act Nov. 21, 1918, providing that no beer, wine, or other intoxicating liquors shall be manufactured or sold during continuance of the war, etc., refers only to Intoxicating beer and wine.</p> <p>3. 'Statutes @=>193 — Construction—“Noscitur a Sociis.”</p> <p>Under the doctrine “noscitur a sociis” the meaning of doubtful words may be ascertained by referring to the meaning of associated words.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Noscitur a Sociis.]</p> <p>4. Statutes @=>194 — Construction—“Ejusdem Generis.”</p> <p>The doctrine of “ejusdem generis” means that general and specific words capable of an analogous meaning take color from each other, so that the general words are restricted to a sense analogous to the less general; citing Words and Phrases, First and Second Series, Ejusdem Generis.</p> <p>5. Intoxicating Liquors @=>134 — War-Time Prohibition — “Intoxicating Liquor.”</p> <p>The term “intoxicating liquor,” as used in War-Time Prohibition Act Nov. 21, 1918, means any liquor, intended or capable of being used as a beverage, containing a proportion of alcohol which will produce intoxication when the beverage is taken in such quantities as it is practically possible for a man to drink.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Intoxicating Liquor.]</p> <p>6. Intoxicating Liquors @=>216 — Information—Sufficiency.</p> <p>' An information under War-Time Prohibition Act Nov. 21, 1918, is fatally defective for failure to allege that the beer sold was in fact intoxicating.</p> <p>@=>For other ¿asea see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by Albin M. Richards against the Security Mutual Rife Insurance Company. On motion by complainant to continue temporary injunction and motion by defendant to dismiss.</p> <p>Application by the plaintiff Albin M. Richards, to continue a temporary injunction, and motion by defendant to dismiss the complaint for want of jurisdiction, and on the ground the complaint does not state a cause of action.</p>

<p>Habeas Corpus. Petition for writ by Anthony V. Pettine, on the relation of Luigi Galleani and others.</p>

<p>Appeals from and in Error to the District Court of the United States for the District of Massachusetts; James M. Morton, Judge.</p> <p>In the matter of the petition of the United States for condemnation of certain lands in the township of Hull, title to which was in Benjamin P. Cheney, who became a bankrupt prior to the acquisition of the lands by the government. Samuel Ross intervened, as did William D. Turner and Samuel M. Child, asserting rights in the funds paid into court by the United States, which were contested by Henry Woodard and others, who also intervened. Erom decrees denying their claims, Turner and Child appeal, and Ross appeals and brings error.</p>

Morton, Jr., Judge. In the matter of the bankruptcy of the Crawford-Plummer Company. An order of the referee, fixing allowance of rent, in favor of Albert A. Gleason and others, trustees, was reversed by the District Court (253 Fed. 76), and Charles G. Gardner, trustee in bankruptcy, appeals.

Rib el by the St. Paul .Fire & Marine Insurance Company against the schooner Ernestina; Arturo Bravo and others, claimants. Decree for lihelant, and the claimants appeal.

<p>In Error to the District Court of the United States for the District of Rhode Island; Arthur E. Brown, Judge.</p> <p>Frederick O. Balcom was convicted of violation of the Espionage Act and brings error.</p>

Morton, Jr., Judge. . Actions by Clarence A. Barnes, trustee in bankruptcy, against Isaac Watchmaker, against Louis S. Levi, against Abraham G. Rudnick, against Benjamin Rudnick, and against Michael I. Meltzer. There were judgments in each case for the trustee, and each defendant brings error.

