Volume 267 — Federal Reporter

Wolverton, Judge. Action by Seid Pak Sing against the Columbia Agricultural Company. Judgment for plaintiff for part of the amount claimed, and both parties bring error. This was an action for damages for breach of contract, with a verdict in favor of plaintiff below- A judgment was entered upon the verdict. Cross-writs of error were sued out.

Dyer, Judge. Suit by Thomas L. Williams, doing business as the Maybell Laboratories, against Benjamin Ansehl, doing business as the Lashbrow Laboratories Company. From a decree enjoining defendant from using the alleged trade-mark, and from unfair competition, defendant appeals.

<p>In Error to the 'District Court of the United States for the Southern District of New York.</p> <p>Action by Elizabeth S. Prentiss against Mark Eisner, Collector of Internal Revenue, Third District of New York. Judgment for defendant (260 Fed. 589), and plaintiff brings-error.</p>

<p>1. Sales '@=’71 (1)- — Contrasts of dealer for sale of coke construed.</p> <p>Under contracts between plaintiff, a user, and defendant, a dealer in coke, which 'did not produce, but bought, the coke in which it dealt, for the sale and purchase of coke to be delivered by daily shipments to plaintiff, and providing that, “if there should be a shortage of cars, shipments shall be divided from time to time in fair proportion on all orders,” defendant held bound, during a time of car shortage, to make deliveries of all coke it then had wherever obtained, in fair proportion on its outstanding contracts,- and its purchase and resale of coke in the open market on spot orders, while shipping to plaintiff only its proportion of that received on covering contracts it had made with producers, held a violation of the contracts. ■</p> <p>2. Sales <@=>83 — Construction of contract by parties as to duty to furnish cars governs.</p> <p>A provision of contracts for the sale and purchase of coke, to be delivered “f. o. b. open top cars ovens,” held not to require purchaser to furnish cars at the ovens, where during the several months of performance the cars were provided by seller with no demand on the purchaser for ears, and where seller was not a producer, but bought its coke from different producers, and no notice was given purchaser from what ovens shipments were to be made.</p> <p>3. Sales <@=>176(6) — Payment in ignorance of facts does not estop to allege breach of contract.</p> <p>The rule .that a voluntary payment made by a purchaser for a commodity claimed by the seller to be in fulfillment of the contract concludes the purchaser held not applicable, where a seller of coke claimed that short deliveries were excused under the contract because of a shortage of cars, and the purchaser did not discover until after making payment that the seller had diverted shipments to other purchasers in violation of the contract.</p> <p>Buffington, Circuit Judge, dissenting.</p> <p><§x=>For other oases see same, topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Pollock, Judge. Suit by the Hutchinson Gas-& Fuel Company against the Wichita Natural Gas Company. From a decree dismissing the bill, complainant appeals.

<p>1. Removal of causes <3=48 — Distinct causes of action against different parties constitute “separable coim’oversies.”</p> <p>Where the record in a suit discloses separate and distinct causes of action, upon either of which a separate suit could have been maintained, and the determination of neither of which is essential to the disposition of the other, there are “separable controversies,” within the meaning of the acts of Congress for the removal of causes.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Separable Controversy.]</p> <p>2. Removal of causes <S=>57- — Only indispensable parlies should be considered in determining removability.</p> <p>In determining the right to remove causes, indispensable parties only should be considered.</p> <p>3. Removal of causes ■<3=57 — Company supplying gas not indispensable parly to suit between city and distributing company.</p> <p>In a suit to compel a gas company to continue to furnish gas to tin inhabitants of a city at the rate specified in the franchise, the companj which contracted to supply gas to the distributing company for distribution at that rate is not a necessary party.</p> <p>4. Removal of causes <3=57 — Gas distributing company not indispensable party to determination whether supply company had assumed obligations to city.</p> <p>In a suit to compel the supplying of gas to a city at the franchise rales, the corporation which had the franchise to distribute the gas is not an indispensable party to the determination of the question whether the company supplying the gas had assumed an obligation to the city to supply gas at the stated rate, so that controversy could bo removed, though the distributing company was a domestic corporation.</p> <p>5. Removal of causes <3=81 — Facts, not pleaded conclusions', determine removability.</p> <p>In determining removability of a cause, the allegations of specific facts control the general conclusions deduced therefrom, so that removal will not be denied because of allegations that the foreign and domestic corporations wore jointly interested and had a joint liability, where the contract between those corporations was pleaded and did not establish suclx liability.</p> <p>6. Appeal and error <@=>954(4) — Dissolution of interlocutory injunction reviewable only for abuse of discretion.</p> <p>The dissolution of an interlocutory injunction, like the granting of such injunction, is intrusted to the sound discretion of the court of original jurisdiction, and the appellate court can review such dissolution only on proof of a violation of the rules or principles of equity, or of an abuse of discretion.</p> <p>7. Gas <8=>14(1) — Contract to supply gas to distributing company held not to assume obligation to city.</p> <p>The company, which contracted with a holder of a franchise for the supply of gas to the inhabitants of a city at specified rates to supply gas to the holder of the franchise, did not thereby assume an obligation to the city or its inhabitants to supply the'gas to them at the stated rate.</p> <p><§=>For other eases see same topic &.KEY-NUMBEK. in all Key-Numbered Digests & Indexes</p> <p>8. Gas @=6 — Purchaser of distributing company, owning stock of new corporation, not bound by contract of latter.</p> <p>A gas supply company, which purchased at receiver’s sale the assets of a corporation holding a franchise to distribute gas at stated rates, and transferred such assets to a newly organized corporation, of which it owned all the stock, and which assumed the obligations of a franchise, did not thereby bind itself to the city to continue to furnish gas at the specified rate.</p> <p>9. Corporations @=406(1) — Supply company, using gas distributing company as agent, bound only'to extent of its contract with agent.</p> <p>Where a company supplying natural gas used another corporation as its agent to distribute the gas to the inhabitants of a city under a contract between the two corporations, the supply company was bound by the contract of its agent with the city only to the extent of the obligations assumed in its contract with the agent.</p> <p>10. Gas @=14(1) — Improvements in reliance on gas supply do not extend liability of supplying company beyond its contract.</p> <p>The fact that the inhabitants of a city had made improvements in reliance on a supply of natural gas at rates stated in the franchise to the distributing company does not impose on the supplying company any obligation to continue to supply gas beyond the terms of its contract with the distributing company.'</p> <p>11. Gas @=13(3) — Supply company, if joint adventurer with distributing company, is not bound by latteifs franchise.</p> <p>A company supplying natural gas to the holder of a city franchise for distribution in the city, if a joint adventurer with the distributing company, is not thereby bound to furnish gas to. an extent not expressly provided for in the contract.</p> <p>12. Corporations @=215 — Sole stockholder not bound in equity by contract with corporation.</p> <p>Courts of equity recognize the sole stockholder of a corporation as distinct from the corporation, and do not hold the stockholder’bound by the contracts of the corporation.</p> <p><®=^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the District of Kansas.</p> <p>Suit by the Newton Gas & Fuel Company against the Wichita Natural Gas Company. From a decree dismissing the complaint, plaintiff appeals.</p>

Pollock, Judge. Separate suits by the City of Atlanta, by the City of Burden, by the City of Cambridge, by the City of Udall, and by the City of Arkansas City against the Wichita Natural Gas Company and another. From orders in each case, dissolving interlocutory injunctions against the defendants, plaintiff in each case appeals.

Appeal^ from the District Court of the United States for the Eastern 'Division of the Northern District of Illinois. Suit by Fred Deach, doing business as the Organo Product Company, against William B. Carlisle, Postmaster. From decree for defendant, plaintiff appeals.

Petition by the National Steam Navigation Company, Limited, of Greece, owner of the steamship Thessaloniki, for limitation of liability. From a decree denying the petition, petitioner appeals.

Iii Error to the District Court of the United States for the Western District of Pennsylvania; Charles P. Orr, Judge. Criminal prosecution Iw the United States against Patrick Nee, Henry Jacobs, and John Schrader. Judgment of conviction and defendants separately bring error.

Suit by the American Engineering Company against the Metropolitan By-Products Company, Incorporated, asking for the appointment of receivers. From an order of the special master, disallowing in part the claim of the New York Sanitary Utilization Company, that claimant and others appeal.

Wade, Judge. M. F. Harrington and others were convicted of conspiracy to obstruct and impede the administration of justice, and they bring error.

<p>In Error -to the District Court of the United States for the Northern District of Iowa; Henry T. Reed, Judge.</p> <p>Action by Arthur J. Dahn against Walker D. Hines, Director General of Railroads. Judgment for plaintiff, and defendant brings error.</p>

, Judge. Suit in admiralty for collision by W. Paramor, Master of the British steamship Djerissa, against the steamship Newa; the Danish-Russian Steamship Company, claimant. Decree for libelant, and claimant appeals.

Killits, Judge. Action by the Board of Trustees for the Regina Public School District No. 4 of Saskatchewan against Adelbert R. Spitzer and others, doing business as Spitzer, Rorick & Co. Judgment for plaintiff, and defendants bring error.

<p>1. Appeal and error <§=>781(4) — Possession of complainants’ mine by state not reviewable after-possession restored.</p> <p>An appeal from an order denying a temporary injunction to restrain the adjutant general of the state, acting under the orders of the Governor,- from taking possession and operating plaitniffs’ coal mine, should be dismissed as moot, where possession of the mine had been surrendered by defendant, and control thereof resumed by plaintiffs, since the direction to grant the temporary injunction would be fruitless. \</p> <p>2. Appeal and error <§=>781(1) — Importance of legal questions does not prevent dismissal of moot appeal.</p> <p>The fact that an appeal from-an order which has become moot by change of conditions since the order was rendered involves questions of public importance, which might arise again in the future, does not prevent the dismissal of the appeal as moot.</p> <p>3. Appeal and error <©=>1178(8) — Though appeal from denial of injunction was moot, order reversed, with leave to amend petition.</p> <p>Where an appeal from an order denying a temporary injunction has become moot by changed conditions, but the main case is pending on a motion to dismiss the complaint, the order will not be permitted to stand, but will be reversed, with direction to permit plaintiffs to amend their complaint, if they so desire.</p> <p><gz^>For other cas#s see same topic & KEY-NUMBER, in ail Key-Numbered Digests & Indexes</p>

Cottcral, Judge. R. U. Ammerman and others were convicted of conspiracy to carry intoxicating liquor from the state of Missouri into that part of Oklahoma which had been Indian Territory, and they bring error.

<p>In Error to the District Court of the United States for the Western District of Oklahoma; John H. Cotteral, Judge.</p> <p>Action by R. P. Clay against the Dundee Petroleum Company to recover a broker's commission. Judgment for plaintiff, and defendant brings error.</p>

Dibel by John Hedenskoy against the Alaska Packers’ Association. Decree for libelant, and respondent appeals. In April, 1919, libelant and certain assignors, residents of California, were hired by the defendant, a California corporation, salmon fisher and packer, and shipped for a fishing venture to Alaska and return to San Francisco, agreeing to work as seamen and fishermen, beachmen, and trapmen.

<p>Sales @=77(1) — Contract for binding twine held definite and certain as to price.</p> <p>A no-price contract for sale and purchase of binding twine, made in accordance with the custom of the trade, providing that the price should be one cent per pound below the “price to be made by the International Harvester Company for 1917,” the contract being closed and a large part of the twine delivered thereunder prior to April 7, 1917, held rendered den-nite and certain as to price by the issuance on that day of a notice by the International Company fixing the price of twine under its contracts previously made, and not affected by tbe fact that such company reserved’ the right to, and did later, fix a different price to govern contracts thereafter made.</p> <p>«^^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Action by the Empire Voting Machine Company against the City of Chicago and others. Judgment for defendants, and plaintiff brings error.</p>

<p>Railroads New, vol. 6A Key-No. Series — Carrier under federal control not suable for personal injuries.</p> <p>Under the Federal Control Acts (Act Aug. 29, 1916, and Act March 21, 1918, § 10), the President’s proclamation of December 26, 1917, and the Director General’s General Order No. DO issued- pursuant thereto, a passenger on a railroad operated by the Director General cannot maintain an action against the railroad company for injuries.</p> <p>cgssE’or other oases see same topic & KEY-NUMBER In all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Western District of South Carolina, at Greenville; Henry H. Watkins, Judge.</p> <p>Gus Barton and Deo Barton were convicted of violation of Rev. St. §§ 3258, 3279, 3281 (Comp. St. §§ 5994, 6019, 6021), and they bring error.</p>

<p>Appeal from the District Court of the .United States for the District of Massachusetts.</p> <p>On motion to amend decree.</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>Libel, by the Merritt & Chapman Derrick & Wrecking Company against the ship Bretanier, claimed by Seward E. Drake, master. From a decree for salvage, claimed to be insufficient, libelant appeals.</p>

<p>1. Appeal and error <®=^1097 (1) — Decision on former appeal law of case.</p> <p>The decision on a former appeal is the law of the case, and assignments of error questioning matters adjudicated then will be overruled.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Dietrich, Judge. Action by the City of Pocatello against the Fidelity & Deposit Company of Maryland. Judgment for defendant on sustaining demurrer to the complaint, and plaintiff brings error.

<p>In Error to the District Court of the United States for the District of North Dakota; Charles F. Amidon, Judge.</p> <p>Fred Krause, Jr., was convicted of using interstate free transportation, and he brings error.</p>

<p>1. Courts @=>508(1) — Injunction by federal court against proceeding in state court not authorized. ;</p> <p>Where an action in the federal court was purely in personam, and no property was involved which might lawfully be protected by injunction, such court had no jurisdiction to enjoin a proceeding involving the same matter in a state court.</p> <p>2. Courts @=>508(2) — Injunction by federal court, staying taking of depositions in state court, not authorized.</p> <p>The prohibition of injunctions by federal courts, staying proceedings in state courts, extends to the taking of depositions.</p> <p><§=s>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Larceny —Stealing from “station house” does not include station house of a transfer company.</p> <p>Comp. St. § 8003, penalizing stealing from a “station house” goods in interstate commerce, refers only to a railroad station house, and does not cover stealing from the station house of a transfer company, handling freight by wagon.</p> <p><§=» For other cases see same topic & KEY-NUMBlfllt in all Key-Numbered Digests & Indexes</p>

Hollister, Judge. Suit by the Standard Register Company against the Egry Register Company. Decree for plaintiff, motion to reopen the case for newly discovered evidence denied, and defendant appeals.

<p>Appeal from the District Court of the United States for the Western Division of the Northern District of Ohio; John M. Killits, Judge.</p> <p>Suit by the Outlook Company against the Presto Cloth Manufacturing Company and others. From an order denying a preliminary injunction, complainant appeals.</p>

Dyer, Judge. Suit by the Can’t Slip Collar Bar Company against the C. R. Hettel Jewelry Company for infringement of a patent. From a decree dismissing the bill of complaint, plaintiff appeals.

<p>In Equity. Suit by the Individual Drinking Cup Company, Incorporated, against the Sanitary Products Corporation. On motions by defendant to dismiss and by complainant for preliminary injunction.</p>

<p>Patents ‘©=:5114 — Priority of invention of hydro-aeroplane determined.</p> <p>The decision of the Court of Appeals of the District of Columbia in Janin v. Curtiss, 45 App. D. C. 362, on an interference issue awarding to Janin priority of invention of a hydro-aeroplane, held correct in a suit by Curtiss under Rev. St. § 4915 (Comp. St. § 9460), to obtain a patent therefor, ’and his right to a patent denied.</p> <p><g^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit for infringement of patent by the Wire Wheel Corporation of America against the Madison Motor Car Company.</p>

<p>1. Patents '§=>328 — 1,153,977, for boot top, held valid and infringed.</p> <p>The Tweedie patent, No. 1,153,977, for a boot top or spat, cut so as to produce a spring in the front and heel portion, so as to cling close to the shoe, held, in view of its commercial success, valid, and also infringed.</p> <p>2. Patents ‘§=>36 — Commercial success may be considered in determining validity.</p> <p>In determining the validity of a patent in an old and crowded art, the commercial success of the patented article may be considered.</p> <p>3. Trade-marks and trade-names <§=>68 — “Unfair competition” defined.</p> <p>“Unfair competition” consists in the passing or attempting to pass off upon the public the goods and business of one as being the goods and business of another.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Unfair Competition.]</p> <p>4. Patents <§=>316 — Question of unfair competition held not necessary to decision.</p> <p>In an action by patentee to restrain infringement of plaintiff’s patent, and also to restrain defendant from using plaintiff’s name in and about the sale of articles infringing plaintiff’s patent — that is, for unfair competition —the question whether, since the article patented by plaintiff was made .and marketed by a corporation under an exclusive license, the plaintiff had sufficient, interest left therein to sue to restrain unfair competition, would not be considered on proof of but one sale by defendant of an article not bearing plaintiffs name, although the sale was made in response to a call for plaintiff’s article, where such sale was made for the sole purpose of making the case upon such question, especially since a decree on the issue of infringement found in plaintiffs favor would afford him ample relief.</p> <p><§u^For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Application by the United States for leave to file an information against Harold W. Quaritius, charging him with maintaining a nuisance, in violation of the National Prohibition Law.

<p>Attorney and client CS~=34 — Admission ot alien to bar deified.</p> <p>Under a rule of the District Court that any one admitted to the state bar may be admitted to its bar, admission denied to an alien where, while the state law provides for admission to the bar of a resident alien, who has bona fide declared his intention to become a citizen, applicant’s petition for admission to citizenship, six years after his declaration of intention, was denied by a state court.</p> <p><£=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Gas <8=^14 (1) — Statutory rate confiscatory; length of test.</p> <p>A computation of the cost to a gas company of producing and distributing gas, covering a period of 20 months, showing that at the statutory rate the net earnings of the company were not more than 3% per cent, per year on the value of the property employed, followed by a period of nearly a year in which the price of labor and materials entering into the production had not decreased, held a sufficient test to authorize the court to find that the rate is insufficient to afford a reasonable return, and to enjoin enforcement of the statute until it may be shown that changed conditions warrant its restoration.</p> <p>2. Gas ®=14(1) — Enhanced value of plant to be considered in fixing reasonable rate.</p> <p>In computing the value of the “rate base” of a gas company, on which it is entitled to earn a fair return, the enhanced value of its permanent property, as land, plant, and machinery, due to existing conditions more or less permanent, which would increase the cost of reproduction, should be allowed.</p> <p>3. Gas «8=» 14(1) — Depreciation of plant as element in computing rate base.</p> <p>Depreciation of plant held not a factor in computing the rate base of a gas company, where the cost of reproducing a plant of the same capacity is adopted as the valuation; hut excessive cost of future renewals over what it would be if the plant were new must be borne by usual profits.</p> <p>3%. Gas <8=»14(1) — Depreciation affects rate base, computed from original costs, only if it affects capacity.</p> <p>. Where the rate base is computed from the original cost of a gas plant, depreciation should be deducted from the original cost in arriving at the cost of a present plant of equal capacity, in so far as it is reflected in a loss of capacity, with an allowance for past renewals to offset past depreciation ; but if the capacity has remained the same, depreciation should not be a function of the rate base.</p> <p>4. Gas ®=>14(1) — Right, of company to capitalize franchise.</p> <p>Where the Legislature of a state, in authorizing the consolidation of gas companies, recognized their right to capitalize the value of their franchises, such right held not lost because the franchises were subject to the consent of the municipal authorities to open the streets, and the period liad expired within which any new mains could bo laid in streets already overcrowded.</p> <p>5. Evidence «^SSddS) — Books of gas company admissible against state authorities.</p> <p>Books of a gas company, long recognized by statute as a public service corporation, and made subject to regulation of a commission, which has power to supervise and prescribe the form of its records and books, held admissible in a suit between the company and the state authorities.</p> <p>6. Gas <£=»14(1) — Violation of contract as bar to equitable relief against confiscatory rate.</p> <p>A gas company held not barred from relief in equity against confiscatory rates imposed by the state, because at times in the past its gas was slightly below the legal standard, as shown by tests made by the city, but not by its own tests, which were reported daily to the city, and to which no objection was made, and where the variation was not substantial.</p> <p>7. Gas ^Ufl) — Sale promotion department as item of cost of distribution.</p> <p>The cost of a department of a gas company for promotion of the sale of gas and gas-using machines and appliances held a legitimate item of expense of distribution.</p> <p>8. Gas ^Hd) — Benefits and pensions to employes as items of cost of production.</p> <p>Items of expense incurred by a gas company, such as furnishing automobiles for use of its officers, payment of benefits to sick or disabled employés, and pensions to superannuated employes, held prima facie a legitimate part of the cost of production, and within the discretion of its officers.</p> <p>9. Gas ‘@=>14(1) — Interest paid on deposits of consumers not allowable as item of i cost of distribution.</p> <p>Interest paid by a gas company on deposits of consumers held not a proper item to be charged to cost of distribution.</p> <p>10. Gas 'S^14(l) — Court may make decree enjoining confiscatory rate conditional.</p> <p>While a court is without power to fix gas rates, its power to grant an injunction is discretionary, and in enjoining enforcement of a statutory rate as confiscatory it may make its decree conditional, and where the State Public Service Commission has no power to fix a rate greater than the one enjoined, it may require the company temporarily to charge no more than a fixed rate, and impound the excess above the statutory rate to await action of the Legislature, the rate fixed pursuant to such action to relate back to the date of the decree.</p> <p>11. Equity <^>410(7) — Rulings not required on each exception to master’s advisory report.</p> <p>In a suit to enjoin enforcement of a statute fixing a gas rate as confiscatory, where reference to a master is not on consent, but to make findings of fact, which shall be advisory only, the court is not required to make findings on each exception to the master’s report.</p> <p><@=3For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. War @=32 — Record of court-martial in time of war should show that retired officers were in active service.</p> <p>Under Manual for Courts-Martial, § 2, cl. 9, subd. B, permitting assignment of retired officer to court-martial duty in time of peace with his consent, and in time of war if employed on active duty in the discretion of the President, the record of a court-martial in time of war, which showed that it was composed of retired officers, should also show that those officers were on active duty in the discretion of the President.</p> <p>2. War @=32 — Record of court-martial must show on face every fact essential to jurisdiction.</p> <p>A general court-martial is a court of limited and special jurisdiction, and a record of conviction by such court must show on its face every fact essential to the jurisdiction of the court.</p> <p>3. Evidence @=386 (1) —Evidence outside record not admissible to show that retired officers on court-martial were in active service.</p> <p>On habeas corpus proceedings by one in custody under sentence of court-martial, outside evidence is inadmissible to show that the retired officers who composed the court-martial in time of war were employed on active duty in the discretion of the President, which fact was not shown by the record. i</p> <p>4. Army and navy @=39 — Officer convicted under special’article of war cannot, on same specifications and proof, be convicted under general article.</p> <p>An officer, who was convicted on three specifications for violation of the Ninety-Fifth Article of War, the penalty for which is dismissal only, cannot, on identical specifications and the same proof, be adjudged guilty of violating the Ninety-Sixth Article of War, making punishable all disorders to the prejudice of good order and military discipline at the discretion of the court, and sentenced to imprisonment as well as dismissal.</p> <p>5. Criminal law @=196 — Offenses are the “same offenses,” whenever evidence which would sustain one would sustain the other.</p> <p>Offenses are the same, so that punishment for both is double jeopardy, whenever evidence adequate to one will sustain the other, though one contains more of criminal charge than the other, and the offenses have different names.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Same Offense.]</p> <p>©=For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Removal of causes <3=21 — Suit not removable because against governmental agency.</p> <p>A suit involving less than §3,000 is not removable on the ground, alleged in the petition for removal, that the liability sought to bo enforced was incurred by defendant as agent for the United States.</p> <p>2. Courts <3=289 — Federal court has jurisdiction of suit against Emergency Fleet Corporation; “law regulating commerce.”</p> <p>Shipping Board Act Sept. 7, 1916 (Comp. St. § 8146a et seq.), is a law regulating commerce, and under Judicial Code, § 24, par. 8 (Comp. St. § 991), a suit against the United States Shipping Board Emergency Fleet Corporation, created under section 11 of said act (Comp. St. § 814G£), is cognizable in a federal court, regardless of the amount in controversy.</p> <p>3. Shipping <3=3%, New vol. 8A Key-No. Series — Emergency Fleet Corporation subject to suit.</p> <p>The United States Shipping Board Emergency Fleet Corporation is by the law of the District of Columbia, under wliich it is organized, made subject generally to civil suits, and whether in the transaction out of which a suit a rosé it was acting solely as a governmental agency, and is therefore under the law exempt from personal liability, is a question of fact to be determined on the proofs.</p> <p>4. United States <S=125 — Suit against Emergency Fleet Corporation not suit against.</p> <p>That the United States is a stockholder in the United States Shipiung Board Emergency Fleet Corporation does not render a suit against it to enforce a contract made by it a suit against the United States.</p> <p>^zoFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. War <@=4 — Food control amendment enacted under war powers.</p> <p>The amendment of October 22, 1919, to the Lever Act, prohibiting unreasonable charges for necessaries, was enacted under the war powers, since no peace has been proclaimed, though actual hostilities have ceased.</p> <p>2. War <@=4 — