Volume 260 — Federal Reporter

Campbell, Judge. Suit by the United States and others against Nellie Porter, alias Nellie Deer, alias Lettie McGilbra. Decree for cross-complainants, and defendant appeals.

Action at law by Frances B. Foster and others against J. L. Lancaster and Pearl Wight, receivers for the Texas & Pacific Railway Company. Judgment for plaintiffs, and defendants bring error.

Keller, Judge. Action at law by the Drovers’ & Mechanics’ National Bank of Baltimore, Md., against the First National Bank of Sutton, W. Va., and P. E. Wagner, its receiver. Judgment for defendants, and plaintiff brings error.

<p>In Error to the District Court of the United States for the District of Maryland, at Baltimore; John C. Rose, Judge.</p> <p>Action by George R. Davis, administrator of the estate of Donald P. Davis, deceased, against Peter Weissengoif. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from the District Court of the United States for the Eastern Distinct of North Carolina, at Raleigh; Henry G. Connor, Judge.</p> <p>Suit in equity by the Old Dominion Trust Company against the First National Bank of Oxford and others. Decree for defendants, and complainant appeals.</p>

<p>In Error to the District Court of the United States for the Western District of South Carolina, at Rock Hill; Charles A. Woods, Judge.</p> <p>Action at law by Kenan, McKay & Spier, a corporation, against the Yorkville Cotton Oil Company. Judgment for defendant, and plaintiff brings error.</p>

Appeals from the District Court of the United States for the Eastern District of Virginia, at Norfolk; Edmund Waddill, Jr., Judge. ” Suit in admiralty for collision by Arthur Eloyd Hughes, master of the British steamship Dorset, against the tug Pocahontas and the tug Crisfield and barge, the New York, Philadelphia & Norfolk Railroad Company, claimant, with cross-libel.

<p>In Error to the District Court of the United States for the Western District of Virginia, at Danville; Henry Clay McDowell, Judge.</p> <p>Action at law by Thomas Cruise against H. V. Shugart and J. N. Wood. Judgment for plaintiff, and defendants bring error.</p>

<p>Appeal from the District Court of the United States for the District* of Porto Rico; Hamilton, Judge.</p> <p>Suit by the New York & Porto Rico Steamship Company against Manuel Camuñas and others. Decree for plaintiff, and defendants appeal.</p>

<p>In Error to the District Court of the United States for the District of Utah; Tillman D. Johnson, Judge.</p> <p>Action at law by Charles Mathews, Jr., against the San Pedro, Los Angeles & Salt Lake Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

Separate actions at law by J. A. Venable and by J. V. Boyd against Harry A. Wayne and others, consolidated for trial. Judgment for plaintiff in each case, and defendants bring error.

<p>Limitation of Actions &wkey;>24(2) — Written Contracts — Bills of Lading.</p> <p>Under the rule of law that the bill of lading required to be issued by the initial carrier upon an interstate shipment governs the entire transportation, and fixes the obligations of all participating carriers to the extent that its terms are applicable and valid, such a bill of lading obligating the owner to pay the freight, in connection with the filed and published tariffs, which become a part thereof, constitutes a written contract to pay the lawful freight as shown by such tariffs, and an action may be maintained thereon within five years, under Gen. St. Kan. 1915, § 6907(1).</p> <p>Stone, Circuit Judge, dissenting.</p>

<p>1. Libel and Slandee <&wkey;28 — Action foe Slandee — Repetitions by Third Persons.</p> <p>Voluntary and unauthorized repetitions of a slander by .third persons, current rumors and reports thereof and damages flowing therefrom, are not regarded by law as the natural or probable consequences of the original utterance of the slander.</p> <p>2. Libel and Slandee <&wkey;28, 101(1) — Actions foe Slandee — Measure of Damages.</p> <p>The legal presumption is that a slander will not be repeated, and that its unauthorized repetition and current rumors and reports of it and the damages therefrom are not to be anticipated by the originator, and are not the natural or probable consequences thereof, but the proximate cause of such damages is the illegal intervening repetition or the making by third persons of the current reports and rumors.</p> <p>3. Appeal and Error &wkey;>1053(2) — Erroneous Admission of Evidence — Effect of Subsequent Withdrawal.</p> <p>The general rule is that if evidence has been erroneously admitted during the trial the error is cured by the subsequent withdrawal of the evidence before close of the trial or by a clear instruction to disregard it, but when it appears from the record that it made such a strong impression on the minds of the jury that the subsequent withdrawal or instruction probably failed to eradicate it, the defeated party is entitled to a new trial.</p> <p>Stone, Circuit Judge, dissenting in part.</p>

Petition to Revise, Order of- the District Court of the United States for the Western District of Arkansas; Frank A. Youmans, Judge. In the matter of Rula M. Oliver, bankrupt. On petition of G. W. Martin and another to revise an order of the District Court.

Haight, Judge. Petition in admiralty of the Erie Railroad Company, owner of Erie Lighter 108, for limitation of liability. From a decree awarding damages to Ered Hansen, administrator of Theodore Thonassen, petitioner appeals.

Vaughan, Judge. Habeas corpus by Tatsukichi Kuwabara against the United States. Prom a judgment discharging the writ, petitioner appeals.

<p>In Error to the District Court of the United States for the District of Oregon; Charles E. Wolverton, Judge.</p> <p>Action at law by William Newport against the Crown Willamette Paper Company. Judgment for plaintiff, and defendant brings error.</p> <p>William Newport, plaintiff below and defendant in error here, recovered verdict and judgment for damages on account of the injury done to his wife, Gertrude; the injuries resulting in her death. The facts are substantially these:</p> <p>Mrs. Newport was employed by the paper company, plaintiff in error here, defendant below, as a cook in a tent railway construction camp in Oregon. The cook tent was on the side of a mountain stream opposite to where the roadbed was being cleared. There had been considerable blasting done by the paper company, and no damage to those in the tents had resulted. One day in December, 1917, the superintendent who had charge oí the blasting went away and put another man in charge. Opposite the cook tent and on the side of the hill, about 175 yards away, the man in charge, wishing to blast two stumps, put 35 sticks of giant powder, 20 per cent, dynamite, underneath one stump, and 15 sticks under another one about 15 feet away. Mrs. Newport was serving meals to two employés of the paper company, when another employé told her and the others in the tent where she was that a blast was to be fired, and a notice by a call of “Fire!” was given. Mr. Newport, together with a little boy, the son of his wife, left the tent, not through fear, but in order to watch the effect of the blast; but Mrs. Newport and the others remained in the tent. A very few moments after the notice was given the two blasts exploded, and a large piece of wood, weighing about 120 pounds, and approximately 4 by 6 feet in size, was hurled violently through the canvas side of the tent and hit Mrs. Newport on the head and killed her. She was a healthy young woman of industrious habits, and at the time of her death was earning S90 a month as a cook. There was testimony that the charge was put in on the hill side of the stump, opposite the side which faced the cook tent, and that because of this the stump would naturally, when exploded, be driven toward the cook tent. There were a few small alder trees between the cook tent and the stumps which were exploded; but they afforded no protection to the tents.</p> <p>The action is brought by William Newport in his own behalf. Mrs. Newport had previously been married, and was the mother of three children by the prior marriage, but had no children by William Newport. The action is based upon two statutes of the state of Oregon — chapter 3, General ]Laws of Oregon 1911, page 16, and chapter 112, General Laws of Oregon 1913, page 194. Chapter 3, called the Employers’ Liability Act, provides that owners, contractors, and subcontractors, and other persons having charge of or responsible for any work involving a risk or danger to employés or to the public, shall use every care and precaution which it is practicable to use for the protection and safety of life and limb, limited only by the necessity of preserving the efficiency of the appliances used. Section 4 of the act reads as follows: “If there shall be any loss of life by reason of the neglects or failures or violations of the provisions of this act by any owner, contractor, or subcontractor, or any person liable under the provisions of this act, the widow of the person so killed, his lineal heirs or adopted children, or the husband, mother, or father, as the case may be, shall have a right of action without any limit as to the amount of damages which may be awarded.” Section 5 provides that in actions brought to recover for injuries suffered by an em-ployé, the negligence of a fellow servant shall not be a defense where the injury shall be caused or contributed to by any of the following causes, namely: “* * * The neglect of any person engaged as superintendent, manager, foreman, or other person in charge or control; * * * incompetence or negligence of any person in charge of, or directing particular work in which the employé was engaged at the time of the injury or death; the incompetence or negligence of any person to whose orders the employé was bound to conform and did conform and by reason of his having conformed thereto the injury or death resulted; the act of any fellow servant done in obedience to the rules, instructions or orders given by the employer or any other person who has authority to direct the doing of said act.” Section 6 provides that the contributory negligence of the person injured shall not be a defense, but may be taken into account by the jury in fixing the amount of damage.</p>

<p>Bankruptcy <@=>178(1) — Provable Claims — Secured Creditor — Fraud.</p> <p>A transaction between bankrupts, a mercantile partnership then in financial difficulty, and a creditor, by which the latter obtained the claims of other mercantile creditors at a large discount and took bankrupt’s notes for the full amount, secured by chattel mortgage and afterward by bill of sale, with an agreement of repurchase, held not fraudulent as to bankrupts or other creditors, and such creditor’s claim, after crediting the value of the mortgaged property, held provable against the estate.</p>

Suit in equity by J. E. Broussard and others against Walter J. Crawford, trustee in'bankruptcy of E. E. Moore, and others. Decree for complainants, and defendants appeal.

Seymour E. Rau was convicted of violating Act Cong. Oct. 3, 1917, § 1004, making it .a criminal offense to fail to file an income tax return as prescribed by law, and he brings error.

<p>1. CimriNAi, Law ©=>.‘570, 371(1), 372 — Other Offenses — Evidence.</p> <p>Under an indictment for conspiracy for the sale of narcotic drugs in connection with a physician in violation of Harrison Act Dec. 17, 1914, § 2 (Comp. St. § 6287h), evidence of sales made by defendants in the same manner after such physician had withdrawn and another had taken his place held, admissible, as tending to show a continuing conspiracy and guilty knowledge and intent.</p> <p>2. C'kuuiíal Law ©=>877 — Effect of Acqtjittai. of One Defendant.</p> <p>On trial of three defendants for criminal conspiracy, the acquittal of one held not to invalidate a conviction of the others.</p>

<p>1. Criminal Law @==>417(10) — Sale of Liquor to Men in Uniform — Evidence.</p> <p>On trial of a defendant for selling liquor to a member of the military forces in uniform, the exclusion of testimony of defendant, who did not personally take the order, that he was told by the person who took the order that the liquor was ordered by, and was for, a woman, to whom he charged it, held error.</p> <p>2. Criminal Law @=>37 — Defenses—Entrapment.</p> <p>That a seaman in uniform encouraged arid incited a defendant to sell him liquor for the purpose of obtaining evidence against him held riot to bar the prosecution, where the act was done because of prior complaints of violation of the law by defendant.</p> <p>Ross, Circuit Judge, dissenting in part.</p>

<p>Appeal from the District Court of the United States for the District of Hawaii; Plorace W. Vaughan, Judge.</p> <p>Habeas corpus by Mototaro Fguchi against the United States. From a judgment discharging the writ, petitioner appeals.</p>

<p>Appeal from the District Court of the United States for the District of Massachusetts; George W. Anderson, Judge.</p> <p>Suit in equity by Kate PI. Dunn against William D. T. Trefry. Decree for defendant, and complainant appeals.</p>

<p>1. WATERS AND WATER COURSES &wkey;>285-CONTRACT TO SUPPLY WATER-MINING PURPOSES.</p> <p>Under contract whereby mining company agreed to furnish water to plaintiff engaged in extracting metal from copper tailings or refuse, held, plaintiff was limited to a maximum of 200 gallons per minute, and was not entitled to all water reasonably necessary for the operation of its plant.</p> <p>2. Contracts <&wkey;143 — Construction—Power or Court.</p> <p>The court cannot by implication add to or change a contract which is clear and complete in itself.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in admiralty for collision by Lee’s Lighters against the steam lighter Comport; the New York & Cuba Mail Steamship Company, claimant. Decree for respondent, and libelant appeals.</p>

<p>Appeat, and Error <&wkey;456 — Supersedeas.</p> <p>Showing on petition for injunction in aid of appellate jurisdiction hela insufficient for interference with decree of Supreme Court of territory that permanent injunction should remain vacated; bond to reimburse being given.</p>

<p>1. Poisoxs <&wkey;4, 9 — Indictment Under Harrison Narcotic Act Need Not Charge that Accused was in Business.</p> <p>A prosecution for violation of Harrison Anti-Narcotic Act Dec. 17, 1914, § 2 (Comp. St. § 62S7h), by selling a narcotic drag without a written order from the purchaser on the prescribed form, may be predicated on a single sale, and the indictment need not charge that accused was in tho business of selling narcotics.</p> <p>2. Criminal Law &wkey;>369(l) — Purchaser or Narcotics Could Testify to Sale of Narcotics to Him on Several Occasions.</p> <p>On trial of a defendant charged with selling a narcotic drug to a named purchaser in violation of the statute on a specified date, it was not error to permit such purchaser to testify to sales to him at different times.</p>

<p>In Error to the District Court of the United States for the Eastern District of South Carolina, at Charleston; Henry A. M. Smith, Judge.</p> <p>Henry J. Preyer was convicted of violation of the Reed Amendment, and brings error.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Oklahoma; Ralph E. Campbell, Judge.</p> <p>Suit in equity by Robert L. Frink against the Okmulgee Window Glass Company. Decree for complainant, and defendant appeals.</p>

<p>1. Patents <&wkey;216 — Licenses—Construction of Contract.</p> <p>A contract by which a manufacturer of sewing machines granted the exclusive right to sell its machines on commission in a specified territory, which contained no reference to a patent on the machines, held not a contract of license, but one of agency, which did not give the manufacturer a. right of action for infringement on account of sales by the agent outside of his territory.</p> <p>2. Principal and Agent <&wkey;81(4) — Agency to Sell on Commission — Suit for Commissions.</p> <p>Under a contract by which complainant was given exclusive right to sell sewing machines made by defendant on commission in a specified territory, and in which he agreed during the term not to sell or deal in any machines made or sold by any other concern, a sale by him of machines made by defendant outside of his territory, whether the property of defendant or another, was a breach of his contract, and he is not entitled to commissions on such sales.</p>

<p>Appeal from the District Court of the United States for the Second Division of the Northern District of California; Jeremiah Net-erer, Judge.</p> <p>Suit by the Petroleum Rectifying Company of California against the Reward Oil Company, From a decree dismissing the bill, plaintiff appeals.</p>

<p>In Equity. Suit by the Petroleum Rectifying Company of California against the Reward Oil Company. Decree for defendant.</p>

In Equity. Suit by the Dayton Engineering Laboratories Company against A. Atwater Kent, doing business as the Atwater Kent Manufacturing Company, involving patent No. 1,223,180, granted April 17, 1917, to Charles E. Kettering, for improvements in ignition systems. Decree dismissing bill.