<p>1. Sales <§=>84 — Construction of Contract — Duration.</p> <p>Whore a sales contract ran for a term of two years, and from term to term thereafter, until terminated by three months’ notice in writing given within 30 days after expiration of any contract period, the duration of the contract is automatically extended for another two-year term upon failure to give the required notice.</p> <p>2. Sales <§=>58 — Construction of Contract — Negative Covenant.</p> <p>Where a sales contract ran for a two-year term, and from term to term thereafter, until terminated by three months’ notice in writing given 30 days after expiration of any contract period, etc., a negative covenant not to sell certain goods during the term of the contract applies to the entire life of the contract, and not merely to the first two-year term.</p> <p>3. Sales <§=>7 — Contract—-Distinguished from Agency.</p> <p>A contract by which title to patterns passed to defendant, held a sales, and not an agency, contract.</p> <p>4. Appeal and Error <§=>843(1) — Jurisdiction—Injunction.</p> <p>That plaintiff’s light to an injunction expired pendente lite does not relieve court from duty of determining substantial issues existing when case is argued upon appeal.</p> <p>5. Statutes <§=>225 — Construction—Clayton Act.</p> <p>The fact that the Clayton Act Oct. 15, 1914, was enacted after similar restrictions had been held not obnoxious at common law or under federal and state anti-trust laws, creates an inference that Congress intended to change the law.</p> <p>6. Monopolies <§=>17(2) — Clayton Act — Resale Contract.</p> <p>A buyer’s covenant not to sell patterns except those of seller, during term of a sales contract held to violate the Clayton Act Oct. 15, 1914, § 3 (Comp. St. § 8835c).</p> <p>other cases see same topic & KEY-NUMBER, in all Key-Numbered Digests & Indexes</p>

<p>1. Monopolies <5=o31 — Indictment— Sufficiency.</p> <p>An indictment under section 1 oí the Sherman Anti-Trust Act (Comp. St. § 8820) need not set forth the means by which the conspiracy was accomplished where the object itself was unlawful.</p> <p><§=>For other cases see same topic & KEY-NUMBEK in all Key-Numbered Digests & Indexes</p> <p>,2. Monopolies @=>29 — Criminal Prosecution — Interstate Trading.</p> <p>Where defendants combined to prevent certain electrical -appliances from being transported to Chicago, the mere fact that they intended to accomplish this result by interfering with the installation of the apparatus in Chicago does'not relieve the offense of its interstate character so as to preclude prosecution under the Sherman Anti-Trust Act.</p> <p>3. Monopolies @=>12(2) — Boycott—Combination Between Employer and Employé.</p> <p>Evidence that employers agreed to increase wages if employes prevented any but union switchboards being used in Chicago, that employes accomplished such result by boycotting concerns using switchboards manufactured in other places, etc., held to sustain a conviction of both employers and employes for violating the Sherman Anti-Trust Act.</p> <p>á'. Criminal Law @=>149 — Limitations.</p> <p>In a prosecution under the Sherman Anti-Trust Act for unlawfully conspiring to restrain trade, the statute of limitations does not run from the time the combination was originally made, but only from the time a conspirator indicates his withdrawal from the combination by some affirmative act.</p> <p>5. Monopolies @=>31 — Criminal Prosecution — Variance.</p> <p>In a prosecution under the Sherman Anti-Trust Act, there is no variance between an indictment that defendants combined to prevent the installation of' any electrical appliances not manufactured by them in a certain city, and proof that the combination related only to certain specified appliances.</p> <p>6. Criminal Law @=>423(3) — Admission of Evidence — Acts of Coconspiratobs.</p> <p>In a prosecution under the Sherman Anti-Trust Act against employers and employés for conspiring to prevent any but union-made switchboards being installed in Chicago, evidence that a defendant trade-unionist exacted payments from builders installing other switchboards as a condition of not calling strikes, etc., held admissible as an act of one co-conspirator in furtherance of the object of the conspiracy.</p> <p>^=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. InttIrnai, Revenue <@=19(1) — Stamp Taxes — Certificates of Stock.</p> <p>Within War Tax Law Oct. 22, 3914, § 5, Schedule A, imposing a stamp tax of 5 cents on each $100 of face value, or fraction thereof, of certificates o£ stock issued by any association, company, or corporation, such tax must he paid on certificates of shares issued by a manufacturing company organized in the form of a trust under the common law and deriving none of its rights, benefits, or qualifications from any statute, and which was not an ordinary common-law real estate trust; for, if the word “association” be not broad enough to include the concern, it is included in the expression “company,” while the phrase “certificates of stock” discloses no intent to exclude common-law associations or companies, but evidences a legislative purpose to impose a stamp tax on certificates of stock as muniments of title.</p> <p>2. Internal Revenue <3=39(1) — Stamp Taxes — 'Vapidity.</p> <p>War Tax Law Oct. 22, 1914, § 5, Schedule A, imposing a stamp tax of 5 cents on each $100 of face value, or fraction thereof, of certificates of stock issued by any company, association, or corporation', is not invalid in its application to a manufacturing company organized as a trust at common law, on the theory that it was inapplicable to other associations, for the taxes were merely on the muniments of title, and if other associations do not issue such muniments of title they are therefore not taxable.</p> <p>@=For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Hollister, Judge. In the matter of the receivership of the Cincinnati, Hamilton & Dayton Railway Company, and foreclosure proceedings against the Cincinnati, Indianapolis & Western Railroad Company.

