Volume 266 — Federal Reporter

Orr, Judge. Separate interventions by the Pennsylvania Company for Insurance on Dives and Granting Annuities, trustee, and by Thomas S. Gates and others as a committee for bondholders, against the Philadelphia Company and others, in receivership proceedings against the Pittsburgh Railways Company, to oppose payment of a fund to the Philadelphia Company. From an order directing the payment, the named interveners separately appeal.

<p>Taxation <®=>93 (1) — Acts insufficient to effect change of domicile for purpose of taxation.</p> <p>Complainant, domiciled in Massachusetts, where he owned two residences, occupied by himself and family alternately in summer and winter, and who also owned an undivided interest, with his brothers, in the former home of his deceased father in Newport, R. X., where he and family occasionally spent a few weeks in summer, by announcing his intention to change his domicile to Rhode Island, removing his securities there, going there on tax day in Massachusetts each year, and voting and paying his personal taxes there, but without any actual change of residence, his houses in Massachusetts being kept open and occupied as before, and his family being in Newport but three weeks in the ensuing two years, held not to have effected a bona fide change of domicile, which exempted him from income tax in Massachusetts.</p> <p>Aldrich, District Judge, dissenting.</p>

Appeals from the District Court of the United States for the Southern District of New York. Separate suits in admiralty by the Hagemeyer Trading Company and by Hugo A. Thomsen and another against the St. Paul Fire & Marine Insurance Company and on separate policies of marine insurance. Decrees for libelants, and respondent appeals.

<p>1. War —Charging unreasonable price for sugar not criminal offense un- . der Lever Act.</p> <p>An indictment charging the making of an unjust and unreasonable charge for sugar sold at retail held not to charge a criminal offense, under Food Conservation Act Aug. 10, 1917, § 4 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3115%ff), which, while making certain acts unlawful, prescribes no penalty for its violation, nor is any prescribed elsewhere In the act.</p> <p>2. Criminal law <S=^979(1) — Judgment entered without jurisdiction void.</p> <p>A judgment convicting a defendant of a crime for which there is no statutory authority, although entered on a plea of guilty, and the fine imposed has been paid, is void.</p> <p>3. Criminal law @=89 — Federal courts have no common-law criminal jurisdiction.</p> <p>The federal courts have no criminal jurisdiction, except of offenses created by act of Congress, and for which the punishment is also prescribed by statute.</p> <p>4. Criminal law @=998 — Void judgment may be canceled after term.</p> <p>A voic[ judgment may lawfully be canceled on motion after notice, even after expiration of the term at which it was entered.</p> <p>5. Criminal law @=1 — “Crime” defined.</p> <p>A “crime” is a wrong which the government notices as injurious to the public, and punishes in what is called a criminal proceeding.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Crime.]</p>

Cush-man, Judge. Action hy J. E. Ballaine against W. J. Boland and others. Judgment for plaintiff, and defendant Boland brings error. This is an action sounding in damages, instituted by the defendant in error against plaintiff in error and W. E. Stavert and F. 0. Jemmett to recover for tlie alleged malicious prosecution of a civil action entitled: “In tlie District Court in and for the Territory of Alaska, Third Division.

In Admiralty. Libels by the New York, New Haven & Hartford Railroad Company and by Mesick & Mesick, Incorporated, and’others against the steam tug Bulley, Owen McCaffrey’s Sons, claimant. Decrees for respondent, and libelants appeal.

Application by the United States, on relation of Sonia Diamond, next friend of Rocco Di Blasis, for writ of habeas corpus to be directed to Byron H. Uhl, Acting Commissioner of Immigration at the Port of New York. From an order denying the writ, relator appeals.

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Action by the American Steel Company against the Irving National Bank. Judgment for defendant, and plaintiff brings error.</p> <p>The plaintiff is a corporation -organized under the laws of the state of Pennsylvania. The defendant is a banking corporation organized, under the laws of the United States, and is a citizen of the state of New York, residing in the Southern district thereof.</p>

C. Westenhaver, Judge. Action by the William Whitman Company against the Swinehart Tire & Rubber Company, which filed a cross-petition. Judgment for plaintiff, and defendant brings error.

<p>In Error to the District Court of the United States for the Eastern District of Pennsylvania; J. Whitaker Thompson, Judge.</p> <p>Action by Anna Alcorn against the Philadelphia Rapid Transit Company.^ Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from the District Court of the United States' for the Western District of Pennsylvania; W. H. Seward Thomson, Judge.</p> <p>Suit in admiralty by Bert Boyd against the Pittsburgh Coal Company. Decree for libelant, and respondent appeals.</p>

<p>1. Criminal law <§=51151 — Motion for continuance not reviewed, unless discretion abused.</p> <p>A motion for continuance is addressed to the sound discretion of the trial judge, and cannot be reviewed, unless it appears that the discretion was abused.</p> <p>2. Criminal law <§=>594 (1) — Refusal of continuance for absence of witnesses not abuse of discretion.</p> <p>Where a criminal case had been continued one term on defendant’s application, and another because no judge could be had at such term, motion for another continuance on the ground of absence of witnesses was not an abuse of discretion, where nearly a year had elapsed since arraignment, and defendant’s affidavit merely stated that the witnesses were temporarily absent, etc., for the court was entitled to take into consideration those facts, and that the government witnesses had twice before appeared under subpoena.</p> <p>3. Criminal law <§=>1159 (2) —Appellate court will not weigh testimony.</p> <p>Where there is substantial evidence to sustain a conviction, the appellate court will not weigh the same on writ of error.</p> <p>4. Prostitution <§=>5 — Evidence in prosecution under White Slave Act sufficient to go to jury.</p> <p>In a prosecution under the White Slave Act (Comp. St. §§ 8812-8819), evidence of defendant’s excursion with a gill from one, state to another, where they engaged in immorality, held sufficient to go to the jury, notwithstanding there were no commercial relations between the parties.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in admiralty by Carl D. Jackson against 36 Blocks of Marble and 663 Bags of Mosaic Cubes, part of the cargo of the steamship Ada; the Universal Transportation Company and Rederiaktiebolaget Amie, claimants. From an order directing 'payment of freight to the Amie, the Universal Transportation Company appeals.</p>

Middleton Smith, Judge. Action by James B. McFarland and others against Mary H. Sil-verthorne and A. E. Silverthorne, partners doing business as the Martins Mill Company. Judgment for plaintiffs, and defendants bring error.

<p>In Error to the District Court of the United States for the District of Maryland, at Baltimore; John C. Rose, Judge.</p> <p>Action by Paulson, Einkroum & Co., Incorporated, against the Blue Ridge Knitting Company, Incorporated. Judgment for plaintiff, and defendant brings error.</p>

<p>Intoxicating liquors <5^133 — Transfer to different vehicle in passing through prohibition state not an offense.</p> <p>Where defendant was carrying- whisky purchased in another state in an automobile within a prohibition state, intending - as he claimed to carry it through into another state, an instruction that, if he transferred any part of it into another car within the state, it constituted a violation of Reed Amendment (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 8739a), regardless of his intention as to future transportation, held erroneous.</p>

<p>In Error to the District Court of the United States for the Western District, of Missouri.</p> <p>Action at law by John E. Hanson against John E. Cole. Judgment for defendant, and plaintiff brings error.</p>

<p>Appeal and error (!) — Decision on forno®r appeal is law of case.</p> <p>It cannot bo assigned as error that a District Court followed the decision and directions of the Circuit Court of Appeals on a former appeal in tito samo case, nor can questions determined on the former appeal bo again reviewed on a second appeal.</p>

Suit by the Curtiss Aeroplane & Motor Corporation against the United Aircraft Engineering Corporation. Decree for defendant, and complainant appeals. The plaintiff is a corporation organized under the laws of the state of New York, and has its principal place of business in Buffalo; but it also has a regular and established place of business in New York City, within the Southern district of New York.

<p>Appeal from the District Court of the United States for the District of New Jersey; John Rellstah, Judge.</p> <p>Bill by the E. H. Mumford Company and others against the Mumford Molding Machine Company. From a decree dismissing the bill, complainants appeal.</p>

Suit by Maximus E. Uoose and Thomas E. Baird against the Bellows Ealls Pulp Plaster Company and G. Erank Hendee. Decree for complainants, and defendants appeal. Suit began against the corporate defendant, and three individuals, of whom one was never served, and one died before decree. The action was not revived against the decedent’s estate, and decree passed oidy against the corporation and Hendee.

<p>In Equity. Suit for infringement of patents by the Window Glass Machine Company and another against the Smethport Window Glass Company.</p>

<p>In Equity. In the matter of petitions by the United States for condemnation of private property for the Improvement of Rouge River, a public use. On motions to dismiss.</p>

<p>1. Collision <§=>86 — Vessels entering or leaving “narrow channel” to keep to starboard side.</p> <p>A vessel entering a narrow channel should approach and enter on the starboard side, leaving ample room for outeoming vessels to pass port to port, and vessels coming out should keep to the starboard side until well clear of the entrance; a “narrow channel’’ being defined as a body of water navigated up and down in opposite directions, which does not include harbor waters, with piers on each side, where the necessities of commerce require navigation in every conceivable direction.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, Second Series, Narrow Channel.]</p> <p>2. Collision '3^102 — Mutual fault of power boats meeting in narrow channel.</p> <p>The power launches Klatawa and Diamond K, the former entering and the latter passing out from a narrow channel, both held in fault for a collision; the Klatawa for not giving a timely signal and for giving a starboard passing signal, and the Diamond K for being on the wrong side of the channel.</p>

In Admiralty. Suit for collision by Conrad Anderson and others, owners of .the fishing boat Helgeland against the steamer Admiral Watson. cited the following cases: The Delaware, 161 U. S. 459, 16 Sup. Ct. 516, 40 L. Ed. 771; Britannia v. Cleugh, ,153 U. S. 130, 14 Sup.

<p>Injunction <3^101 (3) — Conspiracy by striking employes to commit unlawful acts.</p> <p>Mass picketing by a combination of striking employes and others, for the purpose of forcing employers to adopt the policy of closed shop, accompanied by threats, abuse, domiciliary visits, and physical assaults on employes and potential employes, held unlawful, and enjoined.</p>

<p>1. Attachment &wkey;>10l' — Allegation of amount due sufficient.</p> <p>In an action by one joint adventurer to recover money due to him and associates, in which the associates refused to join and were made defendants, in compliance with Code Civ. Proc. N. V. § 448, statements in the complaint and affidavit of the amount due plaintiff and his associates held sufficient to authorize a foreign attachment, under Code Civ. Proc. N. Y. §§ 635, 636.</p> <p>2. Attachment &wkey;>232 — Failure to serve other defendants not ground for dissolution.</p> <p>Service on the principal defendant and the only one against which judgment was asked held sufficient to authorize an attachment against the property of such defendant, although other defendants had not at the time been served.</p>

In Bankruptcy. In the matter of L. Bred Box, doing business as Palace Clothing Company, bankrupt. On review of order of referee, allowing in part and disallowing in part claim of Elam Bros.

<p>Libel in Rem. Proceeding by the United States against one Essex touring automobile, claimed by Carl Little and another. On demurrer to the libel.</p>

<p>In the matter of Charles Wirth & Co., Incorporated, bankrupt. An order was made to have an attachment retained for the benefit of the estate, etc., and petition to review it is filed by the Fidelity Trust Company, and opposed by Henry F. Wood and others, trustees.</p> <p>The certificate of Referee Olmstead is as follows:</p> <p>This was a petition to review an order entered on June 25, 1919, to preserve a lien of attachment. On May 0, 1919, Henry F. Wood, Esq., the receiver appointed in said estate, filed a petition asking that an attachment of funds belonging to the debtor corporation made by Childs, Sleeper & Co. by virtue of a writ issued out of the superior court on the lfjth day of April, 1919, be preserved for the benefit of said estate, in accordance with section 67f of the act (Comp. St. § 9651). On April 25, 1919, the debtor filed a voluntary petition and was duly adjudicated on the same date. The answer of the respondent Fidelity Trust Company admits all the material allegations of the petition, but denies the jurisdiction of the court in the premises. By a motion filed May 22, 1919, due notice of said application has been given to the said attaching creditors, and the debtor by its appearance has also been duly notified.</p> <p>Jurisdiction as to preservation of such attachment for the benefit of an estate according to the language of said subsection seems to be undoubted. The statute provides: “And the court may order such conveyance as shall be necessary to carry the purposes of this section into effect.” In re Jules & Frederic Co. (D. C. Mass.) 36 Am. Bankr. Rep. 233, and cases cited.</p> <p>As to the merits, the status of the parties is fixed as of the time of the filing of the petition. In re Ilowe (D. C. Mass.) 37'Am. Bankr. Rep. 601, 235 Fed. 908; Edison Electric Illuminating Co. of Boston v. Tibbetts, 241 Fed. 468,154 C. C. A. 300; In re Miehaelis & Bindoman (D. C. N. A.) 27 Am. Bankr. Rep. 299, 196 Fed. 718.</p>

<p>1. Minfes and minerals <@=>36 — Oil location invalid.</p> <p>Location of an oil placer mining claim in the names of a number of the locator’s family and seven of his neighbors, who knew nothing of the location and refused to ratify it, but conveyed their interest without consideration to the members of locator’s family who later conveyed to him, hold to have been in effect for his sole benefit, and invalid.</p> <p>2. Mines and minerals <@=>36 — Prosecution of development work held not diligent, so as to take an oil claim out of operation of withdrawal order.</p> <p>The fact that an oil company, which owned or controlled a large number of claims in a California field, on some of which it was operating, had made preparation and assembled material for further development work in its holdings generally, at the time of the presidential order of September 27, 1909, withdrawing lands from entry, hold not such diligent prosecution of work for discovery on a claim within the withdrawal area as to take it out of the operation of such order; it not appearing that development work on that specific tract was intended.</p>

<p>1. Equity &wkey;>3!)('!) — In suit to restrain waste, will retain jurisdiction to determine rights oí parties.</p> <p>Where the legal title to an oil placer mining claim remains in the United States, but defendants, wrongfully as claimed, are in possession and extracting the oil therefrom, equity has jurisdiction of a suit to stop the. waste, and having done so, under equity rule 23 (108 Fed. xxiv, 135 O. C. A. xxiv), will determine the right to possession and grant appropriate relief.</p> <p>2. Mines and minerals <&wkey;36 — Oil location held invalid.</p> <p>The location of an association oil placer claim by one as agent for eight others, seven of whom had no knowledge of it and refused to have the expense, hut at request of the locator conveyed their interest to the eighth, who was a relative of his and later conveyed to him without consideration, % held fraudulent in law and void, and to invest him with no rights which he could convey to others.</p> <p>3. Estoppel <&wkey;62(5) — United States not estopped by ladies of officers or agents.</p> <p>The United States is not estopped by acts of its officers or agents, and as a general rule their laches or negligence is no defense to a suit by the government to enforce a public right or protect a public interest.</p> <p>4. Mines and minerals &wkey;»I — Trespasser cannot acquire title by possession and working of claim.</p> <p>Rev. St. §2332 (Comp. St. § 4631), providing that possession and working of mining claims by the owners or their grantors for a period equal to the time prescribed by the statute of limitations for mining claims of the state shall he sufficient to establish the right to a patent, has no application to the case of a trespasser on public land, title, to which cannot be acquired under the mining laws.</p> <p>5. Courts <&wkey;-383 — Mines and minerals <&wkey;36 — Interest, under state law, allowable from date of conversion of oil from public land.</p> <p>Where, in a suit for accounting, the United States recovers the value of oil wrongfully extracted from public lands under an invalid location, the allowance of interest is within the discretion of the court, in the absence of statute; but where, under the state statute, a recovery for conversion includes interest from the date of conversion, interest should be from that date.</p> <p>Ross, Circuit Judge, dissenting.</p>

<p>Appeal from the District Court of the United States for the Eastern District of New York.</p> <p>Habeas corpus by Seton C. Bens against the United States. Judgment dismissing the writ, and petitioner appeals.</p>

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Action by Eugene W. Mente against Mark Eisner, Collector of Internal Revenue. Judgment for defendant, and plaintiff brings error.</p>

Suit for collision hy Charles- E. McWilliams and others against the steamship Sif, with the tugs Coleraine and Nellie Tracy impleaded. Decree holding the. Sif alone in fault, and the claimant appeals.