<p>In Equity. Suit by Schaum & Uhlinger, Incorporated, against the Copley-Plaza Operating Company. Decree for complainant.</p>

<p>In Equity. Suit by Harry E. Merrill against the W. Bickford Company. Decree for complainant.</p>

<p>1. Equity <©=3363 — Pleading—Motion to Dismiss.</p> <p>Under equity rule 29 (198 Fed. xxvi, 115 C. C. A. xxvi), all well-pleaded allegations of fact in a bill are admitted on motion to dismiss, and hence grounds for dismissal based on allegations of fact contradictory to positive averments in the bill cannot be considered.</p> <p>2. Patents <@=>287 — Infringement—Persons Liable — Corporate Officers.</p> <p>The mere, fact that the only acts of the individual defendants in manufacturing, selling, or using infringing devices were performed by them as officers or directors of the defendant corporation, does not necessarily relieve them from liability for infringement of the patent.</p> <p>3. Patents <@=>283(2) — Infringement—Injunction—Defense — Discontinuance of Infringement.</p> <p>The fact that a defendant who has been guilty of infringement of a patent has later ceased such infringement does not deprive the owner of such patent of the right to- an injunction against the infringement.</p> <p>4. Patents <@=>283(2) — Infringement Suit — Expiration of Patent.</p> <p>If at the date of the filing of a bill 'charging infringement of a patent there is sufficient time, under the rules of practice of the court in which such bill has been filed, to obtain temporary injunction thereon before expiration of such patent, the court secures the necessary jurisdiction to grant whatever equitable relief may be proper, and it may retain such jurisdiction, even after expiration of the patent, notwithstanding the fact that no temporary injunction was actually issued or separately ashed, ana despite the contention that the law affords an adequate relief by an action for damages.</p> <p>5. Patents <@=>313 — Infringement Suit — Motion to Dismiss.</p> <p>A bill charging infringement of a patent will not be dismissed on the ground that the mere examination of the patent showed that it was void on its face, except in cases where the patent seems so clearly invalid that the taking of testimony thereon is manifestly useless.</p>

<p>In Equity. Suit by the Thomson Spot Welder Company against the National Electric Welder Company and others. On application for preliminary injunction.</p>

<p>In Equity. Two Suits by Rodolphe E. Agassiz against William D. T. Trefry and others. Decree for defendants.</p>

<p>In Bankruptcy. In the matter of the Louis J. Bergdoll Motor Company, bankrupt. On petition by Louis J. Bergdoll for review of order of referee.</p>

<p>In Admiralty. Libel by Clarence L. Bleakley against the steam tug John D. Dailey, with the steam tug Port Johnson No. 7 impleaded, etc.</p>

In Equity. Suit by the Consolidated Gas Company of New York against Charles D. Newton, Attorney General, and others. On motion by complainant to set aside an order substituting the Corporation Counsel of the City of New York in place of Robert C. Taylor, as ■ .solicitor for defendant Edward Swann, as District Attorney.

<p>In Admiralty. Libel by John Philips and others against the steamship Sutherland. Decree for libelants.</p>

<p>Collision <&wkey;125 — Extent op Damages — Evidence.</p> <p>Evidence that the port side of libelant barge struck a pier, and that its starboard side brought up against the port side of respondent tug, ere., held not to establish that certain damage to the starboard side of the barge was caused by the collision.</p>

<p>In Admiralty. Uibel by Edward F. Brackett and another against the schooner Bessie E. Morse. Decree for libelants, in accordance with the opinion.</p>

<p>At Law. Action by the Springfield Light, Heat & Power Company against the Norfolk & Western Railway Company. On demurrer to two paragraphs of answer.</p>

In Equity. Suit by the Gulf & Ship Island Railroad Company, a corporation organized under the laws of Mississippi, against the Gulf Refining Company, a corporation organized under the laws of Pennsylvania, and J. E. Carr and. Mrs. May Blackwell, citizens of Mississippi, which was begun in the chancery court of Smith county, Miss., but was removed by the named nonresident defendant to the federal court. On motion to remand.

<p>Bankruptcy <&wkey;143(4) — Stock Exchange Membership.</p> <p>A bankruptcy trustee is not entitled to proceeds derived from selling tlie bankrupt’s membership in the New York Stock Exchange until the bankrupt’s dues to and debts within, the Exchange have been determined by the Exchange’s committee and deducted.</p>

<p>In Equity. Suit by the Twin Falls Salmon River Land & Water Company against M. Alexander and others, as members of the State Board of Land Commissioners of Idaho, and the Salmon River Canal Company, Limited.</p>

<p>1. Railroads ©=>5%, New, vol. 6A Key-No. Series — Federal Control — Authority op President — Action Against Carrier.</p> <p>General Order No. 50 of the Director General of Railroads, in requiring all actions and suits on claims for death or injury to person, or loss or damage to property, growing out of the possession, use, control, or operation of any railroad by the Director General of Railroads, which might but for federal control have been brought against the carrier company, to be brought against the Director General, is within the authority lawfully conferred on the President by Federal Control Act March 21, 1918 (Comp. St. 1918, §§ 3115%a-3115%p), and is not inconsistent with section 10 of said act.</p> <p>2. Railroads <§=5%, New, vol. 6A Key-No. Series — Actions Against — Parties —Operation Under Federal Control.</p> <p>Under General Order No. 50 of the Director General of Railroads, in an action against a railroad company for an injury alleged to have been caused by negligent operation while the road was under federal control, the Director General will, on his motion, be substituted as defendant, and-the company be dismissed therefrom.</p>

<p>In Admiralty. Suit by the Actieselskabet Dampsk. Thorbjorn, as owner of the Norwegian steamship, Thorbjorn, against Harrison & Co., Incorporated, and a cargo of nitrates on board said steamship, W. R. Grace & Co., claimant, and against certain subcharter hire payable from W. R. Grace & Co. to Harrison & Co., Incorporated. On exceptions to libel.</p>

<p>Habeas Corpus. Petition by Frederick R. Williams, Captain, Quartermaster Reserve Corps, United States Army, against Maj. Gen. Thomas H. Barry.</p>

<p>1. Contracts <&wkey;10(l) — Validity—Mutuality.</p> <p>In a contract by which plaintiff granted to defendant for a stated term the exclusive right to distribute, exploit, lease, and exhibit in Australasia all motion pictures designated by defendant from among those released by plaintiff, and defendant agreed to designate and accept not less than a specified number, certain conditions inserted for the protection of one or other of the parties held'not to destroy the mutuality of the contract.</p> <p>2. Contracts <&wkey;337(l) — Action fob Breach — Sufficiency of Complaint.</p> <p>A complaint held to state a cause of action for anticipatory breacn of a contract.</p>

In Equity; Suits by Isaac N. Spiegelberg against Francis P. Garvan, as Alien Property Custodian. On motions to dismiss bills. Motion by defendant to dismiss each bill. The grounds urged are (a) that the enemy, the alleged debtor, should be made a party defendant, and (b) that it does not appear that at the time of the filing of the bill any property of the enemy was held by the Alien Property Custodian.

<p>At Law. Action by Walter G. Filer against William S. McCornick. On motion to quash service of process.</p>

<p>In Equity. Suit by the United States against Minnie Folk, Charles Page, and others. On motion by defendant Charles Page to have a bond discharged.</p>

<p>In Equity. Bill by the Michigan Railway Company against the City of Lansing and others. On motion to dismiss the bill.</p>

<p>In Admiralty. Suit by the Standard Transportation Company against the Great Takes Towing Company. Decree for respondent.</p>

<p>In Equity. Suit by the Mancourt-Winters Coal Company against the St. Clair Paper .Company. On exceptions to the report of the master, disallowing plaintiff’s claim against the receiver and bondholders of defendant company.</p>

<p>At Raw. Action by the United States against the /Etna Life Insurance Company. Judgment for the United States.</p>

<p>1. Insane Peesons <g=»26 — Capacity to Sue — Abjudication op Inoompe-TENCY.</p> <p>Under Code Civ. Proc. N. Y. § 55, providing that a party may prosecute or defend a civil action, “unless he has been judicially declared incompetent to manage his affairs,” the disqualification is not the judicial declaration, but actual mental incapacity, of which the decree is but evidence, and its effect as such may be neutralized by a subsequent adjudication of competency in another state, of which the party was then a resident.</p> <p>2. Insane Peesons <§=»87 — Capacity to Sue — Conflicting Adjudications as to Competency.</p> <p>A plaintiff hold qualified to maintain an action for libel in a federal court in New York, although he had been declared incompetent by a court of that state and a committee appointed for his property, where at the time of the alleged libel he was a resident of Virginia, where he had been judicially adjudged competent.</p>

In Bankruptcy. In the matter of J. August Ohl, bankrupt. On review of order of referee.

<p>In Bankruptcy. In the matter of the Mutual Motors Company, bankrupt. On review of order of referee denying petition of the Firestone Tire & Rubber Company for reclamation of property.</p>

<p>In Admiralty. Libel by Ralph G. Leland against Ward W. Wescott. Decree dismissing libel.</p>

<p>Game <&wkey;4 — Treaties <&wkey;>4 — Migratory Bird Treaty and Enforcement Act Within Treaty-Making Powers.</p> <p>The Migratory Bird Treaty between the United States and Great Brit- ■ ain of August 16, 1916, Migratory Bird Treaty Act July 3, 1918 (Comp. St. 1918, Append. §§ 8837a-8837m), and the regulations adapted thereunder, held within the constitutional powers of the federal government, and valid.</p>

<p>Injunction <&wkey;230(l) — Restraining Order Obtained by Receiver — Enforcement by Purchaser of Property. .</p> <p>An order, made on application of a receiver, restraining a third person from making false statements which Interfered with the sale of property in the receiver’s hands, held not enforceable by proceedings for contempt, on motion of a purchaser of the property after it had passed out of' the custody of the court.</p>

<p>In Admiralty. Suit by Charles A. White, administrator of the estate of Calogero Falzone, deceased, against the John W. Cowper Company. Decree for libelant.</p>

<p>CONSTITUTIONAL LAW &wkey;>135 - PROVISION OF FRANCHISE GRANTED STREET Railroad not a “Contract” Within Constitutional Protection — “Contract.”</p> <p>A provision of a franchise ordinance granted by a city and accepted by a street railroad company, requiring the company to sell liaif-fare tickets to certain classes of passengers, held not to constitute a contract protected from change or annulment by the Legislature of the state by the contract clause of the federal Constitution, but a government regulation, made under state authority, and subject to revocation by the state.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Contract.]</p>

C. Westenhaver, Judge. Action by Ellsworth G. Cole against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. There was a judgment for plaintiff, and defendant brings error. Ellsworth G. Cole recovered judgment against the railway company in the sum of $5,000 for personal injuries sustained through alleged negligence of the company, and reversal is sought.