<p>In Error to the 'District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge.</p> <p>Criminal prosecution by the United States against A. P. Belfi, Constantine Belfi, Angelo Trevisan, and seven others.. Judgment of conviction, and defendants bring error.</p>

<p>1. Sales @=>6 — Construction—Contract por Loans or Sales op Accounts.</p> <p>A contract under which a1 mercantile company assigned accounts against its customers, which it guaranteed to the other party, which advanced a stated per cent, of their face value, collected the same, and, after deducting the advance, expenses, and an agreed charge, returned the balance to the company under the law of Illinois and of the federal courts, is a loan contract, and not one for the sale and purchase of the accounts.</p> <p>2. Corporations @=>487(1) — Contracts Ultra Vires.</p> <p>A contract by defendant corporation to lend money to complainant, which defendant was without charter power to make, is void, and neither party can enforce it or predicate upon it any right of recovery.</p> <p>8. Account @=>1 — Grounds por Accounting — Transactions Under Void Contract.</p> <p>An accounting may be had based upon a series of transactions between the parties, although they took place under a contract which was void for want of power in one party to make it.</p> <p>4. Usury @=>102(1) — Recovery op Usury Paid — Effect op Settlement.'</p> <p>Under the law of Illinois, as by the general law, transactions tainted with usury, but which have been definitely settled and closed as between the parties, cannot thereafter he made the subject of recovery or accounting respecting the usurious interest paid.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>5. Account <j=»1 — Accounting—Separate Transactions.</p> <p>Where complainant from time to time assigned accounts receivable to defendant pursuant to a contract void for want of power in defendant to enter into it, but under which complainant received an advance on the accounts received at any one time, and on their collection received back the balance above the advance less certain charges, each of such transactions was separate, and when so closed was settled independently of the others, and not subject to a future accounting.</p> <p>Evan A. Evans, Circuit Judge, dissenting.</p> <p><@z=oFor other cases see same topic & KEY-NUMBElt in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Southern District of West Virginia, at Charleston; Benjamin F. Keller, Judge.</p> <p>Action at law by the Owens Bottle-Machine Company against the Kanawha Banking & Trust Company. Judgment for defendant, and plaintiff brings error.</p>

<p>Appeal from and 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 the Coastwise Dumber & Supply Company. In the matter of the books and papers of the Coastwise Dumber & Supply Company. From an order denying its petition for return of such books and papers, the company appeals and brings error.</p>

Dooling, Judge. _ _ Suit in admiralty by Frank Alioto and others against U. A. Pedersen. Decree for respondent, and libelants appeal. This is an appeal by libelants from a decree sustaining exceptions to a libel.

Trip-pet, Judge. . . '' Suit by Charles F. L. Kaufmann, as prochem ami for Walter L. Kaufmann, against Albert C. Williams and Ralph E. Williams, doing business under the firm name of Williams Manufacturing Company. Decree for complainant, and defendants appeal.