Suit by the Hercules Powder Company against James T. Newton, as Commissioner of Patents. Decree for defendant, and complainant appeals. The bill is brought under section 4915, It. S. (Comp. St. § 9460), and section 9 of the Trade-Mark Act of 1905 (33 Stat. 727 [Comp. St. § 9494]), to procure a declaration that plaintiff is entitled to have defendant register under the act its trade-mark of “Infallible” for smokeless sporting powder.

Criminal prosecution by the United States against Joseph Ulmer and others. Judgment of conviction, and defendants bring error. The plaintiffs in error were defendants below and will be hereinafter referred to as defendants, and the defendant in error, the plaintiff below, will be in like manner referred to as the plaintiff. The defendants were tried and convicted under an indictment charging the use of the mails to defraud. The indictment contained three counts.

C. Westenhaver, Judge. Actions by Blanche Clark and by Herbert T. Clark against the Pennsylvania Company. There were judgments for the plaintiffs, and defendant in each case brings error.

<p>1. Contracts <®=*163 — Sales <§=»85(2) — Absent irreconcilable conflict between written and printed mailer, effect should be given i© the whole; effect of strike proviso.</p> <p>In the absence of any irreconcilable conflict between written and printed matter in a contract, when it appears that the printed matter is intended to Be part of the contract, the whole must be construed together, and effect given to every part thereof, and so effect should be given to a printed provision in a contract for the sale and purchase of coal that all quotations, orders, and contracts should he subject to car supply, strikes, and causes beyond the parties’ control.</p> <p>2. Contracts <@=>170 (2) — Understanding of parties, when doubtful, should be submitted to jury.</p> <p>Where, from the nature of printed matter in a contract, doubt arises as to the intention and understanding of the parties thereto, such question should be submitted to the jury.</p> <p>3. Contracts —Acceptance on condition is rejection.</p> <p>Acceptance of an offer on condition is a rejection of the proposition as made, and such acceptance does not create an enforceable contract.</p> <p>4. Pleading S7 — Failure to put execution of contract in issue excused, where plaintiff’s evidence indicated there was no contract.</p> <p>Though defendant in an action for breach of contract of sale failed to deny the execution of the contract by affidavit, as required by District Court rule 28, declaring that the failure to so deny shall relieve plaintiff from making proof of execution, yet where plaintiff introduced correspondence as showing contract, which showed that plaintiff’s acceptance contained a condition noi in the proposal, defendant is entitled to introduce evidence of its salesman, who prepared the proposal, to the effect that it was subject to defendant’s approval, as well as subsequent correspondence showing that the contract was not contained in the correspondence introduced.</p> <p>5. Sales *@=>85(2) — Printed provision in defendant's letter limiting liability held binding on plaintiif.</p> <p>Where printed statements in defendant’s letters relative to sale of coal that contract was subject to causes beyond defendant’s control, etc., were not objected to by plaintiff, whose own communications containing similar provisions, plaintiff is precluded from denying, that defendant’s agreement was subject to such conditions, and hence evidence of strikes, etc., was admissible to excuse' a breach.</p> <p>6. Appeal and error ‘@=>882(8) — Defendant held not entitled to complain of the admission of an exhibit.</p> <p>Where defendant offered numerous telegrams and letters, it cannot complain of the admission of one of them, which was received without objection, but may have been prejudicial; the others having been excluded.</p>

<p>1. Railroads <&wkey;275 (4) — Liable for injury to employé of shipper from defective car.</p> <p>A carrier, furnishing cars to be loaded for shipment, is liable for injuries to the shipper or his employés, due to a defect in a ear which might have been discovered by reasonable care in inspection, and it cannot impose this duty to furnish cars reasonably safe on the shipper to its own relief from liability for injury to an employé of the shipper.</p> <p>2. Master and servant &wkey;99~-Railroads &wkey;266 — Both carrier and shipper liable for negligence in furnishing defective car to employes for loading.</p> <p>If the carrier is negligent in furnishing a defective car to the shipper, and the shipper in turn is negligent in furnishing it to his employé to be loaded, the carrier and shipper are both liable for resulting injury to the employé, but as between carrier and shipper the liability of the carrier is primary.</p> <p>3. Railroads &wkey;>278(2) — Use of obviously dangerously defective car assumption of risk.</p> <p>While neither the shipper nor his employé owes any duty to the carrier to search for defects, the use of a car obviously so defective as to be dangerous would be either assumption of risk or contributory negligence on the part of the person operating it, according to the circumstances.</p> <p>4. Courts <&wkey;372(3) — Federal courts not bound by state decisions on matter of general law.</p> <p>The question of liability of a carrier for injury to an employé of a shipper caused by a defective car furnished for loading is one of general law, in which state decisions are not binding on the federal courts.</p> <p>5. Railroads &wkey;283 (9) —Assumption of risk by employé of shipper using defective ear question for jury.</p> <p>Whether an employe of a shipper, injured by reason of a defective car furnished for loading by a carrier, was chargeable with assumption of risk or contributory negligence, held questions for the jury.</p> <p>6. Master aod servant &wkey;>217(l) — Risks from master’s negligence, not obvious, are not assumed.</p> <p>Risks not naturally'incident to the occupation, but arising out of the master’s negligence, the employé is not treated as assuming, until he becomes aware of the defect or disrepair, and of the risk ^arising from it, unless defect and risk alike are so obvious that an ordinarily prudent person under the circumstances would have observed and appreciated them.</p>

<p>Appeals from the District Court of the United States for.the Eastern District of Virginia, at Norfolk; Edmund Waddill, Jr., Judge.</p> <p>Suit in admiralty by Sewell E. Lane against the steamship Omsk, Edmund Yannoslcy, claimant, and the Norfolk Shipbuilding & Dry Dock Corporation. Decree for libelant against the steamship alone,' and claimant and libelant appeal.</p>

Petition to Revise Order of the District Court of the United States for the. Eastern District of New York. In the matter of Harry Margolies and Benjamin Kliedman, bankrupts. On petition by Harry Margolies to revise order of District Court. The bankrupts were adjudicated in January, 3918, and Margolies was discharged on July 18, 1919.

<p>1. Bankruptcy <3=>-448(I) — Court has summary jurisdiction over bankrupt notwithstanding discharge.</p> <p>Notwithstanding a bankrupt’s discharge, where the estate has never been technically closed, the bankruptcy court has summary jurisdiction to compel the bankrupt, by order, to surrender to the trustee property belonging to the estate, the existence of which was canceled or had not come to the knowledge of the trustee before discharge was granted.</p> <p>2. Bankruptcy <§=^373 — Estate not closed, though trustee discharged without final meeting of creditors and settlement of accounts.</p> <p>The estate of a bankrupt was never technically closed, and a discharge of the trustee was of no effect, where there was no final meeting of creditors and settlement of the trustee’s accounts.</p>

Suit by the National Picture Theatres, Incorporated, against the Foundation Film Corporation. From an order denying á preliminary injunction, complainant appeals. Appeal from an order in equity denying motion for an injunction pendente lite, entered in the District Court for the Southern District of New York.

<p>1. Army and navy <3=540 — “Whoever,” as used in Espionage Act, § 3, includes corporations.</p> <p>In Espionage Act June 15, 1917, tit. 1, § 3,1 providing that “whoever, when the United States is at war, shall willfully make or convey false reports or false statements, * * * or shall willfully obstruct the recruiting or enlistment service,” etc., shall be guilty of an offense, the word “whoever” is to be construed as including corporations and partnerships.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Whoever.]</p> <p>2. Army and navy <3=04.0 — In prosecution for willfully obstructing recruiting, evidence to show intent admissible.</p> <p>In a prosecution under Espionage Act for willfully obstructing the recruiting and enlistment service by the publication and circulation of pamphlets containing matter calculated to discourage military service in the war, evidence of the publication and distribution by defendant of other similar matter held admissible on the question of intent.</p> <p>3. Army and navy <3=40 — Publication and circulation of pamphlet held to warrant conviction for willfully obstructing recruiting service.</p> <p>That the author of a pamphlet was acquitted of the charge of thereby obstructing the recruiting and enlistment service in time of war, on the ground that it was not written with such intent, held not inconsistent with the conviction of his cod.efen.dant, which published and circulated the pamphlet.</p>

<p>Appeal from the District Court of the United States for the District of Connecticut.</p> <p>Two suits by James J. O’Brien against Walter B. Uashar and others. From orders refusing to make the decree pro confesso absolute, and opening it to permit defendants to plead, plaintiff appeals. On motion to dismiss.</p>

, Suit by the Whitlock Coil Pipe Company against the Mayo Radiator Company. Decree for defendant, and complainant appeals. Plaintiff owned and sued upon the three claims of patent to Brinkman, No. 843,864, dated February 12, 1907, application filed January 29, 1903. The invention is for a “cooler.” The article described finds its use as a radiator for motor ears driven by gasoline engines.

Suit in equity by G. Reis & Bro., Incorporated, against the Reform Initial Company, Incorporated, and others. Decree for defendants, and complainant appeals.

<p>1. Patente &wkey;>328 — 1,04¶,7@2, lor spoke lacing, void for lack of invention.</p> <p>The Pugh patent, No. 1,047,702, for spoke lacing, held void for lack of invention, in view of the prior art.</p> <p>2. Patents <&wkey;86 — Comanercial success as evidence of invention.</p> <p>Commercial success is a most hazardous test of invention; its main value being in cases where the existing means have for some time been unsatisfactory and where the new step has at once answered the need and displaced what went before; and where to this is added the fact that others have earlier tried to reach the same result such proof has added weight.</p>

<p>Appeal from the District Court of the United States for the Southern District of Now York.</p> <p>Suit by the Wire Wheel Corporation of America against C. T. Silver, Incorporated. Decree for defendant (266 Fed. 221), and plaintiff appeals.</p>

<p>Proceeding for contempt by the United States against Charles L. Craig. On demurrer to information.</p>

<p>In Equity. Suit by George C. Rankin, as receiver, against Charles R. Miller and others. On motion to file a supplemental petition, .substituting' Charles D. Hamner as plaintiff.</p>

<p>In Equily. Suit by Gay Green against the Southern Timber Company.</p>

<p>In Bankruptcy. In the matter of Ella C. Butcher and Grace Marshall, bankrupts. On review of order of referee denying petition of Maguire, executor.</p>

<p>1. Conspiracy <@==>43 (5) — Averments as to conspiracy cannot be aided by allegations as to overt acts.</p> <p>Regardless of whether the conspiracy requires the commission of an overt act to become criminal, averments as to formation of the conspiracy cannot be aided by allegation as to commission of an overt act, so as to charge an offense, but the conspiracy must be sufficiently charged.</p> <p>2. Indictment and information @^110 (10) — Indictment averring conspiracy to charge excessive price of sugar insufficient to state any offense,.</p> <p>Assuming the validity of Pood Control and District of Columbia Rents Act, Oct. 22, 1919, making it unlawful for any person to exact excessive prices for any necessity, or to aid or to abet doing of any act made unlawful, an indictment charging that defendants did conspire, combine, and agree, etc., that they, would purchase and cause to be purchased large quantities .of sugar,, which is a necessity, and'would exact and receive excessive prices therefor, is insufficient to state any offense, for, though the general terms of -the act be sufficient, and “excessive” has well-defined ' meaning among lexicographers, the. indictment itself must state the particulars charged, so as to give some basis showing that an excessive price was exacted; a charge in the general language, of the statute being insufficient.</p>

Ií. L,. Turner was indicted for removing and concealing untaxed spirits. On demurrer to the indictment. The defendant has been indicted, under section 3296, Rov. St. (Comp. St. § 6038), for removing and for concealing untaxed spirits. The offenses are charged to have been committed on Juno 27, 1920. The defendant demurred to the indictment, on the ground that the Volstead Act (41 Stat. 305) repeals section 3296. The demurrer was overruled.

<p>Bankruptcy <@^2,34 — Creditor may examine debtor before adjudication.</p> <p>A creditor may be allowed to examine officers of a debtor corporation before adjudication under Bankruptcy Act, § 21a (Comp. St. § 9605), and is not required to prove its status as a creditor further than by its oath to the application.</p>

Interference proceeding between Pettis A. Reid and others and Alva L. Kitselman. From a decision awarding priority as to some of the counts to Keid and others, and as to the other counts to Kitselman, both parties appeal.

<p>¡Patents €=>113(7) — Decision of three patent tribunals not disturbed, unless manifestly wrong.</p> <p>Where the three tribunals of the Patent Office concur in awarding priority to senior applicants in interference proceedings, a decision of the commissioner should be affirmed, unless there is manifest error.</p>

'McCall, Judge. Bill by the Weiss & Eesh Manufacturing Company against E. R. King and others. From a decree enjoining defendants from continuing a course of intimidation and threats in promoting a strike, they appeal.

<p>5. Courts <S=>316 — Bill dismissed where omitted necessary party, if aligned as plaintiff, would destroy jurisdiction based on adverse citizenship.</p> <p>A salesman for a corporation, receiving part payment in commissions, has not sufficient interest to maintain suit to eh join striking employes of the corporation from interfering with other employes, and a bill by such salesman, filed in the federal court, will bo dismissed, the corporation and strikers being citizens of the same state, and the court having jurisdiction only by reason of the adversity of citizenship between the salesman and the strikers, for the corporation is a necessary party plaintiff, and, if aligned as plaintiff, diversity of citizenship would he destroyed.</p> <p>2. Parties "S=»l — Where controversy could not he determined without him, party is “indispensable pa.riy.”</p> <p>The test of indispensability of party is not whether the decree is bound to injuriously affect the rights of the absent party. It is enough that such absence may leave the controversy in such a situation that the final determination may he inconsistent with equity and good conscience.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Indispensable Party.]</p> <p>3. Injunction ®=»114 (2) —Employer held indispensable party to suit to enjoin strikers.</p> <p>Whore the object of a strike was to compel employer to maintain an open shop, the employer was an indispensable party to the suit to enjoin acts of interference by the strike leaders, some of which might’ be lawful, and a suit for that purpose cannot be maintained by a more salesman of the employer. i</p> <p>4. Injunction <3=»15? — Restraining order should be special.</p> <p>A restraining order against strikers should be in reasonable detail, and a general order against interference in any way or manner and from picketing the highways or means of ingress, etc., acts which do not necessarily constitute unlawful influence, is too broad.</p>

Action by Ruby D. Hodgson against Edward Vroom. From an order denying application for injunction pendente lite, plaintiff appeals.

Libel'by John J. Hammond against the barges Walter Green and Burns Bros. No. 34. Decree for libelant against tire barge Walter Green, and the claimant of that barge appeals.

Tuttle, Judge. In the matter of the receivership of the St. Clair Power Company.. The claims of the Murray W. Sales Company and the National Supply Company for liens for material furnished were allowed, and Walter H. Redman and others in each case appeal. Suit to enforce a lien for materials furnished.

In the matter of Morton Atwater, Eliot Atwater; Gilbert F. Foote, and Harold W. Sherrill, individually and as copartners doing business as Atwater, Foote & Sherrill, bankrupts. On petition of Stephen G. Guernsey and others the claim of Edward S. Atwater was expunged, and claimant appeals.