<p>Appeal from the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge.</p> <p>Suit in admiralty by Bernard Tucker, owner of the barge Defender, against Samuel P. Elwell. Decree for libelant, and respondent appeals.</p>

<p>1. Deeds <&wkey;71 — Validity—Duress,</p> <p>A conveyance made by a mother for the purpose of securing an indebtedness of her son, with knowledge that in incurring the indebtedness he had committed a criminal offense and with intent to prevent his prosecution, is not for that reason invalid as for an illegal consideration, where not induced by any threat of prosecution or promise of immunity.</p> <p>2. Deeds <&wkey;211(5) — Evidence—Duress.</p> <p>Evidence held insufficient to warrant cancellation of a deed executed by complainant to secure an indebtedness of her son, on the ground that it was induced by threats of prosecution of the son by the creditor, which placed her under duress or prevented the exercise of her own free will.</p> <p>3. Contracts <&wkey;138(2) — Bight to Belief in Equity — Parties in Pari De-licto.</p> <p>One party to a contract, the purpose of which was the compounding of a felony, and which has been carried out by the other party, will not be relieved from the contract in equity.</p> <p>4. Limitation of Actions i&wkey;37(4) — Suit for Cancellation of Instruments —“Action for Belief on Ground of Fraud.”</p> <p>A. suit for cancellation of a deed as executed under duress Is one for relief on the ground of fraud, and is barred in six years from discovery of the fraud, under Code Civ. Proc. S. C. 1912, § 137, subd. 6.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Action for Deceit or Fraud.]</p> <p>5. Estoppel <&wkey;94(l) — Permitting Mortgage op Property.</p> <p>Where complainant executed a deed to property to enable the grantee to mortgage the same to secure a debt of her son, and permitted the mortgage to be foreclosed without objection, she is barred by laches from thereafter maintaining a suit for cancellation of the deed on grounds of which she had knowledge at the time it was executed.</p>

<p>In Error to the District Court of the United States for the Western District of Tennessee; John E. McCall, Judge.</p> <p>A. E. Saunders and Eeon S. Thompson were convicted of violating Harrison Anti-Narcotic Act Dec. 17, 1914, and they 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>Benjamin Friedman and others were convicted under Penal Code, § 37, of a conspiracy to violate Harrison Anti-Narcotic Act Dec. 17, 1914, and they bring error.</p>

<p>In Error to the District Court of the United States for the Eastern District of Oklahoma; Thomas C. Munger, Judge.</p> <p>Action at law by the Stockyards Doan Company against James Nichols, William B. Miller, and William M. Brisco. Judgment for defendants, and plaintiff brings error.</p>

<p>Jo urns <&wkey;322(3) — Federal Courts — Jurisdiction—Diversity of Citizenship.</p> <p>Where a stockholder, a citizen of California, brought a bill against the corporation and its officers, citizens of Pennsylvania, to require them to account to the corporation for certain commissions paid, the cause of action and prayer for relief constituting in substance a stockholder’s bill merely, the District Court has no jurisdiction on the ground of diversity of citizenship, where complainant has not complied with the mandatory direction of equity rule No. 27 (198 Fed. xxv, 115 O. O. A. xxv), requiring a stockholder’s bill to contain a verified allegation that the suit is not a collusive one to confer jurisdiction on the federal court in a case of which it would not otherwise have cognizance.</p>

Vaughan, Judge. Suit in admiralty by William F. James against the British steamship' Coolgardie; H. A. Thompson, master and claimant. Decree for libelant, and claimant appeals. This is an appeal from a decree for damages in favor of appellee for personal injuries sustained while boarding a vessel to make a medical inspection.

<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 by the Van Dorn Iron Works Company against the Mathis Bros. Company and the New York Blower Company. Decree for defendants, and complainant appeals.</p>

<p>Appeal from the District Court of the United States for the Western Division of the Southern District of Ohio; Howard C. Hollister, Judge.</p> <p>Suit by the Treo Company against Edward Johnson and another, copartners trading as the Uprite Manufacturing Company. Bill dismissed (260 Fed. 409), and complainant appeals.</p>

<p>In Equity. Suit by the Treo Company, a corporation, against Edward Johnson and another, copartners trading as the Üprite Manufacturing Company.</p>

<p>In Equity. Suit by the Meurer Steel Barrel Company, Incorporated, against the Draper Manufacturing Company. Decree for complainant.</p>

<p>Maritime Liens <&wkey;4 — Vessel on the Lay not Liable to Lien toe Replacement op Fishing Geab.</p> <p>The settlement of the Massachusetts fishermen’s strike, in April, 1917, by which the fishing gear on old vessels, then owned by the masters and for use of which the fishermen were charged a percentage of their shares, was to be appraised and paid for, together with replacements, by deductions from the gross stock on each trip, and then became free to use of the fishermen did not change the ownership of the gear and a vessel known to be on the lay is not subject to a lien for replacements bought by the master.</p>

<p>Bankruptcy <&wkey;341 — Action to Recoveb Preference — Res Judicata.</p> <p>Where a claim filed against a bankrupt estate is contested by the trustee on the ground that the creditor received a voidable preference, the decision of the referee that such preference was received and an order for its return, unappealed from, renders the question res judicata, and the creditor cannot relitigate it in a plenary action by the trustee to recover the preference.</p>

<p>1. Winns <&wkey;629 — Construction—Time or Vesting.</p> <p>The rule in Ohio is to construe devises and bequests as vesting at testator’s death, unless his invention to postpone vesting is clearly indicated in the will.</p> <p>2. Perpetuities <&wkey;4(10) — Creation of Future Estates.</p> <p>There is no attempt to create a perpetuity in violation of Gen. Code Ohio, § 8622, by a will giving to A., living at time of execution of the will and death of testator, certain lands for life, and after his death to the heirs of his body, part to be possessed by him on arriving at majority, and the balance after that event and the death of testator’s wife, the wife being given the use and occupation till such times.</p> <p>3. Wills <&wkey;607(2) — Estates Tail — Interests of First Donee and Children under Statute.</p> <p>Under Gen. Code Ohio, § 8622, if a will creates a fee tail, the interest of the first donee is not a mere life estate, but his children do not take the fee-simple title till his death, when the estate tail is enlarged into an absolute estate in fee simple, and a deed by a child of the donee conveys no . estate if the grantor dies before the donee, leaving issue surviving.</p> <p>4. Wills <&wkey;601(l) — Estate Devised — Controlling Provisions.</p> <p>Language of a will which, standing-alone, gives one a fee simple, is controlled by subsequent provisions, which by positive language reduces his interest to a life estate.</p> <p>5. Wills <&wkey;614(19) — Devise of Two Life Estates.</p> <p>Land may be devised to one for life, and after her death to another for life.</p> <p>• 6. Estates Tail <&wkey;l — Limitation to Heirs.</p> <p>To create an estate tail there must be a limitation in express terms or by direct reference, not only to heirs, but to heirs of the donee’s body.</p> <p>7. Estates Tail <&wkey;l — Intent to Create — Presumption.</p> <p>Estates tail are not favored, and there is a presumption against intention to create them, which must be overcome by language free from ambiguity.</p> <p>8. Wills <&wkey;605 — Estate Tail or Life Estate with Remainder.</p> <p>A will devising a farm to testator’s son for life, and on his death to the heirs of his body, and providing that, if any devisee died leaving no heirs of his body, such devisee’s portion should go to the devisees living or their heirs per stirpes, held not to create an estate tail, but to devise a life estate to the son, with remainder to the son’s children, or, in default thereof, over to testator’s other children or their heirs per stirpes.</p> <p>9. Wills <&wkey;634(17) — Contingent Remainders — Vesting of Fee.</p> <p>Where a life estate is devised to a son, single and childless, with remainder to his children, or in default thereof over to testator’s other children or their heirs per stirpes, the fee at death of testator vests in his heirs, subject to be divested when a child is born to the life tenant, and then vests in such child, subject only to open up and let in subsequently born children.</p> <p>10. .Partition &wkey;>16 — Title to Support Action.</p> <p>The life tenant, being also vested by deed of a remainderman with an interest in fee, may maintain partition against the Other remaindermen.</p> <p>11. Partition <&wkey;109(l) — Sale—Title.</p> <p>So long as partition decree, under which sale is made and confirmed, remains in force, the parties are divested of title, and the purchaser is vested therewith.</p> <p>12. Infants <&wkey;29 — Estoppel—Acceptance of Benefit.</p> <p>Infant defendants in partition ratify the proceedings, and are estopped to take advantage of a mere irregularity, by receipting to their guardian for and appropriating their shares of the proceeds, with full knowledge of the facts, on arriving at age.</p> <p>13. Judgment <&wkey;>479 — Collateral Attack — Partition.</p> <p>Proceedings in partition are judicial, and cannot be collaterally impeached, in the absence of fraud.</p> <p>14. Judgment <&wkey;747(2) — Matters Concluded — Partition.</p> <p>Partition forms no exception to the general rule that a judgment is conclusive of every matter which is actually and necessarily involved in its determination, and hence of the title.</p> <p>15. Judgment <&wkey;948(l) — Res Judicata — Necessity of Pleading.</p> <p>A judgment, to be available as res judicata, must be specially pleaded.</p> <p>16. Judgment <&wkey;736 — Matters Concluded — Quieting Title.</p> <p>Judgment against plaintiffs in action in which they claimed a fee under a will, and sought to have their title quieted, it being held that they toofc only a life estate, is not conclusive as to effect of partition proceedings and deeds from remaindermen to life tenant, not considered.</p>

<p>In Admiralty. Suit by the Stems Lumber Company, .owner of- the schooner Florence and Lillian, against the John H. Rice Company and John H. Rice.</p>

<p>In Equity. Suit by the Prest-O-Lite Company against Camille Boumonville and Ida Bournonville, his wife. On final hearing. Decree for complainant.</p>

<p>1. Trade-Marks and Trade-Names <§=»98 — Recovert of Profits Allowed on Unfair Competition.</p> <p>The injured party is not entitled as of right to recover profits in cases of strictly unfair competition; hut a court of equity may upon what seems sufficient grounds, include in its decree an accounting of profits, as well as an award of damages, as punishment for illegal acts.</p> <p>2. Trade-Marks and Trade-Names <S=>62, 98 — Accounting for Profits Allowed on Infringement and Unfair Competition.</p> <p>The refilling and resale of acetylene gas tanks, originally made, filled, and sold by complainant and bearing its trade-mark, “Prest-O-Lite,” without obliterating the trade-mark, held not only unfair competition, but also an infringement of the common-law trade-mark, which entitled complainant to an accounting of profits.</p>

<p>In Equity. Suit by the Prest-O-Rite Company against Camille Bournonville and Ida Bournonville, his wife. On exceptions to special master’s report on accounting..</p>

<p>1. COURTS <s=5339 — ATTORNEY'S lien given by local law only recognized by FEDERAL COURT.</p> <p>The federal courts recognize no lien at common law in behalf of an attorney beyond that given by the local law.</p> <p>2. CHAMPERTY AND MAINTENANCE <@=>5(8) — CONTRACTS WITH ATTORNEYS TO RECEIVE SHARE OF RECOVERY INVALID.</p> <p>Both by the common law and by Rev. Civ. Code Porto Rico 1911, § 1362, a contract by an attorney to conduct a litigation, to pay the costs and expenses, and to receive as compensation a share of the amount recovered, is champertous and invalid.</p> <p>3. EXECUTORS AND ADMINISTRATORS <@=>87 — RELEASE OF JUDGMENT .IN OFFICIAL CAPACITY PRESUMED.</p> <p>Where one executed a release of a judgment individually, instead of in his capacity of administrator, as he should have done, it will he presumed that he intended to execute it in such capacity.</p>

<p>In Error to the District Court of the United States for the Eastern District of Virginia, at Norfolk; Edmund Waddill, Jr., Judge.</p> <p>Criminal prosecution by the United States against George W. Bel-vin and another. Judgment of conviction, and defendant Belvin brings error.</p>

<p>Appeal from the District Court of the United States for the District of Minnesota; Page Morris, Judge.</p> <p>Suit in equity by J. P. Sjostrom against Henry E. Hanson. Decree for complainant, and defendant appeals.</p>

<p>1. Patents <@=328 — Apparatus for Spraying Boad Surfaces Valid and Infringed. ,</p> <p>The Pillsbury patent, No. 1,062,029, for apparatus for spraying oil or other surfacing material on roads, discloses a new combination in a unitary structure of old elements, which produces a new and useful result, and is valid; also held infringed.</p> <p>2. Patents <@=26{1) — Coaction of Parts Unnecessary to Bender Combination Patentable.</p> <p>It is not necessary, to render a combination patentable, that its elements should act at the same time to secure joint action, but is enough that each contributes to the result which, but for the successive action of each, would not have been produced.</p> <p>3. Patents <§=>243 — Combination of Old Elements May be Patentable.</p> <p>It is no defense to a claim of infringement that one or more elements of a patented combination, or one or more parts of a patented improvement, may be found in one old patent, and others in another, and still others in a third.</p> <p>4. Patents <§=172 — Description Not Necessarily Measure of Invention.</p> <p>While the patentee must describe the best mode of applying the principle of his Invention, the description does not necessarily measure the invention.</p>

<p>At Daw. Mandamus by the United States against the Basic Products Company. On demurrer to answer.</p>

<p>Suit to cancel naturalization certificate by the United States against Michael Stuppiello, also known as Michael Stuhbello. Decree for the United States.</p>

<p>Intoxicating Liquors <@=>216 — Indictment fob Illegal Manufacture Insufficient in Not Alleging Liquor Intoxicating.</p> <p>Demurrer sustained to an indictment charging defendant with violation of Act Nov. 21, 1918, § 1, by the manufacture of a malt liquor having an alcoholic content of one-half of 1 per cent., or more, but not alleged to be intoxicating.</p>

<p>At Raw. Action by R. R. Jones against the Illinois Central Railroad Company and the Pullman Company. On motions of defendants to suppress depositions.</p>