<p>Patents <§=328 — Infringement—Force Pump.</p> <p>The Kimes patent, No. 1,166,224, for a motor-operated force prime, claim 7, the distinguishing element of which is the permanently open air ports connecting the suction and discharge chambers, terminating in a “nozzle extending into the upper chamber having its end above the bottom wall thereof,” held not infringed.</p> <p><g^For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. _ Suit by Joseph E. Ward against the Finley Method Company.</p>

<p>In Equity. Suit by the McKinnon Chain Company against the American Chain Company, Incorporated.</p>

<p>In Equity. Suit by Winfield S. MacHenry, trustee in bankruptcy of the Bakers’ Baking Company, against the Dwelling Building & Doan Association and the Dwelling Building & Doan Association, trustee for Frank J. McSorley.</p>

<p>In Equity. Suit by the United States Fidelity & Guaranty Company against Clyde A. Heller and others.</p>

<p>1. Criminal Law <§=51205 — Statu™ Creating New Offense — Punishment.</p> <p>When a statute creates a new offense and prescribes the punishment therefor, only the punishment prescribed can be imposed.</p> <p>2. Intoxicating Liquors <§=>242, 247 — Unlawful Importation — Punishment-Forfeiture of Vehicle Used.</p> <p>The provision of Act Aug. 10, 1917, § 15 (Comp. St. 1918, § 3115(40, making it a criminal offense to import distilled spirits punishable by fine or imprisonment or both, is not a customs law, but a prohibition law enacted under the police power of Congress, and while the seizure and forfeiture as contraband of spirits so imported, though not specifically provided for, is essential to the effective enforcement of the law, the court cannot impose as an additional punishment the forfeiture of the vehicle used, under another statute.</p> <p>igs^For other cases see same topic &KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Bankruptcy. In the matter of Harry Swain, bankrupt. On review of the referee’s order of January 22, 1919, declaring that a chattel mortgage given by the bankrupt to Harry C. Lincoln was void.

<p>Conspiracy <§=>33 — Conspiracy to Defraud United States.</p> <p>Where a timekeeper and a laborer at the ship building plant at Hog Island conspired together to cause to be issued to the laborer fraudulent time checks, which he was to cash, the two are guilty of conspiracy to defraud the United States, within Criminal Code, § 37 (Comp. St. § 10201); the United States Shipping Board Emergency Fleet Corporation, organized by the Shipping Board created by Shipping Act Sept. 7, 1916, having contracted, as authorized by executive order under the emergency shipping fund provision of Urgent Deficiencies Appropriation Act June 15, 1917, for the doing of the work on a cost plus basis, the funds expended were those of the United States, and the effect of the conspiracy would be to deplete them.</p> <p>@=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Index®»</p>

The Union Timber Products Company was indicted for conspiracy to defraud the United States by inducing the United States Shipping Board Emergency Fleet Corporation to execute and enter into a contract and agreement for the construction of vessels and to advance money thereon. On demurrer to the indictment.

<p>At Law. Action by W. P. Sutherland against the Buckeye Cotton Oil Company. On motion to dismiss the declaration, or require plaintiff to elect upon the cause of action he will rely.</p>

<p>1. Bankruptcy <@=212 — Jurisdiction op Bankruptcy Court.</p> <p>A trustee is not required to resort to a plenary suit to establish his right to property which has come into his possession, hut may defend it when challenged in the bankruptcy proceedings.</p> <p>2. Bankruptcy <@=184(1) —Fraudulent Conveyances <@=47 —Property Passing to Trustee — Fraudulent Sale! by Bankrupt.</p> <p>New Jersey Bulk Sales Act (P. L. 1907, p. 570; 2 Comp. St. N. J. 1910, p. 2622) is constitutional, and a sale in violation of its provisions is void as against the trustee in bankruptcy of the seller appointed in proceedings instituted within 90 days after the sale.</p> <p><gE5>For other eases see same topic & KEY-NUMKSR in all Key*Numbered Digests & Indexes</p>

<p>At Raw. Action by Volante Novitzky and others against Morris Rozner. On motion to take off compulsory nonsuit.</p>

<p>In Bankruptcy. In the matter of Alexander Jutkovitz, bankrupt. On hearing on special commissioner’s report sustaining objections to bankrupt’s discharge.</p>

<p>At Law. Action by Matthew J. McKeon, by Patrick McKeon, his next friend, and Patrick McKeon, against the Central Stamping Company, a corporation of the state of New York. On rule to show cause why the verdicts for plaintiffs should not be set aside and new trials granted.</p>

In Admiralty. Eibel by Ezequiel Echevarria, master of the steamship Begona II, against the tug Mary P. Riehi and the car float T, claimed by the Atlantic Transport Company.