<p>In Error to the District Court of the United States for the Southern District of West Virginia, at Huntington; Benjamin E. Keller, Judge.</p> <p>Action by the Parkersburg & Marietta Sand Company against John E. C. Kohlsaat and others, partners as C. Crane & Co. Judgment for plaintiff, and defendants bring error.</p>

<p>1. Master ansi servant &wkey;>265(5) — Injury of servant raises no presumption of master’s negligence.</p> <p>Negligence o£ the employer is an affirmative fact, to be proved by an injured employe, and the fact of an accident raises no presumption of such negligence.</p> <p>2. Trial <&wkey;420 — Error in refusing to direct verdict waived by introduction of evidence.</p> <p>Error in overruling a motion for directed verdict, made at the close of plaintiff’s case, is waived by the introduction of evidence by defendant.</p> <p>3. Master and servant &wkey;>279(2) — Single act of negligence insufficient to prove incompetency of employe.</p> <p>In an action for injury to a servant, where incompetency of a fellow servant is charged, the burden of proving tbis, and that defendant knew, or with ordinary care should have known, of suCh incompetency, rests upon plaintiff, and a singlo act of negligence by one who was experienced and generally competent is insufficient.</p> <p>4. Trial <&wkey;252(l) — Instruction must be predicated on facts in proof.</p> <p>An instruction on an assumed state of facts to which no evidence applies tends to withdraw me attention of the jury from the issues actually involved, and is erroneous.</p> <p>5. Master and servant <&wkey;28'?(7) — Whether negligent employé was acting as vice principal question for jury.</p> <p>Where there was evidence tending to show that the breaking of a boom on a scow when being used to raise a heavy timber from a pier, by which a workman on the scow was" injured, was due to the improper placing of the scow by the foreman in charge, whether the master was liable for failing to furnish the servant with a safe place to work held a question for the jury, dependent upon whether, on the facts shown, the foreman in placing the scow was acting as a vice principal and performing a nondelegable duty of the master.</p> <p>6. Appeal and error <&wkey;1053(l) — Error in receiving incompetent and prejudicial evidence not cured by final exclusion.</p> <p>Where on trial of an action against an employer for injury to an em-ployé, plaintiff was permitted to introduce evidence, subject to objection, that defendant was protected against liability by insurance, the exclusion of all such evidence at the close of the trial held not to have cured the error in its reception.</p>

In Error lo the District Court of the United States for the Southern District of New York. Action by Jesse Ncvin Roberts and another against Hugh Ferguson Criss. Judgment for defendant, and plaintiffs bring error. Pending appeal, defendant below died, and Helen G. Criss, administratrix, appeared on order. The plaintiffs are citizens of the state of Ohio and residents of the city of Cincinnati, in that state.

<p>In Error to the District Court of the United Slates for the Southern District of New York.</p> <p>Action by the United States against Hubert Santini. Judgment for defendant, and the United States brings error.</p>

<p>1. Trade-marks and trade-names &wkey;>21, 28 — Eight to trade-mark not dependent on length of use.</p> <p>The right to the exclusive use of a trade-mark does not depend on any particular period of usage; but, having been adopted in good faith, the right thereto inures and will prevail against any subsequent user.</p> <p>2. Trade-marks and trade-names &wkey;>32 — Abandonment must be intentional to forfeit rights.</p> <p>To establish abandonment of a trade-mark as a defense, it is essential to show, not only acts indicating a practical abandonment, but an intent to abandon.</p> <p>3. Trade-marks and trade-names <&wkey;32 — Permitting use by another of somewhat similar device not abandonment.</p> <p>"Where a registered trade-mark for candy boxes consisted of the name “Blue Bird” and the picture of a blue bird, printed in blue ink, permission to another manufacturer to use an art box decorated with a hand-painted, highly colored, picture of two blue birds flying, without advertising or using the name “Blue Bird,” held not an abandonment of the trade-mark.</p> <p>4. Trade-marks and trade-names <&wkey;98 — Willful infringer liable for accounting.</p> <p>Where defendant continued to clearly infringe a trade-mark after warning and with full knowledge of complainant’s rights, complainant held entitled to an accounting.</p>

Suit in equity by Cheney Bros, and others against Walker D. Hines, Director General of Railroads, and others. From an order denying a preliminary injunction, complainants appeal.

Action by Eugene D. Keeveny against Charles R. McCormack & Co. From a judgment dismissing the complaint as to the first and second causes of action stated, plaintiff brings error.

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Replevin by the Westrumite Products Company against the United States Fidelity & Guaranty Company. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Action by Philip Mechlowitz and others against the Eire Association of Philadelphia. Judgment for plaintiffs, and defendant brings error.</p> <p>Plaintiffs below (Mechlowitz) insured goods (woolens, silks, and the like) suitable for making garments, belonging to them and situate in the shop or workroom of a contractor who manufactured clothing for their account. There were several policies covering this fire risk, but as this suit is a test one we may speak (as have counsel) as if one policy represented the entire insurance. The whole amount of insurance was $20,000. The complaint in ordinary form asserted that the fire loss was upwards of $21,000, and therefore demanded judgment for the insured amount, with interest. The answer denied that the loss or damage was as above stated, and as a separate deiense asserted fraud on the part of Mechlowitz, vitiating the entire policy.</p> <p>Of the testimony it is enough to say that, viewed most favorably for the plaintiffs, it tended to show that they had delivered at the contractor’s workroom, where the Are occurred, goods substantially of the value asserted in the complaint. There was no direct evidence that all of the goods so delivered were on the premises at the time of the fire, and the i>laintiffs’ case as put depended almost wholly upon the credibility of the principal plaintiff, defendant introduced evidence tending directly to contradict plaintiffs as to the sound value of some of the salvaged goods; but there was very little salvage, borne testimony was also given for defendant of admissions prior to the tire concerning the value of the goods subsequently consumed inconsistent with the evidence given by the plaintiff aforesaid.</p> <p>When the evidence closed, the plaintiffs moved for a direction for the full amount of the policy, on the ground that “no proof has been introduced which would justify the defense that a fraudulent claim was presented, and no proof has been presented by the defendant which would justify any diminution of the amount of the claim of the plaintiffs.” Defendant moved “to dismiss the complaint on the ground that the plaintiffs have not established a cause of action,” and on some further grounds presently immaterial.</p> <p>The trial judge held in substance that there was no evidence of fraud, and directed a verdict for the face of the policy, with interest, whereupon defendant by its counsel oxeepted to the direction and moved “that, this case be submitted to the jury.” This motion the court overruled, and granted an exception. To the judgment on the verdict as directed defendant took this writ.</p>

Charley Toy and Lee Gip were prosecuted by the'United States, and convicted under two indictments, one for concealing smoking opium, the other for manufacturing smoking opium, and they bring error.

Suit ■ in admiralty for collision by the Booth Steamship Company, Limited, owner of the steamship Denis, against the New York Central tug No. 25; New York Central Railroad Company, claimant. Decree for respondent, and libelant appeals. The libelant is a corporation existing under the laws of the kingdom of Great Britain and Ireland. •

<p>In Error to the District Court of the United States for the District of New Jersey; Charles F. Eynch, Judge.</p> <p>Action by Palina Jasko, administratrix of the estate of Joseph Jas- . ko, deceased, against Walker D. Hines, Director General of Railroads. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the District of New Jersey; John Rellstab, Judge.</p> <p>Action by Harry J. Knehr against Walker D. Hines, Director General of Railroads, and the Pennsylvania Railroad Company. Judgment for plaintiff, and defendants bring error.</p>

<p>In Error to the District Court of the United States for the District of New Jersey; Charles F. Uynch, Judge.</p> <p>Action by Charlotte Healy, administratrix of the estate of John A. Healy, deceased, against the Erie Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Salvage <3^38 — Award to crew within discretion of court.</p> <p>An allowance to the crew of a salving vessel of one-fourth of the award of $2,000, for releasing a steamship stranded on a reef, the work consisting chiefly in lightering her cargo and afterward reloading the same, the greater part of the work being done by others than the crew, held within the discretion of the court, where the sea was calm and the services attended by no danger.</p> <p>%. Salvage <3^18 — Common ownership of vessels does not deprive crew of light to pay for salvage services.</p> <p>That both salving and salved vessels were being operated by the Emergency Eleet Corporation held not to deprive the crew of the salving vessel of the right to compensation for salvage services.</p>

<p>Injunction (6) — Equity without jurisdiction of suit to establish res ju-dicata constituting defense at law.</p> <p>A defendant in an action at law in a federal court, relying upon r«s judicata, has a complete and adequate remedy by pleading it as a defense, and cannot maintain a suit in equity, based thereon, to enjoin the law action.</p>

<p>In Error to the District Court of the United States for the Eastern District of Virginia, at Norfolk.</p> <p>Criminal prosecution by the United States against W. B. Tredwell. Judgment of conviction, and defendant brings error.</p>

Suits in admiralty for collision by Frederick A. Verdón and others, owners of the steam lighter James Logan, against the steamer Lexington, the Colonial Navigation Company, claimant, and by Frank W. Highberger against the Logan, with the Lexington, impleaded. Decrees holding the Logan solely in fault, and libelants appeal.

<p>1. Disorderly house '§=>16 — Evidence oí general reputation admissible.</p> <p>In a prosecution for keeping a bawdyliouse within the prescribed distance from a military cainp, testimony that the place had the general reputation of being á bawdyliouse held admissible.</p> <p>2. Criminal law £=>789(2) — Instructions as to reasonable doubt approved.</p> <p>Instructions explaining reasonable doubt held not erroneous.</p>

<p>Bankruptcy <S=»72(1)— Corporation held not subject to involuntary adjudication; “engaged principally in mining and mercantile pursuits.”</p> <p>A corporation chartered, inter alia, for mining and dealing in coal, and which for a. time engaged in such business, but which for more than two years had neither mined nor purchased coal, but was engaged solely in transporting coal for others, hold not subject to adjudication as an involuntary bankrupt, under Bankruptcy Act, § 4b, as amended by Act Fob. 5, 1908, c. 487, § 3, 32 Stat. 797, as a corporation “engaged .principally in * * * mining or mercantile pursuits.”</p>

Petition for Re.view from the District Court of the United States for the District of New Tersey; J. Warren Davis, Judge. In the matter of the LooscRen Piano Case Company, bankrupt; Thomas tl. Milson, trustee. Prom an order of the District Court, the Looschen Land & Building Company and others appeal.

Action at law by Job J. Conklin, trustee in bankruptcy of the Morton Truck & Tractor Company, against the Gttaranty Trust Company of New York. Judgment for defendant, and plaintiff brings error. The defendant here and below is a well-known banking company, and was sued by the plaintiff to recover the undrawn balance of a deposit account held by tlie Guaranty Company at the time of the bankruptcy of the Morton, etc., Company.

<p>Appeal from the District Court of the United States for the Western District of Virginia, at Uynchburg; Henry Clay McDowell, Judge.</p> <p>Suit by the Rosemary Manufacturing Company against the Halifax Cotton Mills, Incorporated. From an order refusing leave to file supplemental bill, complainant appeals.</p>

<p>Bankruptcy <©=>461 — Determining value of security held by creditor.</p> <p>Finding of the District Court, confirming that of a referee fixing the value of collateral held by creditors of a bankrupt, for the purpose of determining the amount of their provable claims, affirmed.</p>

<p>Principal and surety <©=5190(3) — Casualty company, which paid judgment, entitled to enforce it against insured for excess above policy.</p> <p>That a casualty insurance company, which assumed the defense of an action against insured for death of an employé, refused a settlement of the claim for less than the sum finally recovered, held not to debar it from enforcing the judgment, which it had paid as surety in supersedeas bond against insured for the excess over the amount of its policy.</p>

<p>In Error to the District Court of the United States for the District ■ of Porto Rico; P. J. Hamilton, Judge.</p> <p>Action by Charles Vere against Francisco Bianchi and others. Judgment for defendants, and plaintiff brings error.</p>

Suit by the Burgess Battery Company against the Solar Right Company, wherein the Heinrich Electric Novelty Company intervened. Decree for complainant, and defendant and intervener appeal.

<p>Appeal from the District Court of the. United States for the Eastern Division of the Southern District of Ohio; John E. Safer, Judge.</p> <p>Suit by the Jennison-Wright Company against George L. Hempy. Erom a decree dismissing the bill, plaintiff appeals.</p>

<p>Patents l&wkey;328 — Reissue 14,049, for rubber heel, valid and infringed.</p> <p>The Tufford reissue patent, No. 14,049, for a resilient heel lift having its body portion of concavo-convex form on every line of cross-section, should be construed with reference to form and function of the structure shown. As so construed, claims 5, 6, and 7 held not anticipated, valid, and infringed.</p>

<p>1. Patents <&wkey;313 — Invalidity must be clear on face of patent to warrant dismissal.</p> <p>• A motion to dismiss a bill for infringement on the ground that the patent is void on its face, if really arguable, must be denied.</p> <p>2. Patents &wkey;>328 — No. 1,233,714, for stockings, not void on its face.</p> <p>The Scott patent, No. 1,233,714, for a seamless knit stocking having a structural variation of the knit fabric at the back resembling a, seam in appearance, held not void on its face, either for want of invention or utility or for deception.</p> <p>3. Patents <&wkey;123 — For imitation construction not necessarily invalid as deceptive.</p> <p>Where a patentee contributes a new construction, whereby an imitation is made, it cannot be presumed that the purpose of the imitation is to deceive, and indeed an imitation may be of great utility.</p>

<p>1. Bankruptcy @==>330 — Statement of claim under oath is prima facie proof of validity,</p> <p>The statement under oath of a claim against a bankrupt makes a prima facie case, and if it conforms to the requirements of the statute and is not objected to proves the claim, and if objected to it still is prima facie proof of the validity of the claim.</p> <p>2. Bankruptcy <&wkey;330 — Procedure on supplementary proof of claim.</p> <p>VV here a claim as filed was not sufficiently specific, and to save time the referee permitted claimant to supplement it by oral testimony, which supported the claim, such testimony will be regarded as written into the claim and as making a prima facie case.</p>

<p>Corporations <&wkey;642(4%) — Corporation held to have been doing business within state, notwithstanding claim that business belonged to subsidiary.</p> <p>A foreign corporation, which had filed notice of withdrawal from business within the state, and created a subsidiary corporation of the same name to do business therein, but which conducted all its dealings with the local agent of the subsidiary corporation directly, and not through the officers of subsidiary, is present within that state and district, and may there be served with process, though on its books it recorded the business done with the agent as business of the subsidiary.</p>

<p>In Admiralty. Uibel by the Dampskibs Actieselskabet Sangstad (Sangstad Steamship Company) and others against Walker D. Hines, Director General of Railroads.</p>

In Admiralty. Libel by H. F. Willfuehr and H. Willfuehr, copart-ners doing business under the name and style of the American Fuel & Shipping Company, against the steamship Millinocket, her engines, boilers, etc.

<p>Bankruptcy <&wkey;391(3) — Referee may temporarily enjoin action of ejectment by landlord of bankrupt.</p> <p>A referee held to have properly made an order temporarily enjoining prosecution of an action of ejectment previously commenced by the landlord to. recover possession of premises in possession of bankrupt and in which it was conducting its business when the petition in bankruptcy was filed.</p>

<p>In Admiralty. Suit by the Nippon Yusen Kabushiki Kaisha, owner of the Japanese steamship Ceylon Maru, against the steamship Jeanette Skinner.</p>

<p>I. Evidence <&wkey;71 — Mailed letter presumed to have been received.</p> <p>A letter duly mailed is presumed to have been received.</p> <p>2., Evidence <&wkey;54 — Presumption cannot be based on presumption.</p> <p>While it will be presumed that á letter duly mailed was received, yet, where such letter was relied on as giving notice of an agent’s act, the further presumption of ratification by failure to disaffirm within a rea-' sonable time cannot be indulged in, for that would result in a presumption on a presumption.</p> <p>3. Evidence <&wkey;397 (2) — Parol evidence is inadmissible to vary written contract.</p> <p>Where a contract is reduced to writing, it will be presumed to contain „' the terms agreed upon, except in eases of fraud, accident, or mistake ; and where a contract as to compensation of a sales agent after telephone communication was reduced to writing, the writing will be presumed to contain all of the terms.</p> <p>4. Contracts &wkey;>9(l) — Agreement to “afford protection” to sales agent held too indefinite for enforcement.</p> <p>" Where plaintiff, which had acted as agent for the sale of a fabric used for lining of horse blankets, and had induced the government to accept the same, after negotiations received from defendant an agreement to afford protection of 10 per cent, of the cost to plaintiff, such agreement, which did not show whether the 10 per cent, was as a profit on sales or as a commission or compensation, was too indefinite for enforcement; the • relation of the parties not clearly appearing.</p>

<p>In Equity. Suit by the Charleston-Isle of Palms Traction Company against Frank M. Shealy, James Cansler, and H. H. Arnold, constituting the Railroad Commission of South Carolina, S. M. Wolfe, Attorney General of South Carolina, and others.</p>

In Equity. Suit by the Westinghouse Electric & Manufacturing Company against the Brooklyn Rapid Transit Company and others. In the matter of petitions of Eindley M. Garrison, receiver, for instructions. For brevity the Brooklyn City Railroad Company will be referred to as Brooklyn City; the Brooklyn Heights Railroad Company, as Brooklyn Heights; Brooklyn Rapid Transit Company, as B. R. T. • and the Equitable Trust Company, wherever convenient, as the Equitable.

