Volume 262 — Federal Reporter

<p>Appeal from the District Court of the United States for the Western District of Pennsylvania; Charles P. Orr, Judge.</p> <p>Libel by the Diamond Coal & Coke Company against the Steamboat Duquesne; the Carnegie Steel Company, claimant. From a decree dismissing the libel, the libellant appeals.</p>

<p>Appeal from the District Court of the United States for the Western District of Pennsylvania ; Charles P. Orr, Judge.</p> <p>Libel by Emma L. Martin against the Carnegie Steel Company, owner of the Steamboat Duquesne. Prom a decree dismissing the libel, libellant appeals.</p>

<p>In Error to the District Court of the United States for the Southern District of West Virginia, at Charleston; Benjamin E. Keller, Judge.</p> <p>Criminal prosecution by the United States against I. K. Dye. Judgment of conviction, and defendant brings error.</p>

<p>1. Shipping <&wkey;S4(i) — Negligence causing death of stevedore.</p> <p>A dredge, working in a slip, with two lines on each side to the piers, dropping and tightening alternately, as she worked, which allowed one line to sag while a launch loaded with stevedores was passing, sweeping off a stevedore, who was drowned, held in fault, it appearing that the launch signaled and would have passed safely, if the line had been held taut, as customary, but through negligence was not heard nor seen; and the master of the launch also held in fault for proceeding, knowing the danger, and without indication, that his signal was heard and would be heeded.</p> <p>2. Carriers <&wkey;240 — Master and servant <&wkey;315 — Workmen being transported NOT “PASSENGERS”; NEGLIGENCE OE INDEPENDENT CONTRACTOR TRANSPORTING EMPLOYÉS CHARGEABLE TO THEIR EMPLOYEE.</p> <p>Workmen being transported to their place of work by the master at his expense and in their work time, are not “passengers,” but employes, for whose safety the master must exercise reasonable care; and he cannot relieve himself of this responsibility by employing an independent contractor for their transportation.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Passenger.]</p> <p>3. Master and servant <&wkey;>194 — Stevedores transported to their work not FELLOW SERVANTS OF MASTER OF VESSEL.</p> <p>Where an employer of stevedores, under agreement to transport them to their work, contracted with the owner of a launch to carry them, the master of the launch was not their fellow servant, and for his negligence, contributing to the death of a stevedore, the employer is liable.</p>

<p>Appeal from the District Court of the United States for the Western District of New York.</p> <p>Bill of Murle I,. Rowe, as trustee of James h. Drohen, bankrupt, against James I,. Drohen and Mabel R. Drohen, his wife. From a decree dismissing the bill (245 Fed. 684), complainant appeals.</p>

<p>1. Sales <©=4(3) — '“Bailment” distinguished from “sale.”</p> <p>Where articles are delivered by one person to another, who is to perform labor on them or to manufacture them into other articles for the former, the transaction is a “bailment”; but if the person who receives the articles may deliver in return articles which are not the product of those received, the transaction is in fact a “sale.”</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Bailment; Sale.]</p> <p>2. Conspiracy <@=>33 — Title to linings furnished by United States to MANUFACTURING CONTRACTOR DOES NOT PASS.</p> <p>Under a contract between the United States and one of the defendants for the manufacture of leather jerkins, which required the United States to furnish the linings, held, that title did not pass, so that the contractor and a confederate, who conspired to obtain linings from the United States in excess of needs and sell the same, etc., were guilty of violating Criminal Code, §§ 36, 37 (Comp. St. §§ 10200, 10201).</p> <p>3. Criminal law <©=1178 — Error waived where not mentioned in record OR BRIEF.</p> <p>In a prosecution against a contractor, who manufactured leather jerkins for the United States, and another, for conspiracy to defraud the United States, etc., in violation of Criminal Code, §§ 36, 37 (Comp. St §§ 10200, 10201), where it appeared that the contractor disposed of linings furnished by the United States, title to which did not pass to him, it was unnecessary to inquire whether, at the time he demanded the linings, disposed of, he knew that they were in excess of his requirements, where there was no evidence in the record, and nothing was said in the argument concerning it.</p> <p>Mantón, Circuit Judge, dissenting.</p>

<p>X. Indictment and information <S=>71 — Sufficiency of accusation.</p> <p>A crime is made up of acts and intent, and these must be set forth) in the indictment with reasonable particularity of time, place and circumstances.</p> <p>2. Conspiracy @=>43(11) — Indictment for seditious conspiracy.</p> <p>An indictment under Criminal Code, § 6 (C'omp. St. § 10170), for conspiracy to prevent, hinder, and delay by force the execution of the Selective Draft Act May 18, 1917, held sufficient.</p> <p>3. Conspiracy @=^43(11) — Indictment under Espionase Act.</p> <p>Counts in an indictment under Espionage Act June 15, 1917, tit. 1, § 4 (Comp. St. 1918, § 10212d), respectively charging conspiracy to violate sections 2 and 3 of the act by attempting to cause insubordination, disloyalty, and refusal of duty in the military and naval forces, and to obstruct the recruiting and enlistment service, held sufficient.</p> <p>4. Indictment and information <@^=>129(1) — Joinder of counts.</p> <p>Counts charging separate and distinct offenses grounded upon the same transaction may properly be joined in an indictment, under Rev. St § 1024 (Comp. St. § 1690).</p> <p>5. Criminad law c=>508(9), 780(1) — Testimony op accomplices.</p> <p>Awhile it is the better practice for courts to caution juries against too much reliance upon testimony of accomplices, there is no absolute rule of law preventing conviction upon the testimony of accomplices, if juries believe them.</p> <p>6. Conspiracy C=>27 — Overt acts.</p> <p>Acts of defendants held to constitute overt acts in furtherance of the conspiracy charged.</p> <p>7. Army and navy <@==>40~ObstrijctinG' recruiting or enlistment.</p> <p>The offense of obstructing or attempting to obstruct the recruiting or enlistment service of the United States, within Espionage Act June 15, 1917. tit. 1, § 3 (Comp. St. 1918, § 10212c), may be committed by the use of words, and it is not essential to conviction that defendants’ words or acts actually prevented recruiting or enlistment.</p> <p>8. Criminal law <@==>123(1) — Evidence! op acts op conspirators.</p> <p>Where the evidence showed that an organization formed by defendants affiliated with other organizations for a common and unlawful purpose, an act of such other organizations in furtherance of the common purpose is evidence against all the conspirators.</p>

<p>1. Action <S=>22 — Bill foe specific performance, but seeking damages, to BE TREATED AS LAW ACTION.</p> <p>A bill for specific performance of an alleged contract to purchase certain corporate stock and sell one-half to plaintiff, but really seeking damages for the refusal to sell half the stock to plaintiff, should have been treated as a common-law action for breach of contract.</p> <p>2. Joint adventures <S=>1 — Eor indefinite period terminate at will of EITHER PARTY.</p> <p>An arrangement for an indefinite period, under which defendants were to purchase corporate stock at a specified price for joint account of plaintiff and defendants, could be terminated at the will of either party.</p> <p>3. Joint adventures <®=»5(2) — Evidence sufficient to show termination.</p> <p>Evidence held to sustain a finding that defendants had terminated a contract for purchase of stock for joint account by notifying plaintiff of such' termination.</p> <p>4. Appeal and ebbob <@=>197(4) — Objection that evidence was outside ISSUE TOO LATE ON APPEAL.</p> <p>In equitable action for specific performance of a contract for purchase of stock for joint account, where evidence regarding the termination of the contract was received without objection, the plaintiff cannot contena on appeal that the termination of the contract should have been pleaded.</p> <p>5. Appeal and ebbob <@=>171(3) — Question not raised below cannot be CONSIDERED.</p> <p>Where a case is tried below on a theory that a particular matter is within the issues, it cannot be contended on appeal that such matter was without the pleadings.</p> <p>6. Joint adventures <@=>5 (2) — Termination of contract provable under GENERAL DENIAL.</p> <p>In suit on contract for purchase of stock for joint account, a general denial authorized defendant to show that the contract had been terminated at the time of the transactions involved.</p>

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Criminal prosecution by the United States, against Hyman Horowitz and Benjamin Horowitz. Judgment of conviction, and defendants bring error.</p>

Whitaker Thompson, Judge. Action by the Northern Trust Company and Henry R. Zesinger, executors under the will of Lewis W. Klahr, deceased, against Ephraim Lederer, Collector of Internal Revenue. There was a judgment for plaintiffs (257 Fed. 812), and defendant brings error.

<p>'1. Equity <&wkey;114 — Intervener cannot challenge jurisdiction of court.</p> <p>An intervener cannot challenge the court’s jurisdiction, because, if the court is without jurisdiction, the proceedings are void and without effect upon the intervener, and also because equity rulé 37 (198 Eed. xxviii, 115 C. C. A. xxviii) provides that interventions shall be in subordination to and in recognition of the propriety of the main proceeding.</p> <p>2. Judgment <&wkey;299(l) — Necessity of correcting during current term of court.</p> <p>Errors in final judgments can only be corrected by appeal, unless steps be taken in the trial court for that purpose during the term in which the judgment was entered.</p> <p>3. Equity &wkey;>114 — Intervention after entry of final decree barred by laches.</p> <p>Where the final decree in a suit involving the receivership of a corporation to satisfy mortgage demands had been entered some six months before a bondholder filed an application to intervene which challenged the validity of the entire proceeding, held, that trial court did not abuse its discretion in denying such petition, with leave to contest the disposal of funds remaining in the receiver’s hands, in view of the fact that the petitioner had known of the pending proceeding long before entry of the final decree.</p>

Petition to Revise Order of the District Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge. In the matter of the Bald Eagle Mining Company, bankrupt. On petition by the United States as a creditor to revise an order allowing equal priority to the claim of the National Surety Company.

Whitaker Thompson, Judge. Five actions by the Copper Process Company against the Chicago Bonding & Insurance Company, which were consolidated and tried as one. There was a judgment for defendant, and plaintiff brings error.

<p>Appeal from the District Court of the United States for the District of New Jersey; Thomas G. Haight, Judge.</p> <p>In the matter of Theodore C. E. Blanchard, bankrupt. From an order of the District Court (253 Fed. 758), allowing as reduced the claim of Emeline C. Blanchard, Eífe B. Walter and another, as executors of the estate of claimant, since deceased, appeal, and Benjamin Atha, as trustee, cross-appeals.</p>

<p>Appeal from the District Court of the United States for the District of Montana; George M. Bourquin, Judge.</p> <p>Suit by Eidward McCaffrey, R. C. McCaffrey, and Mary Dena Mc-Caffrey against Harry L. Day, Mrs. Harry U. Day, whose true name is Helen D. Day, J. D. Finley, and Mrs. J. D. Finley. Judgment for defendants, and plaintiffs appeal.</p>

Middleton Smith, Judge. Action by Gus Rittenberg, in his own right and as trustee for certain insurance companies, against Walker D. Hines, Director General of Railroads. Judgment for plaintiff, and defendant brings error.

<p>Aliens <©=550 — Exclusion of contract “laboree” limited to manual wobk- / EES.</p> <p>The word “laborer,” as used in the contract labor provisions of Immigration Acts, Act Feb. 20, 1907, §§ 2, 4, and Act Feb. 5, 1917, § 5 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4289%c), is limited to manual laborers, and neither a bookkeeper in a bank nor a clerk in a steamship office is within the prohibition.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and, Second Series, Laborer.)</p>

<p>In Error to the District Court of the United States for the Northern District of Texas; Edward R. Meek, Judge.</p> <p>Action by Robert F. Alley against the Bessemer Gas Engine Company. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Collision <3=95(2) — Overtaking tug with tow solely in fault.</p> <p>An overtaking tug, with tow, which unnecessarily attempted to pass between two other tows, held solely in fault for collision between her tow and another in Long Island Sound.</p> <p>2. Collision <3=395(1) — Custom vabying from narrow channel rule justified.</p> <p>A general practice of west-bound tows in Long Island Sound, when apx>roaching North Brothers Island on a flood tide, to keep to the port side of the channel, to give east-bound tows room to round the island and pass the railroad piers on the north safely, held justified, and not in violation of the narrow channel rule.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit by Francis De Croisset, Maurice Le Blanc, and Société des Films Menchen against the Vitagraph Company of America, J. Stuart Blackton, and Albert E. Smith. From a decree dismissing the bill, complainants appeal.</p>

Witmer, Judge. • Action hy C. E. Miller against the American Bonding Company. From an order striking the case from the trial list (256 Fed. 545), ■plaintiff brings error.

<p>1. Sales ©=j52(3) — Correspondence admissible on question op parties to CONTRACT.</p> <p>On the question whether a contract of defendant to sell was with plaintiff, or with the T. Company, mentioned in defendant’s letter to plaintiff, and as against contention that a letter from plaintiff to defendant and said letter from defendant to plaintiff, together with a letter of credit of a bank, constituted a closed contract between plaintiff and defendant for sale by defendant to plaintiff, held prior and subsequent letters between defendant and the T. Company were admissible as throwing light on the letters between plaintiff and defendant.</p> <p>2. Sales <S=s>53(1) — Parties to contract question por jury.</p> <p>Whether a contract for sale was by defendant with plaintiff, or with the T. Company, held not a question to be determined by the court, construing merely the two letters between plaintiff and defendant, but a question of fact for the jury, on all the correspondence, including prior and subsequent letters between defendant and the T. Company, and the oral testimony.</p>

Dayton, Judge. Suit by the Little Kanawha Log & Tie Company against the steamboat Old Reliable (the Reliable Towing Company, claimant) and the Fidelity & -Deposit Company of Maryland. Decree for libelant, and respondents appeal.

f Minnesota; Wilbur F. Booth, Judge. In the matter of the P. B. Mann-Anchor Company, bankrupt. Order of the referee, holding that certain payments to the Union Investment Company, a creditor, constituted a preference, and that it was not entitled to allowance of its claim till the money so paid was returned, was reversed by the District Court, and Walter. F. Britton, trustee in bankruptcy, appeals.

<p>In Error to the District Court of the United States for the District of Colorado; Jacob Trieb'er, Judge.</p> <p>Action by Camp Bird, Limited, against Frank W. Howbert, Collector of Internal Revenue, District of Colorado. Judgment for defendant, and plaintiff brings error.</p>

Woodrough, Judge. Action by William L. Huffman against the Paige-Detroit Motor Car Company. There was a judgment for defendant, after demurrer was sustained to each count of the petition, and plaintiff brings error, and defendant assigns cross-errors, based on the refusal of its motion to quash service of summons.

Dibel by John S. Howell against the Delaware, Lackawanna & Western Railroad Company, in which the barge Dunellen, her tackle, etc. (the Central Railroad of New Jersey, claimant), the barge Chapin, her tackle, etc. (the New York Central Railroad Company, claimant), and the steam lighter Scotia, her engines, etc. (McAllister Bros., claimants) were made parties under the fifty-ninth rule in admiralty. From an adverse decree, the claimant of the barge Chapin appeals.

<p>Appeal from the District Court of the United States for the Southern District of Alabama; Robert T. Ervin, Judge.</p> <p>In the matter of Robert Wiley Horn, bankrupt. On appeal by William H. Monk, Jr., from order granting discharge.</p>

McCall, Judge. A. Grandi was convicted of knowingly receiving goods stolen from an interstate shipment in violation of Act Feb. 13, 1913, and he brings error.

<p>1. Prostitution <&wkey;>3 — Indictment under White Slave Traffic Act sufficient.</p> <p>An indictment under White Slave Trafilo Act, § 2 (Comp. St. § 8813), charging that the transportation was unlawfully and feloniously made “for the purpose of debauchery,” held sufficient.</p> <p>2. Prostitution <&wkey;>4 — Competency of evidence in prosecution under White Slave Traffic Act.</p> <p>In a prosecution for violation of White Slave Traffic Act, § 2 (Comp. St. § 8813), evidence of prior illicit relations between defendant and the woman transported is competent.</p> <p>3. Criminal law <&wkey;>782(9) — Instruction as to sufficiency of evidence.</p> <p>Instruction in a criminal case that the jury were required to decide, the questions submitted “upon the strong probabilities of the case,” followed by a correct statement of the rule as to exclusion of all reasonable doubt, held not erroneous.</p> <p>4. Criminal law <&wkey;768(o) — Coercion of .tory.</p> <p>Statement by the court to a jury that it was the rule of the federal courts that they should be kept together until they had agreed upon their verdict held not error, as tending to coercion.</p>

<p>In Error to the District Court of the United States for the Eastern District of Arkansas; Jacob Trieber, Judge.</p> <p>Paul E. Robins was convicted of a violation of Penal Code, § 215, and brings error.</p>

Suit in admiralty for collision by the Neptune Dine, Incorporated, against the steamship Forde, her engines, etc.; H. Kuhnle, claimant. Decree for libelant, and claimant appeals.

<p>Maritime mens &wkey;>70 — Deckeis for cost or repairs aekkm-ED.</p> <p>Decree awarding libelant a lien for amount of its claim on a quantum meruit for work done on a steamship affirmed.</p>

<p>Banks and banking >&wkey;270(7) — Usuby not defense oe counteeclaim in ACTION BY NATIONAL BANK.</p> <p>Where usurious interest has been taken by a national bank, the remedy given by Rev. St. § 5198 (Comp. St. § 9759), by an independent action to recover the usurious payments is exclusive, and the claim cannot be set up by way of defense or counterclaim in an action by the bank.</p>

Suit in equity by Donald M. Bliss against the Bell & Howell Company and George K. Spoor. From an order granting a temporary injunction, defendant Bell & Howell Company appeals. Appellant entered into a contract with appellee Spoor, whereby the latter secured the exclusive right to use, for a period of five years, a certain machine that embodied a patent held by appellant.

<p>Patents <&wkey;328 — Poe oxtep button's not infbinoed.</p> <p>The Barney patent, No. 885,135, for separable cull link buttons, held not infringed.</p>

<p>Appeal from the District Court of the United States for the Western District of Louisiana; George W. Jack, Judge.</p> <p>Suit in equity by Mahlon E. Layne and others against Fred I. Getty. Decree for complainants, and defendant appeals.</p>

Trip-pet, Judge. Patent infringement suit by William I. Zidell against Mrs. Billie Dexter, trading as the Billie Bumps Manufacturing Company, and Arthur Letts, trading as the Broadway Department Store. From that portion of the decree holding that certain garments did not infringe (259 Fed. 582), plaintiff appeals.

<p>Appeal from the District Court of‘ the United States for the Southern District of New York.</p> <p>Patent infringement suit by the A. Kimball Company against the Noesting Pin. Ticket Company. Decree for plaintiff, and defendant appeals.</p> <p>Action is upon patent 1,252,862, issued to Eugene W. Thompson January 8, 1918. The subject of invention is a “pin ticket,” which means a card or tag intended to bear price marks or other descriptive matter, and affixed to am-eles offered for sale (usually textile), by means of a piece of wire, so formed as to present a staple whose prongs pass through both card and cloth; but the base of said wire staple is so formed and prolonged (at right angles to the staple points) as to embrace (when bent) the conjoined edges of the pierced cloth and card. The staple ends are then also bent over or back against the rear face of the card.</p> <p>Of the claims in suit, the sixth defines the invention in most general terms, and is as follows:</p> <p>“In a pin ticket having a plurality of round-pointed double-shank pins formed of a single piece of wire, the wire between said pins engaging with the ticket to form a support therefor, the shank of said pins passing through the ticket, and the free ends of the wire being bent to engage with both surfaces of the ticket to hold the pins in engagement therewith.”</p> <p>The seventh claim is not sufficiently different to require quotation. The court below found the patent valid and infringed; defendant appeals.</p>

<p>1. Patents <&wkey;202(l) — Sights to partly perfected invention’ passes by assignment OF ALL PATENTS, ETC.</p> <p>Assignments, by which a concern transferred a boring machine, together with all patents, drawings, patterns, etc., relating thereto, held to convey any rights the assignor had in an unpatented improvement made by one of its employés.</p> <p>2. Patents <&wkey;93 — Employer entitled to invention by employé.</p> <p>Where a designer, employed to make improvements in a boring machine, left the results of his work with his employer, and later returned at the request of the employer’s assignee to give all necessary assistance in explaining the construction. and operation of the machine, etc., held, that the employe’s rights to the invention passed to his employer under their contract of employment.</p> <p>3. Patents &wkey;>203 — Assignee’s rights not greater than those of patentee.</p> <p>A patentee’s assignee, who was familiar with all the transactions which constituted proof that the patentee had sold his inventive powers to his employers, has no better title to the patent than his assignor.</p> <p>4. Bankruptcy <&wkey;138(2) — Eights to invention acquired by party claiming UNDER TRUSTEE’S SALE.</p> <p>Where an employer became bankrupt, and its assets and applications for patents on a boring machine were sold to trustees for creditors, who assigned them to the 1. Company, which later sold and assigned them to defendant, and an employs remained in the employment of the employer’s successors and completed an improvement prior to the sale to defendant, defendant acquired title to the improvement, whether it was completed prior to bankruptcy or not.</p> <p>5. Patents <&wkey;183 — Eights to partly perfected invention governed by GENERAL RULES.</p> <p>The sale of a bankrupt’s interest in a partly perfected invention upon which patent had not issued is governed by the general principles relating to bargains and sales, since Eev. St. § 4898 (Comp. St. § 9444), requiring assignments of patents to be in writing, applies only where the patent lias issued.</p> <p>0. Patents <&wkey;202(l) — Assignee holds legal title in trust for equitable-owner.</p> <p>The assignee of a patentee holds the legal title in trust for the owner of the equitable title.</p> <p>7. Patents <£=336 — Court has power to require assignment of patent in infringement suit to equitable owner.</p> <p>Where a defendant set up its equitable title to the patent involved in an infringement suit, the court, having jurisdiction of the parties and subject-matter, may do complete equity between them by dismissing the bill and requiring plaintiff to assign to defendant the legal title to the patent in suit.</p>

<p>In Equity. Suit by Harvey Hubbell, Incorporated, against the General Electric Company and others.</p>