<p>In Bankruptcy. In the matter of Battle Island Paper Company, bankrupt. On application of the National Park Bank of the City of New York for resettlement of order of distribution.</p> <p>This is an application by the National Park Bank of the City of New York for a resettlement of the order of this court providing for the distribution and payment over of the balance of the estate remaining for distribution. The question now raised is new in the case, and was not suggested or presented by any one at the time the order of distribution referred to was made.</p>

In Bankruptcy. In the matter of Pryce W. Jones, alleged bankrupt. On review of findings of special master that allegations of acts of bankruptcy were not sustained.

<p>In Bankruptcy. In the matter of the Booschen Piano Case Company, bankrupt. On review of referee’s order requiring the Iron-bound Trust Company to turn over to the trustee $976.40.</p>

<p>1. Corporations <§=>376 — Insolvency—Purchase by Corporations of Own</p> <p>Stock.</p> <p>A corporation may not purchase its own capital stock, except from Its surplus earnings or accumulated profits, and if it does so, the purchase is void as against creditors.</p> <p>2. Bankruptcy <§=>340 — Claims—Burden of Proof.</p> <p>The burden of proof is generally on one objecting to a claim filed in a bankruptcy court.</p> <p>3. Corporations <§=376- — Purchase by Corporation of its Own Stock.</p> <p>Where a corporation, empowered by its charter to purchase its own capital stock only with its “surplus earnings or accumulated profits,” purchased its own stock by giving its notes tor the purchase price, and had no surplus earnings or profits when the notes became due, payment of the notes cannot be enforced from the corporation’s trustee in bankruptcy, although the corporation’s surplus and profits may have been equal to the face of the notes at the time they were executed.</p> <p><gx=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by the Prest-O-Eite Company, Incorporated, against the Acetylene Welding Company, Leonard Eorentowitz, and John Lorentowitz. On final hearing.</p>

<p>Executors and Administrators <S==>439 — Suit on Behalf of Estate — Parties.</p> <p>A suit in equity for an accounting for property wrongfully withheld from an estate cannot be maintained by a creditor alone, but the legal representative of the decedent, is an indispensable party.</p> <p><@s»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Patents <§=>318(1) — Infringement — Damages — Profits—Assignment — Presumption. .</p> <p>Where contract for installation of Infringing apparatus for defendant company was assigned by contractor without consent of company, and neither the company nor the assignee would have a right of action, it must be assumed that the contract made between contractor and company remained a contract between them despite assignment, and that the profits made inured to the one who contracted for them.</p> <p>2. Patents <§=>318(1) — Installation of Infringing Apparatus — Liability of Contractor.</p> <p>Having contracted to install an apparatus and to receive therefor a consideration that included a profit, which has since been found to be an infringing profit, and having been paid directly a part of the moneys under the contract, contractor could not assign his liability for his act of infringement by assigning the contract and its profits to another.</p> <p>3. Patents <§=>310(7) — Infringement—Personal Liability — Pleading.</p> <p>Where defendant failed to plead that another was the sole infringer in installing apparatus, though he had the opportunity under the rules of good pleading to so plead, he is estopped to deny personal liability to the extent of the profits which he actually received, for infringements in which he personally participated.</p> <p>4. Corporations <§=>306 — Torts—Liability of Officers.</p> <p>The director of a corporation is ordinarily liable only for those torts which he himself commits.</p> <p>5. Patents <§=>287 — Infringement by Corporation — Liability of Director or Manager.</p> <p>Where a director or manager of a corporation, who sustains to the corporation the relation of master or principal. in the sense of ■ being its dominating force, himself commands the commission of an infringement by the corporation, though ho does it as an officer and in the name of the corporation, he is individually liable.</p> <p><g¿s>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>6. Patents <@=>287 — Infringement by Corporation — Liability of Director or Manager.</p> <p>In an action for infringement of letters patent, an individual, who has inspired the tort and has participated in its commission, is a Joint tortfeasor, and must yield to the person whose rights he has invaded the profits which he has gained thereby.</p> <p>7. Patents <@=>287 — Infringement by Corporation — Liability of Director</p> <p>or Manager.</p> <p>When a corporation infringes in obedience to the command of an ohicer with power to cause the corporation to commit or refrain from committing the infringing act, and when that officer participates in and contributes to the -infringement, they are in the eye of the law joint tortfeasors, and both are liable, in the same or in different measures, according to the circumstances.</p> <p>8. Patents <@=>287 — Infringement—Participation—Evidence.</p> <p>The character and extent of officer’s participation in the infringing acts of a corporation which he organized held such as to bring about infringements.</p> <p>9. Patents <@=>287 — Infringement by Corporation — Personal Liability op Officer.</p> <p>In suit for profits of infringement, officer, who inspired, brought about, and directed infringements by corporation, is personally liable for the profits of the infringement which ho actually received.</p> <p>®=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