<p>Scire facias by. the United States against J. C. Davenport and others. On exceptions to writ.</p>

At Taw. Petition by the United States, on the relation of Mary Yonick, for writ of habeas corpus against Franklin H. Briggs, to secure the release of George Yonick, a minor.

In Admiralty. In the matter of the petition of Walker D. Hines, Director General of Railroads, and of the Baltimore Steam Packet Company, for limitation of liability on account of loss of steamer Virginia, her cargo, et al.

<p>At Law. Action by Thomas Morrill against Charles R. Mclnnes, individually and trading as Charles R. Mclnnes & Co. On motion by plaintiff for new trial.</p>

<p>Bankruptcy <§=^175 — Transfer by bankrupt not subject to attack by subsequent creditors.</p> <p>A transfer of property by a corporation to its principal stockholder held made in good faith and for full consideration received by the corporation in payment of its indebtedness, and not subject to attack by the trustee in bankruptcy of the corporation, representing creditors who became such after the transfer.</p>

<p>1. Courts <§=>518 — District Courts and Court of Claims have concurrent jurisdiction, except as to amount involved.</p> <p>In every cause of which the Court of Claims has jurisdiction, the District Courts have like jurisdiction, limited only in respect to the sum involved.</p> <p>2. Courts <§=>426 — District Court lias jurisdiction of claims for compensation for property requisitioned under war acts.</p> <p>Under the war acts of Congress, conferring power to take possession of property of individual citizens for public purposes, and also giving the right to institute suits against the United States for compensation for property so taken, a District Court has jurisdiction of such a suit, provided the sum involved is within the prescribed limit.</p>

<p>In Error to the District Court of the United States for the District of Porto Rico; Hamilton, Judge.</p> <p>Action by Antonio Ortiz against Pedro Arataga y Beraza and others, partners under the name of Sobrinos de Ezquiaga. Judgment for plaintiff, and defendants bring error.</p>

<p>In Error to the District Court of the United States for the District of New Jersey; John Rellstab, Judge.</p> <p>Criminal prosecution by the United States against the Lehigh Coal & _ Navigation Company. Judgment of conviction, and defendant _ brings error.</p>

<p>In Error to the District Court of the United States for the Western District of Virginia, at Big Stone Gap; Henry Clay McDowell, Judge.</p> <p>Actions by James Bartley and by G. C. Saunders against Speed Mankin. Judgments for plaintiffs, and defendant brings error.</p>

<p>1. Intoxicating liquors <£==>210 — Indictment for transportation into prohibition state sufficient.</p> <p>An indictment under Reed Amendment, § 5 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 8739a), for transporting liquor into a prohibition state is not fatally defective because it incorrectly states or fails to state the point from which the shipment started.</p> <p>2. Indictment alid information @=>121(2) — Denial of hill of particulars not error.</p> <p>Denial of a motion for bill of particulars on the second trial of defendant, where the evidence for the government was fully presented oil the first trial, held not error.</p> <p>3. Intoxicating liquors @=>233 (2) — Evidence as to possession of liquor admissible in prosecution for interstate shipment.</p> <p>Where there was evidence that two packages containing whisky camo by mail from Cincinnati to a point in West Virginia to fictitious addresses, but each in care of a post office box, one rented by a brother of defendant, a tailor, and the other by an employé of his, that on the same and the preceding day both the brother and employe sent telegrams to defendant in Cincinnati, inferentially relating to the shipments, and that the packages were addressed by direction of defendant, testimony of a government agent that he found a large quantity of whisky in the brother’s shop held relevant and competent.</p> <p>4. Criminal law *&wkey;369(6) — Evidence as to receipt of other liquor admissible in prosecution for interstate shipment.</p> <p>In a prosecution for transporting liquor into a prohibition state, where it was shown that two packages of whisky were received by mail, testimony that similar packages had previously been received addressed to the same post office boxes held admissible.</p>

Keller, Judge. Suit in equity by the Horse Creek Coal Hand Company against George P. Alderson and others. Decree for defendants, and complainant appeals.

, Judge. Suit by L. A. Outten, master of the schooner Nannie May, against the F. S. Royster Guano Company with intervening petition by the Pocomoke Guano Company. Decrees for libelant and intervener, and respondent appeals.

<p>1. Banks and banking <&wkey;360(4) — Incidental powers of national banks authorize contract of indemnity.</p> <p>National banks, which were unsecured creditors of a bankrupt corporation, having practically no assets except an uncompleted government contract, hold, under Rev. St. § 5136 (Comp. St. § 9661 [7*]), giving such banks “all such incidental powers as shall be necessary to carry on the business of banking,” to have power to join in execution of a bond to indemnify a surety company against loss by reason of its suretyship for bankrupt on its contract, to enable the trustees in bankruptcy to proceed with and complete the contract work.</p> <p>2. Indemnity <&wkey;4 — Agreement to forego rights valid consideration for indemnity bond.</p> <p>Where a surety company, as surety for a bankrupt government contractor, had the right to take over the contract, with plant and materials, and to receive all sums then due under the contract, an indemnity bond given by creditors to induce it to forego such rights helé based on a valuable consideration.</p> <p>3. Indemnity &wkey;>9(2) — Costs and expenses within scope of contract.</p> <p>A bond, indemnifying a surety from all loss and liability “heretofore accrued or hereafter accruing against it by reason of its suretyship” ob the contract, held broad enough to cover cost and expense incurred in litigating fraudulent claims asserted, against winch the indemnitors, although notified, refused to contest.</p>

<p>Internal revenue &wkey;>8 — Property bequeathed under power of appointment held not taxable as part of testator’s estate.</p> <p>Under Estate Tax Act Sept. 8, 1916,. § 202 (Comp. St. § 6336yac[a]), imposing a tax upon the transfer of property in which a decedent dying after passage of the act has an interest, which is subject to payment of charges against his estate and to distribution as part of his estate, and under the law of Pennsylvania, by which property passing under the exercise of a power of appointment, passes under the will of the donor of the power, and not as property of the donee, property bequeathed by a testator dying after passage of the act, under a power of appointment contained in the will of another, who died prior to its passage, held, not subject to tax, although the last testator made the property, together with his own estate, subject to payment of his debts, where, not being required for such purpose, the orphans’ court distributed it directly to the appointees.</p>

<p>Appeal from the District Court of the United States for the District of Massachusetts; James M-. Morton, Jr., Judge.</p> <p>Suit in admiralty by the Sangstad Steamship Company and another against Walker D. Hines, Agent. Decree for libelants (266 Fed. 390), and respondent appeals.</p>

Lewis, Judge. Suit in equity by Wilfrid Eedoux and others against Frederick G. Bonfils and another. Heard on cross-appeals from the decree. Appeals and cross-appeal challenge the decree of the trial court. The bill sought to have the defendants held to be trustees of the lease of a theater building. This theater building, known as the Empress Theater, in Denver, was held under a lease by the defendant Greaves, as lessee.

<p>Judgment <SS=»828(3) — Adjudication in state of court question directly in issue conclusive between parties suing in federal court.</p> <p>A decree in equity of a state court directly adjudging that plaintiff had no title to the surface of a lot as against defendant, which owned the coal thereunder, held conclusive on that question and a bar to a subsequent action between the same parties, in vrtiieh the right to recover was dependent on proof of title in plaintiff.</p>

<p>* In Error to the District Court of the United States for the District of Porto Rico; Peter J. Hamilton, Judge.</p> <p>Action by Adalberto Diaz Mor against the Porto Rico Railway Eight and Power Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from the District Court of the United States for the Eastern District of North Carolina, at Raleigh ; Henry G. Connor, Judge.</p>

Dickinson, Judge. Suit by Arthur B. Low and others, partners as the C. A. Shaler Company, and others, against Harry McMaster, doing business as the Presto Patch Company. Decree for defendant, and complainants appeal.

<p>1. Patents <©^259 — Malting one element of a tooth constituted contributor}’ infringement.</p> <p>A defendant, which under contract with a dental manufacturer made one element of a tooth, which, when joined to another part by such manufacturer, as intended, formed a complete tooth that infringed complainant’s patent, held a contributory infringer.</p> <p>2. Patents ■@=>288 — Contributory infringer subject to suit in district where acts are committed. •</p> <p>A contributory infringer is subject to suit in the district where it committed its part of the infringement and has a regular established place of business.</p> <p>3. Patents <§^328 — 762,289, for tooth, A’alid and infringed.</p> <p>■ The Davis patent, No. 762,289, claim 1, for a crown tooth is for a new combination of old elements which produces a better result than anything in the prior art, was not anticipated and discloses invention; also held infringed.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Two suits by Arthur B. Bellows and others against the New York Central 'Railroad Company. Decrees for defendant, and complainants Bellows and Slack appeal.</p>

Suits by Arthur B. Bellows and others against the New York Central Railroad Company and against the Pressed Steel Car Company. Decrees for defendants, and complainants Bellows and Slack appeal.

Suits by Arthur B. Bellows and others against the New York Central Railroad Company and against the Pressed Steel Car Company. Decrees for defendants, and complainants Bellows and Slack appeal.

<p>Appeal from the District Court of the United States for the District of Massachusetts; George W. Anderson, Judge.</p> <p>Suit by Charles H. Stephenson against Milledge C. Short. Decree for defendant, and complainant appeals.</p>

<p>1. Patents <&wkey;318(3) — Willful infringer cannot limit recovery to established royalty.</p> <p>Whore infringement by defendant after termination of its license was willful and deliberate, it is liable for all profits made, and cannot require complainant to accept the royalty fixed by the license contract.</p> <p>2. Patents <&wkey;318(5) — Patentee entitled to interest, where infringement was deliberate and recovery was long contested.</p> <p>Whore infringement by defendant was willful and deliberate, and it contested recovery in the courts for 12 years, complainant held entitled to interest from the date of the decision of the Circuit Court of Appeals holding the patent valid and infringed, except for the time the matter of accounting was held for decision by the master after close of the evidence bpfore him.</p>

In Equity. Suit by the Colonial Trust Company, trustee, the Westinghouse Electric & Manufacturing Company, and the Chowning Regulator Corporation against the Chaplin-Fulton Manufacturing Company and others. On motion to dismiss bill.

<p>In Admiralty. Suit for collision by the Maryland Dredging- & Contracting Company'against the Steamship Shinsei Maru.</p>

<p>In Admiralty. Suit by the C. B. Fox Company, Incorporated, against the steamship Freda, with the Caribbean & Southern Steamship Company, Incorporated, impleaded, to recover for lost cargo.</p>

<p>In Equity. Suit by David Hyafill against the Buffalo Marine Construction Company. On motion for preliminary injunction.</p>

<p>At Raw. Suit by the United States, to the use of Sargent & Co., against H. R. Brown, the American Fidelity Company, and Casualty Company of America. On rule to stay proceedings.</p>

<p>At Raw. Action by the West & Dodge Company against the Bethlehem Shipbuilding Corporation, Limited. On demurrer to answer.</p>

In Equity. Bill by Joseph M. Underwood and others against Douglas E. Dismukes. The suit, which was begun in the state court, was removed by defendant to the federal court on writ of certiorari. On motion to quash writ and to remand.

<p>1. Towage <@=>11 (7) — Tug held at fault in attempting to take two loaded boats.</p> <p>Where a tow collided with a bridge abutment and was injured, held, that the tug was at fault in attempting to take two loaded boats; the tide being at flood.</p> <p>2. Towage <©=>11 (2) — City not liable for collision of tow with bridge.</p> <p>Where a tow collided with a bridge abutment, but there was nothing to indicate .any obstruction under water, the city, which constructed the bridge, was not liable, even if there was a slight roughness of the stones under water.</p>

<p>Maritime liens <&wkey;10 — Contract for reconstruction not creating lien.</p> <p>A contract for converting a car float, having neither motive power nor steering gear, into an amusement steamer, with dance hall, rooms, ana power equipment, held one for reconstruction, completely changing the identity of the vessel, which did not create a maritime lien.</p>

<p>Equity &wkey;>»3(2) — Objection to jurisdiction because ol' adequate remedy at law may be waived.</p> <p>A suit in equity will not be dismissed, under Rev. St. § 723 (Comp. St. § 1214), on the ground that complainant has an adequate, remedy at law, where defendant has waived Ids right to make such objection, which is a personal privilege, by entering his defense on the merits.</p>

<p>At Taw. Action by Charles Ginnochio, administrator, against the Hyraulic Press Brick Company. On demurrer to second and third •defenses of answer to second amended petition.</p>

In Admiralty. Petitions on behalf of the steamships Cushing and Proteus for limitation of liability arising out of a collision between them at -sea. These are two petitions for the limitation of liability arising out of a collision which took place on August 19, 191S, about SO miles southwest of the Diamond Shoal Lightship, half way between Cape Hatteras and Cape Lookout, and about 20 miles off the coast.

<p>In Equity. Suit by the Texas Company against J. J. Brown, Commissioner of Agriculture of the State of Georgia, and others.</p>

<p>Internal revenue <&wkey;9 — Munition manufacturer’s tax; net profits.</p> <p>Wliere a corporation munition manufacturer entered into an agreement with two individuals by which, in consideration of their contributing to the expense of an agent sent to England to try to obtain a contract for furnishing munitions to the British government, and aiding by their influence and otherwise, not involving expense, in procuring and carrying out the contract, they were to share in proportion to the amount advanced in the profits made, and under which, the contract having been secured and performed, it paid them from the profits an amount approximately 1,000 times the amount of their contributions, the corporation held not entitled to deduct such payments from its gross profits in order to ascertain its net profits, subject to excise tax under Act Sept. 8, 1916, § 301 (Comp. St. § 633614b).</p>

<p>1. Courts <&wkey;272 — Federal court without jurisdiction of personal suit between nonresidents; “suit to enforce lien or remove inciunbrance.”</p> <p>A suit by a stockholder of a corporation to cancel an agreement between other stockholders creating a voting pool of their stock is not one to enforce a lien or remove an incumbrance, within the meaning of Judicial Code, § 57 (Comp. St. § 1039), and under section 51 (section 1033), where complainant is a nonresident of the district, it cannot be maintained against a defendant, who is also a nonresident, over his objection.</p> <p>2. Corporations <&wkey;190 — Party to pooling agreement indispensable party to suit to cancel or enjoin enforcement.</p> <p>To a suit by a stockholder to cancel a pooling agreement between holders of a majority of the stock, not unlawful in itself, but the alleged purpose of which is the making of a contract employing- one of their number as sales agent of the corporation, and to enjoin the making of such contract, such proposed agent held an indispensable party defendant, and the suit held not maintainable, where he could not be brought within the jurisdiction of the court.</p>

<p>At Law. Action by Carl A. Berg against the Philadelphia & Reading Railway Company. On motion by defendant for new trial.</p>

<p>Death &wkey;>35 — Statutory action maintainable in courts of another state.</p> <p>An action for wrongful death under the statute of Florida (Comp. Laws 1914, § 3146), brought for the benefit of the estate of deceased, who left no wife, child, or other dependent, held not contrary to the public policy of Georgia, and maintainable in its courts, although the statutes of the state do not give a right of action in such case.</p>

<p>In Admiralty. Suit by James Rickenbach against the Hainesport Mining & Transportation Company, with the tug Minerva, impleaded. On trial hearing on proofs.</p>

<p>At Law. Action by the Morris-Turner Live Stock Company against the Director General of Railroads.</p>

<p>Internal revenue <&wkey;1? — Stockholders receiving assets of dissolved corporation liable for income tax of corporation.</p> <p>Stockholders of a corporation, who received in distribution the entire proceeds of its property on its dissolution in 1916, after payment of its federal excise tax, but before the passage of Income Tax Act Sept. 8, 1916, § 10 (Comp. St. 1916 or 1918, § 0336j), increasing the amount of the tax on the net income of all corporations for that year, held liable for the increased tax.</p>

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Suit by Jesse S. Phillips and others, as receivers, against the Noel Construction Company and others. From a decree dismissing the bill of complaint, plaintiffs appeal.</p>

<p>1. Kailroads 1&wkey;282(9) — Refusal to direct verdict on conflicting evidence proper.</p> <p>Where the evidence was conflicting as to whether a freight ear moved by the consignee was defective, and as to whether the railroad company inspected it, it was proper to refuse a directed verdict for the railroad company, if it owed to plaintiff, consignee’s employs, the duty to inspect the car.</p> <p>2. Kailroads <&wkey;2'J9 — Failure to inspect car proximate causo of injury to employs of consigne© i» unloading1.</p> <p>A railroad company owes the duty to inspect a freight car to an employe of the consignee, who was engaged in moving the car to the place of unloading, or in unloading it, and the breach of that duty is the proximate cause of injury resulting from a defect in the car.</p> <p>3. Kailroads ©=’279 — Failure to inspect mot proximate cause of injury to employe of shipper, using car in mill.</p> <p>Tlie failure of a railroad company to inspect a car before delivering it to the consignee is not the proximate cause of an injury to an employe of tlie consignee, resulting from a defect in the car while it was being used by the consignee for intra-mill traffic, after the original cargo had been unloaded.</p> <p>4. Pleading ‘J&wkey;!! — Pleading evidence is mot proper.</p> <p>Pleading payment of demurrage to a railroad as evidence of the railroad’s assumption of the duty to inspect a car is not good pleading.</p> <p>5. Railroads <&wkey;275(l) — Collection oí demurrage not proof carrier knew of use of car by consign®».</p> <p>Collection of demurrage by a carrier on a car is not proof that Iho carrier knew the car was being used by the consignee in its intra-mill traffic, so as to render the carrier liable for the unfitness of the car for such traffic.</p> <p>6. Kailroads &wkey;>282 (9) — Evidence ha-id to show conclusively carrier did mot assume inspection of ear used in intra-mill traffic.</p> <p>Where plaintiff knew that defendant kept inspectors on duty at his employer’s mill to inspect cars therein, and that his employer had no inspectors, but defendant introduced evidence, which was not disputed, that its inspectors only inspected inbound and outbound cars, the evidence was conclusive that the carrier had not assumed the duty to inspect a car used by the mill in intra-mill traffic, so that a verdict should be directed for it, where plaintiff’s injuries were caused by a defect in the car while so used.</p>

<p>Appeal from the District Court of the United States for the District of Kansas; John C. Pollock, Judge.</p> <p>Suit by the Kansas Gas & Electric Company against the Wichita Natural Gas Company, begun in the state court and removed on petition of the defendant to the federal court. Motion to remand denied, and case dismissed for want of equity, and plaintiff appeals.</p>

<p>In Error to the District Court of the United States for the Western District of Pennsylvania; W. H. Seward Thomson, Judge.</p> <p>Action at law by the Clinton Mining & Mineral Company against J. S. Beacom. From a judgment of nonsuit, plaintiff brings error.</p>

Suit by the Gas & Electric Securities Company against the Manhattan & Queens Traction Corporation. In the matter of petition of William R. Begg and Arthur Carter Hume, receivers of defendant, against the City of New York. From the order, the City appeals. This cause comes here from the United States District Court for the Eastern District of New York, on order granting and continuing an injunction.

, Judge. Suit in admiralty for collision by Frank Hand, master of the British Steamship Hawkhead, against the Chesapeake Steamship Company of Baltimore City, owner, and John Thomas, master, of the steamer City of Norfolk. Decree against the City of Norfolk, and her claimants appeal.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Habeas corpus, on the relation of Daniel Raides, against Byron H. Uhl, Acting Commissioner of Immigration at the Port of New York. From an order dismissing the writ, petitioner appeals.</p>

Hook and David P. Dyer, Judges. Suit'bv the Missouri Pacific Railroad Company against .Belle Smith to enjoin the prosecution of a civil action in tlie state court. From a decree granting the temporary injunction prayed for, defendant appeals.

<p>1. Bankruptcy &wkey;>391(3) — Forfeiture of lease under its terms for bankruptcy of lessee cannot be restrained.</p> <p>Where a lease without rent, granted in consideration of delivery of corporate stock of the lessee, provided for forfeiture of the lease on bankruptcy of the lessee, the trustee in bankruptcy of an assignee of the lease cannot have enforcement of the forfeiture clause enjoined, where there was no showing of fraud or mistake.</p> <p>2. Bankruptcy <&wkey;S9 ‘ (3) —-Hardship to bankrupt and creditors because of forfeiture under lease not ground for injunction.</p> <p>The fact that a bankrupt paid ¡¡>9,000 for the assignment of a lease one year before his bankruptcy, and that his creditors, who advanced the money, would lose it, does not prevent the lessor from exercising its right of forfeiture under the terms of the lease, for bankruptcy of the lessee, where the assignee took the lease with full knowledge of that condition.</p> <p>3. Bankruptcy <&wkey;468 — On reversing injunction against forfeiture of lease for bankruptcy, court can order delivery to lessor, etc.</p> <p>The Circuit Court of Appeals, on reversing a decree of the District Court enjoining a lessor from enforcing its right to forfeit the lease for bankruptcy of the lessee, where the trustee had petitioned for determination of rights of parties, can, in order to settle the litigation, direct the trustee to surrender possession of the property to the lessor, determine the date when the lease was terminated by exercise of the lessor’s option, and direct the trustee to pay the lessor the reasonable value of the use of the premises since such date.</p>

<p>Prostitution <&wkey;l — Interstate transportation of girl not within White Slave Traffic Act; “interstate commerce.”</p> <p>Where defendant had illicit relations with a girl, who was domiciled in one state, his taking her in an automobile across the line into another state for a brief visit with relations, returning the same day, after which their relations continued, holcL not a transportation in interstate commerce for an immoral purpose within the meaning of White Slave Traffic Act June 25, 1910, § 2 (Comp. St. § 8813).</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.]</p>

<p>1. Bankruptcy <&wkey;217 (E) —State court has jurisdiction to enforce attachment liens established more than four months prior to bankruptcy.</p> <p>Where attachments were issued by a state court, levied on lands, judgments rendered for plaintiffs, and their attachment liens established, more than four months before bankruptcy of defendant, the jurisdiction of the state court to enforce the liens cannot be interfered with by the bankruptcy court.</p> <p>2. Bankruptcy <&wkey;217 (3) — Liens which state court has exclusive jurisdiction to enforce.</p> <p>Where a state eourt has obtained complete jurisdiction by hostile proceedings, which creditors have instituted for the enforcement of their demands, and in which creditors have acquired liens on property more than four months before the tiling of the petition in bankruptcy, the disposition of the property for payment of the liens should be left to the state court, without interference from the court of bankruptcy.</p>

<p>On Petition to Superintend and Revise, in Matter of Raw, Proceedings of the District Court of the United States for the Northern District of West Virginia, at Wheeling, in Bankruptcy; Alston G. Dayton, Judge.</p> <p>In the matter of Isaac W. Semans, bankrupt. Petition by Uily M. Griffin, as committee for Sheridan R. Griffin, an insane person, and others, to revise an order of the District Court.</p>

<p>In Error to the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge.</p> <p>Action by Alexander D. Stockton, sole surviving trustee under the will of Alexander J. Derbyshire, deceased, against Ephraim Uederer, Collector of Internal Revenue. Judgment for plaintiff, and defendant brings error.</p>

Dickinson,, Judge. Suit in equity by the United States Smelting Company and others against Mendel Hofkin and others. Decree for complainants, and defendants appeal.

Suit in equity by August J. Oehring and another against the Fox Typewriter Company and the 2Etna Casualty & Surety Company. From an order of the District Court, complainants appeal. Held: and entered an order to that effect. This appeal followed.

<p>In Error to the District Court of the United States for the Southern District of West Virginia, at Bluefield.</p> <p>Action by James O. Winston and others, partners as Winston & Col, against the County Court of Wyoming County, W. Va. Judgment for defendant, and plaintiffs bring error.</p>

Van Fleet, Judge. Action at law by Norvena Lineker and Frederick V. Lineker against Mary J. Dillon (formerly Mary J. Tynan) and Thomas -B. Dillon. Judgment for plaintiffs, and defendants bring error.

Appeals from the District Court of the United States for the District of Maryland, at Baltimore; John C. Rose, Judge. Consolidated suits in admiralty by the United States and others against the Standard Oil Company of New Jersey, the Raymond Concrete Pile Company, and others. From a decree for libelants, defendants appeal.

<p>Poisons >&wkey;9 — Indictment for unlawful sale of narcotic sufficient.</p> <p>An indictment charging defendant with purchasing, selling, and distributing cocaine from a certa in tin box, which was not the original stamped package containing said cocaine, and that he had such box containing cocaine, which did not bear appropriate tax-paid stamps in his possession, held to state an offense, under Harrison Antinarcotie Act, § 1, as amended by Act Feb. 24, 1919, § 1006 (Comp. St. Ann. Supp. 1919, § 62S7g), making such purchase or sale, except from original stamped packages, an offense, and possession of unstamped packages prima facie evidence of such offense. ‘ ,</p>

<p>Poisons —Indictment for unlawful sale of narcotics sufficient.</p> <p>An indictment under Harrison Antinarcotic Act, § 1, as amended by Act Feb. 24, 1919, § 1006 (Comp. St. Ann. Supp. 1919, § 6287g), for selling morphine and cocaine from paper bags and boxes ' "h were not the “original stamped package” containing said drugs, held sufficiently specific as against objection first taken in the appellate court.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Virginia, at Norfolk; Edmund Waddill, Jr., Judge.</p> <p>Suit in admiralty hy C. G. Westwood and others against the United States. Decree for libelants, and the United States appeals.</p>

Van Fleet, Judge. _ _ Suit in equity by the Murphy Wall Bed Company and the Marshall & Stearns Company against the Perfection Disappearing Bed Company, Incorporated, and others. Decree for complainants, and defendants appeal.

<p>In Equity. Suit by the Beattie Manufacturing Company against Margaret E. Heald, doing business as the E. H. Brown Manufacturing Company, and Ida Maitland, executrix of the will of John Maitland, deceased. On final hearing.</p> <p>Suit in equity to restrain alleged infringement of United States letters patent Nos. 713,230, 972,320, 972,495, 972,272, and 1,071,677, all relating to folding machines, and for an accounting; also a motion to dismiss on the ground of laches, and a motion to strike out the testimony of Walter J. Beattie, for refusal to produce him for further cross-examination.</p>

<p>In Admiralty. Suit by P. W. McAvoy, managing owner of the tug Pacific, against the Camden Shipbuilding Company.</p>

Criminal prosecution by the United States against C. R. Wilson. The defendant was indicted on the charge of violating the White Slave Traffic Act, tried, found guilty, and judgment of imprisonment rendered. No question was made, before or at the trial, hut that the transportation of the woman alleged and proved was an interstate transportation within the meaning of tine act.

<p>1. Courts <8=55 — May order officers to return property unlawfully taken for another.</p> <p>Whenever an officer of the court has in his possession or under his control books or papers or other articles in which the court has an official interest, and of which any person, whether a party or not, has been unlawfully deprived, such person may petition the court for a restitution of property.</p> <p>2. District and prosecuting attorneys <&wkey;l — Attorneys are officers of court, who can be ordered to return papers in their possession.</p> <p>Attorneys are officers of the court, so that the district attorney as such officer, and not as an officer of the United States, can be ordered by the court to return papers in his possession of which another has been unlawfully deprived.</p> <p>3. Courts <&wkey;55 — Can order return of papers, though no prosecution is pending.</p> <p>Courts can order a return of papers in the possession of their officers to a person from whom they were unlawfully taken, though no prosecution to which the papers relate is pending, or they may in their discretion remit the person to plenary suit for such papers.</p> <p>4. District and prosecuting attorneys <&wkey;l — Papers will not be returned merely to prevent use in evidence against owners.</p> <p>The only ground, on which a motion for return of papers in possession of the district attorney can rest is that they were unlawfully seized by an unreasonable search, in violation of Const. Amend. 4, or without due process of law, in violation of Const. Amend. 5; the possibility of their use in evidence thereby compelling the owner to give evidence against himself contrary to Const. Amend. 5, not being ground for such motion.</p> <p>5. Searches and seizures @=>7 — Securing papers by fraud is not "unreasonable search or seizure.”</p> <p>The unreasonable searches and seizures against which a person is protected by Const. Amend. 5, are those involving force, and that amendment does not apply where possession of a paper was obtained by fraudulent representation that it could be taken by force, if not voluntarily delivered.</p> <p>6. Criminal law i&wkey;1023(3) — Order denying return of seized books not reviewable.</p> <p>An order denying return of papers seized from defendant in a criminal prosecution is not reviewable at the instance of defendant, since it is a mere interlocutory order.</p> <p>7. United States commissioners ‘@=•^7 — Are for many purposes justices of the peace of the United States.</p> <p>United States commissioners, who under Act May 28, 1896, c. 252, succeeded to the powers and duties of commissioners of circuit courts, including the powers of arresting, imprisoning, and bailing offenders, under Rev. St. § 1014 (Comp. St. § 1674), are for many purposes, including the issuance of warrants, justices of the peace of the United States.</p> <p>8. United States commissioners >&wkey;7 — Procedure follows legal methods of state.</p> <p>In exercising the powers of a justice of the peace in respect to arresting, imprisoning, and bailing offenders, granted by Rev. St. § 1014 (Comp. St. § 1674), United States commissioners follow the usual legal methods of the states in which they sit.</p> <p>9. Searches and seizures <&wkey;8J4, New, vol. 11A Key-No. Series — Common-law method of review of issuance was by action of trespass.</p> <p>The common-law method of reviewing the action of a magistrate in issuing a search warrant was by an-action of trespass; appeals from such magistrates being unknown at common law.</p> <p>10. Searches and seizures <&wkey;8%, New, vol. 11A Key-No. Sexáes — Certiorari will not issue to review issuan ce of search warrant by United States commissioners.</p> <p>Since certiorari to review the issuance of search warrant by magistrate was unknown at common law, and is not authorized by act of Congress, that method of review does not exist.</p> <p>11. United States commissioners —Issue process as part of the proceedings of the District Court.</p> <p>United States commissioners, who succeeded to the powers and duties of the commissioners of the Circuit Court, and who by tradition and general practice hold a court, issue criminal process, including search warrants, . in and as part of the proceedings of the District Court.</p> <p>12. Searches and seizures <&wkey;8M, New, vol. 11A Key-No. Series — Order of commissioner directing return of seized property is judgment of the District Court.</p> <p>An order by a United States commissioner, directing return of property seized under search warrants issued by him, is a judgment of the District Court from which the writ of error lies to the Circuit Court of Appeals.</p> <p>13. Courts ©=518 — District Court cannot set aside order of United States commissioner directing return of seized property.</p> <p>A District Court cannot set aside an order oí tlie United States commissioner directing a return oí property seized under his search warrant any more than one District Judge can set aside an order entered by another.</p> <p>14. Searches and seizures &wkey;38 — Issuance of search warrant and its subsequent discharge are not res judicata.</p> <p>The issuance of a search warrant, and its subsequent discharge by a United States commissioner are not res judicata as to the right to the warrant, but subsequent application for a similar warrant may be made to the District Judge.</p> <p>15. Criminal law ‘2^230 — Committing magistrate should obey statute, unless plainly unconstitutional.</p> <p>A committing magistrate must obey the statutes, in so far as they are constitutional, and is bound to refer a charge that a statute enlarging a power to search and seize is unconstitutional to the higher courts, unless the constitutional question is extraordinarily plain.</p> <p>16. Constitutional law &wkey;>48 — Committing magistrate should construe statutes to avoid unconstitutionality.</p> <p>If one construction of an act enlarging the power to search and seize is plainly constitutional, and another is with difficulty reconcilable to the Constitution, the committing magistrate must incline to the former construction.</p> <p>17. Searches and seizures ©=3 — Warrant issues only for actual probable cause.</p> <p>A warrant Cor search and seizure, which is allowed by the Constitution only for probable cause, issues only where there is actual probable cause, not merely a verified assertion of suspicion, and the magistrate may inquire into the truth of the affidavit offered as a basis for the warrant.</p> <p>18. United States commissioners <&wkey;7 — Proceedings for arrest and search warrants should follow state proceedings.</p> <p>The ascertainment of probable cause for the issuance of an arrest or search warrant is a judicial function, which under general statutes the United States commissioner should exorcise in conformity with state statutes.</p> <p>19. Searches and seizures <&wkey;5 — In application for return of property, question is whether evidence then admitted shows cause when warrant was issued.</p> <p>On the hearing of a motion for the return of property seized under a search warrant, much latitude as to the evidence should be permitted, and the question for determination is whether, under the evidence then admitted, there existed probable cause when the warrant was issued.</p> <p>20. Searches and seizures <&wkey;5 — If property is claimed under right additional to warrant, return should be directed, so far as based on the warrant.</p> <p>Where, at the hearing on an application for return of property seize"d on search warrant, it appears that there was not probable cause for the issuance of the warrant, but the person in possession claims right to the property on some ground other than the seizure under the warrant, the order should direct the return of the -goods in so far as they are held by virtue of the search warrant.</p>

<p>1. Carriers <&wkey;34 — Suit relating to distribution of coal cars not within jurisdiction of court.</p> <p>A suit to enjoin a practice of a railroad company, in time of a shortage of coal cars, to deliver assigned cars, whether its own or those of other railroads or private owners, to mines with which the owners had contracts for coal,, counting them against the quota of such mines under their respective ratings, under Interstate Commerce Act, § 1, par. 12, as amended by Transportation Act Feb. 28, 1920, and distributing commercial cars only to fill such quotas, 7held to present an administrative question for determination by the Interstate Commerce Commission, and not within the jurisdiction of the District Court.</p> <p>2. Appeal and error &wkey;>458 (3) — Continuance of dissolved injunction pending appeal denied in court’s discretion.</p> <p>Whore a .preliminary injunction, granted by a state court ex parte, without notice, is dissolved by a federal court after removal of the cause and a hearing, on the ground that neither court has jurisdiction of the áubject-matter, the court will not, in the exercise of its discretion, allow a super-sedeas to continue the injunction in force pending an appeal.</p>

At Baw. Proceeding by the United States against W. W. Watson.

<p>Indians &wkey;>15(2) — Restrictions on alienation removed by Secretary in particular case not reimposed by statute.</p> <p>Section 19, Act April 26, 1906, providing that “no full-blood Indian * * * shall have power to alienate * * * in any manner any of the lands allotted to him for a period of 25 years from and after the passage and approval of this act, unless such restrictions shall, prior to the expiration of said period, be removed by act of Congress,” held, to have the effect of reimposing restrictions theretofore removed by operation of law, but not to render invalid a subsequent conveyance by a full-blood Cherokee Indian of his surplus allotment, where' previous to the passage of the act, under a prior law, the Secretary of the Interior had approved the recommendation of the Indian agent, made after a quasi judicial investigation, and removed the restrictions in the particular case, and his approval had been recorded in the same manner as patents are recorded.</p>

<p>Criminal prosecution by the United States against Boze Yuginni and Cousin Boze Yuginni. On motion to quash indictment.</p>

<p>1. Pleading <&wkey;106 (1) — PJea in abatement merely to give better writ to plaintiff.</p> <p>Pica in abatement is merely to put the instant suit out of court, and to give a better writ to plaintiff for another suit.</p> <p>2. Removal of causes &wkey;>112 — From state to federal court does not recreate suit.</p> <p>Removal of suit from a state court to the federal District Court does not recreate it, and if the state court had no jurisdiction, it is the duty of the District Court so to declare; the question being properly raised by plea in abatement, though such suit might have been brought in the,District Court.</p> <p>3. Evidence &wkey;>23(l) — Interest of government in building ships to meet submarine menace commonly known.</p> <p>It is matter of common knowledge that at the time of creation of .the Emergency Fleet Corporation the government was greatly interested' in the building of ships to overcome the German submarine menace.</p> <p>4. Courts <&wkey;489(10) — Emergency Fleet Corporation a governmental agency, not to be sued in state court.</p> <p>In view of the Shipping Act (Comp. St. §§ 8146a-8146r), and Act Cong. March 9, 1920, Emergency Fleet Corporation of United States Shipping Board held an instrumentality of the federal government, not to be sued in a state court, but in a federal District Court, under Judicial Code, § 24, subd. 20 (Comp. St. § 991 [20]).</p>

Dietrich, Judge. Action at law by Ira D. Cardiff and others, partners as Ira D. Cardiff & Co., against the Uewiston Milling Company, Eimitcd. Judgment for plaintiffs, and defendant brings error. This writ of error is prosecuted by defendant below, and for convenience reference will be made to the parties litigant as plaintiffs and defendant. Recovery is sought of part of the purchase price alleged to be yet due plaintiffs upon a sale to the defendant of dehydrated potatoes.

Rudkin, Judge. Habeas corpus by Ng Fung Ho, otherwise known as Ung Kip, and others, against Edward White, Commissioner of Immigration for the Port of San Francisco. From an order quashing the writ, petitioners appeal.

In Error- to the District Court of the United States for the Northern Division of the Western District of Washington; Jeremiah Neterer, Judge. ... Criminal prosecution by the United States against S. C. Jackson. Judgment of conviction, and defendant brings error. Jackson was convicted under two counts of an indictment for violation of the act of Congress relating to bills of lading in interstate commerce, approved August 29, 1916 (39 Stat. p. 538 [Comp. St. § 8604u]).

<p>1. Canals &wkey;>2 — Dredged approach held part of canal.</p> <p>The dredged approach to the Cape Cod Canal through the navigable water of Buzzard’s Bay, which was necessary to enable vessels to reach the canal, is for some purposes a part of the canal.</p> <p>2. Canals &wkey;>29 — Pilot of canal company held acting within authority in piloting through dredged approach.</p> <p>A licensed pilot of a canal company, which furnished such pilots to vessels passing through the canal under its charter authority to assist vessels in their approach to and from the canal, is acting within the scope of his employment by the canal company while piloting a vessel through the dredged approach to the canal in Buzzard’s Bay, so as to render the canal company liable fpr his negligence.</p> <p>3. Canals ©=>29 — Pilot's negligence actionable, regardless of vessel’s obligation to take canal pilot.</p> <p>Where a canal pilot furnished by the canal company assumed to pilot a vessel through the dredged approach to the canal, the canal company is liable for his negligence, regardless of whether the vessel was required to take the pilot for its passage through such approach.</p> <p>4. Canals ©=>29 — Canal company liable for unlicensed carnal pilot’s negligence.</p> <p>A canal company, which licensed a pilot to assist vessels through the canal, cannot" avoid liability for his negligence while piloting a vessel through the dredged approach to the canal in a navigable bay, on the ground that he had no government license to pilot in such bay, so that his employment by the vessel violated Rev. St. I 4438 (Comp. St. § 8200).</p>

<p>In Error to the 'District Court of the United States for the Western District of Oklahoma; John H. Cotteral, Judge.</p> <p>Ellsworth H. Green and another were convicted of using the mails to defraud, and they bring error.</p>

Bill in equity filed by C. A. Weed & Co. against Stephen T. Dock-wood, United States Attorney for the Western District of New York, defendant, to restrain and enjoin the defendant from taking any further proceedings upon and subsequent to the indictment against the plaintiff pending in the District Court, and from bringing the plaintiff to trial under said indictment, and to restrain the defendant from instituting any further prosecution under the act of Congress of August…

<p>1. Criminal law <@=>901 — Motion to direct verdict after government’s case waived by introduction of evidence.</p> <p>' Accused waives error in the ruling of the trial court denying his motion for directed verdict at the close of the government’s case by thereafter introducing testimony in his defense.</p> <p>2. Crimmal Ia,w '®=395 — Evidence that articles defendant was charged with stealing were taken without search warrant inadmissible.</p> <p>In a prosecution for perjury in testimony by accused in his own behalf in a former prosecution for larceny from interstate commerce, evidence that the articles defendant was accused of stealing were taken from his possession by the sheriff without a search warrant was properly excluded; the means by which competent evidence is procured being a collateral issue, which should not be determined at the main trial.</p> <p>3. Searches and seizures —In prosecution in federal court, unlawful seizure by state officer is no defense.</p> <p>It is no defense in a prosecution in the federal courts that evidence introduced against accused was obtained by unlawful search, where the search was made by a state officer, who made no claim to act under any federal authority.</p> <p>4. Perjury «©^IS — Conviction for false testimony in own defense-as to evidential matter permissible after acquittal of crime.</p> <p>A defendant, who testified in his own defense, may be prosecuted for false testimony as to a subordinate evidential matter, not a mere denial of the entire charge, notwithstanding an acquittal in the case in which the testimony was given.</p>

<p>1. Judgment <S=»948(1) — Defense of res judicata must be pleaded. The defense of res judicatu. must bo both pleaded and proved.</p> <p>2. Appeal and enor (2)-- Appellate court will assume, in absence of objection, that defense of res ’judicata was properly raised.</p> <p>Where the District Court entered a judgment for defendants on the pleadings on the ground of res judicata, though that defense was not pleaded in the affidavit of defense, and no point was made on writ of error of the failure to specifically plead it, the appellate court will assume that the defense was properly presented below.</p> <p>3. Judgment <2^609, 713(2) — Subsequent suit on different cause of action barred only as to matters Mil»,tied.</p> <p>Where the subsequent swt between the same parties is based on the same cause of action, the prior judgment concludes all matters which might have been litigated in the prior action; but, if the subsequent suit is on a different cause of action, the prior judgment concludes only issues . actually litigated.</p> <p>4. Action <§=>1 — “Cause of action” comprises acts necessary to prove.</p> <p>The “cause of action” is the ground on which the action may be sustained, and comprises every foot which plaintiff must prove to obtain judgment, or which the defendant may traverse.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Cause of Action..]</p> <p>5. Judgment ’©=590 (5) — Causes oí action removed from former case by amendment not included.</p> <p>Where the state law recognizes separate causes of actions for damage to surface by breach of duty to support, by negligent mining, and by removal of lateral support, a former judgment is not conclusive against recovery for negligent mining, where that issue was eliminated from the bill by amendment.</p> <p>6. Judgment (5) — Cause of action may be withdrawn before decision without being barred.</p> <p>Where amended bill in previous action stated two causes of action, plaintiff could withdraw before hearing either of them, and not be barred from renewing the cause of action so withdrawn.</p> <p>7. Judgment ®=»590(2) — Decision of state Supreme Court limited to cause of action decided below.</p> <p>Where the decision of the state lower court was based solely on denial of plaintiffs right to vertical support of the surface, the decision of the state Supreme Court that plaintiff was not, entitled to surface support, though general enough to include lateral as well as vertical support, mast bo restricted to the question of the vertical support, so as not to bar a subsequent action for damages caused by withdrawal of lateral support.</p> <p>8. Mines and minerals <©=55 (2) — Reservation of mining rights in grant of surface does not authorize removal of lateral support. .</p> <p>The reservation in a grant of surface ot the right to mine coal thereunder without any liability whatsoever does not authorize the removal of lateral support from the surface by mining' the coal under adjacent lands.</p> <p>9. Mines and minerals <©=55 (6) — Reservation of surface held to release damages for negligent mining.</p> <p>A reservation, in the grant of surface lands, of the right to mine the coal thereunder without incurring in any event whatever any liability for injury to the surface, prevents recovery by the holder of the surface rights of damages to the surface caused by negligent mining.</p> <p>Buffington, Circuit Judge, dissenting in part.</p>

<p>1. Shipping <&wkey;177 — Charterer’s “default” in unloading covers all delays not due to vis major or act of shipowner.</p> <p>Where a charter party provided for demurrage for each day’s detention by default of the charterer, the term “default” does not mean that the charterer is liable only for delays due to his own fault, but renders him liable for all delays in the performance of his covenant .to unload, not due to vis major or to the fault of the shipowner.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Default.]</p> <p>2. Shipping <&wkey;184 — Burden is on charterer to prove delay in unloading was due to shipowner.</p> <p>The shipowner makes out a prima facie case for demurrage by proof of delay, and the burden then lies on the charterer or consignee to prove that the delay was due to the fault of the shipowner.</p> <p>3. Shipping <&wkey;180 — Shipowner bound to employ enough stevedores to discharge at charter rate.</p> <p>A shipowner is bound to employ sufficient stevedores to deliver the ■ cargo at the vessel’s fail at the rate specified by the charter, though it would not be liable if it was prevented by strike or other cause beyond its control from employing the stevedores.</p> <p>4. Shipping <&wkey;180 — Delay in unloading held due to neglect of consignee to furnish men to trim lighters. ,</p> <p>Where the consignee neglected to send men to trim the lighters as sugar was loaded on them, as a result of which some of the stevedores employed by the ship had to do that work, so that the ship failed to deliver the specified number of bags of sugar per day, the delay was due in part, at least, to the fault of the consignee, rather than to shipowner’s fault in failing to employ sufficient stevedores, and it is liable for the demurrage specified by the charter.</p> <p>5. Shipping <&wkey;174 — Consignee, n©t charterer, held liable for delay in unloading.</p> <p>Where the bill of lading provided for delivery of sugar to the' consignee, “on payment of steamship freight and all other charges, as per charter party,” the provision of the charter party for demurrage, and the lien therefor were incorporated in.the bill of lading, and the consignee is liable for the demurrage; the charterer having the benefit of the cesser clause of the charter party.</p> <p>6. Sales <&wkey;20l’(4) — Title passes cm delivery to carrier, when the contract requires seller to ship and give credit for freight.</p> <p>.Where the contract merely required the seller to ship the sugar to the buyer and to give credit for the freight, the buyer to procure the marine insurance, the provision of Personal Property Law N. Y. §100 (5), as added by Laws N. Y. 1911, c. 571, as to the time title passes, does not apply, but title passed to the buyer on shipment of the goods.</p>

. Cross-Appeals from the District Court of the United States for the Southern District of New York. Suit by Herman B. Gates and others against Roy C. Megargel and another, copartners doing business under the firm name of R. C. Megargel &.Co, From a decree granting relief to certain plaintiffs and interveners, but denying it to the named plaintiffs and interveners, the latter appeal, and the defendants also appeal.

Dyer and John C. Pollock, Judges. Suits by John W. Seaman against Richard McCulloch and others and by Samuel W. Adler against United Railways Company of St. Rouis and others. From an order consolidating the two causes and extending the receivership in the Adler suit to the consolidated cause, Adler appeals.

<p>Appeal and error <&wkey;324 — All parties affected must join in appeal, in absence of notice and severance.</p> <p>To sustain an appeal from an order equally affecting several defendants, all must join in the appeal, or there must be a notice and severance.</p>

<p>Corporations <&wkey;558 — Receivership by consent of corporation may not be vacated by stockholders.</p> <p>Where a'corporation, in its answer in a suit against it, by authority of its directors, whose good faith is not questioned, admitted its insolvency and consented to appointment of a receiver, stockholders are not entitled as of right to intervene for the purpose of overthrowing such action and securing a vacation of the receivership.</p>

<p>1. Criminal law <&wkey;1063(l) — Motion in arrest not necessary, where error appears on record.</p> <p>The defendant in a criminal case may take advantage of a material defect appearing on the record, though such point was not raised by motion in arrest of judgment.</p> <p>2. Larceny <&wkey;30(l) — Failure to describe property stolen fatal defect.</p> <p>A count in an indictment charging that defendant did willfully, unlawfully, and feloniously knowingly apply to his own use “certain property _ of the United States” furnished for the military service, without describ- ' ing the property, held insufficient- to state an offense, under Criminal Code, § 36 (Comp. St. § 10200).</p>

Ejectment by Hugh Reilly against Robert Shipman and others, doing business as Shipman & Thompson. Trial to court, and judgment for defendants, from which plaintiff brings error.

<p>1. Negligence <&wkey;39 — Owner oí underground conduit not liable for death of child.</p> <p>Defendant, which with an adjoining owner constructed a concrete conduit 700 feet long covering a shallow stream, filling in above and leaving the ends open and into which, at a considerable distance from either end, it at times discharged waste steam and hot water from the boilers of its power plant, held not chargeable with negligence which rendered it liable for the Heath of a boy who, with others, undertook to walk through the conduit and was killed by a discharge of steam; it being shown that other boys had walked through three times during the preceding four years,- but not that defendant had knowledge of it.</p> <p>2. Negligence <&wkey;23(l) — Attractive nuisance doctrine stated; “anticipation.”</p> <p>“Anticipation,” in the meaning of the doctrine which holds property owners liable for injury to children by dangerous instrumentalities on their premises, where sucli injury should be anticipated, means probability, and not possibility, and there must be a reasonable expectation of the presence of children at the time and place of danger before there arises a duty to guard them from that danger.</p> <p>[Ed. Note. — For other definitions, see Words' and Phrases, First and Second Series, Anticipation.]</p>

<p>1. Bankruptcy @=549 — Disposition of petition of intervention within discretion of court.</p> <p>. . Denial of a motion for further continuance on a petition for leave to intervene in bankruptcy proceedings, and treating the answer thcyeto and replication as addressed to the petition in intervention tendered therewith, and which set forth the same facts and proceeding to a hearing thereon, held, not an abuse of discretion, where prior continuances had been granted for hearing “on the merits,” with leave to take evidence, which evidently related to the petition of intervention itself.</p> <p>2. Bankruptcy @=»43 — Whether directors of corporation have authority to file petition is matter of state law.</p> <p>Whether the directors of a corporation, without authority from the stockholders, have power to file a petition in voluntary bankruptcy, must be determined by the law of the state in which the corporation is organized.</p> <p>3. Bankruptcy <S=»43 — In absence of statute on the subject, directors of corporation may file petition.</p> <p>Under the general law, in the absence of any provision on the subject in the statutes of the state, or in its articles of incorporation or by-laws, the directors of a corporation are authorized to execute a general assignment of its property for the benefit of creditors, and such power extends to the filing of a petition in voluntary bankruptcy.</p> <p>4. Bankruptcy ®=»43 — Corpora,Moms; filing of petition not an “incumbrance” of property.</p> <p>The filing of a petition in bankruptcy by a corporation held not an “in-cumbrance” of its property, within the meaning of Rev. St. Colo. 1908, § 865, as amended by Laws Colo. 1915, p. 175, providing that the directors of a mining corporation shall not have power to incumber its mines or plant without a vote of the stockholders authorizing it.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Incumbrance.]</p> <p>Elliott, District Judge,, dissenting.</p>

<p>Appeal from the District Court of the United States for the First Division of the Northern District of California; Maurice T. Dooling, Judge.</p> <p>Habeas corpus by Chan Gai Jan and Ng Shee against Edward White, Commissioner of Immigration for the Port of San Francisco, From a judgment dismissing the petition, petitioners appeal.</p>

Suit by the Andrews Institute for Girls against the New York Steam Company and others, in which the Independent Order of Foresters intervened, claiming a lien prior to the mortgages which complainant sought to foreclose. From a decree granting complainant’s motion to dismiss the intervention, after answer, the intervener appeals.

<p>1. Internal revenue <S=>38 — Second1 appeal to Commissioner after payment of tax unnecessary, before bringing action for recovery.</p> <p>Where an appeal had been taken to the Commissioner of Internal Revenue fi'om the assessment of an. income tax against a stock dividend, before the tax was paid, it was not necessary, under Rev. St. § 8226 (Comp. St. § 5949), to make a second appeal, after paying the tax under protest, before bringing action for its recovery, since such' appeal would have been an idle proceeding.</p> <p>2. Internal revenue ©^7 — Stock dividend not taxable as “income.”</p> <p>A stock dividend declared by a corporation from its accumulated surplus is not taxable as “Income,” under Act Oct. 8, 1913.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Income.]</p> <p>3. Appeal and error (1) —Assessment on stock dividend cannot be sustained on appeal as assessment of cash dividend.</p> <p>Where an assessment of income tax was treated by both parties in the court below as an assessment on a stock dividend, and so treated in the assessment of the tax by the Commissioner of Internal Revenue, it cannot be upheld in the Circuit Court of Appeals as an assessment on a cash dividend, though the corporation’s surplus was distributed by cheek, which . was indorsed by .the stockholder in exchange for the stock, the assessment having been made on the value of the stock, which was more than double the face of the cheek, since'the assessment must be made by the Commissioner, and cannot be made by the court.</p> <p>4. Appeal and error i®=’1078 (5) --Assignment of error as to allowance of interest, not argued, afoamclonetL</p> <p>An assignment of error relating to the allowance of interest in an action for internal revenue tax paid under protest, which was not argued, will be deemed abandoned.</p>

<p>In Error to the District Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge.</p> <p>Action by Agnes Bearden, as administratrix, against John Barton Payne, Director General of Railroads. Judgment for plaintiff, and defendant brings error.</p>

<p>Conspiracy <S=934 — Conspiracy to prevent witness from testifying in land contest is crime; “right secured by, Constitution or laws.” •</p> <p>The right oí a citizen to appear and testify as a witness before a land office in a contest involving lands entered under the land laws is one secured to him by the Constitution or laws of the United States, within Criminal Code, S) 19 (Comp. St. § 10183), and a conspiracy to intimidate him or prevent the free exercise of such right constitutes a crime.</p>

<p>1. Chattel mortgages &wkey;>18'! (l) --Belay in recording invalidates only against creditors acquiring lien in mrantitn®.</p> <p>Under Rev. Laws Minn. 1805, § 3461, as construed by the Supreme Court of that state, delay in recording a chattel mortgage invalidates the mortgage only as against creditors who have, prior to the filing thereof, acquired a lien by attachment or execution on the mortgaged property.</p> <p>3. Bankruptcy <&wkey;184(2) — Traste cam attack chattel mortgage as preference, when recorded, only if ciredilm’S had acquired superior lien; “required.”</p> <p>Under Bankruptcy Act, § t$0b, as amended by Act June 25, 1910, § 11 (Comp. St. § 9644), recordó if,- is deemed required when, through delay, a position superior to the challenged transfer has*been gained by some creditor whom the trustee represents, or whose place he is entitled to take. The trustee is not such a person by virtue of section 47a (section 9631), as this lien arises subsequently to the recordation of the challenged transfer.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Require.]</p>

<p>1. Criminal law &wkey;>753(2) — Siifiwivncy of evidence not presented, where motion for verdict not renewed at close of evidence.</p> <p>The question of the suffieimey of the evidence to authorize a conviction was not raised at the irial, where the only motion for a directed verdict was made at the close of the evidence for the United States, and was not renewed at the close of all the evidence.</p> <p>2. Army and navy <&wkey;40 — EvtuJemo held to show intent to cause insubordination and obstruct recruiting.</p> <p>In a prosecution for violation of Espionage Act June 15, 1917, tit. 1, § 3 (Comp. St. 1918, Comp. St. / un. Supp. 1919, § 10212c), evidence held to sustain charge that the language used by defendant was intended to cause insubordination in the military and naval forces of the United States, and to obstruct recruiting and enlistment in such forces.</p> <p>3. Criminal law &wkey;451(4) — Evidence of impression of speech on witness admissible.</p> <p>In a prosecution for violation of Espionage Act June 15, 1917, tit. 1, § 3 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 10212c), it was not error to allow, a witness to testify as to the impression made upon him by defendant’s speech, though the witness could give only the substance of the speech.</p>

Booth, Judge. Suit by the Cleveland Cliffs Iron Company against the Village of Kinney and others. From a decree dismissing the suit for want of jurisdiction, plaintiff appeals.

<p>Appeal from the District Coni c of the United States for the District of Porto Rico; Peter J. Han ikon, Judge.</p> <p>Suit by Antonio Diez y Gonzalez against Enrique O. Green y Morales and others. Decree for defendants, and plaintiff appeals.</p>

<p>Appeal from the District Court of the United States for the Southern District of Ohio; Howard C. Hollister, Judge.</p> <p>Suit by the Bucher & Gibbs Plow Company against the Ohio Rake Company. Decree for plaintiff, and defendant appeals.</p>

<p>At Daw. Action by Joseph Perna against the United States Shipping Board Emergency Fleet Corporation. On motion to set aside verdict and for new trial.</p>

In Admiralty. Suit by the Banque-Russo Asiatique-London against the United States Shipping Board Emergency Fleet Corporation, owner of the Steamship Kittegaun, with Charles Kurz & Co., Incorporated as garnishee. On petition to set aside service of citation and to dissolve foreign attachment.

<p>1. Corporations I®:=>415 — Statute authorizing mortgages of personal property by directors does not forbid execution by managing officers.</p> <p>Code Ala. 1907, § 3481, authorizing corporate directors to execute mortgages on personal properly, is simply declaratory of the common law, and does not prohibit the execution of mortgages by officers to whom the management of the corpora lion’s affairs have been intrusted.</p> <p>2. Corporations <S=»426 (4) — Directors ratify mortgages by formal resolution or by retaining proceeds.</p> <p>A mortgage executed by corporate officers was ratified by the directors, where they subsequently passed a formal resolution authorizing the execution of a subsequent mortgage to confirm the first and retained the proceeds of the first mortgage,</p> <p>3. Corporations <8=426(10) — Acceptance of beneficial acts of agent found from slight acts.</p> <p>Where the unauthorized acls of a corporate agent are for the benefit of the corporation, its acquiescence and acceptance of such acts will be found from slight acts on the pa rt of the corporation, reasonably accounted for only on the supposition of acceptance.</p> <p>4. Corporations <§=>426 (1) — BatifM mortgage as binding as one originally authorized, except as to intervening rights.</p> <p>Except as to intervening rights of strangers, ratification by corporation of unauthorized mortgage by its officers relates back to the time of the execution, and is equivalent to original authority.</p> <p>5. Mortgages <§=>16 — Security for future advances is valid.</p> <p>A mortgage to secure futuro advances, though not so expressed on its face, is valid between the parties, and as against subsequent purchasers and incumbrancers, at least sc far as to secure advances made before the equities of others attach, in the absence of fraud or bad faith.</p> <p>6. Mortgages <@=>258 — Bona fide purchaser of negotiable paper entitled to security of mortgage against equities.</p> <p>A bona fide purchaser of commercial paper secured by a mortgage is entitled to the benefit of the mortgage as against equities to the same ex- • tent as to the negotiable paper itself.</p> <p>7. Bankruptcy <§==>303(1) — Creditors must prove assignment practically exhausts assets, within statute making such for benefit of creditors.</p> <p>A trustee in bankruptcy, claiming the benefit of Code Ala. 1907, § 4295, making a general assignment of substantially all of assignor’s property an assignment for the benefit of creditors, has the burden of showing that the mortgage attacked embraced substantially all the estate of the bankrupt.</p> <p>8. Bankruptcy <§=>178(3) — State statute giving creditors benefit of assignment of assets not applicable.</p> <p>Code Ala. 1907, § 4295, making a mortgage of substantially all the assets .of a corporation a general assignment for the benefit of creditors, does not apply to a proceeding’ instituted by a trustee in bankruptcy.</p> <p>9. Fraudulent conveyances ®=,3 — State statute held enactment of common-law rule.</p> <p>Code Ala. 1907, § 4293, making all instruments intended to defraud creditors void as to the creditors, simply enacts the wall-settled common-law rule.</p> <p>10. Courts <&wkey;372(l) — State decisions not controlling on question of commercial law.</p> <p>Though decisions of state tribunals on questions of commercial jurisprudence are entitled to respect, they are not conclusive authority by which judgment of the federal courts is to be bound.</p> <p>11. Bills and notes &wkey;>356 — Bank discounting notes is bona íidé purchaser, though deposit not exhausted.</p> <p>A bank, which discounts a note secured by mortgage and places the amount on deposit for its customer, is a bona fide purchaser of the note, if some of the deposit has been withdrawn" before conflicting equities attach, though the deposit has not been entirely exhausted.</p> <p>12. Bankruptcy &wkey;3Q3(3) — Evidence held to show bank advanced money on mortgages, so as to be bona fide purchaser.</p> <p>On a claim by a bank against a trustee in bankruptcy for preference note and mortgage, evidence that, when the bank discounted the note secured by the mortgage, its customer was indebted to it in excess of the amount, and contemporaneously paid more than half the amount on account, of the indebtedness then matured, and thereafter exhausted the whole amount of the proceeds prior to the adjudication in bankruptcy, held to show lhat the bank was a bona fide purchaser of the note and mortgage.</p> <p>13. Bankruptcy <8=»178 (1) — Mortgage to secure supplies for continuing operar tions not “fraudulent conveyance.”</p> <p>The giving by a corporation of a mortgage to secure payment of a note for supplies already furnished and those which were to be furnished for the purpose of enabling the corporation to continue its operations is not a fraudulent conveyance within Bankruptcy Act, § 67e (Comp. St. § 9651).</p> <p>[Ed. Note.' — Por other definitions, see Words and Phrases, First and Second Series, Fraudulent Conveyance.]</p> <p>14. Bankruptcy <&wkey;165(l) — Payments on running accounts, followed by new sales, mot preferences.</p> <p>Payment by a bankrupt on a running- account for supplies furnished, where new sales succeeded the payments and the net result was to increase the value of the estate, are not preferential transfers, under Bankruptcy Act, § 60a (Comp. St. § 9644).</p> <p>15. Sills and notes <&wkey;49'7(l) — Purchasers before maturity presumed to be fc<a,a fide.</p> <p>The holder of negotiable paper acquired for value before its maturity is presumed to be a bona fide holder, in the absence of proof to the contrary.</p>

At Raw. Petition by the Filbin Corporation and another against the United States to recover compensation for property taken from petitioners. On motion by the United States for rehearing, modification, and revocation of an order directing the submission of the cause to •a jury.