<p>Bankruptcy <@=188(1) — Machinery in place covered by mortgage of plant.</p> <p>Machinery placed in its lithographing plant hy bankrupt under bail-ments or leases, with an option to purchase, but title reserved in the' bailors, held, as against the trustee and creditors, to pass under a mortgage of the plant and machinery therein; the rights of the bailors not being involved.</p>

<p>1. Shipping <&wkey;174 — Consignee’s Liability fob Unreasonable Delay in Discharge op Vessel.</p> <p>Tlie consignee of a grain cargo, required to unload the vessel, is bound to exercise due diligence under the circumstances and the custom of the' port to discharge the vessel as speedily as possible and is liable for her unreasonable detention.</p> <p>2. Shipping <&wkey;184 — In Action for Negligent Detention of Vessel by Consignee Burden is on Libelant.</p> <p>In a suit against a consignee to recover for delay in discharging, the burden is on libelant to establish negligent detention beyond the time when, under the custom of the port the vessel would ordinarily be unloaded, but respondent may show special circumstances excusing the delay.</p> <p>3. Shipping <&wkey;177 — Consignee Liable where Delay Caused by His Negligence.</p> <p>Consignee of an export cargo of wheat held liable for detention of the vessel for discharging, where her turn, under the custom of the port, came seven days before she was actually discharged, and the delay was because consignee made no effort to obtain cars for reshipment and in consequence the elevators would not receive the wheat.</p>

<p>1. CORPORATIONS <&wkey;221 - THOUGH FRAUD WAS SHOWN IN ORGANIZATION, Eights op Parties as to Notes Executed will be Determined.</p> <p>Where there was fraud and misrepresentation in an agreement providing for the forming of a corporation, the fact that the corporation was organized and executed its notes in accordance with the agreement will not prevent a court from adjudicating rights as between the parties themselves, independently of the corporation.</p> <p>2. Principal and Agent <&wkey;175(2) — Bank Ratifying Act of Agent Affected by His Fraud in Transaction.</p> <p>A bank, which took as collateral to a note a contract by which a sum was to be paid the debtor in 30 days, and appointed the debtor its agent to collect, and afterward accepted in place of the contract notes of a corporation formed under a- substituted contract made by the debtor, held to have ratified the acts of its agent in making the substitution, and to be affected by his fraud in the transaction, which invalidated the notes as between the parties.</p> <p>3.Principal and Agent <&wkey;172 — Ratification of Part of Unauthorized Act of Agent Ratifies the Whole.</p> <p>If a principal elects to ratify any part of the unauthorized act of his agent, he must ratify the whole.</p>

<p>Appeal from the District Court of the United States for the District of Arizona; William H. Sawtelle, Judge,</p> <p>Suit in equity by the United States against Henry A. Wattson and Carroll A. Spicer. Decree for complainant, and defendants appeal.</p>

<p>1. Public Lands <@=>120 — Evidence Insufficient to Show Fraud in Obtaining Railroad Grant.</p> <p>Evidence held not to establish fraud on the part of the Southern Pacific Company in applying for and obtaining patents to lands as agricultural lands under the grant of July 27, 1866, which lands as since developed have proved more valuable for their oil content than for agriculture; it being shown that the company at once placed the lands in the market and sold the same without reservations as occasion offered at agricultural prices, and that none of the officers or agents charged with the active, fraud ever acquired any individual interest therein.</p> <p>2. Public Lands <§=>120 — Agricultural Land Grant to Railroad not Affected by Subsequent Discovery of Mineral.</p> <p>The discovery of mineral in lands patented to a railroad company under a grant of agricultural lands, after the patent, does not even pro tanto divest the title of the company, or entitle the government to cancellation of the patents, In the absence of fraud in their acquisition.</p> <p>3. Public Lands <§=>120 — When Patents to Railroad Subject to Cancellation From Mineral Character of Lands.</p> <p>To entitle the United States to cancellation of patents issued to a railroad company under a grant of agricultural lands, covering lands which were so classified in the survey, on the ground that the lands are mineral, it must appear that the known conditions at the time of the proceedings for the patents were plainly such as to engender the belief that the land contained mineral deposits of such quality and in such quantity as would render their extraction profitable and justify expenditures to that end.</p>

<p>In Bankruptcy. In the matter of S. L. Pemberton, bankrupt. On review of order of referee adjudging an equitable lien in favor of the American National Bank of Tampa.</p>

In Admiralty. Suit for collision by the American Steamship Company, owner of the steamer Theodore H. Wickwire, Jr., against the steamer Anna C. Minch and by William M. Tashenberg and Fred C. Tashenberg, owners of the launch Tashenberg Brothers, against the same. Decree for respondent.

<p>1. Criminal law @=371(1), 374 — Evidence of similar offense to prove intent MUST .BE CONCLUSIVE.</p> <p>While proof of the commission of like offenses by a defendant at about the same time that he is charged with commission of the offense for .which he is on trial may be received to prove unlawful intent, such evidence o£ another distinct offense must be plain, clear, and conclusive, and evidence of a vague and uncertain character is never admissible.</p> <p>2. Criminal law ©==>374 — Evidence of arrest foe pbioe offense and discharge INADMISSIBLE.</p> <p>On trial of defendants, charged with unlawfully carrying on the business of dealers in narcotics, the admission of evidence that they were arrested for a similar offense in another district, nine months before, where they were not indicted and were discharged, held error, under the rule that vague and uncertain evidence of other offenses is inadmissible.</p> <p>3. Poisons ©=9 — Evidence of possession of morphine insufficient to PROVE UNLAWFUL DEALING.</p> <p>Evidence that defendants, charged as unlawful dealers in narcotics, several months before in another district had a considerable quantity of morphine in their possession, held incompetent, where it was shown that they were habitual users of the drug.</p> <p>4. Criminal Daw @=1129(3) — Assignment of errors clearly designating OBJECTION CONSIDERED.</p> <p>An assignment of error in the admission of clearly prejudicial evidence in a criminal case will not be disregarded, where, while not technically complying with rule 11, by setting out tho evidence, it accomplishes the object of the rule by clearly designating it and tbe ground of objection.</p>

<p>1. Pleading <§=111 — Judgment on plea in abatement to be rendered in CONFORMITY TO STATE PRACTICE.</p> <p>In conformity with Code Civ. Proe. N. X. § 498, which permits facts in abatement to be pleaded in the answer, together with defenses on the merits, the judgment of a federal court in that state on overruling a plea in abatement, raising an issue of fact as to the jurisdiction of the court over the person of defendant, should be that defendant answer over.</p> <p>2. Pleading' <§=5339 — Leave to withdraw answer and file plea in abatement IN DISCRETION OF COURT.</p> <p>If a defendant asks leave to withdraw his appearance and answer, and to file a plea in abatement, having had knowledge of the defect when he answered, the court may or may not grant leave, and should not if it knows that defendant had such knowledge and that the motion is made in bad faith.</p> <p>3. Pleading <§=111 — On overruling plea in abatement, error to refuse right of defendant'to answer over.</p> <p>After granting leave to a defendant to withdraw its answer and file a plea in abatement for want of jurisdiction over its person, it was error for the court, after overruling the plea, to refuse to permit defendant to answer over on the merits, and to enter judgment absolute on the plea to jurisdiction.</p> <p>4. Corporations <§=665(2) — Service on designated agent of foreign corporation VALID, THOUGH CAUSE OF ACTION AROSE IN OTHER STATE.</p> <p>Under New Xork General Corporation Law (Consol. Laws, c. 23), requiring foreign corporations to designate an agent on whom service may be made, service on such agent is good, although the cause of action sued on arose in another state.</p> <p>Mantón, Circuit Judge, dissenting.</p>

Petition to Revise and Appeal from Order of the District Court of the United States for the Southern District of New York. In the matter of Leterman, Becher & Co., Incorporated, bankrupt. From an order awarding priority to the claim of Coleman & Co., the Tawas Company, Incorporated, appeals.

Suit in equity by the Westinghouse Electric & Manufacturing Company against the Brooklyn Rapid Transit Company and others. From an order of the District Court authorizing, the issuance of receiver’s certificates, the Central Union Trust Company of New York appeals.

<p>Appeals from the District Court of the United States for the Southern District óf New York.</p> <p>Suits in admiralty by the United States against the steam tug O. U. Halenbeck, Peter Cahill, claimant, and the scows 34-S, 9-S, and S-34, P. Sanford Ross, Incorporated, claimant; against the steam tug Juniata, the Forsyth Towing Dine, claimant, and the scows S-39 and 5 — 11, P. Sanford Ross, Incorporated, claimant; against the steam tug Joshua Rovett, the Taylor Dredging Company, claimant, and the scow 6-S, P. Sanford Ross, Incorporated, claimant; against the steam tug Bismarck, Peter Cahill, claimant, and the scow S-20, P. Sanford Ross, Incorporated, claimant; against the steam tug Imperial, the Cahill Towing Dine, Incorporated, claimant, and the scow 11-S, P. Sanford Ross, Incorporated, claimant; and against the steam tug Anna W., Peter Cahill, claimant. Decrees for libelant against the scows, and their claimant appeals.</p> <p>A decree in favor of the libelant in the sum of $250 was granted in each case, and the claimant appeals.</p>

<p>1. Conspibacv <&wkey;43(6) — Indictment insufficient as not sufficiently iden-TIFYINS OFFENSE.</p> <p>An indictment for conspiracy “to steal from a certain railroad freight car certain goods then and there moving as and constituting a part of an interstate shipment of freight” helS. fatally defective in not sufficiently identifying the offense which was the object of the conspiracy.</p> <p>2. Conspiracy <&wkey;43 (2) — Indictment not aided by averment of overt acts —Indictment.</p> <p>In an indictment for conspiracy under Penal Code, § 37 (Comp. St. § 10201), the conspiracy must be sufficiently charged, and it cannot be aided by averments of overt acts done by one or more of the conspirators in furtherance of the object of the conspiracy.</p> <p>Stone, Circuit Judge, dissenting.</p>

<p>In Error to the District Court of the United States for the Western District of Arkansas; Frank A. Youmans, Judge.</p> <p>Criminal prosecution by the United States against George Booker. Judgment of conviction, and defendant brings error.</p>

<p>1. Monopolies <&wkey;29 — Evidence of conspiracy to restrain trade.</p> <p>A conspiracy to restrain interstate or foreign commerce, in violation of Sherman Anti-Trust Act July 2,1890, § 1 (Comp. St. § 8820), is proved by proving the forbidden meeting of minds, like a common-law conspiracy, and proof of an overt act is not essential.</p> <p>2. Monopolies ¡&wkey;29 — Instigating strikes as conspiracy to restrain foreign commerce.</p> <p>On a charge of conspiracy to prevent the manufacture and export of munitions of war, in violation of the Sherman Act (Comp. St. § 8820 et' seq.), it is no defense that the end was sought to be accomplished by instigating strikes among workmen, which, if conducted for legitimate purposes, would have been lawful.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in equity by Isaac Silverman against John F. Gilchrist, as Commissioner of the Department of Licenses, New York City. Decree for complainant, and defendant appeals.</p>

Action at law by Éydia A. Greene, administratrix of the estate of David A. Greene, deceased, and others, against the Greenville Stone & Gravel Company. Judgment for plaintiffs, and defendant brings error.

Suit in admiralty by W. C. Hubbard against the steamship Hokkai Maru; Mitsui & Co., Limited, claimant. Decree for libelant, and claimant appeals. The appellee was employed' by the steamship Hokkai Maru as night watchman ; the ship being at the time docked at the Port Commission dock, South Cove, Seattle, Wash. He was so employed through one Davis, who acted in that behalf for the ship.

• In Equity. Suit by the Alvey-Ferguson Company against the John F. Trommer Evergreen Brewery. Decree for complainant. This is a suit by the Alvey-Ferguson Company against the John F. Trom-mer Evergreen Brewery for infringement of claims 1 to 7 and 12 of letters patent No. 790,811, granted May 23, 1905, and claims 1 to 12 of letters patent No. 881,042, granted March 3, 1908, to the complainant as assignee of Benjamin H. Alvey.

<p>1. INDIANS &wkey;=35 — CARRYING INTOXICATING LIQUORS* INTO INDIAN COUNTRY an Offense.</p> <p>The provision of Act March 1, 1895, § 8 (Comp. St. § 4136b), making it an offense to carry or have carried intoxicating liquors into Indian Territory, held not repealed by implication by Act March 3, 1917, § 5 (Comp. St. 1918, §§ 8739a, 103S7a-10387e), and to be still in force in that part ot Oklahoma then comprising Indian Territory.</p> <p>2. Indictment and Information <&wkey;86(3) — Por Having Possession of Liquor in Indian Country Need Not State Place of Offense.</p> <p>An indictment for having possession of liquor in the Indian country, in violation of Act May 25, 1918, § 1 (Comp. St. 1918, § 4137aa), held not subject to demurrer, because it did not specifically designate the particular location in the Indian country within the named district.</p> <p>3. Indictment and Information <&wkey;129(l) — Joinder of Counts for Carrying Liquor into Indian Territory and Having It in Possession Proper,.</p> <p>Under Rev. St. § 1024 (Comp. St. § 1690), a count for unlawfully carrying liquor into the Indian country and one for there having it in his possession may be joined in the same indictment.</p>

<p>At Law. Action by Fannie A. Morgan against Walker D. Hines, Director General of Railroads, and others. On motion to remand to state court.</p>

<p>At Law. Action by Elizabeth S. Prentiss against Mark Eisner, Collector of Internal Revenue, Third District of New York. On demurrer to complaint.</p>

<p>Bankruptcy <©=*444 — Order of referee grantino discharge not reviewable.</p> <p>Where, after entry of an order by a referee recommending discharge, no further action was taken by an objecting creditor by filing a petition for review, as required by General Order 27 (89 Fed. xi, 82 C. O. A. xxvii), and no question or evidence is certified by the referee, there is nothing reviewable by the District Court.</p>

<p>Appeal from the District Court of the United States for the Southern District of Georgia; Beverly D. Evans, Judge.</p> <p>Suit by the Jefferson Standard Rife Insurance Company against William Rodney Wilson, individually and as represented by his guardian. From a decree for defendant on his cross-action, complainant appeals.</p>

Dietrich, Judge. Emily De Eour was convicted of keeping a house of ill fame, contrary to Act May 18, 1917, and an order of the Secretary of War, and brings error.