At Law. In the matter of the application of Earl Beach for a writ of habeas corpus. The petitioner herein is, and for several years has been, deputy collector of United States customs service stationed near the border between the United states and Mexico, in San Diego county.

<p>In Equity. Action by Rensselaer E- Curtis, receiver of Atlantic National Bank of Providence, R. I., against Edward P. Metcalf and others. On motion to dismiss the bill or strike out.</p>

<p>At Law. Action by Andrew J. Plunkett against the Gulf Refining Company and H. L. Plunkett. On motion to remand to a state court.</p>

At Law. Action by Andrew J. Plunkett against the Gulf Refining Company and H. L. Plunkett. On motion to remand to state court.

In Bankruptcy. In the matter of the A. It. Savage Baking Company, bankrupt. On review of order of referee affecting property covered by two conditional sales agreements.

<p>Criminal Law <§=>1001 — Stay of Execution of Sentence — Power of Court.</p> <p>A federal court has power, after imposing a sentence of imprisonment on a defendant upon a plea of guilty, to suspend execution of the sentence for a sufficient time to permit an application for .pardon to be made and determined.</p> <p><@s»For other cases see same topic & KBY-NIJMBBR in all Key-Numbered Digests & Indexed</p>

<p>1. Patents <§=>149 — Reissuance with Broadened Claims — Time fob Application.</p> <p>A patent will not ordinarily be reissued, merely to broaden its claims, upon an application made more than two years after issuance of the original patent.</p> <p>2. Patents <§=>136 — Reissuance—Object op Statute.</p> <p>The statute providing for the reissuance of patents in certain cases is intended to secure to the inventor a monopoly of that which ho actually discovered.</p> <p><©=s>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Action by William H. Curtis, trading and doing business as the Bay State Mop Company, against Peter H. Heiskell, Jr., trading and doing business under the name of P. H. Heiskell, Jr., & Co. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from the Commissioner of Patents.</p> <p>Interference proceeding in the Patent Office between William L-Bliss and Charles E. Bonine. From a decision by the Commissioner of Patents in favor of Bliss, Bonine appeals.</p>

<p>Appeal from the Commissioner of Patents.</p> <p>Application by the Swan & Finch Company to register a trade-mark. From a decision by the Commissioner of Patents denying registration, the applicant appeals.</p>

<p>Trade-Marks and Trade-Names <@=>3(4) — Registration—“Slo Flo” — Lubricating Crease.</p> <p>“Slo Flo,” as a trade-mark for lubricating grease for Mgb speed machines, is not entitled to registration, since the quality of flowing slowly is essential to such a product, and the quoted words are descriptive.</p> <p>^z»For otlier cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>