<p>1. Patents <&wkey;118 — Compliance with statutory requirements necessary.</p> <p>No one has the right to a patent, without complying with all the conditions set forth in Rev. St. §§ 4886, 4887 (Comp. St. §§ 9430, 9431).</p> <p>2. Patents &wkey;>282 — Action for infringement based on issuance of patent.</p> <p>A patent infringement suit is based, not on the fact that plaintiff may be entitled to a patent, but on the actual issuance of a patent to him.</p> <p>3. Patents <&wkey;312(3) — Grant of patent and infringement as prima facie case.</p> <p>In patent infringement case, evidence of the grant of the patent and of infringement presents a prima facie case, which defendant must overcome to prevent plaintiff securing a decree.</p> <p>4. Patents <s&wkey;330(7) — Attack on validity of patent matter of defense in infringement suits.</p> <p>In patent infringement suits, the grounds specified in Rev. St. § 4920 (Comp. St. § 9466), on which defendant may attack the validity of the patent, are purely matters of defense.</p> <p>5. Patents &wkey;>310(l) — Plaintiff may establish only prima facie case or FORESTALL DEFENSE.</p> <p>In patent infringement suit, the plaintiff may, if he chooses, confine his ease in chief to establishing a prima facie case, Or he may forestall the defense by presenting his whole case in chief, but he is not required to negative possible defenses.</p> <p>6. Patents <&wkey;>310(l) — Necessity of pleading that inventions had not been ABANDONED IN INFRINGEMENT SUIT.</p> <p>In a patent infringement suit, a bill is not defective for failure to allege that the invention had not been abandoned to the public, since this is purely a matter of defense, which the defendant may raise under Rev. St. § 4920 (Comp. St. § 9466).</p> <p>7. Patents <&wkey;310(9) — Determining administratrix’s right to sue for infringement. ,</p> <p>In a patent infringement suit, defendant’s contention that title to the patent was not sufficiently alleged to be in plaintiff, who was the inventor’s administratrix, raises only the question oí a possible variance, and cannot be determined on a motion to dismiss the bill before proofs have been offered.</p>

<p>Aliens <&wkey;65 — Alien who surrendered declaration of intention to evade MILITARY SERVICE NOT ENTITLED TO CITIZENSHIP.</p> <p>Though applicant, who had declared intention to become citizen, surrendered same and made affidavit of willingness to return to Norway, his native country, in support of military exemption claim, was inducted into military service, and before his claim was disposed of the armistice was signed, and he was discharged, held that, despite Act June 29, 1906, § 4, as amended by Act May 9, 1918 (Comp. St. 1918, § 4352), and by Act July 19, 1919, providing for admission to citizenship of any person of foreign birth who served in the military or naval forces in the United States and had been honorably discharged, applicant cannot be admitted to citizenship; his conduct showing desire to avoid burdens of citizenship, instead of loyalty to United States.</p>

<p>1. COURTS <&wkey;372(7) — Collecting bank’s liability as collector governed BY GENERAL LAW, NOT STATE DECISIONS.</p> <p>On a question of general law, as the liability of a bank accepting for collection commercial paper, the federal courts are not bound by decisions of the state in which the contract was made, or to be performed, but must determine the question of liability by reference to all the authorities.</p> <p>2. Banks and banking &wkey;>171(6) — Liability of bank collecting commercial PAPER FOR ACTS OF CORRESPONDENT.</p> <p>■ A bank receiving commercial paper in one state for collection in another is liable for any neglect of duty occurring in its collection, whether arising from the default of its own officers or employSs, or from that of its correspondent, and while this obligation may be modified by contract, a modification will not be inferred from knowledge that the receiving bank must, or intends in due course of business to, forward the paper to another bank for collection.</p> <p>8. Banks and banking <@=>175(%) — Owner of commercial paper cannot sue correspondent selected by bank to which paper was delivered FOR COLLECTION.</p> <p>Where a correspondent selected by a bank with which was deposited commercial paper for collection is negligent, and the owner suffers a loss, the owner cannot in his own name sue tho negligent correspondent, but Ms right of action is against the bank with which he deposited the commercial paper.</p>

<p>At Law. Actions by Alexander D. Stockton, sole surviving trustee under the will of Alexander J. Derbyshire, deceased, against Ephraim Lederer, Collector of Internal Revenue.</p>

<p>1. COURTS <&wkey;508(l)-FEDERAL COURT HAS NO JURISDICTION TO ENJOIN SUIT IN STATE COURT. WHERE NOT IN AID OF ITS OWN JURISDICTION.</p> <p>Under Rev. St. § 720, now Judicial Code, § 265 (Comp. St § 1212), a federal court cannot enjoin prosecution of a suit in a state court, where not in aid of its own jurisdiction previously acquired, but to enable it to assume jurisdiction of the controversy then ponding in the state court, because a federal question is incidentally involved therein.</p> <p>2. Courts <&wkey;489(9) — State court has in some instances jurisdiction of QUESTIONS UNDER INTERSTATE COMMERCE ACT.</p> <p>State courts are' not without jurisdiction in every case involving rights or questions under the Interstate Commerce Act.</p>

At Raw. Action by Adolph Hunau against the Northern Region Supply Corporation. On motion by defendant to quash service of original writ in personam. The defendant is a foreign corporation organized under the laws of the “government of the Northern Region” of Russia, whatever that may be. It is in fact a co-opera the buying and selling company, whose business is to buy American and English products, raw and made up, and to export all kinds of Russian produce in return.

Suit by the Compañía Minera y Compradora de Metales Mexicano, S. A., against the American Metal Company and the Compañía de Min-erales y Metales, Sí A., was removed from a state court by the first-named defendant.

<p>1. Internal revenue @=»9 — Stock dividends not subject to corporation EXCISE TAX.</p> <p>Under the Corporation Excise Tax Act of August 5, 1909, a corporation stockholder is not taxable on stock dividends received.</p> <p>2. Internal revenue <®=>9 — Corporation Excise Tax Act inapplicable to EARNINGS IN PREVIOUS TEARS.</p> <p>Under the Corporation Excise Tax Act of August 5, 1909, earnings made before 1909 cannot be considered income received during that year, merely because the corporation then distributed them in dividends.</p> <p>3. Internal revenue *S=9 — Corporation excise tax proper on dividends prom earnings in previous tears.</p> <p>Under the Corporation Excise Tax Act of August 5, 1909, a corporation holding stock in another concern is liable on dividends declared by such concern in 1910, although such dividends represented in part earnings made before January 1, 1909.</p> <p>4. Internal revenue <®=>7, 9 — “Excise tax” and “income tax” defined.</p> <p>An “excise tax” is an indirect charge for the privilege of following an occupation or trade, or carrying on a business; while an “income tax” is a direct tax imposed upon income,, and is as directly imposed as is a tax on land. ‘</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Excise.]</p> <p>5. Constitutional law <@=»70(3) — Legislative measure of excise tax conclusive.</p> <p>Though Congress, in levying an excise tax, should restrict the measure of the tax to income derived from the occupation or business with respect to which the tax is levied, yet the measure fixed is conclusive on the courts.</p>

<p>1. Post ornen <@=>27 — Defendant, presenting affidavits op ownership of NEWSPAPER, CANNOT URGE THAT THEY WERE NOT AFFIDAVITS, IN PROSECUTION FOR THEIR FALSITY.</p> <p>Where defendant, pursuant to Act Aug. 24, 1912, § 2 (Comp. St. § 7313), presented affidavits taken before a notary as to the ownership of a newspaper, defendant cannot, in a prosecution for their falsity under Criminal Code, § 28 (Comp. St. § 10192), urge that, because taken before a notary, they were not affidavits within the act.</p> <p>2. Post office <@=>27 — Making of affidavit containing false statements NOT ALTERATION, FORGERY, OR COUNTERFEITING OF SAME.</p> <p>The making of an affidavit containing false statements, though the same was delivered to the postal authorities to show the ownership of a newspaper, as required by Act Cong. Aug. 24, 1912, § 2 (Comp. St. § 7313), does not fall within Criminal Code, § 28 (Comp. St. | 10192), denouncing the offense of falsely making, altering, or counterfeiting affidavits, etc.; the affidavit being in fact genuine.</p>

In Admiralty. Ribel by the Eastern Transportation Company against the East Carolina Rumber Company, and with the Philadelphia & Reading .Coal & Iron Company as garnishee. Sur trial hearing on libel, answer, and proofs.

<p>In Equity. Suit by the United States against Walter T. Apple and others. On separate motions of several defendants to dismiss.</p>

<p>1. CETMINAI. LAW <&wkey;166 — COUBT-MAKTIAL ACQUITTAL IS BAB TO CIVIL PEOSE-CWTION.</p> <p>Defendant registered on (lie 5tli day of June, 1917, and thereafter failed to answer Ms questionnaire and fled to escape military duty. He was tried by a court-martial for desertion and convicted, but the conviction was set aside hy the reviewing authorities, and he was ordered restored to duty. Meld, that this proceeding before the court-martial constituted a bar to a prosecution in the District Court for failing to answer liis questionnaire.</p> <p>2. Criminal law <&wkey;163 — -Former jeopardy defense applicable to misdemeanors.</p> <p>The principle that a man shall not be placed in jeopardy twice for the same offense applies to misdemeanors, as well as graver crimes.</p>

<p>!. Bankruptcy <S=»225 — Representative of “creditor” not an attorney CANNOT EXAMINE WITNESSES BEFORE REFEREE.</p> <p>Tlie word “creditor,” as used in General Orders in Bankruptcy No. 4 (89 Fed. iv, 32 O. O. A. viii), does not include the agent, attorney in fact, or proxy of a creditor, and under such order and No. 22 (89 Fed. x, 32 O. O. A. xxv), a creditor cannot appoint a representativo, who is not an attorney and counselor at law, to examine witnesses before a referee.</p> <p>[Ed. Note. — -For other definitions, see Words and Phrases, First and Second Series, Creditor.]</p> <p>2. Bankruptcy <§=^>225 — Examination op witnesses before referee by “party.”</p> <p>The term “party,” as used in General Order in Bankruptcy No. 22 (89 Fed. x, 32 0. O. A. xxv), providing that the examination of witnesses before the referee may be conducted by the party in person, means the owner of the claim, and seems meant to exclude agents, attorneys in fact, and proxies.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Party.]</p>

In Admiralty. Libel by the Compañía Trasmediterranea, as owner of the steamship Cataluña against 6,387 barrels of petroleum and the Societe Espagnole d’Achate & d’Affretements, together with a libel by tbe Compañía Trasmediterranea, as owner of the steamship Aragon, against 7,072 barrels of petroleum and the Societe Espagnole, etc. On exceptions to libels. Exceptions overruled as to libels in personam, and sustained as to libels in rem.

<p>At Taw. Action by the New York Life Insurance Company against Charles W. Anderson, Internal Revenue Collector.</p>

<p>1. Wharves <®=o21 — Tug not negligent in stretching hawser acbobs open SLIP.</p> <p>Where a tug, under orders, drew a vessel out of a dry dock, stretched á hawser from the vessel across an open slip to a pier, suggested to the vessel’s officer that a lantern be placed at the steamer’s stem after dark, and then left, held, that the tug was not negligent in either stretching the line or in failing to remain to watch it</p> <p>2. Wharves <®^21 — Steamer primarily and pier also liable fob injuries SUSTAINED WHEN TUG RAN INTO HAWSER ACROSS OPEN SLIP.</p> <p>Where a hawser, stretched from a vessel at a dry dock across an open slip to a pier, caused injury to libelant, engineer on a tug which endeavored to enter the slip after dark, held, that the steamer was primarily responsible, but that the dry dock company, which was apparently aware of the condition and knew that the slip was frequently used by other vessels, was also liable.</p> <p>3. Wharves <@=21 — Evidence insufficient to show injury to libelant-WHEN HIS TUG RAN INTO A HAWSER.</p> <p>The testimony of an engineer on a tug that he had been knocked down by something and injured when the tug ran against a hawser stretched from a steamer across an open slip to a pier held insufficient to establish that any injuries were received in the manner claimed, in view of fact that persons inspecting the engine room immediately after the accident found no indications that the room had been affected by the accident, and when the condition claimed as injury might have resulted from disease.</p>

<p>Aliens <3=>:32(8) — Evidence insufficient to sustain obdeb excluding Chinese.</p> <p>Where a Chinese applicant’s father had been admitted as a native-horn citizen, and applicant’s two brothers were subsequently admitted as sons of a, native-born citizen, held, that a. declaration, claimed to have been made by applicant’s father in Canada, giving China as the father’s birthplace and an instrument by applicant’s grandfather, stating that he arrived in the United States subsequent to the date applicant’s father had claimed to have been born in this country, were insufficient to authorize the department in overturning its previous decisions and excluding the applicant.</p>

<p>INTERNAL REVENUE &wkey;>25-PERSONS AUTHORIZED TO ADMINISTER OATH TO INCOME TAX RETURN.</p> <p>Under Income Tax Act Feb. 24, 1919, § 223 (Comp. St. Ann. Snpp. 1919, § 633G%kk), and the regulations made thereunder, requiring income returns to be made under oath, such oath may be taken before any person authorized by the local law to administer oaths.</p>

<p>In Admiralty. Libel by Mr. and Mrs. John Hogan, for the use and benefit of their minor son, Alvin Joseph Coffey, against Albert J. Buja.</p>

<p>Habeas corpus <&wkey;54 — Application by alien insufficient as to grounds for detention.</p> <p>An application by an alien, held in custody by the immigration authorities, to obtain release on habeas corpus, will be dismissed, where it did not set forth the ground on which he was held by the immigration authorities, or the record of the deportation proceedings, but averred merely on information and belief, without stating any grounds, that applicant believed he was held in custody because he arrived in 1913.</p>

<p>Habeas corpus proceedings by Young Toy.</p>

<p>In Equity. Suit by H. G. Sanderson against George W. Bishop, Jr., and Jacob E. Neff.</p>

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Action hy Eansburgh & Bro., a corporation, to the use of the Home Plate Glass Insurance Company, against the Adams Express Company. Judgment for plaintiff, and defendant appeals.</p>

Bill by the Passaic National Bank, the Rutherford National Bank, the Savings Investment & Trust Company, and others against the Commercial National Bank, Tucker K. Sands, and others. Prom a decree dismissing the bill as to the named defendants, plaintiffs appeal.

<p>1. Commerce <3==27(8) — Railway employis unloading bridge timbers employed in “interstate commerce.”</p> <p>A railroad employes engaged, when injured, in work on tho ground unloading timbers to be used by him and others in the reconstruction or repair of a bridge, constituting part of a railroad in use as an instrumentality of interstate commerce, held employed in “interstate commerce” within Employers’ liability Acts of April 22, 1908, and April 5, 1910 (Comp. St. §§ 1010, 8657-8665).</p> <p>[F.d. Note. — For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.]</p> <p>2. Release <§=»58(3) — Validity question for jury.</p> <p>In an action by a servant for personal injury, where defendant pleaded a release in bar, the issue mad», by a reply, alleging that plaintiff was induced to execute the release by fraudulent representations of defendant’s agent, and that on learning their falsity he returned the check received, h eld properly submitted to the jury with the other issues.</p> <p>3. Master and servant <5^216(5) — Risk of injury from negligence of co-EMPL0YÉ OF INTERSTATE CARRIER NOT ASSUMED.</p> <p>An interstate carrier’s employs, injured by ties falling from a flat car, caused by the negligence of a coemployé, held not to have assumed the risk.</p>

Suit, for collision by W. A. Bodden, master of the schooner Stimson, against the steamship Northland; E. C. Ingalls, master, claimant. Decree for libelant, and claimant appeals.

<p>1. Maritime liens <&wkey;29 — Furnishing coal to foreign vessel under charter GAVE RIGHT TO LIEN.</p> <p>Libelant, who furnished coal in New Orleans to a foreign steamship under charter made in New York, and new in the port, on an order given at the reguest of a business associate of the charterer, who was absent, but pursuant to a reguisition of the chief engineer, and which coal was received and receipted for by the master, held entitled to a lien under Act. June 23, 1910, c. 373, §§ 1-3 (Comp. St. §§ 7783-7785), where it did not appear that libelant could by the exercise of reasonable diligence have ascertained that by the terms of the charter the charterer was to furnish coal.</p> <p>2. Maritime liens <&wkey;30 — Furnisher op supplies not charged with notice-OP CHARTER.</p> <p>The mere fact that one furnishing coal to a vessel is informed that she is under charter is not enough to charge him with notice of the terms of the charter party.</p> <p>3. Maritime liens <&wkey;>29 — Lien por supplies furnished to foreign vessel PURSUANT TO REQUISITION OF CHIEF ENGINEER.</p> <p>An order for coal delivered to a foreign steamship, pursuant to a reg-uisition of the chief engineer, an appointee of the owner, where the coal is received by the master and engineer and receipted for by the former, is to be regarded as given by the ship’s master within Act June-23, 1910, c. 373, § 2 (Comp. St. § 7784), although a business associate of the-charterer co-operated in procuring the giving of the order.</p> <p>4. Maritime liens <&wkey;65 — Presumption op authority op master to procure. SUPPLIES NOT OVERCOME BY SHOWING MADE.</p> <p>The statutory presumption that a master has authority from the-owner to procure supplies or other necessaries for his vessel, under Act June 23,1910, c. 373, § 2 (Comp. St. § 7784), is not rebutted or destroyed by showing merely that the furnisher was informed that the vessel was under-charter.</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 the Dressier Producing Corporation, bankrupt. Marie Dressier Dalton and James H. Dalton petition to revise and appeal from an order of the District Court.

Petition by Albert Vogel for naturalization. From an order granting naturalization, and dismissing its petition for cancellation of certificate, the United States appeals.

<p>1. Banks and banking <&wkey;>148(3) — Duty of deposito» to verify bank state- • MENT.</p> <p>' A depositor, who sends his passbook to be written up and receives it back with his paid checks as vouchers, is under obligation to the bank to examine and verify the passbook and vouchers, and to report to the bank any errors disclosed.</p> <p>2. Banks and banking <&wkey; 148(1) — No liability fob payment of raised CHECKS, WHERE ALTERATIONS NOT DISCOVERABLE BY REASONABLE CARE AND DEPOSITOR LATE IN MAKING CLAIM.</p> <p>A bank expressly authorized in writing to pay checks to a depositor’s bookkeeper, and which so paid checks duly signed by the depositor, but which, after signing, had been raised by the bookkeeper, held not liable for the overpayments, where the checks were entirely written by the bookkeeper, and the alterations were not discoverable by reasonable care, and where depositor’s passbook was written up and returned with canceled checks each month, and no claim; was made by depositor until more than a year after the raising of the cheeks commenced.</p> <p>3. Trial <&wkey;>141 — Direction of verdict proper where evidence is undisputed.</p> <p>A directed verdict is proper, where the evidence is undisputed and free from conflict.</p> <p>4. Banks and banking <&wkey;148(4) — Liability for payment of raised checks affected by laches of depositor in notifying.</p> <p>Where a depositor’s passbook was written up and returned with canceled checks each month, with a notice stamped thereon requesting its ex.amination, and stating that the bank disclaimed responsibility for any error unless notified within 30 days, the bank held not liable for payment of raised checks, which it could not have discovered by reasonable care, and «of which it was not notified for nine months.</p> <p>Mantón, Circuit Judge, dissenting.</p>

<p>1. Contracts <&wkey;10(4) — 'Mutuality op contract por sale to extent op buyer’s REQUIREMENTS.</p> <p>A contract for the sale and purchase of a commodity, where the quantity to be delivered or received is measured by the output or requirements of an established plant or business during a limited time, does not lack mutuality.</p> <p>2. Contracts &wkey;>10(4) — Mutuality op contract por sale op oil limited to seller’s production.</p> <p>A contract, by a corporation operating some 20 oil wells, to sell a stated quantity of crude oil, to be delivered during two years, held not invalid, for lack of mutuality, because of a provision limiting its obligation to deliver to the production of its wells then owned or afterwards acquired during the terml</p> <p>3. Sales <&wkey;71 (4) — Mutuality op provisions op contract por sale op oil.</p> <p>A provision of a contract for sale and purchase of crude oil, to be delivered through a stated time, that seller should not be bound to deliver beyond the production of its own wells, also limits purchaser’s obligation to receive to such production.</p> <p>4. Witnesses <&wkey;287(l) — May explain testimony on cross-examination.</p> <p>Where the superintendent of the export department of a large Mexican oil company, having wells from which the oil was piped and transported to his headquarters at the coast, where it was stored in tanks for shipment,- testified that during the term of a contract his comjpany did not load, deal in, or buy any oil other than from its own wells, the striking out of his testimony as hearsay, because of his statement on cross-examination that he was not at the wells during the time, and the refusal to permit him to explain that, while not stationed at the wells, he visited them, that he had charge of all transportation lines, and the men operating them, and of the books and records, showing the source of the oil handled, held error.</p> <p>5. Evidence <&wkey;317(l) — Witnesses &wkey;>268(2) — Officer op corporation may TESTIFY AS TO ITS BUSINESS; CROSS-EXAMINATION AS TO SOURCE OF KNOWL-EDOE.</p> <p>That the knowledge of an officer of a large corporation as to facts connected with its business is gained largely from others, and from records in the course of the business, does not render his testimony as to such facts incompetent as hearsay, and while cross-examination as to his source of knowledge is proper, and may affect the weight of his testimony, that question is for the jury.</p> <p>6. Evidence <§=>158(27) — Damages from breach of contract may be shown BY PAROL.</p> <p>On the question of damages resulting from breach by defendant of a contract to purchase crude oil, oral testimony as to other sales at the place during the time of default held not incompetent, as secondary, because the sales and purchases, as between the parties thereto, may have been evidenced by written contracts.</p> <p>7. Principal and surety <§=»6 — Liability op party for default of assignee ; “guaranty.”</p> <p>A defendant, which contracted to purchase from plaintiff a large quantity of crude oil, to be delivered in future, held directly and primarily liable for breach of the contract by its assignee, notwithstanding a provision of the contract that in case of assignment defendant should “remain as simple guarantor for its fulfillment,” for the term “guaranty,” while strictly importing secondary liability, is often used in a broader sense to signify suretyship in general.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Guaranty.]</p>

<p>1. Indictment and information <3=5176 — Variance of proof as to time of OFFENSE NOT MATERIAL, WHERE WITHIN LIMITATION PERIOD.</p> <p>The averment in an indictment that defendant made statements violating the Espionage Act on a specified day was a mere formal jurisdictional allegation, which permitted the government to show that such statements were made at any time before the indictment was filed within the statute of limitations and after passage of the Espionage Act.</p> <p>2. Constitutional law <3=5265 — Indictment, to constitute due process of LAW, MUST DISTINCTLY AND SPECIFICALLY CHARGE OFFENSE.</p> <p>In order to constitute due process of law, an indictment must not only inform accused that there is a charge against him, but must be sufficiently distinct and specific to advise him what be has to meet and to give him a fair and reasonable opportunity to prepare his defense.</p> <p>3. Criminal law <3=5,308 — Indictment and information <3=555 — Testing on PRESUMPTION THAT ACCUSED HAS NO KNOWLEDGE OF FACTS CHARGED.</p> <p>A person indicted for a serious offense is presumably innocent, and the sufficiency of an indictment must be tested upon the presumption that he is innocent, and has no knowledge of the facts charged against him.</p> <p>i. INDICTMENT AND INFORMATION &wkey;>71-REQUIREMENTS AS TO DEFINITENESS STATED.</p> <p>An indictment must set forth the facts so distinctly as to advise accused of the charge, and give him a fair opportunity to prepare his defense, so particularly that a conviction or acquittal would bar another prosecution for the same offense, and so clearly that the court may determine whether the facts stated support a conviction.</p> <p>i. War &wkey;>4 — Indictment under Espionage Act held insufficient.</p> <p>An indictment charging that nine statements of accused uttered in a certain town violated the Espionage Act, but not identifying the occasions upon which the, statements were made, held insufficient, because not specifically advising accused of the charge he would be required to meet, and not sufficiently definite to be pleaded in bar of a subsequent prosecution.</p> <p>6. Criminal law <&wkey;295 — Bar to subsequent prosecution depends os indictment, AND NOT EVIDENCE ADDUCED ON FORMER TRIAL.</p> <p>Whether a conviction or acquittal is a bar to a subsequent prosecution must be determined from the indictment and judgment at the former trial, and the evidence on such trial cannot be considered, because not a part of the judgment.</p> <p>7. War <&wkey;4 — Indictment under Espionage Act insufficient.</p> <p>An indictment charging that accused made nine statements violating the Espionage Act, but not specifying the circumstances under which they were made, held insufficient, where, if made in a public address advocating the results alleged in the indictment in the presence of members of the military or naval forces of the United States, or of those eligible to become such members, or, if circulated among such men, they might be calculated to produce such results, but if uttered in private conversations, or in discussion with or in the presence of loyal men of ordinary intelligence, in the absence of other circumstances to indicate the evil intents alleged, they would be susceptible to the inference that they were made with the intents charged.</p> <p>8. Indictment and information &wkey;>68 — Conclusions regarding intent to VIOLATE LAW NOT SUFFICIENT.</p> <p>When language does not constitute a crime, if uttered under some circumstances, but does, if uttered under others, it is not enough for an indictment to charge that the language was used with intent to violate the law, since that would be a mere conclusion of the pleader.</p> <p>9. War <&wkey;4 — Evidence insufficient to sustain Espionage Act conviction.</p> <p>In prosecutibn for violating the Espionage Act, evidence that accused’s utterances after passage of the act constituted only a sentence or two in a sermon and statements, to persons soliciting Red Cross subscriptions in accused’s house, etc., held insufficient to sustain a conviction.</p>

<p>1. Bills and notes @=>453 — Nonnegotiability op note accompanied by CONTEACT.</p> <p>Under Civ. Code Cal. § 1459, making notes accompanied by a contract nonnegotiable as to persons with knowledge of the contract, an indorsee with knowledge of a contract executed at the same time as a note holds the note subject to all conditions and defenses that would have attached, had the note remained in hands of the payee.</p> <p>2. Birxs and notss <s=s>484 — Bkoovury of payment on note, before payment DUE ACCORDING TO COLLATERAL CONTRACT, NOT DEPENDENT ON RESCISSION OF SUCH CONTRACT.</p> <p>"Where maker of note, although not liable thereon, under the terms of a contract accompanying the note, until the payee had performed certain work calk'd for by the terms of the contract, paid the note, mistakenly believing the work had been done, to payee’s assignee, who had notice of the contract, conditions, maker’s right to recover such payment did not depend on his rescission, for both life original right to avoid payment for nonperformance and his resulting right to recover payment made prior to performance depended on the contract’s operation, and not its rescission.</p> <p>3. Bills and notes <g=»434 — Payee’s solvency .«material in maker’s action TO RECOVER PAYMENT FROM INDORSEE.</p> <p>In maker’s action to recover payments mistakenly made on a note to an indorsee, who took the note with knowledge of a related contract between maker and payee, the payee’s solvency when he indorsed the note is immaterial, since the indorsee secured a nonncgotiable instrument, which gave it no light of recourse against the payee on the maker’s default, in view of Civ. Code Cal. §§ 3108, 3116-3186, relating to the indorsement, presentment, and dishonor of negotiable instruments.</p> <p>4. Bills and notes <®=^>481 — Recovering payments made wrrnotrr investigation.</p> <p>A maker of a note may recover payments mistakenly made from an indorsee talcing the note with knowledge of a related contract between maker and payee, although the maker made no investigation, at the time he paid the note, as to whether the payee had fulfilled his obligations under the related contract.</p>

<p>1. Judgment <&wkey;711 — In favor of crmditob of purchaser of hotel company’s STOCK NOT ADJUDICATION THAT PURCHASER WAS BOUND TO PAY ALL DEBTS OF COMPANY.</p> <p>Defendant, on buying stock of a hotel company, agreed with the seller to devote Hie purchase price of the stock to the payment of the hotel company’s debts, and also to make an advance to the seller, which was surety for the company’s debts. Held, that a judgment in favor of an existing creditor of the company against defendant, which required defendant to pay such creditor’s claim, was not an adjudication which established defendant’s liability lo pay all the debts of the hotel com-l>any, which would warrant the trustee in bankruptcy of the hotel company in recovering from defendant sums paid by the company itself in discharge of debts.</p> <p>2. Corporations <&wkey;21S — Purchaser of hotel company’s stock not liable to company’s trustee tn bankruptcy on account of debts paid by COMPANY ITSELF.</p> <p>Where defendant purchased the stock of a hotel company under an agreement that the purchase price should be devoted to discharging the company’s debts, and that defendant should make an advance to the seller of the stock, which was surety for the hotel company’s debts, held that, after bankruptcy of the hotel company, its trustee could not recover from defendant the amount of debts paid by the hotel company; the company not being a party to the agreement between defendant and the seller of the stock, and the hotel company being primarily liable for its debts.</p> <p>S. Evidence &wkey;>219(l) — Filing of claim by pubchaseb op hotel stock AGAINST ESTATE OP SELLEB NOT ADMISSION THAT PUBCHASEB WAS BOUND TO PAY ALL DEBTS.</p> <p>Where defendant purchased all of the stock of a hotel company under an agreement that the purchase price should be devoted to payment of its debts, and that it would make an advance to the seller, which was surety on the debts of the company, held that, as any loss would ultimately fall on defendant, the fact that defendant filed claim in. bankruptcy against the estate of the seller on account of debts which it had not paid, but which the company had partly paid and given notes therefor, was not an admission that defendant was bound to pay such debts, which exceeded the purchase price of the stock.</p>

Bourquin, Judge. Suit by'the Ames Realty Company against the Big Indian Mining Company and others, in which water rights were fixed. On petition of Peter Hilger, I. W. Marks was adjudged’in contempt, and con-temnor brings error.

<p>Appeal from the District Court of the United States for the Second Division of the Northern District of California; Frank H. Rudkin, Judge.</p> <p>Suit by Frank Hansford Johnson against Lewis I. Cowgill and others. From a decree for defendants, complainant appeals.</p>

<p>CONTRACTS <§=S>231(2) — DREDGER ENTITLED UNDUE CONTRACT TO HALF COMPENSATION FOR MATERIAL DREDGED BEYOND TUB SPECIFIED AREA.</p> <p>Under a contract providing for the dredging of a channel of specified widtli and depth, held, that three classes of material were to be subjected to half measurement and paid for accordingly: First, material dredged from below specified depths, definitely fixed as in the channel; second, material dredged from the specified area as marked by the city engineer beyond the fixed limits of the channel; and, third, the side slopes from the specified area at the specified rates of flatness.</p>

In the matter of George H. King, individually, doing business as the George H. King Rubber Company and also as the George H. King Tire Company, bankrupt. Claims of D. D. Barnes and the Empire Tire & Rubber Company, a corporation, for reclamation of tires and accessories, were allowed, and in each case William H. Moore, Jr., trustee in bankruptcy, appeals.

<p>1. Sales <@=>479(8) — Evidence regarding plaintiff’s title and right to possession jury question in conditional seller’s replevin action.</p> <p>In replevin, based on a conditional sale contract, evidence regarding defendant’s refusal to pay installment notes when due, etc., made a jury question as to plaintiff’s title and right to immediate possession.</p> <p>2. Sales <@=3479(8) — Instruction in conditional seller’s replevin action ON LOSS OE NOTE AS EXCUSE EOH NONPRESENTMENT.</p> <p>In replevin action, based on a conditional sale contract, an instruction that the loss of an installment note would excuse its nonpresentment, if plaintiff made that fact known to defendant and offered him security against further demands on it, was not error, since it was more favorable to appellant defendant than was authorized by Rev. Laws Mass. e. 73, § 87, relating to necessity of presentment.</p> <p>3. Sales <@=>479(8) — Instruction in conditional seller’s replevin action ON DUTY TO PAY NOTES NOT PRESENTED BECAUSE LOST.</p> <p>In a replevin action, based on a conditional sale contract, an instruction that defendant’s absolute refusal to perform the contract absolved plaintiff from the necessity of presenting for payment notes which thereafter fell due was unduly favorable to plaintiff.</p> <p>4. Appeal and error <@=>1064(1) — Erroneous instruction on necessity of PRESENTING NOTES NOT PREJUDICIAL, IN VIEW OE DEFENSE MADE.</p> <p>In replevin, based on a conditional sale contract, an instruction that der fendant appellant’s absolute refusal to perform the contract absolved plaintiff from the necessity of presenting for payment notes thereafter failing due, while unduly favorable to plaintiff, was not prejudicial, where defendant based his refusal to pay, not on the fact that the notes had been lost, but on the unsatisfactory character of the article sold to him.</p> <p>5. Sales <@=>479(8) — Requested instruction in conditional seller’s re-plevin ACTION NOT SUSTAINED BY EVIDENCE.</p> <p>In a replevin action, based on a conditional sale contract, a requested instruction that there was no evidence that plaintiff and the payee were identical was properly refused, where there was evidence that the payee was 'a selling department of plaintiff company.</p>

<p>Appeal from the District Court of the United States for the Northern District of Mississippi; Edwin R. Holmes, Judge.</p> <p>Bill by the National Surety Company against Eefiore County, Miss., and another. From a decree dismissing its bill, and granting relief to the county on its cross-bill, complainant appeals.</p>

Holmes, Judge. Action by Mrs. Emma McCarroll Rindsey and others against S. H. Kress & Co., begun in state court and removed to the federal court. There was a judgment for plaintiffs, and defendant brings error.

<p>1. Tbade-mabks and tbadei-names <@=561 — Manufacturer has eight to use ON DIFFERENT KINDS OF SAME ARTICLE.</p> <p>A manufacturer of stock food, rightfully using a trade-mark or symbol on what is known as “dry feed,” cannot be so limited as to preclude it from using the same mark on “sweet feed” manufactured by it.</p> <p>2. Tbade-mabks and trade-names <@=>58 — No infringement.</p> <p>A trade-mark, consisting of a picture of a man on horseback, with the horse in moving position, 7ieZd'not infringed by a picture of a horse alone, standing still.</p> <p>3. Evidence! <@=>574 — Opinion as to similarity of trade-marks inferior to observation.</p> <p>In determining whether two marks or designs are so similar as to be likely to cause confusion and result in unfair competition, the judgment of the eye on comparison of the two is more satisfactory evidence than the opinions of witnesses.</p> <p>4. Trade-marks and trade-names <@==>70(2) — Pictured designs so dissimilar AS NOT TO SHOW UNFAIR COMPETITION.</p> <p>Pictured designs, used by complainant and defendant, respectively, as trade-marks for horse feed, consisting in one case of a horse and rider, and in the other of a horse, taken in connection with their dress and surrounding reading matter, held so dissimilar in appearance as to preclude possibility of one being mistaken for the other, and to disprove any intent of unfair competition, in the absence of evidence of actual confusion in the trade.</p> <p>'5. Trade-marks and trade-names <@=>68 — “Unfair competition” defined.</p> <p>“Unfair competition” consists in the use of methods, brands, or advertising matter intended to cause, or in fact causing, confusion in the trade, or to induce or mislead the trade into the belief that the goods of the person or firm marketed under such similar device are the goods of the person or firm, which has established a trade and acquired a good will in business in connection with the rightful use of such trade token.</p> <p>[Ed. Note. — For other definitions, ’see Words and Phrases, First and Second Series, Unfair Competition.]</p> <p>6. Trade-marks and trade-names <@=>93(3) — Circumstantial evidence may - SHOW INTENT TO DECEIVE.</p> <p>It is not necessary to establish by direct evidence the intent to deceive, where the circumstances are such as to lead to no other rational conclusion.</p>

Tuttle, Judge. In the matter of the Springfield Realty Company, bankrupt; Byron T. Everett, trustee. The Phillips Company appeals from an order denying its claim to mechanic’s lien.

<p>Appeal from the District Court of the United States for the Western District of Missouri; Arba S. Van Valkenburgh, Judge.</p> <p>Suit in equity by Catherine K. Newton and others against William A. Rhea and others. Decree for complainants, and certain defendants appeal.</p> <p>This is ah appeal from a decree holding that appellant Rhea and the Mont B. Mining Company were liable as trustees to account to appellees, who were plaintiffs below, and fixing the amount of the recovery. Two suits were begun, but later they were consolidated and heard and decided as one case.. The plaintiff in one suit was Catherine Newton and in the other the plaintiffs were William H. Whitlock and his wife. The defendants were the same in both suits and were the First National Bank of Carthage, Mo., Ernest B. Jacobs, its cashier, William! A. Rhea, Mont B. Fairfield, and the Mont B.. Mining Company, a corporation.</p> <p>it was alleged that plaintiff Newton was the owner of 25,000 shares, ana that plaintiffs William H. Whitlock and wife were the owners of 24,999 shares, of the capital stock of the Ananias Mining Company, a corporation with an authorized capital stock of 100,000 shares, but which had issued only 87,500 shares; that Rhea owned 25,000 shares, and of the remainder W. F. Webster owned 12,500 shares, E. M. Hall owned 5, and 5 were owned by C. T. Hall; that the Ananias Company owned a mining lease and mining machinery, and carried on mining operations on its land in Jasper county, Mo.; that Rhea was a director, secretary, and treasurer, and managed the mining operations; that the other directors were Whitlock and his wife and the two Halls, but that the Halls were the nominees of Whitlock and Rhea, and as directors conformed to the wishes of Rhea and Whitlock. It was alleged that the Ananias Company became involved in debts that it was unable to meet, and was pressed by its creditors, and that the bank, as one of the creditors, and Jacobs, its cashier, on behalf of the creditors, proposed to the stockholders that they should permit the mining property to be placed in the hands of a trustee, to be held until by its operations it should pay its debts, or be sold by the trustee and the debts paid, after which all remaining money realized by the company’s operations was to be returned to the stockholders, and that this arrangement was to be effected by the stockholders assigning and placing their stock in escrow with Jacobs and the bank.</p> <p>The Whitlocks’ bill then alleged that, pursuant to this proposition, they assigned to Jacobs their. 24,990 shares of stock, and that Jacobs and the bank accepted the trust Newton’s bill set out copies of letters between Jacobs as cashier, and Newton’s attorneys, alleged as defining the terms of the trust agreement between them. These letters are too extended to be set forth in full, but a portion of the bank’s letter making the proposal is as follows:</p> <p>“At this time it appears that an agreement can be reached among all creditors whereby they will enter into a contract to withhold the prosecution of their claims for a period of 90 days during Which time they will place the property in the hands of a trustee, and he will operate the same with an experienced manager, and if within that time, as they confidently expect, the mine can be made to pay, then there will he no reasonable doubt that creditors will receive their money, and the property can he sold at a fair valuation. If this course is not adopted, bankruptcy proceedings will immediately ensue, and the result will be that the creditors will realize but very little upon their various claims, for the largest value of the company lies in its lease and the ground, which will immediately be forfeited by the owners of the land as soon as work is discontinued; such a course would necessarily leave the machinery as the only tangible asset out of which to pay the indebtedness.</p> <p>“The creditors do not desire to advance the money necessary to put the mine in operation, unless they can feel assured that the stockholders will not interfere, or possibly stop their operations at a time which might be vital to the interest of all concerned, and it is proposed that all stock shall be assigned and placed in escrow in this bank, to be held subject to an agreement, which is to be prepared and accepted by the stockholders, whereby the creditors, after placing the mine upon a paying basis, may have the authority to make a sale of the property in order to pay the indebtedness and save the stockholders something upon their investment. Mr. Whitlock and Mr. Hay, local stockholders of the company, and who own one-half of the capital stock, haw agreed to this proposition, and are willing to pool their stock as above indicated. It is also agreed by them that they shall both resign from the board, as well as other local parties and that a new board of directors, composed of the principal creditors, shall be elected in their stead.</p> <p>“I believe I have outlined the matter sufficiently for you to obtain a fair idea of the situation, and I wish to urge that the stock held by the Newton estate be deposited with Mr. Whitlock’s and Mr. Ray’s, in order to consummate the plan above referred to. It is the only chance to save anything out of the property, either for creditors or stockholders, and if this course be not carried out and a bankruptcy court be the only resort, creditors will naturally be inclined to take such recourse as may be possible upon the individual liability of stockholders, through irregularities in the corporation, which appear to be numerous, as well as stock which has been unpaid for by various shareholders.”</p> <p>The answer of Mrs. Newton’s attorneys contained the following:</p> <p>“In further reply to yours of April 26th will say that I find that the stock of the Ananias Mining Company, owned by the estate of A. Newton and Catherine K. Newton, is already on deposit with you tinder certain agreement with Mr. Whitlock. That agreement is hereby canceled, and the stock is placed in your hands in accordance with the request contained in yours of April 26th. We, desire to give you full authority to deposit the same in accordance with the wishes of the creditors as set forth in your letter, with this condition, however, that nothing must be done by which the estate of Mr. Newton or Mrs. Newton will become liable for $1 of any indebtedness or obligation whatever. Rather than do that, we would let the entire thing go. Hoping that in the end there will be something left for Mrs. Newton, we have, however, told her to forget all about the stock, and If she receives no return, well and good, and if in the end she does she is just that much better off.”</p> <p>To this letter the bank replied:</p> <p>“I have neglected earlier replying to your letter of the 1st inst. in relation to the Ananias Mining Company stock owned by the estate of A. Newton and Catherine Newton. I have filed the stock with your instructions attached, and sincerely hope that better results may he reported for the future than the past; but Mr. Whitlock has gotten this company badly involved, and whether or not it can be pulled out of the hole will depend upon various conditions.”</p> <p>In each of the hills it was then alleged that the banlr and Jacobs, after accepting the trust, took possession of the property of the Ananias Company and selected Rhea as the manager of the property. The Newton bill alleged’ that Rhea had full knowledge of the trust. The Whitlock bill alleged that Rhea was selected by Jacobs and the bank as manager of the property for the purpose of carrying out .the trust alleged in their bill. In each bill it was averred that Rhea conspired with Jacobs, the bank, and with Mont B. Fair-field to obtain the title to the property, and in order to do so induced a creditor .of the Ananias Company, holding a judgment against the Ananias Company, to levy an execution against its property and to, sell it, and that at that sale Rhea caused the property to be bid in in the name of Mont B. Fair-field, and that the sheriff thereupon executed a bill of sale for the property to Fairfield. It was alleged that Fairfield conveyed the property to the Mont B. Company, but that this transfer was in breach of the trust. The bills then charged that all creditors of the Ananias Company had been paid out of the proceeds of the trust, but that defendants still retained plaintiffs’ shares of stock and the property of the Ananias Company, and had made large profits therefrom. The prayers were for a decree declaring a trust to exist, as alleged, in the property of the Ananias Company, notwithstanding the form of a sale to Fairfield, and for an accounting.</p> <p>There was a denial by Rhea of the alleged trusts, or of knowledge of them, or of. purchase of the property through conspiracy. He alleged that the execution sale was fair and conveyed the title to Mont B. Fairfield, and that the Ananias Company also executed a conveyance of all its property to him; that the Ananias Company was in an insolvent condition, and the stockholders agreed to assign their stock to the creditors, and that the creditors should take the corporation and its property in full payment for their debts, with the right either to sell the corporate property or to continue the corporate existence for their own benefit, and that the property of the corporation and the shares of stock (except those belonging to W. F. Webster) were delivered to the creditors pursuant to this agreement, together with the resignation of the officers and directors, and that the new stockholders elected new directors, who chose new officers for the corporation. He alleged that the Ananias Company, by its new officers, made a written agreement to sell him the property, if he should be able to pay the claims of the creditors; that on the faith of this contract he expended a large amount in improvements on the property and in acquiring new mining ground adjacent to the property of the Ananias Company, from which he procured ores and from the proceeds of their sale was able to pay the debts of the Ananias Company. He alleged that the Mont B. Mining Company since its organization, owned and operated the mines, and at its own expense had made extensive improvements and obtained new mining ground and operated mines thereon. The answer of the Mont B. Company was similar. The decree dismissed the suit as to Jacobs, tne bank, and Fairfield, but held Rhea to be a trustee for plaintiffs, and ordered him to deliver to plaintiffs certain shares of stock in the Mont B. Mining Company, and to pay to them $183,733.76 as their share of the profits of the trust property. Rhea and the Mont B. Mining Company have appealed. There is some dispute as to the facts, but the essential facts as shown by the evidence are as follows:</p> <p>In 1910 the Ananias Mining Company was organized under the laws of Missouri, with an authorized capital stock of $100,000, divided into 100,000 shares. Of this stock there was issued to W. A. Rhea 25,000 shares, to W. H. Whitlock 20,000 shares, to his wife, Blanche 'Whitlock, 4,990 shares, to ID. M. Hall 5 shares, and to C. T. Hall 5 shares. Later there were issued 25,000 shares to A. Newton, who afterwards died, and these shares became the property of the plaintiff Catherine K. Newton; 12,500 shares were also issued to W. F. Webster; the remaining 12,500 shares were never issued. The directors were Rhea, the two Whitlocks, and the two Halls. Whitlock was president, and Rhea secretary. The property of the corporation consisted of a mining .lease and of a mining or concentrating plant on the leased land. Mining operations were conducted until in April, 1911. At that time the company had an indebtedness of about $23,000, including an overdraft to the First National Bank of Carthage of $4,000. Tho value of the property, including leasehold right's, did not exceed $5,000. Creditors were pressing for payment, and suits had been begun. One case was to he heard on April 22d. At a conference between Whitlock and Jacobs at tho office of the attorney for the bank on the 21st of April means were discussed for averting the danger from this pending suit, and the bank decided to and did procure an attachment of ail the corporate property on the afternoon of the 21st. It is at this conference that Whitlock claims the agreement was made between himself and Jacobs relating to tho disposal of his stock in trust to Jacobs. The next day judgments were entered against the Ananias Company for about $4,400 and for the enforcement of liens securing this sum.</p> <p>The next day was the 2fid and on that day there was a general meeting of all the creditors. Mr. Whitlock was not present, but Rhea was. Jacobs explained that the bank attachment was not for the purpose of obtaining a preference, but to hold the property ponding some possible arrangement among tho creditors. The attorney for Rhea said that Rhea was ready to turn over his stock to the creditors. An attorney for the bank said that he was satisfied that the Whitlocks would transfer their shares, and Mr. Jacobs said he would endeavor to get Mrs. Newton to transfer her shares. The creditors agreed to have an expert examine the mines and report at a later meeting. This second meeting of the creditors occurred two days afterwards, on April 25th, at Webb Oily. The export reported it to be doubtful if tho mine could be made to pay, but Mr. Rhea said he believed the ground could he made to pay, ami it wuw finally decided that if the creditors would forbear pressing their claims for 90 days, and the stockholders would turn over the property to tlie creditors, assign their stock, and resign as officers and directors, the creditors would proceed with mining operations, and they agreed who should be chosen as dUeetora. The Whitlocks resigned as directors and officers, and their stock was turned over, assigned in'blank to the bank’s attorney. The evidence shows this to have occurred on tho 25th. Halls’ stock was also assigned then, and Rhea assigned his stock an the 25th or 2dUi. On the 26th a written agreement was drawn and signed by Whitlock for the Ananias Company, and later signed by creditors of the company representing $22,-C00 of claims, agreeing that Jacobs should act as trustee for the creditors, and that they would forbear legal proceedings for 90 days on the understanding that Jacobs should put some one in charge of the mining operations for 90 days, the proceeds to be paid to creditors. On rtho 26th also Jacobs wrote the letter to Mrs. Newton’s attorneys.</p> <p>On May 1st. there was a meeting of those claiming to be the stockholders of tho Ananias Company, Mr. Hackney holding the Rhea, and the Whitlock certificates and one of the Mali certificates, and five creditors having one certificate oí 1 share each issued that day as a distribution of the 5 shares previously held by the other Hall, and Mr. Jacobs also acting. Five directors were chosen for the ensuing year. Jacobs was later elected president.</p> <p>Oi; this samo day Mrs. Newton’s attorney at Chicago wrote the answer to Jacobs' loiter that has been referred to. On May fid Rhea began work at the mine, thinking to run it for 30 to 90 days on trial, acting as a salaried employe of the now officers of the corporation. On June 15th the Ananias Company, by Jacobs as president, and Rhea entered into a written agreement authorized by the board of directors, by which the company agreed that if Rhea, during the period of his management, should cause all of the debts of the company to be paid, he should thereupon become the owner of all the corporate property, and that Rhea might have the exclusive right to sell the property for the unpaid portion of the corporate debts, and to have as a commission any surplus of price received above the amount of such debts. Jacobs also signed this agreement as trustee representing all the stock in the company, except Webster’s shares and the 5 shares issued to directors in order to qualify them. This contract was made after Rhea had reported that he could not profitably operate the mine longer without much new machinery and was ready to quit, but was willing to continue and to put in the machinery at his own expense, if the company would give him such a contract. The directors and creditors were unwilling to purchase the new machinery, and so the contract was made. Rhea expended between $2,500 and $3,000 for the new machinery. He operated the mine for the remainder of the year, and made unsuccessful efforts to sell the mine. In December he sold the ore which he had held for some time because of low prices, and was able to pay creditors a dividend of 32 per cent.</p> <p>Soon afterwards Rhea again reported that the mines could not pay and that the ore faces were pinching out. The creditors again appointed an expert miner, who was one of the creditors, to examine the property and report, and he reported that the mine could not be operated so as to pay its debts. The creditors then offered Rhea a discount of 10 per cent of their claims if he would continue. Rhea associated Fairfield with him, and they acquired additional land under leases, and then decided to exercise the right of purchase of the Ananias Company’s property, given him under the option agreement referred to. Supposing that a judgment sale was needed in order to clear the title of the property, because Webster had not assigned his stock, an execution sale on one of the judgments against the corporation was arranged, and the property was bid in on April 1, 1912, by Rhea in Fairfield’s name, and the sheriff gave his conveyance to Fairfield. On the same day, the Ananias Company executed a deed to Fairfield of the same property, and Rhea or Fairfield delivered a guaranty of the payment of the remainder of the debts of the company, which amounted to a large sum. These debts were later paid, largely from operations in the mines on other ground and from Rhea’s private funds.</p> <p>A new company was organized, called the Mont B. Mining Company, of which Rhea held practically all the capital stock. To this company the Ananias property was conveyed by Fairfield, and it operated on the land formerly occupied by the Ananias Company, but under a new lease, on more favorable terms, and also on a much larger tract of land adjoining. Owing to the great increase in the prices of zinc and lead ores, these operations later proved to be very profitable. The trial court required Rhea to account for the profits he had made in all of these operations, on the theory that the several mines were but an expansion of the property of the Ananias Company, and that plaintiffs were entitled to such proportion of the shares in the Mont B. Mining Company’s stock and in its profits as their shares of stock bore to the total capital of the Ananias Company.</p>

<p>In Error to the District Court of the-United States for the Western District of Oklahoma; Joseph W. Woodrough, Judge.</p> <p>Action at law by Bertha- Schiefelbusch against the Business Men’s Accident Association of America. Judgment for plaintiff, and defendant brings error.</p>

for the Eastern District of New York. Suit by Douis F. Singleton and others against Edgar B. Moore. From an interlocutory order appointing a receiver, and directing the sale of corporate stock which had been pledged by a partnership that had expired according to the terms of the partnership agreement, defendant appeals.

Jack, Judge. Suit by. George H. Miller and others and the Vicksburg & Delta Perry Company against R. Burney Long, Mayor of the Village of Delta, La., and others. From an order granting a preliminary injunction, defendants appeal.

<p>Moetgages <S=»594(1) — Right os’ eedemption from foreclosure sale cannot BE EXERCISED BY STEANOER.</p> <p>The right to redeem from a foreclosure sale of property is a legal and not an equitable right, and under Mills’ Ann. St. Colo. § 4248, limiting the right of redemption to the mortgagor, his heirs, executors, or administrators, an attempted redemption by a stranger, not shown to be acting for, the mortgagor, held ineffective.</p>

<p>Appeal from the District Court of the United States for the District of Colorado; Robert E. Eewis, Judge.</p> <p>Suit in equity by E. G. Palmer, trustee, against the Brant Independent Mining Company. Erom a deficiency judgment, defendant appeals.</p>

<p>Appeal from the District Court of the United States for the Eastern District of New York.</p> <p>Suit by John Sullivan against the Nitrate Producers’ Steamship Company, Limited. Decree for respondent, and libelant appeals.</p> <p>This suit is in personam against the owner of the British steamship Anglo-Patagonian. Before this litigation, Sullivan sued the steamship in rem (in another district), setting forth in his libel that he had “joined’’ the vessel “as a horse handler in the employ of the Federal Export Corporation,” and as such was on board her on a voyage from Philadelphia to Bordeaux. He was injured, as lie alleged, “solely through the fault and negligence of the boatswain and a member of the crew of said vessel”; he being (as was also alleged) not a member of the steamship’s crew.</p> <p>Damage was asserted in $5,000, and after the usual allegations of jurisdiction and prayers for process, the libel in rem concludes: “That this honorable court may be pleased to decree the payment of your libelant’s claim in the sum of five thousand ($5,000.00) dollars, and that said vessel may be condemned and sold to pay the same, and, in the event that he should fail to prove said vessel loas mi-seaworthy for the reasons aforesaid, that he be awarded the expense of his maintenance and cure and wages to the end of the voyage for which he signed, and such other and further relief as to the court miay seem just and proper.” '</p> <p>The answer to this libel in rem denied that Sullivan was employed by the Federal Export Company, and admitted that he received injury while on board as a member of the ship’s crew and after signing articles as such. It further asserted that the accident happened on a British vessel and on the high seas, and pleaded the Mex-chant Shipping Acts and Workmen’s Compensation Act of Great Britain.</p> <p>Trial was had under these pleadings, and libelant adjudged to have been a member of the crew, with the status of a seaman. The court further held that,if he did receive injury as and when he asserted, the occurrence was on a British vessel, on the high seas, and by reason of the negligence of a fellow servant. As a conclusion of (British) law, therefore, it followed that Sullivan could not maintain any action for damages through negligence, and was remitted to the British Workmen’s Compensation Act for relief. Final decree was entered accordingly, which still stands unmodified; all periods for appeal having expired.. Thereupon the present suit was begun, in which libel-ant alleges that he was a member of the Anglo-Patagonian’s crew, that he suffered the same injuries as.before complained of, and was neglected by the steamship’s officers; so that, beside the normal results of such a hurt as he received, “he suffered additional and excruciating pain [and] * * * it became necessary to remove a portion of.two of his fingers,” which could have been saved with “proper medical care and attention.” Wherefore he demanded (as one canse of action) “maintenance and cure,” estimated at $1,000, and (as a second cause of action) damages of $3,000 for the neglect of his wound.</p> <p>The respondents pleaded to the merits, but set up in addition the record of the first suit, after inspection of which the court below dismissed the libel.</p>

Dibel by the United States against One Ford Automobile and Fourteen Packages of Distilled Spirits; Robert Tourville, claimant. From the judgment dismissing the libel as to the automobile, libelant brings error.

<p>1. Larceny <&wkey;7 — Stealing- property shipped over railroad in federal. CONTROL.</p> <p>Stealing property in course of transportation on a railroad operated under federal control, in wbicb tbe United States bas a special property as bailee, held to constitute an offense, under Criminal Code, § 47 (Comp. St § 10214), making it an offense to steal any valuable thing whatever of the property of the United States.</p> <p>2. Railroads <&wkey;5%, New, vol. 6A Key-No. Series — Interference by larceny OP PROPERTY SHIPPED OVER FEDERAL CONTROLLED RAILROAD.</p> <p>Property of a shipper, stolen while in course of transportation on a railroad operated under federal control, is not “property derived from or used in connection with the possession, use, or operation” of the railroad, within the meaning of Federal Control Act March 21, 1918, § 11 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 311594k).</p> <p>3. Railroads <&wkey;5:>4, New, vol. 6A Key-No. Series — Interfering with operation OP FEDERAL CONTROLLED TRANSPORTATION COMPANY.</p> <p>Stealing property in course of transportation by an express company operated under federal- control constitutes an offense under Federal Control Act March 21, 1918, § 11 (Comp. St. 1918, Comp. St. Aim. Supp. 1919, § 311594 k), as “interfering with and impeding the possession, use, operation, and control” of the express company.</p>

<p>SPECIFIC PERFORMANCE <&wkey;>114 (1) — BILL INSUFFICIENT TO SHOW INADEQUACY OF REMEDY AT LAW.</p> <p>Bill for specific performance of an alleged contract between complainant and defendants for organization of a corporation, since formed by defendants, and division of its stock and offices, held not to state a cause of action ¡'or equitable relief; complainant's remedy, if any, being an action for damages.</p>

<p>In Error to the District Court of the United States for the Southern District of Texas; Joseph C. Hutcheson, Judge.</p> <p>Action at law by Mrs. Lila Thurmond against Morris & Co. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the Eastern District of Louisiana; Rufus E. Foster, Judge.</p> <p>Action at law by the Cuyamel Fruit Company against the Johnson Iron Works, Limited. Judgment for defendant, and plaintiff brings error.</p>

<p>1. INDICTMENT AND INFORMATION <&wkey;34(3) — INDORSEMENT OF STATUTE UNDER WHICH IT WAS BROUGHT IS NO PART OF INDICTMENT.</p> <p>Where defendant was indicted for unlawfully and willfully obstructing the recruiting service, of the United States, which offense is denounced by Espionage Act, § 3 (Comp. St. 1918, § 10212c), the fact that there was indorsed on the indictment the expression: “Charge: Obstructing the recruiting and enlistment service of the U. S.; violation section 3 of Act of May 18, 1917” — will not render the indictment had, though Act May 18, 1917 (Comp. St. 1918, §§ 2044a-2044k), did not denounce the offense; the indorsement being no part of the indictment.</p> <p>2. Indictment and Information &wkey;>84(3) — Indictment not bad, though ERRONEOUSLY RECITING STATUTE UNDER WHICH IT WAS FOUND.</p> <p>An- indictment charging a violation of Espionage Act, § 3 (Comp. St. .1918, § 10212c), by obstructing the recruiting and enlistment service of the United States, is not bad because an indorsement thereon erroneously recited it was found under Act May 18, 1917 (Comp. St. 1918; §§ 2044a-2044k), which act did not include the offense, where the Indictment alleged facts sufficient to bring it under the proper statute.</p> <p>3. Army and navy &wkey;>40 — Espionage Act violated, though attempt to obstruct ENLISTMENT NOT EFFECTIVE.</p> <p>An attempt to obstruct the enlistment and recruiting service of the United States, though unsuccessful, is a violation of Act June 15, 1917, § 3 (Comp. St. 1918, § 10212c), and defendant is properly punishable for such attempt.</p> <p>4. Criminal law <&wkey;1177 — Sentence harmless where either count of indictment IS SUPPORTED BY EVIDENCE.</p> <p>As the Espionage Act provides a maximum penalty of 20' years for violation, and denounces the offense of attempting to obstruct the recruiting and enlistment service, a defendant sentenced to three years under indictment of two counts charging obstructing of recruiting and enlistment and attempt to cause disloyalty and refusal of duty, cannot complain, if the evidence supported either count, for the punishment assessed was within the scope of the act.</p> <p>5. Criminal law <&wkey;371(l) — Evidence of seditious utterances admissible TO SHOW INTENT IN PROSECUTION FOR OBSTRUCTING ENLISTMENT.</p> <p>In a prosecution for attempting to obstruct the recruiting .and enlistment service of the United States, etc., evidence that defendant stated that the United States should not have gone to war with Germany, and that, if he had President Wilson, he would fill him so full of holes he would be unrecognizable, is admissible to show defendant’s intent.</p>

<p>Collision <&wkey;153 — Decree affirmed on conflicting evidence of injury to BARGE.</p> <p>Decree affirmed, which found on conflicting evidence, in part taken in open court, that the leaking condition of a barge was not caused by collisions, but existed'previously, and denied recovery of damages therefor.</p>

<p>Appeal from the District Court of the United States for the Western District, of Texas; Duval West, Judge.</p> <p>Suit by the United States against Herman Kramer for cancellation of naturalization certificate. Decree of dismissal, and the United States appeals.</p> <p>The United States, through the United States attorney, brought her bill against Herman Kramer, formerly a subject of the German enrperor, to cancel his certificate of citizenship issued to him on December 30, 1912, on the ground that it was fraudulently and unlawfully obtained.</p> <p>The bill showed that Herman Kramer had been admitted to citizenship by the United Stales District Court for the Western District of Texas, in which court the bill was filed, and was then residing within the jurisdiction of tile court, and further substantially alleged that Kramer, at the time he was admitted to citizenship, declared under oath that he would obey the Constitution and laws of the United States and bear true faith and allegiance 'to same; that he then anti there renounced forever all allegiance to any foreign sovereign, particularly the emperor of Germany; that the court relied on the truth and good faith of his representations and admitted him to citizenship; that the said representations were false, in that he did not in truth and in fact renounce his allegiance to the emperor of Germany, but falsely declared that he did so for the purpose of obtaining the rights, privileges, and protection of American ciüzenship, without assuming, or intending to assume, any of the duties thereof.</p> <p>Annexed to the bill was an affidavit of one A. H. Rebentish, stating that on May 25, 1917, Kramer told him that he would do all he could against the United States; that'any information ho could get from soldiers at the aviation field he would get for him (Rebentish), same to be sent to Germany; that when this war was over he would either go to Germany or Mexico to live, as he did not care to live in this country any longer; that on May 31, 1917, Kramer stated to him that ho could report to Germany that the aviation service of the United States did not amount to anything.</p> <p>To this the defendant filed a pleading, which he termed an answer, but which was more in the nature of a general demurrer, and also a motion to dismiss the bill. These pleadings are too lengthy and diffuse to be briefly stated, and it is unnecessary to do so, in view of what subsequently transpired. Without any action on the pleadings, the case went to trial, and the evidence of two witnesses, Secret Service agents, was heard on behalf of the government. One of these witnesses was the affiant, Rebentish, and the other was one Wyndelts. The evidence of these witnesses shows that defendant was repeatedly guilty of disloyal remarks similar to those set out in the affidavit above quoted; that he was keeper of a saloon near the United States aviation field at San Antonio; that it was his intention to return to Germany after the war; that his sympathy was entirely with Germany in the war, and he expected her to he successful; that he was in close accord with one Ludwig, a soldier in the United States army, stationed at the aviation field; that the witness Wyndelts visited Kramer’s place on May 11,1917, in company with said Ludwig, and Ludwig made certain disloyal remarks of which Kramer seemed to approve; that they sang German songs; that Ludwig would tell Kramer what was going on at the aviation field, and Kramer would question him about it; that on one occasion Wyndelts, Ludwig, another soldier, and Mr. and Mrs. Kramer were in the saloon, no one else being present, and Ludwig said they trusted Rebentish, who was posing as a German spy, and they said, “If he is a German spy, we will help him all we can.” There was much more testimony to the same effect.</p> <p>The government also introduced in evidence the order admitting the defendant to citizenship. The government then rested. The defendant introduced no evidence at all. There was nothing to discredit or impeach the testimony of these witnesses for the government. After the evidence was in, the defendant filed an amended motion to dismiss the bill of complaint, by which he waived his original motion. The amended motion was directed, not only to the sufficiency of the bill of complaint, but also to the competency and the sufficiency of the evidence offered in its support on the following grounds: That the bill showed no equity, because it did not allege that at the time and prior to the granting of the said certificate of citizenship defendant had any fraudulent intent not to renounce his allegiance to the German government; that defendant’s citizenship could not be forfeited and canceled for acts done and words 'spoken by defendant subsequent to the date of the decree awarding him citizenship; that the evidence was wholly insufficient in equity to sustain a decree, because the disloyal statements were made long after defendant’s citizenship was granted. Thereupon the court entered an order dismissing the bill, without a written opinion.</p>

Bean, Judge. Suit by the United States against Ya-koot-sa and another. Decree for the United States, and defendants appeal.

<p>In Error to the District Court of the United States for the Northern Division of the Western District of Washington; Jeremiah Net-erer. Judge.</p> <p>Guiseppi Pinasco was convicted of distilling liquor contrary to the internal reveuue laws, and appeals.</p>

Suit by H. B. Boyer, trustee in bankruptcy, against the Danville Benefit & Building Association, S. E. Huff, and others. Prom an order in favor of S. E. Huff, adjudicating the priority of liens, the Danville Benefit & Building Association and others appeal.

<p>1. Towage <&wkey;15(l) — Laches in beinging suit fob injury to tow excused.</p> <p>Absence of a towing vessel from the district held to excuse delay in bringing suit against her for injury to her tow.</p> <p>2. Towage <&wkey;ll(2) — Vessel liable fob injury to tow.</p> <p>A schooner, which, undertook to tow a motorboat which was unsea-worfhy, and by a towline improperly attached to her steering gear, instead of at the bow, and libelant’s agent, who delivered the boat and attached the line, both held in fault for her injury.</p>

<p>In Error to the District Court of the United States for the Western District of Texas; Duval West, Judge.</p> <p>Criminal prosecution by the United States against A. D. Grier. Judgment of conviction, and defendant brings error.</p>

<p>1. Appeal and error <&wkey;714(l) — Necessity of bill of exceptions.</p> <p>Papers not forming part of the record proper in a law ease, and not by bill of exceptions made part of the record, are not properly before the reviewing court on writ of error.</p> <p>2. Appeal and error <&wkey;694(l) — Rulinrs on evidence not review able WITHOUT BILL OF EXCEPTIONS.</p> <p>When the bill of exceptions does not set forth the evidence, the action of the court with reference to that evidence as a whole is not presented for review by writ of error from the judgment rendered.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Ñew York; Thomas I. Chatfield, Judge.</p> <p>Action by the Individual Drinking Cup Company against the Public Service Cup Company. After decree and appeal, complainant applied to strike out a certain clause from the decree of the court below (261 Fed. 555). Insertion of clause held error.</p>

Appeals from the District Court of the United States for the District of Massachusetts; George H. Bingham, Judge. Two patent infringement suits by the Backstay Machine & Feather Company against Helen Wade Hamilton. Decrees for defendant, and plaintiff appeals.

<p>Appeal from the District Court of the United States for the District of Connecticut.</p> <p>Suit in equity by H. D. Smith & Co. against the Peck, Stow & Wilcox Company. Decree for complainant, and defendant appeals.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit by the Imperial Machine & Foundry Corporation against G. S. Blakeslee & Co. From an order granting a preliminary injunction, defendant appeals.</p>

Suit by Douis E. Baltzley, as trustee, and the Cushman & Denison Manufacturing Company, against the Spengler Boomis Manufacturing Company and the Automatic Pencil Sharpener Company. Decree for defendants, and complainants appeal.

<p>Appeal from the District Court of the United States for the District of Connecticut.</p> <p>Suit by the Homer Brooke Glass Company and the Owens Bottle Machine Company against the Hartford-Fairmont Company. Decree for defendant, and complainants appeal.</p> <p>Action is upon claims 3, 4, and 5 of patent 723,983, issued March 31, 1903, to Homer Brooke, and duly conveyed to the first-named plaintiff. The claims m. suit (together with Nos. 1 and 6) have been recent ly sustained in an opinion which renders reference to the prior art and detailed description of the subject-matter unnecessary. Schram, etc., Co. v. Homer Brooke, etc., Co., 249 Fed. 228, 161 C. C. A. 264.</p> <p>The typical and most general of the claims now sued on is No. 3, which is as follows: “An automatic device for cutting or separating a flowing stream, of molten material into unformed molten masses, the same comprising a cutting knife and means for moving the same, and means for discharging the said molten masses into suitable receptacles.”</p> <p>Claim 4 differs from claim 3 only in specifying that the separated masses shall be of “predetermined quantity,” and claim 5 only by specifying a plurality of receptacles and means for intermittently moving them into position. Whether, if defendant infringed the third claim, it would also infringe Nos. 4 and 5, need not be decided, for it is clear that, if there is no infringement of claim 3, there is none of the other two.</p> <p>The trial court held the claims valid on the authority of the case cited above, held that defendant’s'alleged infringing system was 'different from that of the patent in suit, in that it was founded on a different conception of the way to automatically handle glass, had been worked out by a different method of automatic molten glass delivery, and involved apparatus different in construction. The bill was therefore dismissed for noninfringement, and plaintiff appealed.</p>

Bledsoe, Judge. Contempt proceeding by the United States and Elihu C. Wilson against'the Union Tool Company and Edward Double. From a judgment of conviction, defendants bring error.

<p>Appeal from the District Court of the United States for the District of Rhode Island; Arthur E. Brown, Judge.</p> <p>Infringement suit by the George D. Mayo Machine Company against the Hemphill Manufacturing Company. From a decree for defendant (247 Fed. 536), plaintiff appeals.</p>

<p>1. Patents <©=3222 — Damages foe ineeingement not recoverable where ARTICLE NOT MARKED.</p> <p>Rev. St. § 4900 (Comp. St. § 9446), providing that patentees and all persons making or vending any patented article, who fail to mark it as therein required, may not recover damages in a suit for infringement, except on proof Of notice to defendant and subsequent infringement, applies to all patentees, and is not limited to those who make or vend the patented article.</p> <p>2. Patents <@=>222 — Profits from infringement must be accounted for, ALTHOUGH ARTICLE WAS NOT MARKED.</p> <p>Rev. St. § 4900 (Comp. St. § 9446), providing that patentees, who fail to mark the patented article as therein required, shall not recover damages in a suit for infringement, except on proof of notice to defendant and subsequent infringement, does not relieve an infringer without notice from accounting for profits in equity.</p>

<p>In Equity. Suit by Albert B. Beitman against J. Edward Strater.</p>

<p>Aliens <&wkey;32(8) — Evidence insufficient to authorize! exclusion op Chinese.</p> <p>In habeas corpus proceedings by a Chinese, who had been previously admitted as a son of a native-born citizen, but was excluded upon his return, after a three-year visit in China, because of discrepancies in his testimony and that of his alleged father regarding conditions in China, but not relating to the question of relationship, which was the only issue in dispute, held, that such discrepancies were insufficient to sustain the Department’s order of exclusion.</p>

<p>In Admiralty. In the matter of salvage claims against the steamship Huttonwood.</p>

Criminal prosecution by the United States against the United States Brokerage & Trading Company and others. On demurrers to the indictments. The case comes up upon demurrers to three indictments, which, as they concern dealings with three different railroads, are referred to as the Central Vermont, the Long Island, and the Jersey Central indictments.

In Bankruptcy. In the matter of Kroeger Bros. Company, bankrupt. On review of order of referee disallowing claim of Rizzie Glatz. The petitioner, Glatz, brought suit in the state circuit court to recover damages accruing to her upon the death of her husband through alleged negligence of the defendant (the present bankrupt) on a collision of its delivery automobile with a motor vehicle operated by him.

<p>1. Judgment <§=3714 — Rights undeb contbaot conclusive when deteemined.</p> <p>Where, in an action at law for breach of a written contract, in which the right to recover depended upon the construction of the contract, as to which the parties differed, defendant asked no equitable relief, as permitted by Judicial Code, § 274b (Comp. St. § 1251b), but, the court having held the contract ambiguous on its face, the question of its construction was fully heard on oral evidence of the facts and circumstances surrounding its execution, and submitted to the jury, who found for plaintiff, defendant cannot thereafter maintain a suit in equity to enjoin enforcement of the judgment and for reformation of the contract.</p> <p>2. Judgment <§=3,720 — Adjudication conclusive as to fact in issue.</p> <p>A fact distinctly put in issue and directly determined by a court of competent jurisdiction as a1 ground of recovery cannot be disputed in a subsequent suit between tbe same parties, even if tbe second suit is for a different canse of action.</p> <p>3. Appeal and eebob <s=3171(3) — Constbuction of pleadings below must BE ADHEBED TO ON APPEAL.</p> <p>Where the question of the construction of a contract is directly put in issue by tbe court, and submitted to and decided by tbe jury on oral evidence introduced by both parties, without objection, as to tbe intention of the parties, it is too late to urge that the pleadings did not raise the issue. .</p>

, Judge. Criminal prosecution by the United States against Santo S. Pur-pura. Judgment of conviction, and defendant brings error.

<p>Appeal from the District Court of the United States for the Southern District of West Virginia, at Huntington; Benjamin F. Keller, Judge. _</p> <p>_ Suit in equity by William Maynard and others against the United Thacker Coal Company. Decree for defendant, and complainants appeal.</p>

Rose, Judge. Suit in admiralty by the Baltimore Dry Docks & Shipbuilding Company against the Steamship Isabela, the New York & Porto Rico Steamship Company, claimant, and the United States, intervener. From the decree (258 Fed. 934), libelant appeals. This was a suit in admiralty, instituted in the District Court, of the United States for the District of Maryland for libel of the steamship Isabela.

Suit by John M. Dorrance and others, trading as Dorrance & Co., against Barber & Co., Incorporated. Decree for respondent, and libel-ants appeal. Bespondent corporation owns and operates a line of freight steamers. A contract was made by it with libelant, expressed in a broker’s note, of which the following is the materia! portion: “Engaged for account of Messrs. Dorrance & Co. (shipper). “Destination — Vladivostock; Steamer — Barber Line.

Action by the American Mercantile Corporation against Harold Spielberg. Judgment for defendant, and plaintiff brings error. Tiie American Mercantile Corporation is a corporation organized under the laws, of the state of Delaware. The defendant, Spielberg, is a citizen of the state of New York, residing in the Southern district of that state.

<p>In Error to the District Court of the United States for the District of Minnesota; Wilbur E. Booth, Judge.</p> <p>Action by Alphonse Eangermann against the International Harvester ■Company of America. Judgment for plaintiff, and defendant brings error.</p>

<p>X. Bankruptcy <&wkey;22 — Administrative procedure not governed by equity RULES.</p> <p>The equity rules of the Supreme Court are not rules of court affecting administrative work of bankruptcy.</p> <p>2. Bankruptcy <&wkey;415 (2) — Formal exceptions to master’s report on application por discharge not required.</p> <p>The matter of granting discharges is by the Bankruptcy Act committed to the judge of the District Court, the,findings of a commissioner or master, to whom an application is referred, being advisory only, and compliance with formal equity rules in filing exceptions to his report is not required.</p> <p>3. Bankruptcy <&wkey;408(3) — Omission of worthless assets not ground por REFUSING DISCHARGE.</p> <p>Omission from a bankrupt’s schedules of corporate stock having no possible value held not a concealment of assets which defeats the right to discharge.</p> <p>4. Bankbuptct <&wkey;408(3) — Concealment must be of beat, assets to defeat DISCHARGE.</p> <p>Omission from bankrupt’s schedules, although with intent to conceal, of a right in property which bankrupt supposed he owned, but in fact did not, is not a concealment of assets which defeats the right to discharge.</p>

the Southern District of New York. John Gill brings error to review an order of the District Court denying a motion to vacate an order of commitment for contempt.

<p>1. Patents &wkey;>328 — Clamping device fob pneumatic tibes void fob lack OF INVENTION.</p> <p>The Schweinert & Kraft,patent, No. 783,469, for clamping device for pneumatic tires, fíele!, void for lack of invention, in view of the prior art.</p> <p>2. Patents <&wkey;328 — Dust cap fob tire valves void fob lack of invention.</p> <p>The Burke patent, No. 1,253,573, for dust cap for tire valves, held void for lack of invention, in view of the prior art.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Michigan; Arthur J. Tuttle, Judge.</p> <p>Patent infringement suit by the Kawneer Manufacturing Company against the Toledo Plate & Window Glass Company. From a decree for plaintiff, defendant appeals.</p>

<p>1. Courts <§=>480(1) — Fedep.al court has no jurisdiction of action against OFFICER OF STATE COURT.</p> <p>A federal court is without power to entertain a suit against a sheriff, to require him to disregard the orders of a state court as to execution of its process, having no relation to any matter pending in the federal court.</p> <p>2. Courts <§=>478 — Monet collected on process from state court passes out of its custodt when paid over.</p> <p>Money collected on process from a state court, when paid over to the plaintiff, passes out of the jurisdiction of the court, and a federal court may entertain a suit to require such plaintiff to hold the money subject to the rights of an intervener in the state suit, whose claim, to an interest in the fund has not yet been finally adjudicated.</p> <p>3. United States <®=»67(3) — Government not entitled to shake in interest' ON PENALTY OP BOND OF CONTRACTOR FOR PIJBLIO WORK.</p> <p>The right of the United States to share pro rata in a judgment recovered by laborers and materialmen on tbe bond of a contractor for public work, given under Act Aug. 13, 1894 (Ooinp. St. § 6923, note), where the judgment is for the amount of the penalty of the bond, with interest on. their claims, docs not extend to such interest</p>

In Equity. Suit by United States against Nancy C. Woolley, Eva E. Woolley, Anna L. Traylor, George C. Woolley, and Stephen Har-rer. Homestead patents issued to the first three named defendants set aside, and patent to George C. Woolley confirmed in the last-named defendant.

<p>In Bankruptcy. In the matter of petition in involuntary bankruptcy against the Standard Shipyard Company.</p>

In Bankruptcy. In the matter of the bankruptcy of Mrs. S. E. Brinn and Mrs. S. E. Wheless, doing business as the City Telephone Company, a firm. Petition by W. C. Mason and others to review an order of the referee directing a receiver appointed not to deliver property of the bankrupts to the sheriff, etc.

<p>1. Habeas corpus <&wkey;54 — Vague allegations against officials who ordered petitionee’s depoetation not considered.</p> <p>Allegations in an application for writ of babeas corpus by an alien seaman arrested, and beld by tbe immigration authorities for deportation, setting out in an illusive, vague manner that he had been informed that he was to be deported on the ground that he was likely to become a public charge, but that there was no evidence on which to base such finding, and that in reality he was to be deported because he was a member of the Industrial Workers of the World, and that various officials of the Department of Labor had stated he was too clever to afford actual grounds for deportation, are too vague to be considered by the courts.</p> <p>2. Habeas corpus <&wkey;53 — Application must show cause eor allowance.</p> <p>Under Kev. St. §§ 751, 755 (Comp. St. §§ 1282, 1283), relating to habeas corpus, writ of habeas corpus will not be issued as a matter of course, but it must preliminarily appear that there was cause for its allowance, and if the application shows there is no ground for allowance such application must be denied.</p> <p>3. Habeas corpus &wkey;34 — Courts cannot interferí? in deportation proceedings UNTIL ALIEN HAS APPEALED TO SECRETARY OP LABOR.</p> <p>Where a question of fact is involved, the courts will not interfere in behalf of the alien ordered to be deported, who had not appealed from the decision of the immigration authorities to the Secretary of Labor, as authorized by Act Feb. 5, 1917, § 17 (Comp. St. 1918, § 428914 ii.)</p>

In Admiralty. In the matter of the petition of the St. Joseph-Chicago Steamship Company, owner of the steamer Eastland, for limitation of liability. On exceptions of the Great Lakes Towing Company to the amended claims of life salvors.

<p>1. Evidence <&wkey;71 — Receipt of letter evidenced by mailing.</p> <p>Tlio mailing to a defendant of a properly addressed and stamped envelope containing a letter, and the production of the letter by defendant at the trial, are both evidence of its receipt.</p> <p>2. Evidence <&wkey;378(3) — Letter of corporation admissiblf, without proof of AUTHORITY OF SIGNER.</p> <p>In an action on a contract alleged to have been made by correspondence, a letter purporting to be signed by defendant corporation, and to accept the terms proposed in a letter received from plaintiff and in evidence, held, admissible as prima facie that of defendant, without proof that the person signing it had authority to make the contract.</p> <p>3. Sales <&wkey;94 — Contract revocable at will determines rights prior to REVOCATION.</p> <p>A contract to buy or sell goods at a price, although revocable at will, determines the rights of the parties respecting the transactions executed thereunder before revocation.</p> <p>4. Principal and agent &wkey;>41 — Instruction submitting kind of contract MADE MISLEADING, WHERE JURY WAS GIVEN NO MEASURE OF DAMAGES THEREFOR.</p> <p>Where, in an action on a sales contract, court instructed that if jury found a commission contract damages would be a stated amount, and if they found a protection contract to simply find for defendant, it was misleading to submit the question whether contract was a reference contract —that is, to refer buyers to plaintiff — which would carry a different measure of damages.</p>

<p>At Law. Action by Walter Evans, United States District Judge for the Western District of Kentucky, against J. Roger Gore, Deputy and Acting Collector of Internal Revenue. On demurrer to petition.</p>

<p>At Law. Action by the Atlantic Steel Company against the R. O. Campbell Coal Company. On demurrers to petition and amended petition.</p>

<p>Petition of J. J. Dillon for writ of habeas corpus.</p>

At Law. Actio'n by Pasquale Anzolotti against William G. McAdoo Director General of Railroads (Lehigh Valley Railroad Company). On motion to set aside a verdict for the plaintiff in an action to recover damages under the Employers’ Liability Act (Comp. St. §§ 8657-8665). The plaintiff was a longshoreman employed by the Lehigh Valley Railroad Company at a pier in the Bast River, New York.

<p>1. Wharves <@=^>20(1) — Owner not liable tor injury to moored vessel FROM COLLISION.</p> <p>Owner oí property on Gowanus Canal, which maintained a berth for boats on its front, which was known to users of the canal, held not Hable for injury to a barge moored there from collision with a passing boat, although the barge, where it lay, was necessarily an obstruction to navigation.</p> <p>2. Collision ¡©=>71(2) -- -Passing boat liable for injury to moored vessel.</p> <p>One moving a boat up Gowanus Canal, with knowledge of other boats berthed on the side of the canal, held responsible for injury by collision to a barge so moored.</p>

<p>In Bankruptcy. In the matter of Peter Sullivan, bankrupt. On motion to vacate stay of suit against bankrupt.</p>

In Equity. Suit by the Yale & Tow'ne Manufacturing Company against Eugene M. Travis, Comptroller of the 'State of. New York. On motion to dismiss bill. The complainant, a Connecticut corporation, has its plant and principal business place at Stamford, Conn.

In Equity. Suit by the Griesedieck Brothers Brewery Company against George H. Moore, Collector of Internal Revenue, and another, consolidated with suits by other brewery companies against the same defendants. On motion of defendants to dismiss for want of jurisdiction and equity, and on application of plaintiffs for temporary injunction.

<p>1. Judgment @=570(5) — Dismissal fob failure to drove title, not bes ju-dicata.</p> <p>In a suit under 4 Comp. St. N. J. 1910, p. 5399, “to compel the determination of claims to real estate,” in which, the court is required by the statute to finally adjudge whether defendant has any interest in the property, and to fix and settle the rights of the parties, a decree simply dismissing the bill, on the ground that plaintiff had failed to establish his title, as pleaded, held not an adjudication which barred a second suit, in which plaintiff sets up a different title.</p> <p>2. Goukts @=371 (2) — Federal couets may enforce remedies given by state STATUTES.</p> <p>A federal court of equity may entertain a suit to quiet title under a state statute, brought by one in peaceable possession, who is without adequate remedy at law.</p> <p>B. Navigable waters @=36(3), 44(3) — Boundary of- state lands below higii-wateb mark shuts as high-water line changes.</p> <p>The boundary between land owned by the state below high-water line on navigable water and the land of a shore owner is ambulatory, shifting from time to time as the high-water line advances or recedes, due to erosion, reliction, or accretion; and a grantee of the state acquires no greater right, and cannot claim title to land formed by accretion.</p> <p>4. Navigable waters @=!4(4) — Division of accretion between riparian owners.</p> <p>Where ocean shore lands within a city were conveyed with reference to a survey and plat, their lines running parallel with the streets, accretions along their front held properly divisible between their owners by extending the boundary linos between them1 to the then high-water line.</p>

<p>1. BROKERS <@=0 — STOCKBROKER CUSTOMER'S AGENT IN BUYING STOCK.</p> <p>As to stock purchases, a broker is the customer’s agent, and is bound to follow his directions or decline the agency.</p> <p>2. Brokers <3=26 — Customer has tithe to stock bought for customer.</p> <p>A broker, advancing money and purchasing stock for a customer, becomes the customer’s creditor, and if he retains possession of the stock as security for his advancements, he is a pledgee of the stock, or if the stock is fully paid for, and he retains possession subject to the customer’s order, he is merely a bailee, but in any case the title is in the customer.</p> <p>3. Brokers <@=38(2) — Customer’s remedy against brokers at haw precludes equity suit.</p> <p>A customer cannot proceed in equity against the former members of a bankrupt brokerage concern, which had purchased stock for plaintiff, upon the theory that tho brokerage firm was a trustee holding the legal title for the customer’s benefit, without evidence indicating an intent to create a trust; his remedy being at law.</p> <p>4. Banks and banking <@=153 — “Special deposit” defined.</p> <p>A “special deposit” implies the custody of property without the authority in the custodian to use it, and the right of the owner to receive back the identical thing deposited.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Special Deposit.]</p> <p>5. Brokers <3=23 — Holding customer’s stock not a special deposit.</p> <p>Stock purchased by a broker for a customer does not constitute a special deposit in the broker’s hands, since the broker might discharge his obligation by delivering other stock of equal kind and denomination.</p> <p>C. Partnership <@=>239(5) — Liability of retiring members not discharged BY DEALINGS WITH NEW FIRM.</p> <p>The retirement of defendants from a stock brokerage firm between the time the firm became unabie to meet its obligations to plaintiff customer and the date the firm became bankrupt does not absolve them from liability, although plaintiff continued to do business with the firm, and to receive dividends on the stock in question after defendants’ retirement; such acts not amounting to acquiescence by plaintiff in defendants’ withdrawal and the acceptance of tho responsibility of the new firm for the obligation.</p> <p>7. Courts <@=>444 (2) — Statute superior to rule of Supreme Court of District of Columbia.</p> <p>Judicial Code, § 274a (Comp. St. § 1251a), relating to procedure in cases not brought on. the proper side of the court, is superior to any rule inconsistent therewith formulated under Code of Law, § 85, authorizing the District of Columbia Supreme Court to make equity rules, etc.</p> <p>8. Courts <@=>144(2) — Retroactive operation of rules of District of Columbia Supreme Court.</p> <p>Rule 70 of the District of Columbia Supreme Court, relating to transferring cases brought on the wrong side of the court, is inapplicable to a case in which the decree was rendered prior to its adoption.</p> <p>9. Courts <@=352 — Statutes relating to transfer between equity and LAW SIDES APPLICABLE TO BILL FILED BEFORE ITS ENACTMENT.</p> <p>Judicial Code, § 274a (Comp. St. § 1251a), relating to the procedure in cases brought on the wrong side of the court, is applicable to a case in which the bill was filed before, and the decree entered after, its enactment.</p> <p>10. Courts <§=352 — Transferring cause to law side instead of dismissing.</p> <p>Under Judicial Code, § 274a (Comp. St. § 1251a), relating to amendments in actions brought on the wrong side of the court, etc., a customer’s action against brokers, erroneously brought in equity, should not be dismissed, but the pleadings recast, and the cause transferred to the law side of the court.</p>

<p>1. Appeal and error &wkey;>254 — Exception unnecessary to rotangs which NEED NOT BE INCORPORATED IN BILL OF EXCEPTIONS.</p> <p>Tlie action of the trial court in sustaining a demurrer to, and striking out, defendant’s pleas, may be reviewed without an exception, for an exception is unnecessary, save to rulings which must bo brought into the record by a bill of exceptions.</p> <p>2. Trusts <&wkey;B16(l) — Testamentary trustees entitled to compensation ON TRANSFER FROM THEMSELVES AS EXECUTORS.</p> <p>Where executors settled their accounts as such, and were ordered to transfer the funds to themselves as trustees, they are entitled to further commissions as trustees.</p> <p>3. Trusts <&wkey;359(2) — Proceeding by remaindermen against testamentary TRUSTEES MUST BE BROUGHT IN EQUITY.</p> <p>A proceeding by remaindermen to require a trustee to turn over certain property to them must be brought in equity, if the trust is still open and the trustee’s commissions and some outstanding claims against the estate are undetermined.</p> <p>4. Appeal and error <&wkey;>917(l) — On appeal from ruling on demurrer to pleas, their truth assumed.</p> <p>On appeal from trial court’s action In sustaining a demurrer to, and striking out, defendant’s pleas, it will be assumed that the statements in such pleas are true.</p> <p>5. Pleading <&wkey;264 — Pleas not abandoned by piling amended plea.</p> <p>Defendant’s action in offering an amended plea did not waive or constitute an abandonment of his previous pleas, where the amended plea was not offered as a substitute for tliem.</p> <p>6. Executors and administrators &wkey;>291 — Evidence insufficient to show ASSENT OF EXECUTORS TO VESTING ESTATE IN BENEFICIARIES.</p> <p>The fact that the cestuis quo trustent united with an executor in prosecuting a claim does not, as a mailer of law, establish the executor’s assent to vesting of title in them, but, at most, raises a question of fact</p> <p>7. Limitation of actions <&wkey;155(6) — Tolled by testamentary trustee’s PAYMENTS TO REMAINDERMEN.</p> <p>A testamentary trustee’s payments to plaintiff remaindermen after the life tenant’s death tolled the three-year period of limitations prescribed by Code of Law, § 1265, for bringing suit against the trustee’s executor.</p> <p>8. Trusts <&wkey;287 — Trust does not vest in New York courts on trustee’s DEATH, WHERE HIS ONLY UNFINISHED DUTY WAS TO ACCOUNT.</p> <p>Code Oiv. Proc. N. Y. 1910, § 2818, providing that a surviving trustee’s death vests an unexecuted trust in the New York courts, etc., is inapplicable, where the deceased trustee had nothing further to do, except to account, and an action in such a ease may be brought against the trustee’s executor.</p>

Suit by David Paul Burleigh Conkling, against the New York Life Insurance & Trust- Company, executor and trustee under the will of Sarah B. Conkling, deceased, Delia Mason Caldwell, Sarah B. C. Mol-ler, and others.

Appeals from the Supreme Court of the District of Columbia. Mechanic’s lien proceedings by the Garden City Plating & Manufacturing Company against Woodward & Lothrop, Incorporated, in which the Union Trust Company and the Central Bank, both of Rochester, N. Y., intervened. From a decree sustaining exceptions to a special master’s report, Woodward & Rothrop, Incorporated, appeal; and from a decree overruling exceptions to the master’s report, the inter-veners appeal.

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Two proceedings by George E. Sullivan, receiver, against William A. Mearns. From adverse orders, Mearns appeals.</p>

<p>Appeal from the Commissioner of Patents.</p> <p>Application by the Maclin-Zimmer-McGill Tobacco Company, Incorporated, to register a trade-mark. From a decision refusing registration, the applicant appeals.</p>

Application by the Stephens-Adamson Manufacturing Company to register a trade-mark. From a decision by the Commissioner of Patents, denying the application, the applicant appeals.

<p>1. CONTRACTS <&wkey;295(l)-CONTRACTOR INTENTIONALLY DEFAULTING CANNOT INVOKE DOCTRINE OF SUBSTANTIAL PERFORMANCE.</p> <p>In a mechanic's lien proceeding, plaintiff contractor, who intentionally failed to observe portions of the building specifications and repeatedly refused to remedy the defects, is not entitled to the benefit of the equitable doctrine of substantial performance.</p> <p>2. Damages <&wkey;123 — Owner may deduct entire cost of complying with SPECIFICATIONS.</p> <p>Where contractor intentionally fails to observe a portion of the building specifications, the owner may deduct the entire cost of making the building conform to specifications, and is not required to deduct merely the difference between value of the work as done and its value if it had been performed pursuant to tbe specifications.</p>

Proceeding in the Patent Office by the Kellogg"Toasted Corn Flakes Company to cancel a trade-mark of the Paul F. Beich Company. From a decision sustaining the petition, defendant appeals.

<p>Appeal from a Decision by the Assistant Commissioner of Patents..</p> <p>Interference proceeding in the Patent Office between Cass E. Ken-nicott and John E. Caps. From a decision awarding priority to Caps, Kennicott appeals.</p>

of Patents. Interference proceeding in the Patent Office between Arthur T. Hopkins and Constantin Riegger. From a decision awarding priority to Riegger on all counts except one, Hopkins appeals.

<p>Appeal from a Decision of the Commissioner of Patents.</p> <p>Patent application proceeding by Rexford M. Smith. From a decision denying the application, the applicant appeals.</p>

Patent interference proceeding between George S. Engle' and Manchester & Spooner, and two similar proceedings between George S. Engle and Arthur P. Manchester. From a decision awarding priority to the junior parties, George S. Engle appeals.

<p>Appeal from a Decision by the Assistant</p> <p>Commissioner of Patents. Patent interference proceeding between Edwin L. Wiegand and William A. Braun. From a decision of the Assistant Commissioner of Patents, awarding priority to the senior party, Braun appeals.</p>

Interference proceedings in the Patent Office between Theophilus D. Conner and Marie E. Scheuerle, administratrix of the estate of Henry A. Scheuerle, deceased. From a decision awarding priority to Conner, Marie E. Scheuerle appeals.

<p>Appeal from a Decision by the Assistant Commissioner of Patents.</p> <p>Interference proceeding in the Patent Office between John Reichel and Marion Dorset. From a decision for Dorset, Reichel appeals.</p>

Interference proceeding in the Patent Office between Frederick K.. Vreeland and John W. Lee and John L. Hogan, Jr. From a decision awarding priority to Vreeland, the junior parties appeal. .

<p>Appeal from the District Court of the United States for the Northern District of Alabama; William I. Grubb, Judge.</p> <p>In the matter of the E. E. Forbes Piano Company, bankrupt; J. H. Holcombe, trustee. From an order of the District Court, the Commercial Security Company appeals.</p>

Sanford, Judge. Arthur Bain was convicted of defrauding a national bank, and he brings error. Bain was a business man who, for a series of years, had dealings with a neighboring national bank. When the bank failed, its cashier and manager claimed that ho had paid over large sums 1o Bain, by honoring checks and drafts which were not covered by any funds on deposit, and by paying cashier’s cheeks and certificates of deposit which had been issued to Bain without consideration.

<p>In Error to the District Court of the United States for the Eastern District of Tennessee; Edward T. Sanford, Judge.</p> <p>Action by Luther and Ed. Galloway, administrators, against the Ducktown Sulphur, Copper & Iron Company. There was judgment for plaintiffs, and defendant brings error.</p>

<p>Appeal from the District Court of the United States for the District of Wyoming; John A. Riner, Judge.</p> <p>Suit in equity by the United States against H. S. Ridgely and others Decree for defendants, and the United States appeals.</p>

<p>Wills <@=>68 — 'Making of contract question fob juey.</p> <p>Evidence in support of an allegation that a decedent, in consideration of services rendered and to be rendered to her by plaintiff, and which were afterward rendered, promised to bequeath to plaintiff a stated sum by her will, held sufficient to require submission of the issue to the jury.</p> <p>Rogers, Circuit Judge, dissenting.</p>

In the matter of H. I,. Herbert & Co., a corporation, bankrupt. From an order expunging its claim, the National Surety Company appeals. Appeal from an order expunging the claim, as creditor, of National Surety Company, entered in the District Court for the Southern District of New York.

<p>Appeal from the District Court of the United States for the District of Massachusetts; Dodge, Judge.</p> <p>Suit in equity by the Berkshire Hills Paper Company against the Byron Weston Company. Decree for defendant, and complainant appeals.</p>

<p>In Equity. Suit by Pearley C. Mickle against Rufus B. Henrichs, as Warden, and Donald Maclean, as Physician of the Nevada State Prison.</p>

<p>1. PRINCIPA.!, AND SURETY <&wkey;57-SURETY BOND PROCURED BY FRAUD.</p> <p>A transaction between defendant mill company and a debtor corporation, apparently insolvent, by which the debtor contracted to deliver a quantity of bags to defendant for payment falsely recited as received, and procured complainant surety company to guarantee delivery, whereby, if the bond was enforced defendant would obtain payment of its debt, held, fraudulent as to the surety company, and the bond subject to cancellation at its suit.</p> <p>2. Equity i&wkey;53(l)- — Objection to jurisdiction because of adequate remedy AT LAW MAY BE WAIVED.</p> <p>Where the subject-matter of a suit is within thé cognizance of a federal court of equity, the right to object to the jurisdiction on the ground of adequate remedy at law may be waived.</p> <p>3. Equity <&wkey;53(l) — Objection to jurisdiction waived by counterclaim.</p> <p>In a suit for cancellation of a surety bond on the ground that it was obtained by fraud, an objection in the answer to the jurisdiction in equity on the ground that complainant had an adequate remedy at law held waived by a counterclaim asking recovery on the bond.</p>

<p>1. Removal op causes <&wkey;19(l) — Joint ok several liability op defendants DETERMINABLE BY LOCAL LAW.</p> <p>In determining whether there is a separable controversy, which, entitles one defendant to remove a cause, the question of joint or several liability of defendants is determinable by the local law.</p> <p>2. Principal and agent <&wkey;159(2) — Agent not liable to third persons for NONPEAS ANCÉ.</p> <p>An agent is not personally liable to a third person for nonfeasance, or a mere omission of duty in the course of his employment.</p> <p>3. Removal op causes <&wkey;49(3) — Action against employer and superintendent NOT SEPARABLE CONTROVERSY.</p> <p>The petition in an action for death of a miner, against the employer corporation and its superintendent and foreman, alleging negligent failure to furnish decedent a safe place to work, by an allegation that individual defendants were authorized and required to make and keep such place safe, held not to state a cause of action against them, and the cause held removable by the corporation defendant.</p>

<p>1. Pledges <&wkey;31(4) — Diability or pledgee foe conversion.</p> <p>A bank, bolding certain new automobiles in pledge as security for a loan, which, on bankruptcy of the debtor, nominally sold them for less than their value to a director, who resold them singly through an agent at a profit, which was turned over to the bank, held accountable to the trustee in bankruptcy for the difference between its debt and the amount actually received, with interest.</p> <p>2. Pledges <&wkey;25 — Lien op pledgee limited to proceeds or wrongful sale.</p> <p>A pledgee of property of bankrupts, which ostensibly sold it for the amount of its debt, bnt afterwards received from the purchaser the profit on resales, held to have waived any right to a lien for expenses incurred for storage before its sale.</p> <p>8. Bankruptcy <&wkey;188(l) — Effect of wrongful sale by pledgee of bankrupt.</p> <p>A pledgee, which wrongfully sold the pledged property, held estopped to claim a lien for a greater amount than it received on an accounting to the trustee in bankruptcy of pledgors for the value of the property.</p> <p>4. Bankruptcy <&wkey;154 — Right or bank to apply funds on unsecured indebtedness.</p> <p>A hank, which as pledgee wrongfully sold property of bankrupts at private sale for the amount of its lien, but afterwards received the profit from resales by the purchaser, which it held as its own, held estopped, on an accounting to the trustee, to apply such sum on unsecured indebtedness of bankrupts.</p>

<p>1. Army and navy &wkey;>48 — Commander or permanent camp had power to CONVENE GENERAL COURT-MARTIAL.</p> <p>Under Eighth Article of War (Comp. St. § 2308a), authorizing the commanding officer of a district or body of troops to appoint a general court-martial when empowered by the President, a general court-martial called by the commander of a permanent camp, as authorized by General Order No. 56 of the War Department, issued June 13, 1918, by direction of the President, held lawfully convened.</p> <p>2. Army and navy &wkey;>47 — CRecord of court-martial need not show all FACTS ESSENTIAL TO ITS EXISTENCE.</p> <p>The record in a case tried by a court-martial need not show all the facts necessary to constitute it a lawful court.</p> <p>3. Army and navy <&wkey;47 — Judgment of court-martial not reviewable on HABEAS CORPUS.</p> <p>A civil court in a habeas corpus proceeding cannot review the judgment of a court-martial for error.</p> <p>4. Al’.MY AND NAVY &wkey;>47-PROOF OF JURISDICTION OF COURT-MARTIAL OVER DEFENDANT sufficient.</p> <p>That a defendant was appointed, accepted his commission, and served as an officer in the army is sufficient proof that he was subject to military law.</p> <p>5. Army and navy <&wkey;47 — Courts-martial had jurisdiction of trial for MURDER AFTER ARMISTICE ; “TIME OF PEACE.”</p> <p>The provision of article 92, Articles of War (Comp. St. § 2308a), that no person shall be tried by court-martial for murder committed within the geographical limits of the states of the Union in time of peace, held not applicable to any time between the declaration of war with Germany and the official conclusion of peace, although the place of war was not within the United States.</p> <p>6. Army and navy <&wkey;48 — Designation of place of imprisonment presumed LAWFUL.</p> <p>Where the judgment of a court-martial, on conviction of a defendant for manslaughter, directed the kind and duration of his imprisonment as authorized by article 93, Articles of War (Comp. St. § 2308a), the place of confinement may be later designated by the War Department, and such designation on the commitment papers will bo presumed to have been lawfully made.</p> <p>7. Army and navy <&wkey;43 — Meaning of “district” in Eighth Article of War.</p> <p>The term “district,” as used in Eighth Article of War (Comp. St. § 2308a), providing that, when empowered by the President, the commanding officer of any district may appoint general courts-martial, has no technical military meaning, but includes the territory occupied by a permanent military camp.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, hirst and Second Series, District.]</p>

<p>In Bankruptcy. In the matter of A. C. Brinson, bankrupt. On petition to revise order of referee.</p>

<p>ContRAots <&wkey;10(l) — Contract to furnish electricity void for lack or MUTUALITY.</p> <p>A contract by which an electric company agreed to furnish a town for a term of years all the electricity and current that should he desired, to be paid for by meter measurement, but by which the town assumed no obligation to purchase any definite quantity of current, held void for lack of mutuality.</p>

In Equity. Suit by the Incorporated Town of Eaurens, Iowa, against the Northern Iowa Gas & Electric Company and another. On motions by defendant to dissolve temporary injunction and to dismiss.

<p>Carriers <&wkey;196 — Shipper can assert counterclaim for damages to shipment IN ACTION ROE FREIGHT.</p> <p>In an action by a railroad company for freight charges, defendant held entitled to counterclaim for damages for goods lost on other shipments.</p>

In tlie matter of the application of William A. Smith for patent for motor. On appeal by applicant from decision of Commissioner of Patents.

<p>1. Patents @=»138(1) — Reissue with broadened claims babeed by lack op DILIGENCE.</p> <p>The reissue of a patent with broadened claims, 2 years and 8 months after the original issue, held barred by lack of diligence, where the applicant’s only excuse was that he had failed to discover the insufficiency of the original claims until shortly before filing his application for a reissue.</p> <p>2. Patents @=^138(1) — Abandonment presumed where diligence not shown IN SEEKING REISS OE.</p> <p>Where a patentee, seeking a reissue with broadened claims 2 years and 8 months after the original issue, fails to establish his diligence, it is presumed that he abandoned the,new matter to the public.</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 Cornelius C. Watts and Dabney C. T. Davis, J’r., against the Ely Real Estate & Investment Company. From a decree for complainants (254 Fed. 862), defendant appeals.</p>

Suit in equity by William L,. Sweet, Jr., against the All Package Grocery Stores Company. Prom a decree denying priority to its claim for license taxes, the State of New York appeals.

In the matter of Lewis Gottlieb, bankrupt. From an order confirming a composition, the Roxford Knitting Company appeals. Gottlieb was a merchant in a suburban town on Long Island. In the spring of 1918 he made a statement in writing to Roxford Company, “for the purpose of obtaining credit and inducing [it] to sell [him] merchandise,” as the document signed by Gottlieb declares.

<p>1. Bankruptcy <@=>407(5) — False statement which will preclude discharge ; “obtain property on credit.”</p> <p>Tlie obtaining by bankrupts of a license to do business as private bankers, by means of a written statement made to tbe comptroller of the state of New York, as required by statute, was not the obtaining of “property,” within Bankruptcy Act, § 14b (3), Comp. St. § 959S, nor made to one from whom property was obtained on credit, and, although the statement was materially false it is not ground for denial of discharge.</p> <p>2. Bankruptcy <@=>407 (5) — False statements barring discharge.</p> <p>The provision of Bankruptcy Act, § 14b (3), Comp. St. § 9598, authorizing refusal of discharge to a bankrupt who has “obtained property on credit from any person upon a materially false statement in writing made to such person for the purpose of obtaining such property on credit,” especially in view of its legislative history, is not to be extended by construction.</p> <p>3. Bankruptcy <@=407(3) — Fraudulent concealment which will bar discharge.</p> <p>The deposit by bankrupts of money in bank in their own name cannot be considered a transfer or concealment to hinder, delay, or defraud creditors, which will bar discharge under Bankruptcy Act, § 14b (4), Comp. St. § 9598.</p> <p>4. Bankruptcy <@=40S(%) — Offenses which bar discharge limited to acts MADE OFFENSES BY BANKRUPTCY ACT.</p> <p>Bankruptcy Act, § 14b (1), U. S. Comp. St. § 9598, which bars discharge if bankrupt has “committed an offense punishable by imprisonment as herein provided,” is limited to acts made offenses by Bankruptcy Act.</p>

<p>Appeal from the District Court of the United States for the Western District of Louisiana; George W. Jack, Judge.</p> <p>Suit in equity by Robert York & Co. and others against the Standard Hardwood Company and others. From the decree, Geisenberger & Friedler and others appeal.</p> <p>The following is the opinion of Jack, District Judge:</p> <p>On petition of plaintiffs, receivers were appointed for defendant company. Thereafter plaintiffs took a rule on the receivers to show cause why the mill and lands of the company should not be sold to satisfy certain mortgage notes held by the plaintiffs. The defendant company is the successor of the Bre-vard & Woods Stave Company, which purchased a largo tract of land in Con-cordia parish, La., from the Farmer-Wren Land Company, for the price of 8170,OCO, of which amount a part was paid by exchange of lands in Mississippi, 810,000 in cash, and for the balance four vendor’s lien and mortgage notes were given, for §24,212.50 each. Plaintiffs allege themselves to be the owners of the three last maturing of these notes by purchase from the Farm- or-Wren Land Company, and in addition they allege themselves tile holders and owners of five notes of defendant company, for §20,000 each, aggregating §100,000 secured by a second mortgage on the lands.</p> <p>Defendant receivers, in answer, admit that the plaintiff owns the two last maturing notes given the Farmer-Wren Land Company for §24,212.50 each, but they allege that the other note of this series was not purchased by plaintiffs but was paid by them, and that plaintiffs merely have an unsecured claim against the defendant for the amount of said note. The receivers while; making no denial of the fact that the Yorks loaned the company §100,000 and more, denied the validity and legality of the §100,000 mortgage executed to secure this indebtedness, on ibe ground that at the meeting of the board of directors, which authorized the mortgage, only four of the five members -were present, including the two Yorks, who were interested parties, and therefore they claim could neither vote on the resolution nor be counted to make a quorum.</p> <p>It appears that the Brevard & Woods Stave Company was a Tennessee corporation, with a capital stock of $25,000, doing business in Mississippi. In 1907 Brevard, the president, sought to obtain a loan from J. B. & Robert York of St. Louis, who were engaged in buying and selling lumber. To induce them to make the loan the stockholders of the company sold them one-half of the outstanding stock. For part of this stock they paid par value, and for the remainder $1.25 on the dollar. Later the Yorks obtained one-fourth more of the stock, thus giving them a three-fourths interest. In July, 1914, a large tract of land in Concordia parish, La., was purchased and a hardwood mill thereon erected.</p> <p>In December, 1915, on request of the stockholders, the board of directors passed a resolution changing the name of the company to the Standard Hardwood Company and increased the capital stock to $100,000. This change in the charter, however, it seems, was never legally perfected, and in January, 191S, after the appointment of the receivers the old board of directors rescinded the action. On January 11, 1916, at the annual meeting of the hoard of directors, the $100,000 mortgage was authorized. There were present at this ■ meeting the two Yorks, L. E. Brevard, Gates, who was an employé of the Yorks, and Mrs. Brevard, wife of L. E. Brevard. These five constituted the entire board, and likewise were the sole stockholders; the latter two holding each only one share of stock. At this meeting, Robert York offered a resolution authorizing the president to give a second mortgage on the lands to J. B. & Robert York (a commercial partnership) to secure them for moneys advanced and to be advanced before the 1st of February, 1916. The resolution was seconded by J. B. York and unanimously adopted. On January 15, 1916, Brevard, as president, executed to the order of Robert York five notes, each for $20,000, payable in one, two, three, four, and five years, and on May 15th executed the mortgage, and a few dajfs thereafter delivered the notes to J. B. and Robert York.</p> <p>The company did not prosper. Larger capital was necessary to conduct its business. The Yorks conceived the idea of organizing a new company, with a larger capital stock, and transferring to it the assets of the Stave Company. Accordingly the Yorks and Brevard procured tile organization of a' Delaware corporation under the name of the Standard Hardwood Company. The three men named in the charter apparently acted merely as a matter of accommodation. They subscribed for only 10 shares of stock, for which they paid nothing, and which they later transferred to the two Yorks and Brevard, who became the sole stockholders and the first board of directors of the new company.</p> <p>To the Standard Hardwood Company was sold and transferred the Louisiana property of the Brevard & Woods Stave Company. Their only other property at the time was some land in Mississippi worth about $3,000, which was mortgaged to the mother of Brevard for a debt of about that amount. The consideration of the sale was the assumption by the Hardwood Company of the balance due on the mortgage indebtedness of the-Farmer-Wren Land Company, aggregating $72,637.50, the assumption of $100,000 of second mortgage notes given Robert York, the assumption of all accounts due by the Stave Company as of October 2, 1916, incurred by operations in Louisiana, and the issuance to the stockholders of the Brevard & Woods Stave Company of $25,000 of the stock of the Standard Hardwood Company; this being in effect an exchange of stock of the two corporations dollar for dollar. By another resolution the officers were directed to issue and sell to any future subscribers stock up to the full amount authorized by the charter, $100,000, but no stock was sold.</p> <p>The Standard Hardwood Company took charge of the properties about the middle of October, 1916, and paid all bills of the Stave Company, which had been rendered by creditors. Practically all lumber thereafter manufactured was sold to the Yorks. The mill continued to lose money. Brevard in December, 1916, made a trip away to try to find a purchaser for the property, but was unsuccessful, and a few months thereafter the mill ceased operation. The Yorks resigned and transferred their stock to J. B. Coyle, trustee. Coyle was the bookkeeper of the Hardwood Company. On the resolution of J. B. York. as president, February 20, 1917, Brevard was elected to succeed him, and on March 10th Coyle was elected a director. At the same meeting a resolution was passed providing that the company take steps to immediately dispose of the assets and liquidate the business.</p> <p>The Farmer-Wren Company’s Notes.</p> <p>The Yorks claim to have purchased the three last maturing of the Farmer-Wren notes each for 824,212.50, and as to the last two there is no dispute; hut it is contended by the receivers that the first of these three notes, due January 15, 1917, was not purchased by the Yorks, hut was actually paid by ihom, the receivers claiming that Robert York had taken the company’s note lor $25,000 to cover the amount of the Farmer-Wren note, with interest, and had then paid the latter. Thus they claim the Yorks were the holders of the company’s unsecured note, and not the Farmer-Wren mortgage note; in other words, that the Farmer-Wren mortgage note has been extinguished by novation.</p> <p>It appears that in December, 1910. in anticipation of the maturity of the Farmer-Wren mortgage note, Brevard executed the company’s note for $25,-000 to the order of ,T. B. & Robert York, which he delivered to Robert York, who was then at the mill. Brevard testifies that it was his understanding that the Yorks would accept this note for the loan of the necessary money to pay off the mortgage note and that the latter would thus be paid. Robert York denies that there was any agreement that the Yorks would lend the money, but states that, it having been apparent that the Hardwood Company would not he able to pay the note when due, he had told Brevard it might he advisable for Mm to take the company’s note to Memphis with him, to see what could he done relative to financing payment of the mortgage note due the following month, and that he was then acting in his capacity as vice president of the Hardwood Company; that accordingly the note was made out, and he took it to Memphis, and left it with the bookkeeper of J. B. & Robert York, with the following memorandum attached; '‘Hold unless we pay B. & W. note to Farmer-Wren Co. J. B. & R. Y.”</p> <p>The bookkeeper, he states, was instructed not to place the note to the credit of the Hardwood Company until further advised, unless the Yorks borrowed the money in their own name to pay the note. He testifies that he canceled by perforation the Hardwood Company’s signature on the note about the middle of February, 1917. The note, however, was not returned to the company’s office at Ashridge, La., until after the appointment of a receiver. The memorandum attached to the note was an instruction to York’s bookkeeper, and was in effect to hold the note, making no entry in the books, unless York paid the Farmer-Wren note. York’s testimony is that he obtained a few months’ extension of the note, and then bought the note from the Farmter-Wren Company, and in this he is corroborated by Farmer. The note itself is indorsed in blank, and not marked “Paid” or “Canceled.” No entry was made, either in the Hardwood Company’s hooks or the books of J. B. and Robert York, of the $25,000 note. Whatever may have been the original intention of York as to the payment of the Farmer-Wren note, the weight of the evidence sustains his contention that he did not pay it, but purchased it.</p> <p>[11 As a matter of fact, however, even had York paid the note and had it canceled, his position would not have been materially affected, for in that event he would have been subrogated to the rights of the Farmer-Wren Company under article 2101 of the Civil Code, which reads; “Subrogation takes place of right; 1. For the benefit of him who, being himself a creditor, pays another creditor, whose claim is preferable to his by reason of his privileges or mortgages.” See, also, Walmsley r. Theus, 107 La. 416, 31 South. 869; Zeigler v. His Creditors, 49 La. Ann. 145, 21 South. 666.</p> <p>The $100,000 Second Mortgage.</p> <p>[21 That a corporation may borrow money from and grant a mortgage to one or more of its directors, where the interested directors deal absolutely fairly with the corporation and no advantage is taken, is well settled by both the federal and state jurisprudence. While such contracts will ho closely scrutinized by tbe courts, they will be sustained where they are in the interest of the company and are fair and equitable. The doctrine is well and succinctly stated in Thompson’s Commentaries on Corporations, § 4068, quoted and approved in the' case of Villere v. New Orleans Pure Milk Co., 122 La. 717, 48 South. 162: “The strict rule that directors cannot enter into contracts with the corporation does not seem practicable. It would operate to disable those who have already embarked their funds in a corporate enterprise, and given to it their personal attention,\from assisting it in time of difficulty, except at the risk of doing so without security. A corporation might be in a sorry plight, indeed, if one who had already embarked his funds in it, and who, from the fact of his being one of its managers, is best acquainted with its needs and difficulties, should not be able to make a present advance of money to help it out of those difficulties.”</p> <p>In Thompson on Corporations (2d Ed.) vol. 2, par. 1227, it is said: “The American courts, with some exceptions already noted, take perhaps the more practical view that contracts entered into by directors with thenfselves as individuals are not per se void, but are merely voidable at the option of the corporation or of the stockholders, provided the disaffirmance is exercised within a reasonable time, all the circumstances of the case considered.” See large number of authorities cited, state and federal.</p> <p>And again, in paragraph 1256, Thompson says: “The rule granting relief to the corporation and stockholders where a director makes a contract with himself, or where he secures some advantage or profit, is not to be used to the, in jury of the director, where such contract is free from actual fraud. The rule was adopted for the purpose of securing justice, and not to work injustice. In attempting to prevent a wrong, it is not the intention of the law to substitute one wrong for another. Hence, certain limitations have been placed upon the operation of the rule, intended to guard against evil consequences as inequitable as those it was designed to prevent.”</p> <p>In the case of Sanford Tool Co. v. Howe, Brown & Go., 157 Ü. S. 312, 15 Sup. Ot 621, 39 L. Ed. 713, the court upheld a mortgage given by the directors to themselves to secure them for indorsements made and to be made on the company’s paper, holding that, although a corporation at the time of such mortgage might not then be possessed of assets at cash prices sufficient to cover its indebtedness, if it were in fact a going concern and expected to continue business, the mortgage would be upheld.</p> <p>It is contended, however, by counsel for the receivers, that, while a mortgage may be given to a director to secure a loan, it must be first authorized by a vote of the board of directors at which a quorum was present exclusive of interested directors, and a majority of such voted for the resolution. They take the position that in the case at bar, only four of the five directors having been present, including the two Yorks, that the action of the board was absolutely void. This contention leads to the conclusion that, while one member of-the board of directors might come to the corporation’s relief by making it a loan and taking as security a mortgage, the entire board could not join in such a loan, because in that event there would be no disinterested directors whatever, much less a quorum, to authorize the contract.</p> <p>This contention I do not think sound. Whether the loan be made by one or all of the directors, and the mortgage given to one or all of them, it is subject to the sam'e rule. It is not absolutely void, but voidable, and will be closely scrutinized by the court, and if there be any fraud or advantage taken, or if it be not to the interest of the corporation, the courts will not enforce it. In the Sanford Tool Co. Case, just cited, the mortgage was made in favor of all five of the individuals composing the board of directors, who as directors authorized the mortgage to themselves.</p> <p>In the case of Leavenworth County v. Railroad Co., 134 U. S. 688, 10 Sup, Ct. 708, 33 L. Ed. 1064, which was a suit to annul a mortgage, or deed of trust, from the Southwestern Co. to the Rock Island Co., the court said,: “I am unable to see anything in the fact that some of the same men were found to be trustees in this deed and directors in the Rock Island Company, and that directors in the Southwestern Company were also directors in the Rock Island Company, which should block the course of justice, paralyze the power of the court, and deprive the creditor corporation of all remedy for the enforcement of its lien.” The court then proceeded to hold that the corporation and its directors had the right to enter into contracts between themselves, and the question was not: Could they do these things: but have the relations of the parties — trust relations, if, indeed, such existed — been abused to the serious injury of the company?</p> <p>And so in my opinion, in the case at bar, the question is not whether the corporation could enter into the contract with the Yorks, even though it were necessary for them to participate in the directors’ meeting in order to have a quorum, but whether the trust relations of the Yorks to the corporation were abused to the injury of the corporation, or its creditors. It is not disputed that the Stave Company received the $100,000 and more from the Yorks. At the time the mortgage was authorized Brevard testifies .$89,000 of the amount had already been advanced and $11,000 more was put up with which was paid off other creditors. Brevard’s mother, it appears, had a claim for $8,000, which was taken care of by a mortgage on other property. AH other creditors not secured by mortgage were paid the accounts rendered, though there may have been due some of the mercantile creditors small amounts for the current month. Thus there was left only the indebtedness due the Farmer-Wren Land Company, the Yorks, and Mrs. Brevard. This mortgage on the property was granted while the company was a going concern, and over a year and a half prior to the application for the receivership.</p> <p>Clearly, had the $100,000 been loaned by a third party, no objection whatever could have been made to giving- him a mortgage, and, the transaction being free from fraud, or unfair advantage, there is no good reason why these directors, who came to the aid of the corporation, should not he given the benefit of their mortgage. That there was not a quorum of disinterested directors at the meeting authorizing the mortgage was due to the fact of the absence of Mrs. Brevard, wife of the president of the company, who held only one share of stock, which she did not pay for, and which, was placed in her name merely as a matter of convenience to make her eligible as a director. It would, no doubt, have been the better course to have had her present, in which, event it would not have been necessary for the Yorks to have participated in the meeting; but as the contract was not unfair, but, on the contrary, for the benefit of the corporation, enabling it to settle all of its indebtedness on open accounts and continue its business, the mere fact that the Yorks voted for the resolution would not be sufficient cause to annul the mortgage.</p> <p>[3] The Standard Hardwood Company, as I have before stated, was but a reorganization of tbe original Stave Company. Its sole stockholders and directors were the two Yorks and Brevard. The three, both at a stockholders’ meeting and at a directors’ meeting, authorized the assumption of this $100,-000 mortgage as a part of the consideration for the transfer of the Stave Company to the Hardwood Company of the Louisiana lands. Thus the original action of the board of directors of the Stave Company, which was voidable, was ratified by the unanimous vote of all of the directors and the stockholders of the reorganized company. True it is that the majority of the directors of the reorganized corporation were still interested; but they, with Brevard, constituted the sole directors and the sole stockholders, and certainly by their unanimous vote the former action of the directors might be ratified.</p> <p>In Thompson on Corporations, vol. 2, par. 1257, it is said: “The contracts made by directors with themselves, are in some cases said to be void; but this word is used in the sense of voidable. The correct principle is that, unless such transactions and contracts fall within the prohibition of the statute, or of a rule of the common law, it is voidable either at the election of the corporation acting through its directors, or at the election of stockholders.” See Hoyle v. Plattsburg it. It. Co., 51 N. Y. 314, 13 Am. Dec. 595; Buell v. Buckingham. 16 Iowa, 284, 85 Am. Dec. 516; Chouteau v. Allen, 70 Mo. 290; Nye v. Storer, 168 Mass. 53, 46 N. E. 402.</p> <p>Acts of a minority of the directors, while void, may be ratified by the direct and express action of a duly assembled quorum. In re Portuguese Consolidated: Mining Co., 45 Oh. Dlv. 16; AsMe.y Wire Co. v. Ill. Steel Co., 164 Ill. 149, 45 N. E. 410, 56 Am. St. Kep. 187. The evidence fails to disclose any unfair advantage taken by the Yorks of their position in the company. They continued to advance money to the corporation until it owed them about $89,000 on open account, and they then took the mortgage to cover this and about $11,000 more, which they advanced to pay off the other creditors. Had the corporation then gone out of business, no one would have lost anything. The mortgage, then, at the time it was given, was not prejudicial either to the company or to its creditors, but the company continued in business, and thereafter lost more money. It m'ay be that the Yorks, after taking the mortgage on all of the company’s business, about equal, with the prior mortgage, to its full value, should not have permitted the company to continue business at the risk of future creditors, when they themselves had been made secure. But that is a matter for the Legislature and not for the courts. Better business judgment might have prompted a liquidation of the company’s affairs at the time of the mortgage; but the evidence does not disclose that the corporation was in such a straitened financial condition as would make it evident to its directors that its continued operation necessarily meant, further loss.</p> <p>Eor the reasons stated, I am of the opinion that the three first mortgage notes, of $24,212.50 each, and the five second mortgage notes, for $20,000 each, held by J. B. and Robert York, are valid obligations of the corporation, and that the property mortgaged should be sold by special master to pay the debts of the company, and by preference such mortgage indebtedness; plaintiffs at such sale to have the right, in event they bid in the property, to pay 90 per cent, of their bid in mortgage notes held by them, the remainder to be paid in cash. Fees of attorneys will be fixed later.</p> <p>A decree in accordance with the views herein expressed will be prepared and entered. -</p>

<p>1. Criminal law <S=»24 — Necessary intent implied from: act.</p> <p>Where an act, to be criminal, must be knowingly and willfully done, not only a knowledge of the act is implied, but a determination, with a bad intent, to do it.</p> <p>2. Criminal law <§s=>24 — Intent presumed from natural result of act is rebuttable.</p> <p>The presumption of wrongful intent of a defendant, based upon the natural result of his words or acts, is not conclusive, hut rebuttable, and this rebutting evidence may take the form of testimony by defendant that he intended no such results.</p> <p>S. CBIVJXAI, TAW ©=3772(5) — Instruction as to intent erbonjsotts.</p> <p>An instruction in a criminal caso, wliieli stated without qualification that a man could not say that he did not intend to do a certain thing, when such thing was the natural result of his act, held erroneous where a specific intent was essential to the crime charged, and defendant testified that he did not have such intent</p> <p>Garland, Circuit Judge, dissenting.</p>

<p>1. Indemnity <@=>8 — Contract to indemnify bank against loss from un-collectible ASSETS COVERED FORGED OR PAID NOTES.</p> <p>A contract executed by directors and stockholders of a national bank, on a statement by the examiner that he regarded notes receivable shown on its books as of doubtful value and intended to report it insolvent, by Which they bound themselves to indemnify the bank “against any loss whatever which said bank may hereafter sustain by reason of its inability to realize upon or collect in 'the full amount or value of the assets of said bank as shown by its books of account as of this date.” held to cover notes so shown on the books, which were forged or which had been paid.</p> <p>2. Indemnity <®=o3 — Consideration for contract to indemnify bank.</p> <p>Contract by directors and stockholders of a national bank to indemnify it against loss from uncollectible assets, made to prevent closing of the bank by the Comptroller for insolvency, held based on sufficient consideration. •</p> <p>3. Indemnity <@=>3 — Delivery to Comptroller of contract to indemnify BANK SUFFICIENT.</p> <p>Delivery to the Comptroller of a contract by directors and stockholders to indemnify a national bank against loss fromi uncollectible assets, made < to prevent closing of the bank for insolvency, held sufficient.</p>

Foster, Judge. Suit in admiralty by Karl Sandren and others against the steamship Rathlin Head; the Ulster Steamship Company, Limited, claimant. Decree for claimant, and libelants appeal.

Suit by Raymond H. Ryan against the James Coal & Ice Company, the First National Bank of Evanston, Wyo., the Bank of Waynesboro, T. D. Ryan, and others. From that portion of a decree adjudging the Bank of Waynesboro and T. D. Ryan entitled to certain funds in the hands of the receiver, the First National Bank of Evanston, Wyo., appeals.

<p>Appeals from the District Court of the United States for the District of Utah; Tillman D. Johnson, Judge.</p> <p>Suit by Raymond H. Ryan against the James Coal & Ice Company, Harry L. Sullivan, as administrator, the Bank of Waynesboro, Charles S. Murphy and others. From those portions of a decree adjudging certain funds in the hands of a receiver should be paid to the Bank of Waynesboro and T. D. Ryan, Charles S. Murphy and Harry L. Sullivan, as administrator, appeal.</p>

* In Error to the District Court of the United States for the Eastern Division of the Northern District of Illinois. Action at law by the Edward Hines Dumber Company against the American Car & Foundry Company. Judgment for defendant, and plaintiff brings error.

<p>In Error to the District Court of the United States for the District of New Mexico; Colin Neblett, Judge.</p> <p>Criminal prosecution by the United States against C. C. Montoya and Anastacio Sereseres. Judgment of conviction, and defendants bring error.</p>

<p>1. War <§=>4 — Evidence of disorderly character of house admissible.</p> <p>In a prosecution Cor keeping a house of ill fame within five miles of a military post, in violation of Act May 18, 1917, § 13 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 2019b), and order of Secretary of War pursuant thereto, evidence of soliciting by a woman on the premises, who lived there held- admissible.</p> <p>2. War <§=>4 — Evidence of disorderly character of xioiise admissible.</p> <p>In a prosecution for keeping a house of ill fame within five miles of a military post, testimony of an employé of the board of health that women found in the place wore infected with venereal diseases held admissible.</p> <p>8. Criminal law <@=^1032(3) — On.)motion to indictment necessary to secure REVIEW.</p> <p>After going to trial without objection, a defendant cannot raise the objection in (he appellate court that the indictment was not signed by the district attorney.</p>

<p>1. Habeas corpus &wkey;>113 (514) — Waiver bt immigrant op right to board op SPECIAL INQUIRY BY FAILURE TO CLAIM IT.</p> <p>An alien denied admission by the United States cannot raise the question of his right- to a board of special inquiry on appeal from a judgment in habeas corpus proceedings, where the right was not claimed before the immigration officers nor in the court below.</p> <p>2. Habeas corpus <&wkey;92(l) — Court need not weigh evidence before immigration OFFICIALS.</p> <p>In habeas corpus proceedings by an excluded alien, the court is not required to weigh the evidence before the immigration officials, further than to determine whether there was substantial evidence to sustain their decision.</p>

<p>In Error to the District Court of the United States for the Northern Division of the Northern District of California; William C. Van Fleet, Judge.</p> <p>Criminal prosecution by the United States against John C. Guggolz. Judgment of conviction, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the District of Montana; George M. Bourquin, Judge.</p> <p>Action at law by the A. U. Jordan Dumber Company against the Northern Idaho & Montana’ Power Company. Judgment for plaintiff, and defendant brings error.</p>

<p>MASTEB AND SERVANT <&wkey;302(l) — MASTER NOT LIABLE FOB ACTS OF SERVANT NOT IN COURSE OF DUTY.</p> <p>An employer Held not chargeable with liability for acts or omissions of an employe sent to deliver a can of oil at a building in assisting an employe of the building at his request to operate an elevator on which the can was to be placed for carriage; such service having no relation to the duties of his employment.</p>

<p>In Error to the District Court of the United States for the Southern District of Florida; Rhydon M. Call, Judge.</p> <p>Action at law by the United States against the Long Branch Distilling Company and others. From the judgment, the United States brings error.</p>

<p>Patents &wkey;>328 — Validity a±\td ineeingeiient — Etjecteic lamp socket.</p> <p>The Weber patent, No. 713,200, for an incandescent electric lamp socket, claims 2 and 3, held void for lack of patentable novelty. Claims 1 and 4, as limited by their language, tlio proceedings in the Patent Office, and the prior art, held not infringed.</p>

<p>1. Carriers <&wkey;37 — Local carrier not liable under Twenty-Eight Hour Law for transporting cattle to yards for unloading for water, food, AND REST.</p> <p>The receipt of live stock Dy a railroad company, whose line connected with one over which the stoeik was being shipped, but formed no part of the through route, and the transporting of such stock with due diligence to a reasonably convenient stockyard for unloading for feed, water, and rest, held not a violation of the Twenty-Eight Hour Law (Comp. St. § 8651), although the stock was confined longer than the time limited.</p> <p>2. Carriers <&wkey;37 — Liability of local carrier under Twenty-Eight Hour Law.</p> <p>Where an interstate carrier of live stock has contracted with the owner of stockyards, near, but not on, its line, to unload, feed, water, and rest the stock in transit, a connecting carrier, which transports the stock from such through line to the yards is not responsible for delay in unloading by the stockyards company, which in such case is agent of the through carrier.</p>

<p>Bankruptcy <&wkey;407(5) — Borrowing money by mortgaging property not OWNED NOT OBTAINING MONEY ON FALSE WRITTEN STATEMENT, BARRING DISCHARGE.</p> <p>The giving by a bankrupt of a mortgage on property which he did not own, to secure a note for money borrowed, held not an obtaining of the money upon a materially false statement in writing, which bars discharge, under Bankruptcy Act, § 14b (3), Comp. St. § 9598; the debt being one which, under section 17a(2), Comp. St. § 9001, is not released by a discharge.</p>

In Admiralty. Suit for collision by Thomas F. Timmins and others, doing business as the Croton Water Company, owner of the tug Roach, against the steam lighter M. J. Rudolph.

<p>Salvage <5=318 — Allowed fob towing- vessel drifting in post.</p> <p>Two tugs, winch, in response to distress signals rendered service in moving a partially loaded steamer, which had dragged her anchor, and drifted over the anchor chain of another vessel, and was in danger of fouling her propeller, held entitled to salvage compensation.</p>

<p>In Admiralty. Suit by Comyn Mackall & Co. against the motor schooner Wergeland; A. O. Anderson & Co., claimants.</p>

In Equity. Suit by the United States against the Raine-Andrews Lumber Company. On final hearing of application for injunction.

<p>1. CORPORATIONS <§=67-DECREASING OUTSTANDING STOCK VALID WHEN NOT INVOLVING AMENDMENT OF CHARTER.</p> <p>Tlie provisions of Delaware Corporation Law, § 26, prescribing the procedure for amendmlent of the charter of a corporation “by increasing or decreasing its authorized capital stock,” or changing the preference given to any one or more classes of preferred stock, held, not applicable to the action of stockholders in decreasing the amount of common and preferred stock outstanding, within the charter limits, and which involved no amendment of the charter.</p> <p>2. Corporations <®=67 — ’Method of reducing capital stock stated.</p> <p>Delaware Corporation Law, § 28, providing that any corporation organized thereunder may by two-thirds vote of stockholders reduce its stock by retiring or reducing any class of stock, by purchase or requiring holders to accept a less number of shares in exchange, held to prescribe such methods of reduction in the alternative, limited by the nature of the stock to be reduced, and not to permit the corporation to adopt either method, regardless of the reason or justice of the action.</p> <p>3. Corporations <§=>67 — -Method of reducing preferred stock controlled BY PROVISIONS OF CERTIFICATE.</p> <p>Under Delaware Corporation Law, § 28, providing that any corporation organized thereunder may reduce any class of its stock by vote of two-thirds of its stockholders, by requiring holders to accept a less number or shares in exchange, or by retirement of a stated number of sitares, a solvent corporation having both common and preferred stock, the former the greater in amount, held not authorized by vote of two-thirds of all stockholders, voting together, to require preferred stockholders to surrender their shares and accept a less number, when their certificates provided for their retirement by purchase at a stated premium.</p> <p>4. Corporations <§=156 — Earnings applied to arrearage of cumulative, DIVIDENDS ONLY AFTER CURRENT DIVIDEND IS PAID.</p> <p>Where dividends were in arrears on cumulative preferred stock, net dividends earned in a current period held equitably applicable first to payment of the dividend for that period, leaving arrearages payable only from, any surplus.</p>

<p>Hastes and servant <§=88 (1) — Securing employment by fraud defeats recovery FOE INJURY. ,</p> <p>In an action by a brakeman for personal injury, a plea alleging that plaintiff, being over the age prescribed, and also unable to pass the physical examination required by defendant’s rules, procured another, who was competent to make application and take the examination, and by means of the certificate so obtained fraudulently secured the position, held good on motion to strike.</p>

<p>In Equity. Suit by J. Hartley Manners against the Famous Players-Lasky Corporation.</p>

In Equity. Suit by George B. Heath against the Port of Para, the National Trust Company, Limited, as trustee, and the Empire Trust Company, as trustee. Held: and at such meeting various resolutions will be submitted, which, to be effectively passed, will require certain majorities of said holders of bonds.

<p>In Admiralty. Suit by tbe Gans Steamship. Line against the steamship P'ranlcmere and the Palace Shipping Company, Limited, as claimant.</p>

<p>At Law. Action by Leslie N. Simson and George W. Hunter, trustees, against Ernest C. Klipstein. On motion to dismiss for want of jurisdiction.</p>

<p>In Bankruptcy. In the matter of Patrick Weldon, bankrupt. On application for leave to file petition for discharge.</p>

<p>Criminal prosecution by the United States against Hulet M. Wells, Sam Sadler, R. E. Rice, and Aaron Eoslerman. On demurrer to indictment.</p>

<p>Game —Migratory Bird Treaty Act not retroactive.</p> <p>Migratory Bird Treaty Act July 3, 1918, § 2 (Oomp. St Ann. Supp. 1919, § 8837b), providing that it shall be unlawful to possess, offer for sale, or sell any migratory bird included in the terms of the treaty between the United States and Great Britain of August 16, 1916, “or any part, nest, or egg of any such bird,” held not to apply to plumage of such birds lawfully acquired before its enactment.</p>

<p>At Raw. Action by the United States, on the relation of John M. Lambert and others, against Tlenry R. Pedarre.</p>

<p>Admiralty <@=>1 — State cannot create maritime cause or action sy Workmen’s Compensation Act providing for assignment of rights of injured EMPI.0YÉ.</p> <p>An assignment under Workmen’s Compensation Act N. Y. (Consol. Laws, c. 67) § 29, oí a claim against a tMrd person for death or injury of a workman on payment of compensation under the act by an insurer, held not to confer on the assignee a right of action under the maritime law.</p>

<p>In Equity. Suit by C. M. Preston, trustee, against C. F. Durham, D. M. Elrod, and the Fidelity Mutual Rife Insurance Company. On motion to dismiss.</p>

<p>Admiralty <§=>32 — Suitor has right to elect district of suit where jurisdiction IS CONCURRENT.</p> <p>As between districts having concurrent jurisdiction, it is not an abuse of process for a suitor in admiralty to select the one in which he can obtain security, and whether the districts are distant from each other or adjoining is immaterial.</p>

<p>1. Seamen —Right of injured seamen to care and maintenance.</p> <p>A steamship in the transatlantic merchant service during the war did not cease to be a merchantman, nor its crew merchant seamen, with the right to maintenance and care in case of injury, because the vessel carried an armament of two guns, manned by a naval crew, for protection against submarines.</p> <p>2. 8eamen (®=5ll — Injured seaman’s right to care and maintenance.</p> <p>Decree affirmed, holding that the fact that a seaman received fifty per cent, additional wages as a “war risk bonus” did not deprive him of the right to maintenance and care for a reasonable time after termination of the voyage, while bang treated for an Injury received during a submarine attack on the vessel.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in admiralty by Drew B. Saunders against the Buckenbach Company, Incorporated. Decree for libelant (262 Fed. 845), and respondent appeals.</p>

<p>1. Poisoiís <&wkey;4 — Knowingly selling naecotios on prescription issued to GRATIFY APPETITE VIOLATION OE LAW WI1T0H PHYSICIAN AIDS AND ABETS.</p> <p>Notwithstanding Harrison Narcotic Act, § 2 (Comp. St. § G287h), exception (b), excepting sales of the prohibited drugs on the written prescription of a registered physician, a sale by a druggist, who knows that the prescription was issued to gratify the holder’s appetite, and not to cure disease or alleviate suffering, violates the law, and the physician issuing the prescription, knowing it is to be‘ filled by a druggist having such knowledge, aids and abets the violation.</p> <p>2. Poisons <&wkey;2 — Negligent failure to inquire not sufficient to render DRUGGIST GUILTY FOR FILLING PRESCRIPTION WRONGFULLY ISSUED.</p> <p>Knowledge by a druggist that a prescription under the Harrison Narcotic Daw was issued to gratify 1he holder’s appetite, and not to cure disease or alleviate suffering, is essential to guilt, and negligent failure to inquire will not take the place of knowledge.</p> <p>3. Criminal law &wkey;>1059(2) — Exceptions to charge held not to raise POINT RELIED ON.</p> <p>On a trial lor aiding arid abetting violation of the Harrison Narcotic Daw, exceptions 1» the charge on the ground that there was no evidence of the facts hypothesized by the court in its instruction respecting knowledge, and that knowledge was immaterial when the sale was made on the prescription of a registered physician, did not raise the point, presented on appeal, that the charge authorized conviction, though the druggist had no actual knowledge, if he negligently failed to make inquiry.</p> <p>4. Criminal law <&wkey;llll(l) — Record is controlling as to request for instruction AND FAILURE TO EXCEPT TO MODIFIED INSTRUCTION.</p> <p>Where the record shows that a charge as modified was given at defendant’s request, and that no exception was reserved to the giving of the modified charge, the court is controlled thereby.</p> <p>5. Criminal law <&wkey;1172(6) — Instruction allowing conviction without PROOF OF ACTUAL KNOWLEDGE WAS HARMLESS, WHERE ACTUAL KNOWLEDGE CONCLUSIVELY APPEARED.</p> <p>On a trial for abetting a violation of the Harrison Narcotic Haw by a druggist, an instruction erroneously authorizing a conviction, though the druggist had no actual knowledge that a prescription was wrongfully issued, was not ground for reversal, where reasonable men could have drawn but the one inference that the druggist, had such actual knowledge.</p> <p>6. Criminal law <&wkey;1172(l) — Conviction sustained where error in charge WAS HARMLESS AS TO CERTAIN COUNTS AND SENTENCE JUSTIFIED ON SUCH COUNTS.</p> <p>Where defendant was charged with abetting violations of the Harrison Narcotic Law by different druggists, and an error in the charge was harmless as to certain of the counts, and the sentence would have been sustained by a single transaction, the judgment will not be reversed, though with respect to another count the error was not harmless.</p>

<p>Appeal from the District Court of the United States for the Western'Division of the Northern District of Ohio; John M. Killits, Judge.</p> <p>Proceeding by the Marine National Bank and others to have John Swigart adjudicated a bankrupt. From an order denying an adjudication, petitioners appeal.</p>

Appeals from the District Court of the United States for the Western District of Missouri; Joseph W. Woodrough, Judge. Separate suits by the Farmers’ Life Insurance Company against W. F. Shearer and against John Wible. Decrees for complainant, and defendants appeal.'

In the matter of Isaac Rosenfeld, bankrupt. Gross, Engel & Co. filed objections and specifications in opposition to the application for discharge. From an order granting the discharge, they appeal.

Appeals from the District Court of the United States for the District of Rhode Island; Arthur R. Brown, Judge, Suit in equity by Ammon & Person,' a corporation, against the Narragansett Dairy Company, Limited. From the decree, both parties appeal.

<p>In Error to the District Court of the United States for the District of Minnesota; Wilbur F. Booth, Judge.</p> <p>John C. Seebach was convicted of violating the Espionage Act of June IS, 1917, and he brings error.</p>

C. Westenhaver, Judge. Action by John E. Casey and another,' doing business as the John F. Casey Company against the United Steel Company. Judgment for plaintiffs, and defendant brings error.

<p>In Error to the District Court of the United States for the Western District of Tennessee; John E. McCall, Judge.</p> <p>Action by Mary Dockery Gooch, by next friend, W. D. Gooch, against G. G. Buford and another, doing business as the Presbyterian Home Hospital. Judgment on a directed verdict for defendants, and plaintiff brings error.</p>

<p>Adverse possession &wkey;>48 — Actual possession not interrupted by recording DEED BY ADVERSE CLAIMANT.</p> <p>dv. Code Canal Zone, art. 2520, providing that “the acquisitive prescription of real property * * * does not obtain against a recorded title, except by virtue of another recorded title,’’ does not give the mere recording oí a deed by one claimant the effect of interrupting or rendering ineffective the actual possession of an adverse claimant, who holds under a previously recorded title.</p>

Appeals from the District Court of the United States for the Northern Division of the Southern District of California; Benjamin F. Bledsoe, Judge. Suits in equity by Ellen Justina Peterson against Gladys Ginaca and Louis A. Ginaca, executrix and executor of the will of Henry G. Ginaca, deceased, and No.' 9 Gold Mining Company. Decrees for complainant, and defendants appeal.

<p>Appeal from the District Court of the United States for the Eastern District of Missouri; Walter H. Sanborn, Judge.</p> <p>Suit by the Equitable Trust Company of New York against the Wabash Railroad Company and James B. Forgan. From a deficiency decree, Rome Lane appeals.</p>

<p>Appeal from the District Court of the United States for the Northern Division of the Western District of Washington; Jeremiah Neterer, Judge.</p> <p>Suit by George E. Benson against John K. Bulger, Supervising Inspector, Steamboat Inspection Service, Department of Commerce of the United States, and others, as Local Inspectors. Decree for complainant, and defendants appeal.</p> <p>Tlie appellee, Benson, a master and pilot of steam, vessels, appeared with counsel before the appellants, Beering and Craft, local inspectors of the United States Steamboat Inspection Service at Seattle, to answer the following letter:</p> <p>“Sir: You, as a licensed officer of steam vessels, are hereby charged with inattention to your duties and violation of section No. 4442, R. S. U. S., in connection with the navigation of the steamer Tolo, of which you were master and pilot, and in charge of the navigation of said vessel when she collided with the steamer Magic on October 5, 1917, disregarding the provisions of article 16 of the Pilot Buies for Certain Inland Waters of the Atlantic and Pacific Coasts and of the Coast of the Gulf of Mexico, as follows: ‘Every vessel shall, in a fog, mist, falling snow, or heavy rainstorm, go at a moderate speed, having careful regard to the existing circumstances and conditions. * * * A steam vessel hearing, apparently forwárd of her beam, the fog signal of a vessel, the position of which is not ascertained, shall, so far as the circumstances of the case admit, stop her engines, and then navigate with caution until danger of collision is over.’ ” ■ •</p> <p>Benson pleaded “not guilty,” and after a hearing the local inspectors found that the charges preferred were sustained and ordered:</p> <p>“Pursuant to the authority of this board, by section 4450, B. S. U. S., the license of George E. Benson, master and pilot, * * * is hereby suspended for a period of six months from date of surrender of his license to this office, which surrender Mr. Benson has been directed to make at once.”</p> <p>Thereafter the Treasury Department, through the Collector of Customs, notified the appellee that a fine of $50 was imposed upon him pursuant to article 31 of the Pilot Buies. Benson appealed from the order of the local inspectors to the supervising inspector, but the latter refused to entertain the appeal unless Benson surrendered his license pending the appeal. Benson then prayed for injunction against the enforcement of the order of the local inspectors, and against the imposition of any penalty other than a fine of $50 for violation of article 16 of the Pilot Buies, and commanding appellants to recognize the appellee as a duly licensed master and pilot and to reinstate him. in the full enjoyment of his license. After a hearing on the merits the District Court denied a motion to dismiss the bill, and made a decree nullifying the order of the local inspéetors suspending' the license issued to Benson, and enjoined the supervising inspector and the local inspectors from imposing any fine or penalty upon Benson, other than a $50 fine for violation of article 16 of the Pilot Bules. The inspectors appealed.</p> <p>Section 4442 of the Bevised Statutes (Comp. St. § 8204), Regulation of Steam Vessels, authorizes the inspectors to grant a license to pilot a vessel and provides: “But such license shall be suspended or revoked upon satisfactory evidence of the negligence, unskillfulness, inattention to the duties of his station, or intemperance, or the willful violation of any provision of this title.” Section 4450 (section 8212) after providing for the investigation of the conduct of an officer acting under the authority of a license, authorizes examination of an alleged delinquent and provides that, if the board “shall be satisfied that such licensed officer is incompetent, or has been guilty of misbehavior, negligence, or unskillfulness, or has endangered life, or willfully violated any provision of this title, they shall immediately suspend or revoke hia license.”</p>

<p>Taxation <&wkey;611(4) — Suit to enjoin collection or taxes not maintainable FOE WANT OF PEOPEE PARTIES.</p> <p>A railroad company, whose -franchise and property were exempted from taxation, which contracted with another company to operate its road and pay for new extensions and equipment, held not entitled to maintain a suit to enjoin collection of taxes levied against property so acquired, on the ground that it is the owner and the property within its tax exemption, to which suit the operating cornpany is not a party.</p>

<p>In Error to the District Court of the United States for the Southern District of Florida; Rhydon M. Call, Judge.</p> <p>Action by Rouis Brill against Mary B. Jewett and another as executrices of Florence E. Inman, deceased. Judgment for defendants on demurrer, and plaintiff brings error.</p>

Suit in equity by the Calumet Coal & Supply Company against the City of Hammond, Ind., and members of its Board of Public Works. From an order granting preliminary injunction, defendants appeal.

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

Appeals from the District Court of the United States for the Eastern District of New York. Separate libels in admiralty by Verdón & Co. against the steam lighter Hattie Thomas, her engines, etc., and against the steam lighter Etta McElroy, her engines, etc.; the Rogers Russell Marine Transportation Company being the claimant in each case. Decree for libelant in each case, and claimant appeals.

<p>Appeal from the District Court of the United States for the District -of Massachusetts; Clarence Hale, Judge.</p> <p>Suit in admiralty by Thomas J. Howard against 9,889 Bags of Malt; George T. Renke, claimant. Decree for libelant, and claimant appeals.</p>

<p>In Error to the District Court of the United States for the District of New Mexico.</p> <p>Criminal prosecution by the United States against Clara Robertson. Judgment of conviction, and defendant brings error.</p>

Action at law by William F. Iianrahan against the Pacific Transport Company, limited. Judgment for defendant, and plaintiff brings error. The Pacific Company is the owner of a steamship, and iianrahan was a member of her crew. The vessel being in port, and fast to a pier, Iianrahan returned at night from shore leave, and while walking on the Upper deck, and toward, his quarters, fell overboard, suffering personal injuries, for which he brought this common-law action.

Suit in admiralty by Charles E. Michael and another, copartners as Charles E. Michael & Sons, against the steamship Esrom; Actiesels-kabet Dampkibet Island, claimant. Decree for libelants and claimant appeals.

Petition to Revise Order of the District Court of the United States for the Southern District of New York. In the matter of Pottier & Stymus Company, bankrupt. On petition of Charles W. Whittlesey to revise order of District Court. At the date of filing petition one Whittlesey was a creditor of the bankrupt in $718.48, and the bankrupt had possession of divers articles of furniture intrusted to it by Whittlesey for repair and improvement.

<p>In jictment and information t&wkey;88 — Sufficient averment op intent.</p> <p>An indictment charging that an act was done knowingly, willfully, unlawfully, and feloniously sufficiently charges criminal intent.</p>

<p>Bankruptcy <&wkey;461 — Allowance of appeal by bankrupt in forma pau-peris.</p> <p>heave granted to a bankrupt to prosecute an appeal in forma pauperis from an order adjudging him in contempt for failure to comply with an order requiring him to pay over money to his trustee.</p>

Hollister, Judge. Suit by the Concrete Appliances Company and another against Dietrich Meinken and others. From a decree for defendants, plaintiffs appeal. Suit upon patents numbered 948,719, issued February 8, 1910, to L. Callahan, and 948,746, issued February 8, 1910, to A. L. Smith.

<p>Appeal from the District Court of the United States for the District of Rhode Island; Arthur L,. Brown, Judge.</p> <p>Suit by Scott & Williams, Incorporated, against the Hemphill Manufacturing Company. From a decree dismissing the bill (247 Fed. 540), plaintiff appeals.</p>

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Suit by the De Vry Corporation against the Acme Motion Picture Projector Company. Decree for defendant, and complainant appeals.</p>

<p>Patents <&wkey;328 — Eor electric hand lamp void for lack of invention.</p> <p>The Burgess patent, No. 1,084,926, for an electric hand lamp, claim 4, held void for lack of invention, in view of the prior art.</p>

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Suit in equity by Webb Jay and the Stewart-Warner Speedometer Corporation against Frederick Weinberg and the Auto Parts Company. Decree for defendants, and complainants appeal.</p>

<p>In Equity. Suit by William H. Dupre against Howard P. Denison and another. On motion to continue a temporary injunction.</p> <p>Motion to continue an injunction restraining the defendants from disposing of rights under or granting licenses to use a certain patent originally granted to William H. Dupre, letters patent No. 927,337, dated July 6, 1909, for “lubricating means.”</p>

<p>At Daw. Action by the Lockport Glass Company against the H. D. Dixon Company. On motion to remand to state court.</p>

<p>1. Courts <@=>280 — District Court must search record for jurisdictional FACTS. »</p> <p>United States District Court, being a court of limited jurisdiction, must search the record in each' case to ascertain whether the jurisdictional facts exist.</p> <p>2. Courts <§=>322(5) — Amendment to allege diversity of citizenship is allowed as of course at ant stage.</p> <p>Under the express provisions of Judicial Code, § 274c (Comp. St. § 1251c), an amendment to allege the' diversity of citizenship necessary to give the court jurisdiction may be allowed as of course at any stage of the proceedings, if such diversity in fact exists.</p> <p>8. Courts <§=>329 — Bill to enjoin election for annexation to village HELD NOT TO SHOW JURISDICTIONAL AMOUNT IN CONTROVERSY BY INCREASE OF TAXATION.</p> <p>A bill to enjoin an election to annex territory to a village, which alleged the ownership by complainant of land within the territory affected, but did not allege that the amount of taxation would be thereby increased, does not establish the jurisdictional amount in controversy, though it does allege that the assessed valuation of plaintiff’s land exceeded that amount.</p> <p>'4. Courts <©=>329 — Bill to enjoin election for annexation to village as HELD NOT TO SHOW JURISDICTIONAL AMOUNT IN CONTROVERSY.</p> <p>A bill to enjoin an election to annex territory containing land of complainant to a village, because such annexation would infringe plaintiff’s right to have his taxes assessed and levied by the township, instead of the village, authorities, but not showing the value of such ngnt, does not establish the jurisdictional amount in controversy.</p> <p>6i Courts <©=>262(2) — Existence of remedy at law enforceable only in STATE COURT DOES NOT DENY EQUITABLE POWER OF FEDERAL COURT.</p> <p>The fact that plaintiff, who by reason of diversity of citizenship is entitled to sue in the federal court, has a plain, speedy, and adequate remedy at law enforceable only in the state courts, does not deprive it of the right to sue in equity in the federal court.</p> <p>6. Courts <©=>262(2) — Doubtful remedy at law does not negative jurisdiction.</p> <p>The fact that plaintiff has a remedy at law by quo warranto does not deprive him of right to sue in equity, where it is doubtful whether the state quo warranto proceedings can be enforced in the federal court.</p> <p>7. Equity <@=>17 — Protection of property right extends to every right of a pecuniary nature.</p> <p>The jurisdiction of equity, unless enlarged by express statute, is limited to protection of rights of property, but such rights of property include any civil right of a pecuniary nature.</p> <p>8. Equity <©=>15 — Bight to be governed and taxed by township rather THAN VILLAGE IS “POLITICAL RIGHT” NOT ENFORCEABLE IN EQUITY.</p> <p>The right of an owner of property to continue to have his land assessed and taxes levied thereon, and the money spent by township authorities, instead of by village authorities, is a political, not a property, right, which cannot be enforced by equity; political rights consisting in the power to participate directly or indirectly in the management of the government.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Political Bight.]</p> <p>9. Injunction <@=>80 — Will not issue against holding of an election.</p> <p>Though, under Laws Minn. 1909, c. 113, as construed by the state Supreme Court, the question whether property in territory sought to be annexed to a village is such as may properly t)e subjected to village government is open to inquiry in quo warranto proceedings, equity cannot pass on that question, which is the question to he determined by the electors, in a suit to restrain the holding ot the election, and will not enjoin an election on that question.</p> <p>10. Municipal corbokations <@=j>33 (9) — State court’s eight to review election ANNEXING TERRITORY BY QUO WARRANTO DOES NOT MAKE RIGHT 01' PARTIES A PROPERTY RIGHT.</p> <p>Laws Minn. 1900, c. 113, giving the state courts power to review by quo warranto the validity of an election for the annexation of territory to a village, does not change the political right of property owners in that territory to remain under township government into a property right, which may he enforced in equity.</p>

In Admiralty. Suit for collision by the Border Line Transportation Company, owner of the motor vessel Wakena, against the Canadian Pacific Railway Company, owner of the tug Nitinat.

<p>1. Powers <&wkey;36(2) — Law governing exercise of power op appointment.</p> <p>Under the law of Pennsylvania the question of the effective exercise of a power of appointment is determined by the domicile of the donor of the power, not of the donee.</p> <p>2. Winns <&wkey;6S2(2) — Interest or beneficiary under spendthrift trust.</p> <p>Where property has been bequeathed or devised to a trustee on a spendthrift trust, the beneficiary has nothing until and except as he receives, and all of the property until actually received by him remains the estate of the first testator, although the beneficiary may be the donee of a power of appointment, and may exercise it.</p> <p>3. Winns &wkey;>fi92, 693(1) — Exercise of power of appointment under spendthrift trust.</p> <p>Where the beneficiary of a spendthrift trust by his will exercises a power of appointment of which he is donee, under the law of Pennsylvania his appointee takes, not under his will but under the will of the donor.</p> <p>4. Internad revenue <&wkey;8 — Trust estate not subject to inheritance tax.-</p> <p>. The principal of a spendthrift trust fund, bequeathed by will by the beneficiary of the trust under a power of appointment given him, although Included with his other estate, and thereby made subject to general administration by his executor and to his debts, held under the law of Pennsylvania not subject to inheritance tax as part of his estate, under Act Sept. 8, 1910, § 202 (Comp. St. § 6336% c).</p>

<p>At Raw. Action by the United. States against .Wesley L. Sischo.</p>

<p>In Error to the District Court of the United. States for the District of Maryland at Baltimore.</p>

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

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

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

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

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

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

<p>In Error to the District Court of the United States for the Western District of Tennessee; John E. McCall, Jndge.</p>

<p>In Error to the District Court of the United States for the District of Maryland at Baltimore.</p>

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

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

<p>In Error to the District Court of the United States for Ihe Southern District of Georgia; Beverly D. Evans, Judge. J. H. Foster was convicted of an offense, and he brings error.</p>

<p>Appeal from the District Court of the United States fox' the Western District of Kentucky; Walter Evans, Judge.</p>

<p>Appeal from the District Court of the United States for the Western District of Kentucky; Walter Evans, Judge.</p>

<p>Appeal from the District-Court of the United States for the Eastern District of North Carolina, at Washington; Henry G. Connor, Judge. Suit in equity by Emil Guenther against Dennis-Simmons Lumber Company and others.</p>

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

<p>Appeal from the District Court of the United States for the Southern District of New York. Suit in admiralty by Michael McCole against the lighter Howell; the Chelsea Lighterage Company, Incorporated, claimant.</p>

<p>Appeal from the District Court of the United States for the Northern District of Ohio; D. C. Westenhaver, Judge.</p>

<p>In Error to the District Court of the United States for the Western District of Tennessee; John E. McCall, Judge.</p>

<p>In Error to the District Court of the United States for the Western District of Kentucky; Walter Evans, Judge.</p>

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

<p>Petition to Revise an Order of the District Court of the United States for the Southern Division of the Eastern District of Tennessee; Edward T. Sanford, Judge.</p>

<p>In Error to the District Court of the United States for the Northern District of Ohio; D. C. Westenhaver, Judge.</p>

<p>In Error to the District Court of the United States for the Eastern District of Michigan; Arthur J. Tuttle, Judge.</p>

<p>In Error to the District Court of the United States for the Western District of Tennessee; John E. McCall, Judge.</p>

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

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

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

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

<p>Petition to Revise Order of the District Court of the United States for the District of Minnesota.</p>

<p>Petition to Revise Order of the District Court of the United States for the District of Minnesota.</p>

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

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

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

<p>In Error to the District Court of the United States for the Southern District of Georgia; Wm. Wallace Lambdin, Judge. Criminal prosecution by the United States against Early Webb and others. Judgment of conviction, and defendants bring error.</p>

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

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

<p>Appeal from Decision of Commissioner of Patents. Interference proceedings in the Patent Office between John P. Scannell and John P. Bethke. From a decision for the first-named party, Bethke appeals.</p>