<p>Appeal from the District Court of the United States for the Western District of Arkansas; Frank A. Youmans, Judge.</p> <p>Suit in equity by Alvin D. Goldman, trustee, against the Nashville Lumber Company and others. From, orders of the District Court, the Graysonia-Nashville Lumber Company appeals.</p>

<p>In Error to the District Court of the United States for the Eastern District of Virginia, at Richmond; Charles A. Woods, Judge.</p> <p>Action by George E. McCulien against Tv I. Du Pont de Nemours & Co. Judgment for plaintiff, and defendant brings error.</p>

<p>CORPORATIONS <&wkey;336-LlARIMTY OF OFFICERS ON CONTRACTS AFTER REPEAT. OF CHARTER FOR NOT PAYING TAXES.</p> <p>Under Act N. J. June 3, 1905, § 2 (P. L. p. 500), providing that, where a corporation shall fail for two years to pay slate taxes, its- charter shall be repealed by proclamation by the Governor, and that “all powers conferred by law upon such corporations shall thereafter be deemed inoperative and void.” and section 7 of said act, authorizing the Governor, upon settlement with such a corporation, by a second proclamation to reinstate its charter, whereupon the secretary of state shall issue his certificate “entitling such corporation to continue its said business and its said franchises,” where, after the issuance of a repealing proclamation, but without knowledge of the fact, the officers of a corporation continued its business in good faith, and persons dealt with them with the understanding that they were acting- for the corporation, which was after-wards reinstated, such officers cannot be held personally liable on contracts so made.</p> <p>Rogers, Circuit Judge, dissenting.</p>

Amidon, Judge. Action at law by the National City Bank of Chicago against Robert M. Pollock and others. Judgment for plaintiff, and defendants bring error. This is an action by the National City Bank of Chicago on the written guaranty of the defendants, Robert M. Pollock, M. Kittel, and ft. O. Kittel, to pay bonds of the Northern Trading Company, a corporation, aggregating $10,000, on which $4,000 had been paid. R. C. Kittel was not served with process.

<p>Appeal and error <S=o1208(2) — Procedure below on reversal op order.</p> <p>A court, which by an interlocutory order made on complainant’s motion has required a defendant to deliver property to complainant under a contract, although its order has been reversed, as not within its equity jurisdiction, has power to compel complainant to pay for the property in accordance with the terms of the contracts.</p>

<p>1. Insurance <§=>291(6) — Statements in application omitting slight AFFECTIONS' NOT FRAUDULENT.</p> <p>An applicant for life insurance is not chargeable with fraudulent misstatements in his application, because he omitted from his statement of previous illnesses or diseases temporary affections such as colds, from which he recovered, where his answers were made in good faith.</p> <p>2. Insurance <§=>292 — False statements as to medical treatment invalidating POLICY.</p> <p>A statement by an applicant for life insurance that he had not consulted nor been treated by a physician during the previous live years, when in fact he had been treated or prescribed for each year for supposedly temporary ailments, held a material misrepresentation, which" under the terms of his contract invalidated the policy.</p>

<p>In Error to the District Court of the United States for the Eastern District of Missouri; Thomas C. Munger, Judge.</p> <p>Criminal prosecution by the United States against William P. Elmer. Judgment of conviction, and defendant brings error.</p>

Suit in admiralty for collision by the Southern Transportation Company against the steam tug Baker Bros.; the Baker- Towing Company, claimant. Decree for respondent, and libelant appeals.

<p>Appeal from the District Court of the United States for the Southern District of Iowa; Martin J. Wade, Judge.</p> <p>In the matter of Charles B. Cleland, bankrupt. Bankrupt’s petition for discharge was resisted by the Iowa Doan & Trust Company. From an order refusing discharge, the bankrupt appeals.</p>

Suit in admiralty for collision by J. R. Smith and others against the steamer J. J. Hill. Decree for respondent, and libelants appeal.

<p>In Error to the District Court of the United States for the Eastern District of Oklahoma; Ralph E. Campbell, Judge.</p> <p>Action by the United States against One Maxwell Automobile; Tom Ford, claimant Judgment for the United States, and claimant brings error.</p>

<p>War iS=>4 — -Evidence insufficient to sustain conviction fob seditious utterances.</p> <p>Evidence held, not to sustain a conviction for attempting to cause disloyalty, insubordination", muiiny, or refusal of duty in the military or • naval forces of the United States, by the use of defamatory language toward the President and Cabinet, taking into consideration the place and circumstances of its utterance.</p>

<p>Master' and servant <S=»2531y4 — Territories @=>8 — Limitations in federal Employers’ Liability Act apply in Alaska.</p> <p>The liability of a steamship company for death of a sailor, injured while in its employ on a vessel operated as common carrier in Alaska, is controlled by the provisions of Employers’ Liability Act .Tune 11, 1906, §§ 1, 4, as to carriers engaged in commerce in any territory of the United States, and under the latter section an action for employes death occurring more than one year prior to its commencement is barred.</p>

<p>In Error to the District Court of the United States for the District of Minnesota; Page Morris, Judge.</p> <p>Action at law by Eugene Schuler against the Flour City Ornamental Iron Works. Judgment for plaintiff, and defendant brings error.</p>

<p>Criminal prosecution by the United States against Sanford F. Petts and Leopold H. Vogel. On demurrer to information.</p>

<p>1. Taxation <©==>541 — Tax paid under drastic statute paid under implied DURESS.</p> <p>A tax imposed by statute containing drastic penalties, for nonpayment- and paid under protest, is paid under implied duress.</p> <p>2. Taxation <@=»542, 643(4) — Right oe action lies against collector to recover taxes paid under duress.</p> <p>Unless and except as modified by statute, the common-law right of action for money had and received lies against a tax collector to recover taxes illegally collected and paid under protest, and it is no defense that defendant has paid such taxes into the state treasury.</p> <p>3. Courts.<S=>363 — Nonresidents cannot be deprived by statute oe right TO RECOVER TAXES PAID UNDER DURESS.</p> <p>Citizens of other states cannot be deprived by a statute of a state of their right through the federal courts to enforce their common-law remedy for recovery of taxes illegally exacted by the state.</p>

<p>Removal of causes <©=329 — Fob diversity of citizenship in suit in state of WHICH NEITHER PARTY IS CITIZEN.</p> <p>A suit brought in a state court of a state of which neither plaintiff nor defendant is a citizen or resident is not removable on the ground of diversity of citizenship over the objection of plaintiff.</p>

<p>Customs duties <S=130 — Violation of customs laws — Forfeiture.</p> <p>The failure of the agent of an importer to whom merchandise was intrusted for carriage into the United States to declare it as instructed does not relieve his principal from its forfeiture.</p>

In Equity. Suit by the First National Bank of Canton against John- Skelton Williams, Comptroller of the Currency. On motions by defendant to quash return of service and to dismiss for want of jurisdiction.

At Raw. Actions by Thomas H. Smith, administrator, and by W. A. Morton, administrator, against the Babcock & Wilcox Company and Walker D. Hines, Director-General of Railroads, operating the Akron & Barberton Belt Railroad Company. On motions to dismiss for want of jurisdiction.

In Bankruptcy. In the matter of Paul Offricht and David Racher, bankrupts. On review of order of referee. The opinion of Referee Woodward in this cause follows! Held: as to the source of the sum of $5,500 which went into the purchase of the Giddings stock, which will be hereafter referred to, is manifestly false in toto, and I disregard it entirely. It was procured through the efforts of Offricht as a. part of his scheme to conceal his assets from his trustee.

<p>In Equity. Suit by C. M. Harris, trustee in bankruptcy of John R. Mercer, against the First State Bank of Dawson, Ga., Ella R. Mercer, John M. Bell, and John R. Mercer. On exceptions to report of special master.</p>

<p>Appeal from the District Court of the United States for the District of Minnesota; Wilbur F. Booth, Judge.</p> <p>Suit by L. Iy. Losey, Jr., trustee in bankruptcy of J. C. Brocklebanlc & Co., a bankrupt, against the Minnesota & Ontario Power Company. Judgment for plaintiff, and defendant appeals.</p>

<p>In Error to the District Court of the United States for the District of Montana; George M. Bourquin, Judge.</p> <p>Action by C. S. Hefferlin against the ¿Etna Insurance Company. There was a judgment for plaintiff, and defendant brings error.</p> <p>This action was brought in the state court by Hefferlin, called plaintiff, against thp insurance company, called defendant, to enforce liability under an insurance policy for $5,000, issued to cover a hotel, including foundations, window screens, doors, electric light wiring, and all fixtures. The building was almost wholly consumed by fire on November 30, 1916. The casó was removed to the United States court.</p> <p>In one count plaintiff alleges that his loss was $64,695, the value of the property when destroyed, that proofs of loss were made, that there was other insurance, and that the loss had not been paid. In the second count it is alleged that plaintiff and defendant disagreed as to the amount of loss, and that according to the- terms of the policy they thereupon attempted to have the amount of loss sustained ascertained by appraisers, one selected by plaintiff and the other by defendant; that the appraisers visited the burned building during a severe storm, when snow and storm conditions prevented an ascertainment of what, if any, salvage value there was; that the appraisers arbitrarily fixed the salvage value at $3,038.50, whereas there was in fact no salvage value; that the appraisers refused to permit plaintiff to furnish information as ,to the construction and condition of repair of the building at the time of the fire, or to furnish evidence with respect thereto, and that the appraisers, being ignorant of the condition and preservation of the building, arbitrarily fixed the sound value at the time of the fire at $50,601.80, depreciation at $12,842, whereas actual depreciation did not exceed $5,000, and the net loss at $34,721.21, whereas the actual cash value at the time of the fire was $64,695. It is alleged that the appraisers failed to give notice of the time when or place where they were to meet to make their findings, and that they failed to take into consideration room telephones and wiring, door and window screens, down spouts, and gutters. The insurance company answered that, because of disagreement as to the amount of loss and damage sustained, appraisers were appointed, and that the sound value, amount of salvage, and depreciation and net loss were as fixed by the appraisers. The company pleaded willingness to pay its proportionate amount of the award, and that if there was any omission of items it was because of the acts of the plaintiff, and that it was the duty of the plaintiff to submit to a new appraisal, consent to which was given by the company.</p> <p>The. jury rendered a general verdict, and made special findings in favor of plaintiff. They found that the cost of the building and fixtures in 1909 was $59,939, that when burned it would have cost $68,929.85, that the amount of depreciation, was $7,222.75, and that the amount of salvage was $1,250. Under the findings, the company became liable to pay the plaintiff the amount stipulated in the policy upon which the action was based. Judgment was entered accordingly.</p> <p>The policy, after providing that loss or damage shall be ascertained or estimated according to actual cash value, with proper deductions for depreciation, however caused, shall in no event exceed what it would then cost the insured to repair or replace with material of like kind and quality, reads: “ * * * Said ascertainment or estimate shall be made by the insured and this company, or, if they differ, then by appraisers as hereinafter provided, and the amount of loss or damage having been thus determined, the sum for which this company is liable, pursuant to this policy, shall be payable 60 days after due notice, ascertainment, estimate,. and satisfactory proof of loss have been received by this company in accordance with the terms of this policy.” The policy also contains the following: “In the event ■ of disagreement as to the amount of loss the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the insured and this eotnpany each selecting one, and the two so chosen shall first select a competent and disinterested umpire; the appraisers together shall then estimate and appraise the loss, stating separately sound value and damage, and, failing to agree, shall submit their differences to the umpire; and the award in writing of any two shall determine the amount of such loss; the parties thereto shall pay the appraiser respectively selected by them, and shall bear equally the expenses of the appraisal and umpire.”</p>

<p>Appeal from the District Court of the United States for the Second Division of the Northern District of California; Wm. C. Van Fleet, Judge.</p> <p>Suit in equity by Jeanette W. Dee against Richard C. Minor, individually and as trustee under the will of Elizabeth E. Barnhart, deceased. Decree for defendants, and complainant appeals.</p>

<p>Appeal from District Court of the United States for the Northern District of West Virginia, at Parkersburg; Alston G. Dayton, Judge.</p> <p>Suit in equity by the Pure Oil Company and the Producers’ & Refiners’ Pipe Dine Company against John M. Dowe. Decree for complainants, and defendant appeals.</p>

<p>In Error to the District Court of the United States for the Northern District of West Virginia, at Martinsburg; Charles A. Woods, Judge.</p> <p>Howard W. Showalter was convicted of misapplying bank funds, and brings error.</p>

Rud-kin, Judge. Suit in equity by the Original Sixteen to One Mine, Incorporated, against the Twenty-One Mining Company and the Valentine Mines Company. Decree, for complainant, and defendants appeal.

<p>In Error to the District Court of the United States for the District of Oregon; Charles E. Wolverton, Judge.</p> <p>Action at law by Morris E- Courtright against A. L,. Barbur, J. M. Hurlburt, and the First National Bank of Portland. Judgment for plaintiff, and defendants bring error.</p>

Petition to Revise an Order of the District Court of the United States for the Northern District of Ohio; John M. Killits and Arthur J. Tuttle, Judges. Petition of Pial C. De Ran to revise an order of the District Court in the case of the Fremont Lumber Company, bankrupt.

<p>Appeal from and Petition to Review and Revise Order of the Dis - trict Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>In the matter of the O’Gara Coal Company, bankrupt. An agreement for settlement of claims and distribution of assets, assented to by the New York Central Railroad Company and others, was approved by the court, and Thomas J. O’Gara appeals and petitions to review and revise the order approving the agreement.</p> <p>The O’Gara Coal Company, a New York corporation, was duly adjudged a bankrupt October 3, 1013, owing at such time about $510,000 on unsecured claims and $2,728,000 represented by bonds secured by a mortgage due September 1, 1955, drawing interest at 5 per cent. In addition there were disputed claims aggregating approximately $1,200,000, all of which disputed claims were subsequently'disallowed. The assets consisted of about $19,000 in cash and coal mine leases covering some 30,000 acres in Illinois. In addition thereto bankrupt owned all of the stock of two coal mining companies, the Harrisburg Saline Collieries Company and the Harrisburg Big Muddy Coal Company, to which stock it was claimed the lien of the mortgage did not extend. Success attended the efforts of the trustee, who, aided by war prices, was able to show large profits. Tn May, 3918, current assets amounted to $1,590,000 and the value ox the bankrupt's holdings was fixed at $10,000,000; the liabilities remaining about the same.</p> <p>Bankrupt defaulted in its bond interest installment on September 1, 1913, and also failed to provide for the sinking fund installments due August 1, 1912 and 1913. In January, 1914, the trustee under the mortgage declared the entire amount of principal and interest immediately due and payable.' In July, 3916, a decree was entered fixing the validity and determining the amount of the lien of the trust deed, ail in favor of the trustee, and adjudging certain property not included in said mortgage to be equitably subject to Uie lien of said mortgage. This was done over the objection of appellant, Thomas J. O'Gara, who was the largest individual stockholder, owning some 45 jier cent, of the stock, and was at one time the president of the corporation and later for a short period one of the trustees in bankruptcy. The estate being solvent in 1918, efforts were made to reorganizo the company, arid these plans bore fruit in May, 1919, when a plan of reorganization and a scheme Cor the full payment of all unsecured claims was worked out to the satisfaction of the court. This reorganization plan was proposed by certain Unsecured creditors but met the approval of a bondholders’ committee representing nearly all of the unsecured creditors, and purported to have the approval of the bankrupt company. It likewise met the approval of the court, who characterized the plan as “a fair and reasonable one, and it is to the best interests of the bond holders, the other creditors of the O’Gara Goal Company, and the O’Gara Coal Company that the same should be consummated in accordance with the jflan and prayer contained in the petition herein presented to the court, and it is the duty of the Equitable Trust Company of New York to participate in carrying out the same.”</p> <p>Briefly, this plan provided for the payment out of the cash on hand, upon which the mortgage was a lien, of all unsecured claims; it increased the amount due on each ton of coal mined, thus providing an adequate sinking fund, provided for the waiver of the mortgagee’s rights to insist upon the immediate payment of the entire sum represented by the mortgage, to wit, $2,728,000, extended the mortgage to all the property of the bankrupt, continued in force according to its original terms the mortgage and provided for the immediate payment of $250,000 to the mortgagee in consideration of its waiver of its rights. Other provisions of less importance need not be hero recited.</p> <p>Appellant denied that the bankrupt ever consented to the scheme of composition, but the court found in appellees’ favor on this issue.</p>

Newman, Judge. Proceedings by the United States against one automobile, Wisdom & Strickland, ■ claimants, and against one mule, J. W. Eogan, claimant. Judgments of forfeiture, and claimants bring error.

<p>Appeal from the District Court of the United States for the First Division of the Northern District of California; M. T. Dooling, Judge.</p> <p>" Proceeding for deportation of Ng Leong, a Chinese alien. Prom a judgment denying a writ of habeas corpus to discharge defendant-from the custody of Edrvard White, Commissioner of Immigration of the Port of San Francisco, he appeals.</p>

<p>1. Indictment and information &wkey;>3 — Prosecution for violation of Selective Draft Act by information.</p> <p>Prosecution for violation of Selective Draft Act May 18, 1917, § 13 (Comp. St. 1918, § 2019b), by maintaining a house of ill fame within the prohibited distance from a military post, may be initiated by information, and prosecution by indictment is not necessary; the maximum punishment being a fine and imprisonment for not exceeding 12 months.</p> <p>2. Criminal law <&wkey;814(8,9) — Instructions not applicable to evidence PROPERLY REFUSED.</p> <p>A requested instruction in a criminal case, submitting the issue of entrapment of defendant, held not applicable under the evidence, and properly refused.</p>

• Appeal from the District Court of the United' States for the District of Oregon; Charles E. Wolverton, Judge. Suit in equity by R. E. Sabin, trustee in bankruptcy of the estate of L. Judkis, against H. Horenstein. Decree for defendant, and complainant appeals.

<p>In Equity. Suit by Sylvester Scatena and others against Francis G. Caffey, United. States Attorney for the Southern District of New York, and another. On motion for preliminary injunction.</p> <p>The complainant moves for an injunction pendente lite. The suit is to restrain seizures and prosecutions under the Act of Congress of November 21, 1918 (chapter 212), commonly known as the War Prohibition Act, on the ground that the present enforcement of that act is unconstitutional, for the reason that the emergency purporting to justify the enforcement of the war power no longer exists. The complainants are owners of vineyards in California, the crops of which are not adapted to consumption as fruit, and are suitable only for the manufacture of wines. The complainants manufacture wines from these vineyards and sell the same. They allege that the prohibition attempted by the Act of November 21, 1918, will be ruinous to their business and property (1) because it will prevent the sale within the United States of a large amount of wine already manufactured; (2) because their vineyards and plant will be rendered valueless and their business broken up.</p>

<p>In Equity. Suit by the E. J. Dodge Company against the First National Bank of Portland, Or. Decree for complainant.</p>

Criminal prosecutions by the United States against the Pittsburgh Brewing Company and others, against the Independent ^Brewing Company and others, and against Daniel Olmstead. On demurrers -to informations.

<p>Criminal prosecution by the United States against the Bergner & Engel Brewing Company. On demurrer to information. Ruling with- . held.</p>

Dietrich, Judge. Action by the Boise Commercial Club, a corporation, against the Oregon Short Fine Railroad Company, a corporation, begun in the state court, and removed to the federal court. There was a judgment for defendant, dismissing the complaint, and plaintiff brings error.

<p>Commekce <&wkey;>27(2) — Master and servant <&wkey;13 — Terminal company subject to Hours of Service Act — “Interstate commerce.”</p> <p>A terminal company, incorporated as a railroad company, which owned a terminal passenger station and the tracks leading thereto, used by various interstate railroads, which sold tickets and checked and loaded baggage for their trains, maintained a telegraph office through which their train orders were transmitted, operated all switches to and from its tracks, and through its station master directed the movements of all trains while on such tracks, held a common carrier engaged in transportation of passengers and baggage by railroad in interstate commerce, and subject to the provisions of the Hours of Service Act March 4, 1907 (Comp. St. §§ 8677-8680), as respects its telegraph operator, who transmitted the train orders.</p> <p>[Ed. Note. — -For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.)</p>

<p>Appeal from the District Court of the United States for the Northern Division of the District of Idaho; Frank S. Dietrich, Judge.</p> <p>Suit in equity by Mathilde Cardoner (Joseph R. Wilson, her executor, substituted as complainant) against Eugene R. Day and others and the Hercules Mining Company, a mining partnership. Decree for defendants (253 Fed. 572), and complainant appeals.</p>

<p>Appeal from the District Court of the United States for the District of Nevada; Edward S. Earrington, Judge.</p> <p>Suit in equity by the Pioneer Reduction Company against E. C. Beedle and the Belleville Tailings Association. Decree for defendants, and complainant appeals.</p> <p>This was' a suit in equity, which resulted in a decree in favor of the defendants thereto, and the bringing of it here on appeal by the complainant below. The subject-matter of the controversy is a dump of tailings‘alleged in the hill to have amounted to about 150.000 tons, one-fifth of which is alleged to have been owned by the Rhodes Mining Company, a California corporation. and the remaining four-fifths by the Argentum Mining Company, an Arizona corporation, of which tailings both the complainant and the defendant Beedle had some knowledge, as well as a desire to acquire them to work for profit. The record shows that three-fourths of the stock of the complainant corporation was owned by Benjamin Hall and the remaining one-fourth by Nicholas Snell, its superintendent — Hall being its president and in control of its operations.</p> <p>The hill alleges that on or about December 23, 1913, the complainant and the defendant Beedle agreed that the complainant should enter into negotiations for the purchase of the tailings from the owners, and, in the event a purchase could not be effected, for a contract to work them on a royalty basis — which negotiations should he conducted in the name of the complainant, both parties to the agreement, however, to use their joint efforts to secure the tail-ings, and, if secured, to work them jointly — sharing equally in the expenses and in all profits arising from their treatment and reduction; that in pursuance of that agreement the complainant communicated to the defendant Beedle the results of certain assays and tests which it had theretofore made of the tailings and proceeded to enter into negotiations with the owners of them; that in January, 1914, complainant caused the tailings to be measured, sampled, assayed, and tested at an expense of about $750, and thereafter communicated to Beedle the progress of its negotiations therefor, and that in March, 1914, it reached an agreement with the owners by which the complainant was to have the right to work the tailings on a royalty basis of 45 cents a ton, which agreement was reduced to writing, hut not executed; that notwithstanding those facts, of which, it is alleged Beedle was fully informed, the latter on April 3, 1914, entered into a contract with the owners of the tailings by which he was granted the exclusive right to work them on a royalty basis of 50 cents per ton, or to purchase them for $75,000, in consequence of which the owners refused to execute the previously drawn contract1 with the complainant; that this action on the part of Beedle was clandestinely taken by him for the purpose of defrauding the complainant, and in violation of the alleged agreement of joint adventure; that the defendant Beedle and his codefendaat and successor in Merest, Belleville Tailings Association, though frequently requested, have refused to fulfill or comply with the terms of the alleged agreement of joint adventure, or to admit the complainant to any participation in the said alleged contract of April 3, 1914; that in May, 1914, the defendant Beedle organized the Belleville Tailings Association as a joint-stock company, to which he soon thereafter made a pretended conveyance of the said tailings and of all his rights under his contract with the said mining companies, the capital stock of which association was divided into 100 shares, of which 36 were issued to Beedle and 69 to other persons, who paid no consideration therefor; that in October of the same year the said Tailings Association was incorporated, and succeeded to the rights and interest of the said joint-stock company; that the defendants to the suit are engaged in reducing the said tailings, having already treated at least 60,000 tons thereof, extracting therefrom metals of the value of $160,000, from which they have, realized a profit of $50,000 or more; that in addition to his dividends the defendant Beedle has received $300 a month since May 1, 1914, out of the profits arising out of the treatment of the tailings, one-half of which the complainant alleges belongs to it; that efforts are being made to sell stock of the said association to persons who may not have notice of the complainant’s alleged rights; and that if the defendant corporation is permitted to declare and pay a dividend it will be impossible to recover the same, for the reason that some or all of such stockholders are insolvent. The prayer of the bill is, among other things, for an accounting, an order restraining the defendants from treating the tailings or disposing of them, and enjoining the defendant Beedle from disposing of any stock owned or controlled by him in the defendant corporation, and restraining the latter from declaring or paying dividends, and also praying for the appointment of a receiver of the property. ></p> <p>The answer of the defendants, in addition to setting up various affirmative defenses, put in issue, among other things, the alleged contract of joint adventure, and the alleged negotiations for the tailings by and in the name of the complainant, as also the allegations that the latter communicated to the defendant Beedle the results of any samplings, assays, or tests thereof, and the alleged expenditures by the complainant of any moneys growing out of such negotiations, and also denied that the complainant ever reached any agreement with the owners of the tailings for the working or treatment of them, or that the defendant Beedle’s contract with the owners was executed clandestinely or in fraud of the complainant.</p>

<p>1. Indictment and information @=5129(1) — Join deb of counts relating to SAME TRANSACTION.</p> <p>Counts charging publishing an article in a foreign language tending to cause insubordination and refusal of duty in the military forces, and to discourage enlistments, and also containing anarchistic propaganda, _ of sending such article through the mails without first filing an English translation thereof with the postmaster, and of conspiracy to commit such offenses, held properly joined in the same indictment, under Rev. St. § 1024 (Comp. St. § 1690), providing for the joinder of counts relating to same transaction.</p> <p>2. Indictment and information @=>125(5%) — For conspiracy not duplicitous.</p> <p>A count in an indictment for conspiracy is not duplicitous, because the conspiracy charged is to violate several separate and distinct statutory provisions.</p> <p>3. Cbiminal law @=>371(1) — Evidence of other offenses admissible to SHOW INTENT.</p> <p>In a prosecution for unlawfully using the mails for circulating seditious and anarchistic matter, and for conspiracy to commit such offenses, speeches and other publica! ions of defendants, unquestionably seditious and anarchistic, held admissible on the question of intent.</p>

<p>Appeal from the District Court of the United States for the District of Montana; George M. Bourquin, Judge.</p> <p>Suit by the South Butte Mining Company against Thomas B. Thomas and others. After a decree in its favor, complainant filed a petition for a rule requiring defendants to show cause why they should not be punished for contempt. From a judgment dismissing the contempt proceedings, complainant appeals.</p>

Cushman, Judge. Habeas corpus by Bernard Patrick Morris against Maj. Gen. W. H. Johnston, Commanding General, Camp Lewis, Wash. Judgment denying writ, and petitioner appeals. This was an appeal from an order of the District Court of the United States for the Western District of Washington, Southern Division, on a writ of habeas corpus, denying the discharge of the appellant, who was held as a deserter by the military authorities at Camp Lewis, Wash.

<p>1, Criminad daw <§=3838(3)- — Evidence on kept)catión or place as house o» ILL ÍAME ADMTSS1BX.E.</p> <p>In a prosecution for keeping a house where prostitution is practiced within a prohibited distance from a military post, where there is other evidence tending to show that the house was a house of ill fame, evidence of its reputation as such is admissible.</p> <p>2» DISORDERLY HOUSE <gss>16-EVIDENCE OF PHYSICIANS AS TO DISEASED CONDITION OP INMATES ADMISSIBLE.</p> <p>In a prosecution for maintaining a house of ill fame, It was not error to admit the testimony of a healih physician as to the diseased condition of certain women found at the house.</p> <p>8. CRIMINAL LAW <S=»1177 — SENTENCE FOE CONTINUOUS OFFENSE CHARGED IN SEPARATE COUNTS NOT REVERSIBLE ERROR.</p> <p>That a defendant was convicted and sentenced under separate counts for what was in fact but one continuous offense is not reversible error, where the aggregate of the punishment imposed did not exceed that which might have been imposed for a single offense.</p>

<p>Poisons <&wkey;9 — Evidence in prosecution foe violation of Harrison Narcotic Act sustaining conviction.</p> <p>In a prosecution for violation of Harrison Narcotic Act Dec. 17, 1914, § 2 (Comp. St. § 6287b), by selling narcotic drugs, not in pursuance, of written orders on tbe prescribed forms, evidence that defendant, although a physician registered under the act, did not dispense the drugs in good faith in the course of his professional practice, which would bring him within exception (a) of the statute, but sold the same to gratify the appetite of the purchasers, was competent and relevant, and such issue was properly submitted to the jury.</p>

<p>In Error to the District Court of the United States for the South'ern Division of the Northern District of California; M. T. Dooling, Judge.</p> <p>Criminal prosecution by the United States against Charles L. Baender. Judgment of conviction, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the District of Minnesota; Page Morris, Judge.</p> <p>Action at law by the McCaull-Dinsmore Company against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for plaintiff (252 Fed. 664), and defendant brings error.</p>

<p>INTERNAL REVENUE <&wkey;7-WlIAT CONSTITUTES “LOSS ACTUALLY SUSTAINED” IN DETERMINING INCOME STATED.</p> <p>A sum set aside annually on its books by a corporation as the pro rata amount for that year of the discount at which it sold an issue of bonds, to be distributed throughout their term, is neither a “loss actually sustained” during the year, nor “interest paid,” and may not be deducted in determining net income for that year, under Corporation Excise Tax Act Aug. 5, 1909, § 38 (2).</p>

<p>Master and servant &wkey;>200 — Winc iiman and stevedore as fet/lo w servants.</p> <p>A stevedore, helping to unload coal from the hold of a ship, and the winchman and h'atchtender, also engaged in the same work, held fellow servants.</p>

<p>1. CRIMINAL law <&wkey;351(2) — Evidence op circumstances of arrest.</p> <p>In prosecution for introducing intoxicating liquor from without the state into that part of Oklahoma which was formerly Indian Territory, evidence that, when defendants were arrested with liquor in their possession, they denied having arms in their possession, but an automatic was found in the motorcar in which they were transporting the liquor, was admissible as an incident of the arrest.</p> <p>2. Criminal law <&wkey;507(4) — Officer not an accomplice.</p> <p>In a prosecution for introducing intoxicating liquor from without into that part of the state of Oklahoma which was formerly Indian Territory, where an officer of the government stationed at Joplin, Mo., whose duty it was to aid in the enforcement of the liquor law, testified that defendants were in Joplin on the day preceding their arrest, and that they procured liquor there, a requested instruction that the officer’s testimony should be considered with caution, and was not sufficient without corroboration to convict, was properly refused.</p>

<p>Patents <&wkey;>328 — Process or drying and shaping hosiery articles invalid.</p> <p>The Collis patent, No. 1,204,945, for a process for finishing and shaping hosiery articles, held invalid, as covering nothing more than the function of an apparatus, not patentable in view of the prior art.</p>

<p>In Admiralty. Suit by the Coronet Phospate Company against the United States Shipping Company. On exceptions to answer and interrogatories.</p>

<p>Forfeiture for Violation of Customs Laws. Libel by the United States against Twenty-Five Pictures. Judgment for the United States.</p>

<p>Corporations &wkey;>665(3) — Liabilitx to suit op poeeion corporations apteb ABANDONING BUSINESS IN STATE.</p> <p>A foreign corporation held not subject to suit in New York after it bad ceased to do business in that state, on a cause of action arising in another state, although when doing business in New York it had designated an agent on whom service might be made, in compliance with General Corporation Law, N. Y., § 16, which designation had not'been revoked.</p>

<p>Collision <&wkey;82(2) — Vessel failing to stop on signal in fog liable fob - COLLISION.</p> <p>A collision at sea at night in a dense fog between the steamships L. O. Stensland and Brabandier, on crossing courses, held, due solely to fault of the Stensland under evidence warranting findings that the Brabandier, on hearing the fog signals of the Stensland, stopped as required by the rules and gave the prescribed signals, and that the Stensland, although hearing the signals, approached at such a speed that she struck the bows of the other vessel.</p>

<p>In Admiralty. Libel by W. R. Grace & Co. against the steamship Maumee. Decree for libelant.</p>

At Raw. Action by Wesley Frazier against Walker D. Hines, Director General of Railroads, begun in state court and removed to the federal court. On motion to permit defendant to amend both petition for removal and answer.

<p>In Equity. Bill by the Atlantic Coast Line Railroad Company against H. E. Feaster.</p>

<p>Prosecution of the American Socialist Society and another for violation of the Espionage Act. On motions by defendant American Socialist Society (1) to set aside the verdict against said society and for a new trial, and (2) in arrest of judgment.</p>

<p>Bankruptcy <§=>407(5) — Obtaining goods by false statement ground for DENIAL OF DISCHARGE.</p> <p>Discharge will not be denied bankrupt druggist, under Bankruptcy Act, | 14b (3) being Comp. St. § 9598, on the ground he “obtained * * * property on credit upon a materially false statement in writing, made by him” to representative of wholesale drug company “for the purpose of obtaining credit” from such company, where the written statement of assets and liabilities prepared by the bankrupt for such representative; although failing to show bankrupt’s indebtedness to members of his family, did not on its face purport to include all his indebtedness or to state that no other indebtedness was subsisting.</p>

<p>Courts ®s»342 — -Pbacticjk ; equitable defenses in actions at law.</p> <p>A defense to which a third person is obviously a necessary party cannot in an action at law be set up by equitable answer, under Act March 3, 1915, c. 90 (Comp. St. § 1251b); but it authorizes only such equitable defenses as can be adequately made between the original parlies to the action.</p>

<p>In Error to the District Court of the United States for the Southern District of Ohio; John E. Sater, Judge.</p> <p>Action by the American Fidelity Company against the American Guaranty Company. There was a judgment for plaintiff, and defendant brings error.</p>

Appeal, from the District Court of the United States for the Eastern District of Michigan; Arthur J. Tuttle, Judge. Libel by Frank G. Wetherell and another against the tug J. L. Miner, claimed by Alexander Ruelle, and the barge Jeremiah Godfrey, claimed by the Grace Harbor Lumber Company. From a decree for claimants, libelants appeal.

Trip-pet, Judge. Suit by the Oilfields Syndicate against the American Improvement Company. From a decree for defendant (256 Fed. 979), plaintiff appeals. Oilfields Syndicate appeals from a decree dismissing a complaint on the ground that the facts failed to state a valid cause of action in equity against the Improvement Company, appellee.

<p>In Error to the District Court of the United States for the District of Nebraska; Thomas C. Monger, Judge.</p> <p>Criminal prosecution by the United States against David G. Wine. Judgment of conviction, and defendant brings error.</p>

<p>Appeals from the District Court of the United States for the Eastern District of Michigan; Arthur J. Tuttle, Judge.</p> <p>Suit in admiralty for collision by the Pioneer Steamship Company, owner of the steamer Martin Mullen, against the steamer Herbert K. Oakes, the Beaver Steamship Company, claimant, with cross-libel. Decree holding both vessels in fault, and both parties appeal.</p>

<p>In Error to the District Court of the United States for the Western District of Pennsylvania; W. H. Seward Thomson, Judge.</p> <p>Criminal prosecution by the United States against Ellsworth J. Trader. Judgment of conviction, and defendant brings error.</p>

<p>1. Criminal law <&wkey;10O(2) — Indictment in division of district other than THAT IN WHICH CRIME WAS COMMITTED.</p> <p>Though an indictment was found in a division" other than that in which the offense was charged to have been committed, and to which division the case was transferred for trial, there was no violation of Judicial Code, § 53 (Comp. St. § 1035), requiring all “prosecutions” to be had within the division of the district where the crime is charged to have been committed, unless the prosecution be transferred to another division; the finding of the indictment and the proceedings leading' up thereto not being a part of the prosecution.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Prosecution.]</p> <p>2. Prostitution <&wkey;l — Commission of immorality on interstate journey NOT VIOLATION OF WHITE SLAVE ACT.</p> <p>A violation of the White Slave Act (Comp. St. §§ 8812-8819) requires that the transportation in interstate commerce shall be for an immoral purpose, and the mere commission of an immoral act by defendant while on an interstate journey with a woman for a lawful purpose does not, .where the immorality was merely casual, constitute a violation of the White Slave Act.</p>

<p>In Error to the District Court of the United.States for the District of Nebraska; Thomas C. Hunger, Judge.</p> <p>Action at law by Ida C. Jones against the Chicago, Rock Island & Pacific Railway Company. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Bankruptcy #=>446 — Presumption on petition to superintend and revise.</p> <p>On petition to superintend and revise an order of the bankruptcy court, where the record did not contain a summary of the evidence or statement of the facts, it must be assumed that the evidence tended to support the allegations of the petition.</p> <p>2. Bankruptcy <#=>146 — Authority to seli. unscheduled life estate of BANKRUPT.</p> <p>The bankruptcy court has authority to sell an unscheduled life estate belonging to the bankrupt.</p> <p>3. Bankruptcy #=>288(1) — Jurisdiction on summary proceedings.</p> <p>Where the bankruptcy court ordered sold an unscheduled life estate, title which stood in the name of the bankrupt, and it was claimed by a son of the bankrupt, who asserted that the bankrupt had sold it to him, held, that the bankruptcy court has jurisdiction to summarily determine the controversy between the purchasers and the son.</p>

<p>In Error to the District Court of the United States for the Western District of Texas; William R. Smith, Judge.</p> <p>Edgar Held was convicted of crime, and he brings error.</p>

<p>Courts <g=>405(5)~Review or District Court — Appellate Jurisdiction.</p> <p>The Circuit Court of Appeals is without Jurisdiction of appeal from decree of District Court dismissing hill on the ground of want of jurisdiction depending on diversity of citizenship; but power to review is exclusively in the Supreme Court.</p>

<p>1. Patents <@=>328 — For mold for forming rubber heels valid and infringed.</p> <p>The Tufford patent, No. 1,177,833, for a mold for making rubber heels, held not anticipated and to disclose patentable invention; also infringed.</p> <p>2. Patents <§=>165 — Effect of failure to state mode of operation of device.</p> <p>A patentee’s failure to state in the patent the new mode of operation which his device in fact contains, and which produces a new and beneficial result, does not prohibit the court from taking these merits into consideration, in determining the scope of the invention or the validity of the patent.</p> <p>3. Patents <@=>167(1) — Court mat refer to specification to construe claim.</p> <p>Where the language of a claim includes elements described in general terms, the court may look to the specifications for the purpose of construing the language and ascertaining its meaning.</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 I. T. S. Rubber Company against the Fetzer & Spies Leather Company. Decree for complainant, and defendant appeals.</p>

<p>Patents <S=>328 — Patent fob rubber shoe heels infringed.</p> <p>The Tuilord reissue patent, No. 14,049, for a rubber shoe heel, as to the new claims incorporated in the reissue, held infringed on the showing made for a preliminary injunction, with the exception of claim 10.</p>

<p>Patents &wkey;>328 — Poe mechanical piano valid and infringed.</p> <p>The Danquard patent, No. 766,601, for a manually or mechanically operated piano, held, not anticipated, valid, and infringed.</p>

<p>In Equity. Suit by Arthur E. Paige against Andrew V. Brown and Mary E. Brown, trading as D. V. Brown. On final hearing. Decree for defendants.</p>

<p>1. Release <&wkey;33 — Scope of acquittance fob infringement.</p> <p>An acquittance given one company for infringement of patent in manufacturing and selling up to a certain quantity construed as also acquitting its licensees and vendees.</p> <p>2. Patents <&wkey;129 — Attack on validity by licensee.</p> <p>Validity of a patent may not be questioned by one asserting license to operate under it.</p> <p>3. Trial <&wkey;387(3) — Ruling on question not material to case not necessary.</p> <p>Whether a defendant, setting up a license to make up to a certain quantity under a patent, may as to the excess deny validity of the patent, will not be decided; it not being essential to a decision of the cause, and plaintiff not asking that the case be ruled, on that point, but merely characterizing defendant’s position as advanced with ill grace.</p> <p>4. Patents <&wkey;49 — Evidence of utility.</p> <p>That a patented process for manufacturing steel was used, and that a large manufacturer, through its officers, having the fullest knowledge of the science and art and having at their command the best experts, paid a large sum for infringement and right to use, is strong evidence of utility.</p> <p>6. Patents &wkey;>45 — Letters patent sufficient evidence to show validity AS AGAINST CLAIM OF NO ADVANCE ON PRIOR ART.</p> <p>Letters patent, pertaining to a most important art, are prima facie evidence sufficient, in the absence of controlling evidence to the contrary, to support a finding of validity against a claim of no advancement on what was within the common knowledge of all familiar with the metallurgical science.</p>

In Admiralty. Libel by Edwin M. Richards and others against the barque Professor Koch and cargo. Decree for libelants, which also provided for an award for intervener Barry.

<p>1. Admiralty &wkey;25 — -Jurisdiction ; mode of objecting thereto.</p> <p>Tlie usual way to raise the question of jurisdiction in admiralty is by motion to dismiss, although exceptions on that ground, if sufficient, may be treated as a motion to dismiss.</p> <p>2. Admiralty <&wkey;12 — Jurisdiction ; contract as charter party.</p> <p>A contract under which libelant delivered two steamships for a term of years into the exclusive possession of respondent, which was to operate them between designated Pacific ports, pay to libelant a stated sum per month, and one-half their net earnings after deducting such payments, and return them on termination of the contract in good repair and with an equal amount of apparel and furniture on board, held a charter party, and a suit for its breach within the maritime jurisdiction.</p> <p>3. Partnership <&wkey;20 — Relation; charter of vessels as creating.</p> <p>A contract by which libelant delivered two steamships for a term ot years into the exclusive possession of respondent, which was to operate them and pay to libelant a share of their net earnings, held not to create a partnership.</p> <p>4. Admiralty ©^ — -Jurisdiction ; incidental accounting.</p> <p>A court of admiralty will not refuse jurisdiction of a suit on a maritime contract because it incidentally involves an accounting.</p> <p>5. Shipping &wkey;3%, New, vol. 8A Key-No. Series — Federal control; effect-on TIME CHARTER.</p> <p>The requisitioning by the United States of ships under a time charter held a termination of the charter under the terms as pleaded, which entitled the owner to the full price paid for the vessels as against a claim of the charterer for the cost of repairs which, under the charter, it was required to make at its own expense.</p>

<p>1. Collision <©=»91 — Vessels in haebob — Fault in navigation by tugs.</p> <p>A collision on the Mississippi river off New Orleans between steamships ‘ on meeting courses, but one of which had stopped some 75 feet off the piers, held due to fault in the navigation of the other by tugs, which attempted to take her between the stationary vessel and the piers.</p> <p>2. Collision <S=»59 — Liability oe vessel in tow.</p> <p>A steamship held not liable for a collision which occurred through fault in her navigation' when she was being towed by two tugs, the master of one of which was on board her and in full charge and control of her movements, although her engines were running and used as required under his direction.</p>

<p>1. Eminent domain <§=>167(5) — Power of Secretary of Was to institute PROCEEDINGS.</p> <p>Repeal of statutes by implication is not favored, and the power given tbe Secretary of War by Act July 2, 1917 (Comp. St 1918, § 6911a), to cause proceedings to be instituted in tbe name of tbe United States, for tbe condemnation of land needed for fortifications, coast defenses, and military training camps, was not abrogated by tbe provision in Army Appropriation Act July 11,1919, declaring that no part of tbe appropriations shall be expended for tbe purchase of real estate for tbe construction of army camps and cantonments, except where, in cases of camps in use prior to November 11, 1918, it has been, found more economical, for the purpose of salvaging such camps, to buy real estate than to continue to pay rentals; hence a petition by the Secretary of War, filed June 24,1919, to condemn land for a military training camp, cannot be denied on tbe ground that the Secretary of War was without authority.</p> <p>2. Eminent domain <§=>196 — On proceedings by Secretary of War, presumption THAT FUND EXISTS FOR PAYMENT.</p> <p>Where Secretary of War filed a petition to condemn land for a military training camp, and landowners attached tbe petition on the ground tbe authority conferred on him by Act July 2, 1917 (Comp. St. 1918, § 6911a), had been repealed by Army Appropriation Act July 11, 1919, forbidding the expenditure of appropriations for acquisition of land, except in connection with salvaging property on established military camps, it will be presumed there was a fund in existence with which to pay for the land, as asserted by the Secretary.</p> <p>3. eminent domain <§=>66 — On proceedings by Secretary of War, court DETERMINES QUESTION OF PUBLIC USE.</p> <p>On petition by the Secretary of War to condemn property for military purposes, the judicial question to be determined is whether the use is a public one, and questions as to payment rest in legislative discretion, although the courts must see that just compensation is made before the property is taken.</p> <p>4. Eminent domain <§=»18 — Condemnation for military training camp a public purpose.</p> <p>Where the Secretary of War, as authorized by that a'ct, began proceedings to condemn land, under Act July 2, 1917 (Comp. St. 1918, § 6911a), for a military training camp, it must be held that the condemnation is for a public purpose; the establishment of training camps being for the purpose of public defense.</p> <p>5. EMINENT DOMAIN <&wkey;369 — -IN CONDEMNATION BY SECRETARY OF WAR, NO DEFENSE THAT FUND POR PAYMENT -NOT ON HAND.</p> <p>Where the Secretary of War, as authorized by statute, bogan proceedings to condemn land for a military training camp, the proceeding cannot be dismissed because specific sum was not then on hand to compensate the landowners, for title would not pass until compensation is made,</p> <p>6, Courts <&wkey;284 — -Jurisdiction op federal courts.</p> <p>Under Act Aug. 1, 1888 (Oomp. St. §§ 6909, 6910), federal District Court has jurisdiction of proceeding by Secretary of War to condemn land, as authorized by Act July 2, 1917 (Comp. St. 1918, § 6911a), for military training camp.</p>

In Equity. Suit’by Morris Wheéler and other against the Baden-hausen Company. A receiver for defendant was appointed in that suit, and petition for revocation of his appointment is made by receivers appointed for such company by a court of Delaware.

<p>1. Evidence <&wkey;452, 460(7) — Parol evidence admissible to explain latent AMBIGUITY IN DEED.</p> <p>A deed describing land as the Old Lebanon juniper swamp, etc., is sufficiently definite to admit parol evidence to fit the description to the land conveyed; the description being a latent ambiguity.</p> <p>2. Estoppel <&wkey;27 — Op grantee from purchaser under warranty deed to SET UP ADVERSE TITLE.</p> <p>Persons claiming through a grantor, who warranted title, are estopped from asserting as against his grantee title to lands included within the description of the first conveyance, regardless of whether grantor, who was their source of title, had title to the property included.</p> <p>3. Deeds <&wkey;114(l) — Construction of description referring to county RECORDS.</p> <p>Deed describing the land conveyed as the Old Lebanon juniper swamp,title to which the grantor derived from E., administrator, which made reference to the county records, etc., held not to include title two small parcels of highland within the general boundaries of the swamp, which the grantor had acquired from other sources; it appearing that the smaller parcels had for many years been distinguished from the remainder of the swamp. •</p> <p>4. Deeds *&=93 — Intent op parties sought in construction of deed.</p> <p>The courts will endeavor to ascertain and effectuate the intention of the parties to a deed, and such intention will be sought by reference to the language used by the grantor.</p> <p>5. Deeds &wkey;s90 — Ambiguous language construed favorably to grantee.</p> <p>If the language in a deed is of doubtful meaning, capable- of more than one construction, that construction most favorable to the grantee will be adopted.</p> <p>6. Deeds <®=112(1) — Other deed or record referred to construed as part OP DEED.</p> <p>When a grantor, for the purpose of rendering a description of the property more certain, etc., refers to another deed or record, such deed or record so referred to will be treated as if embodied in the deed in which reference is made, and the premises therein described will pass under it as if written in the deed.</p> <p>7. Deeds <§=111 — Particular description controls general description.</p> <p>When a deed contains a general description, followed by a particular description of the premises granted, the latter will control the former.</p> <p>8. Deeds <&wkey;95 — Every clause given intended effect.</p> <p>Every clause and part of a deed should be given that force and effect the parlies must have intended.</p> <p>9. Deeds <&wkey;>118 — Evidence sufficiently identifying parcels not included IN DESCRIPTION.</p> <p>Where defendants claimed small parcels of highland within the general boundaries of the swamp, which their predecessor had granted to those under whom plaintiff claimed, held, that the small parcels of highland which were not included in the swamp were with reasonable certainty correctly located.</p>

<p>In Admiralty. Fib el by the John L. Roper Number Company against the Portsmouth Fisheries Company. Decree for libelant.</p>

<p>1. Removal of causes i&wkey;36 — Remand when joinder not fraudulent.</p> <p>Where, on motion to remand a case begun in state court against a resident and nonresident, and removed by the latter to the federal court, plaintiff makes it appear that on reasonable grounds he believed in good faith that the defendants were jointly liable to him, the cause will be remanded, for the joinder is not fraudulent, however the truth may turn out to be.</p> <p>2. Removal of causes <&wkey;107(7) — Affidavits on motion foe remand stating MERE CONCLUSIONS.</p> <p>Where an action begun against .a resident and a nonresident defendant was removed to the federal courts by the nonresident defendant, affidavits on motion for remand that plaintiff had reasonable grounds to believe that defendants were jointly liable to him are insufficient to warrant remanding of the cause, where there was nothing but a mere státément of the conclusion, or a statement that the belief was based on information asserted to have been obtained from unnamed persons.</p> <p>3. Removal of causes <&wkey;107(7) — Motion fob remand denied for want of good faith;</p> <p>On motion by plaintiff to remand to the state court an action removed from that tribunal on the ground that the joinder of a resident with a nonresident defendant was fraudulent, held, that remand must be denied; the affidavits offered by plaintiff being insufficient to show that joinder was in good faith.</p>

<p>1. Sales &wkey;>355(4) — Variance between pleading and proof. .</p> <p>In an action for price of castings, there was no variance between the complaint, which alleged a sale and delivery to defendant, and proof, which showed a sale to defendant and a delivery on his order to another.</p> <p>2. Sales <&wkey;355(4) — Variance between pleading and proof.</p> <p>In an action for the price of castings sold and delivered, the complaint which declared for an agreed price, or for the value, if no price was found, is not open to objection that it stated a cause of action on a book account, when the proof was of a written contract and performance.</p>

<p>1. Injunction <&wkey;26(5) — Restraining action at law; equity jurisdiction.</p> <p>Where a judgment pleaded as a bar by defendant in an action at law was the result of a long and expensive trial, equity has jurisdiction to entertain a suit to enjoin prosecution of the action.</p> <p>2. Judgment <&wkey;tT83 — Res judicata; assignor bound by judgment against ASSIGNEE.</p> <p>Decree for defendant in a suit brought by an assignee of a contract, with consent of the assignor and in his interest, to set aside a second assignment'to the obligor for fraud, held a bar to a subsequent action by the original assignor to enforce the contract.</p>

<p>In Admiralty. In the matter of Henry B. Nickerson, deceased seaman. On petition of Ernest B. Grant, Shipping Commissioner, for allowance of fees.</p>

<p>Appeal from the District Court of tlie United States for the Southern District of New York. Suit in equity by the Consolidated Gas Company of New York against Charles D. Newton, as Attorney General of the State of New York, Edward Swann, as District Attorney of the County of New York, and others, constituting the Public Service Commission of the State of New York, First District. Appeal from an order denying application of the City of New York for leave to intervene as a party defendant.</p>

<p>In Error to the District Court of the United States for the Western District of Texas; W. R. Smith, Judge. Fred Delgado and another were convicted of crime, and they bring error.</p>

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

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

<p>Petition to Superintend and Revise from the District Court of the United States for the Northern District of Texas; Edward R. Meek, Judge. The Gregg Grain Company and others filed an involuntary petition against the Walker Grain Company, and, the prayer for appointment of a receiver having been granted, the Walker Grain Company petitions to superintend and revise.</p>

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