<p>1. Shipping <3=»209(3) — Evidence held to show sinking of steamboat was due .to negligence of crew.</p> <p>Evidence that a steamboat struck an obstruction and sank 50 yards outside of the channel, near a point where there had been a snag visible above the water for several months, held to warrant the inference that the vessel struck the snag, and that the cause of the accident was the negligence of the crew.</p> <p>2. Admiralty <5=»33 — Stale statute, penal only in part and allowing damages for death, can be enforced.</p> <p>If it bo doubtful whether admiralty courts will enforce a. claim on a penal statute, they will enforce a claim founded on Rev. St Mo. 1909, § 5425, allowing penalty and damages for death caused by negligence of a steamboat crew, which has been held by the state court penal to the extent of the minimum allowance, and compensatory as to any allowance above the minimum sum.</p> <p>3. Shipping <8=»209(2) — Insurance money need not- be p'aid Into court to secure limitation of liability..</p> <p>The owners of a foundered steamboat need not, in order to secure limitation of liability, pay into court the insurance money on the steamboat collected by them, as part of their interest in the vessel and pend- ‘ ing freight.</p> <p>4. Shipping <§=^308 — Liability may be limited, where loss was due to negligence of crew.</p> <p>The mere fact that the loss of a vessel, shown by the evidence to have been seaworthy and manned by a competent crew, was occasioned by negligence of the crew in the navigation thereof, does not establish privity or knowledge of the owners, so as to preclude limitation of their liability.</p>

In Admiralty. Libel by Robert H. Lockwood, manager of the steam tugs Waban and Cecelia, against the British tanker Apalachee, her engines, etc., for salvage.

<p>Habeas corpus, on petition of Sarah Weinstein, mother of Gregory Weinstein, and on petitions of Max Gendlin and others, against Byron H. Uhl, Acting Commissioner of Immigration at Ellis Island.</p>

<p>1. Maritime liens <&wkey;3© — Furnisher charges with notice of terms of charter. A dry dock company, which furnished labor, material, and equipment for making stability tests of two steamers, ordered by government authority, but by no one authorized to represent the owner, and which had knowledge that the steamers were under charter, held bound by the terms of the charter, which required the charterer to pay all expenses, and not entitled to a lien, either under Act Juno 23, 1910, §§ 2, 3 (Comp. St. §§ 7784, 7785), or under the general maritime law.</p> <p>2. Maritime liens <&wkey;25 — “Other necessaries,” in statute, construed.</p> <p>The words “other necessaries,” used in Act June 23, 1910, §§ 2, 3 (Comp. St. §§ 7784, 7785), relating to maritime liens for repairs, supplies, and other necessaries furnished to vessels, under the rule of ejusdem generis, must be limited in their mew ting to such things of the general nature of repairs and supplies as are lit. and proper for the use of the ship.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Other.]</p>

<p>1. Corporations <&wkey;565(l) — Corporate officer's consent to receiver’s appointment does not estop him from enforcing claim for breach of employment ' contract.</p> <p>Consent by a corporate officer, who had a contract for employment by the corporation, to the appointment of a receiver, does not estop him from enforcing against the receiver his claim of breach of his contract.</p> <p>2. Corporations <&wkey;56S'(l)— Officer’s contract of employment with receivers faeM not to waive claim for breach of contract with corporation.</p> <p>Where receivers for corporation had been appointed by a court without jurisdiction, an officer who made a contract with the receivers for continuing his employment did not thereby waive a claim against the corporation for breach of his contract with the corporation, since he was only performing his duty to minimize damages.</p> <p>3. Corporations ®=»76 — Stock subscriptions, void for want of required payment, may be ratified.</p> <p>A subscription for corporate stock, which is invalid, because not accompanied by a 10 per cent, payment required by Stock Corporation Law N. Y. § 53, may be ratified by a subsequent payment by the subscriber.</p> <p>4. Corporations <&wkey;565 (5) —Evidence held to show payment by subscriber to corporation was not on a stock subscription.</p> <p>_ Evidence held not to show that a payment by claimant to the corporation was a payment of a stock subscripüon, and therefore did not ratify the subscription, and render claimant liable for the balance.</p> <p>5. Corporations <&wkey;562(2) — Representations of stock subscriptions to others do not estop attack on validity.</p> <p>Representations by a claimant that he had subscribed to stock of the corporation for which the receivers were appointed, made to others, who were thereby induced to subscribe for stock, do not estop the claimant from attacking the validity of the Subscription, since the misrepresentations resulted to the benefit of the corporation.</p> <p>6. Corporations <&wkey;308(6) — Sales manager of steel corporation held entitled to commissions only on steel delivered.</p> <p>Where the contract of employment of a sales manager for the steel corporation gave him commissions on orders which the corporation should fill, and which should be paid for, he was not entitled to commission for orders procured by him, which the corporation did not fill, in the absence of fraud or bad faith by the corporation.</p> <p>7. Corporations &wkey;>559(l) — Appointment in valid proceedings does not terminate contract of employment.</p> <p>The appointment of receivers for a corporation in proceedings of a court which was without jurisdiction did not terminate the contract of employment of the sales manager of the corporation.</p> <p>8. Corporations <&wkey;565(l) — -Claim for commission on prospective sales allowable, if its amount can be proved.</p> <p>The sales manager of a corporation can recover from its receivers the amount of prospective commissions under his contract, if he is able to\ establish such amount by proof.</p> <p>9. Corporations &wkey;>565 (5) —Wide latitude granted in permitting proof of prospective commissions.</p> <p>On the hearing oí a claim against receivers by the salefe manager of a corporation, wide latitude should be permitted to tho evidence received to determine the amount of prospective commissions; but, notwithstanding such latitude, final decision is with the trier of fact whether the amount of prospective commissions had been established.</p> <p>10. Corporations &wkey;>565(5) — EvMence held not to sustain claim for prospective commissions.</p> <p>Evidence in support of the claim of a sales manager against the receivers for prospective commissions, tending to show the amount of the orders claimant could have procured, is insufficient to establish the right to such commissions, where sales manager’s contract gave him commissions only on orders filled by the corporation, and there was no proof that it could have filled any orders.</p> <p>11. Corporations &wkey;>565(2) — Contract with sales manager held to fix minimum compensation.</p> <p>A contract of employment as sales manager of a steel corporation, which provided for payment of commissions, and guaranteeing the manager a drawing account of $8,300 a year in addition to his expense account, to be deducted from the amount of his commissions, entitles him to a minimum compensation of that amount, so that he can recover it from receivers of the corporation for the unexpired term of his contract.</p>

<p>1. Contracts 1&wkey;213(l) — Provision against damage for delay does not extend time for completing contract.</p> <p>Where a contract required the delivery of an electric crane within 75 days, a provision exempting manufacturer from liability for damage caused by delay beyond Its control does not extend the term of contract, so as to authorize manufacturer to recover the contract price from buyers after delivery was delayed by prior war orders.</p> <p>2. Contracts &wkey;>326 — Where loss is caused by fault of neither, the defendant must prevail.</p> <p>Where neither party was to blame for delay resulting in the loss in controversy, defendant is in the better right, and must prevail.</p>

<p>1. Trusts &wkey;>23'? — Cestui que trust has election to accept or reject unauthoris?' ed investment.</p> <p>A trustee, who invests money of his cestui que trust, not intrusted to him for the purpose of investment, assumes the risk of proving that the investment was by authority; otherwise, he makes it subject to the right of the cestui que trust to either take the investment or reject it and do-mand the money.</p> <p>2. Principal and agent <&wkey;161 (2) —-Investment by agent held unauthorized and subject to rejection by principal.</p> <p>Defendant, who occupied a fiduciary relation to complainant and acted as her agent to receive money and property belonging to her, held to have invested the same in the stock of a corporation without her authority, which gave her the right at her election to demand repayment in money, of which right of election she was not deprived by the fact that the agent acted in good faith, believing that the principal approved or would approve of the investment made.</p>

<p>In Admiralty. Suit for collision by the Atlantic Coast Line Railroad Company against the tug Biscayne.</p>

<p>Seamen <&wkey;20 — Vessel entitled to offset against wages cost of medical treatment for disease not contrasted in service.</p> <p>Where the alien mate of an American schooner, while indulging his own vices on shore, contracted a venereal disease, and on arrival in a port was sent by the medical officer to a marine hospital, the vessel, which was required by the government authorities to pay for his treatment, hold entitled to offset such payment against wages due him.</p>

<p>1. Master and servant <§=70 (4) — Contract oí employment held not terminated by notice requesting new wage schedule.</p> <p>A contract between an employer and a committee of employes fixing terms of employment, including the schedule of wages, which required either party desiring to change any of the regulations to give the other party 30 days’ notice, held not terminated by a written notice by the employes, requesting a readjustment of the wage schedule, and 4;he employes are not entitled thereafter to recover for their services on quantum meruit.</p> <p>2. Master and servant <§=>16 — War Labor Board’s arbitrament of wage dispute held not binding.</p> <p>An interurban railroad company is not hound by a decision of the War Labor Board, increasing tile wages of its employés, where it had refused to submit the controversy to the hoard, because it had no Cunds with which to pay any increased wages, though its superintendent, in trying to persuade Ihe men to continue work, advised them to await the action of the War Labor Board.</p> <p>3. Master and servant <®=>16 — Submission of wage dispute to War Labor Board’s arbitrament held not shown.</p> <p>The receiver of a railroad company is not bound by decision of the War Labor Board, making an award of increased pay retroactive, because his superintendent had informed the men he could do nothing toward increasing their pay until the War Labor Board rendered its decision, where the receiver appeared before the War Labor Board and expressly declined to submit the matter to it.</p>

<p>Railroads (2) —Automobile driver, whose view was obstructed, held negligent to not stopping- to listen.</p> <p>An automobile driver who approached a crossing where the view was obstructed, without stopping his car to listen, and was struck by a train whose approach he did not hear, though its rumbling was heard by numerous witnesses at greater distances, was contribuí orily negligent as a matter of law.</p>

Morton, Jr., Judge. In the matter of Henry E. Robinson, bankrupt. From a decree dpny-ing the discharge of said bankrupt, on objection of J. R. Williston & Co., he appeals.

<p>In Error to the District Court of the United States for the Western District of New York.</p> <p>Action by Albert T. Thompson against the Michigan Mutual Rife Insurance Company. From a judgment for plaintiff, defendant brings error.</p>

<p>1. Criminal law <&wkey;878(4) — Acquittal under one count consistent with conviction under another containing- additional element.</p> <p>An acquittal on the second count of an indictment for violating the Espionage Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 10212a-10212k) is not inconsistent with a conviction under the first count, where the first count contained the element of intent to interfere with the success of military service, which did not enter into the oüense alleged in the second count.</p> <p>2. Criminal law <8=*J159(4) — Where testimony of person to whom statements violating Espionage Act were made supported charge, conviction not reversed.</p> <p>Where there was direct testimony by the witness to whom defendant, was alleged to have made statements counseling surrender of declaration of intention of citizenship to avoid selective service, which supported the charge, plaintiff in error’s contention that conviction was not authorized is without merit; the credibility of the testimony being entirely for the determination of the jury. '</p> <p>3. Criminal law <^371 (1) — Evidence of other similar statements admissible to prove intent.</p> <p>In a prosecution for violation of the Espionage Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 10212a-10212k), evidence of other statements made by defendant similar to those charged in the indictment is admissible, when limited by the court to the determination whether the statements alleged were willfully made and for the purpose alleged.</p>

<p>1. Criminal law &wkey;:V)'! (!) — Evii'eiico of irrelevant matters to show intent is error, where Intent is immaterial.</p> <p>In cases where there are eye or ear witnesses to the happening oí an isolated transaction, and the sole question is whether it happened or dirt not happen, it is not proper or competent to permit the introduction of evidence of other remote and disconnected matters, not charged in some good count in the indictment, to prove intent, where the element of intent is not involved in the crime charged.</p> <p>2. Criminal law &wkey;3'71 CO — Evidence of prior disloyal utterances held inadmissible.</p> <p>In prosecution under Espionage Act, tit. 1, § 3, refusal to withdraw, and instruction allowing consideration of, evidence that accused, over a month before the amendment to the act by act May 16, 1918, § 1 (Comp. St. 1918, Comp. St. Ann. Snpp. 1919, § 10212c), uttered disloyal language about the government and the hag, was error, where defendant was tried on a count charging him with the use of disloyal and abusive language about the military and naval forces of the government in the fall of 1918; there being no question of intent involved.</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 Medusa Concrete Waterproofing Company against the McCormick Waterproof Portland Cement Company and others. From a decree for plaintiff, defendants appealed; the Chicago Bonding & Insurance Company becoming surety on their supersedeas bond. From a judgment for plaintiff on the supersedeas bond, the surety appeals.</p>

<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>Mrs. E. Doan was convicted of fermenting a mash for distillation outside a distillery, and she brings error.</p>

<p>Corporations <&wkey;>473 — Finding as to delivery of bonds sustained by evidence.</p> <p>A finding by a master, concurred in by tbe trial court, that bonds of defendant corporation were delivered to complainant only tentatively in contemplation of an arrangement for credit which was never consummated, ^nd that the bonds remained in fact unissued, held, sustained by the ■evidence, including allegations of complainant’s own pleading.</p>

Amidon, Judge. Voluntary proceedings in bankruptcy by A. C. Townley and others. From an order discharging the bankrupts, E. D. McCutcheon, as trustee, and a creditor, appeal.

<p>Appeal from the District Court of the United States for the Western District of Missouri; Joseph W. Woodrough, Judge.</p> <p>Suit in equity by Frederick A. Bruckman and others against the Roberts Cone Manufacturing Company and others. Decree for complainants, and defendants appeal.</p>

<p>Appeal from the District Court of the United States for the Western Division of the Southern District of Ohio; Howard C. Hollister, Judge. _ . .. . '</p> <p>_ . .. . Suit in equity by Michael J. Wald against the Miami Cycle & Manufacturing Company. Decree for complainant, and defendant appeals.</p>

Suit by the General Electric Company against the Nitro Tungsten Lamp Company for infringement of a patent. Decree for plaintiff, and defendant appeals. As assignee of Langmuir’s patent, No. 1,180,159, dated April 18, 1916, plaintiff sues on claims 4, 5, 12, and 13.

William G. Brockley was convicted of transporting intoxicating liquors, and the automobile in which the liquor was found was condemned and directed to be sold, and John S. Cozine and another filed petition for the reclamation of the automobile, which they claimed to own.

<p>At Raw. Action by John W. Williams against the Delaware, Lackawanna & Western Railroad Company. On motion to remand to state court.</p>

Proceeding by the United States, on the relation of Edmund O. Wattis, to compel Eranklin K. Dane, Secretary of the Interior, to issue a patent for land. From a judgment denying a writ of mandamus, relator appeals.

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Suit by Prank M. Hoy against Franklin K. Lane, Secretary of the Interior. Decree for defendant, and plaintiff appeals.</p>

<p>Constitutional law 249 — Eminent domain <§=>2(1) — War @=»10(1)</p> <p>—Saulsbury Resolution, prohibiting landlord from recovering possession, unconstitutional.</p> <p>The Saulsbury Resolution, prohibiting recovery of possession of leased real estate during the war, so long as the tenant continues to pay the rent at the agreed rate, is unconstitutional, as taking private property without just compensation, and as being discriminatory between owners of property.</p>

Bill by Alice V. Daly against Francis H. Stephens, executor and trustee, and Dorothea Stephens, by Robert L,. Williams, guardian ad litem. Decree for plaintiff, and defendants appeal. Plaintiff dying pending the action, Cornelius T. Daly, her executor, was substituted in her place.

<p>Appeal from Supreme Court of the District of Columbia.</p> <p>Action by Slyvanus Stokes against Anna Heitmuller. Judgment for plaintiff, and defendant appeals.</p>

David Freed was convicted under an indictment charging that he transported and aided and assisted in transporting in interstate commerce certain women for the purpose of prostitution and appeals.

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Action by Leo Simmons against John W. Davidge. Judgment for plaintiff, and defendant appeals.</p>

<p>Dissenting opinion.</p>

<p>Appeal from tbe Supreme Court of tbe District of Columbia.</p> <p>Action by Maud B. Crawford against Sarah A. Whittemore. Judgment for plaintiff, and defendant appeals.</p>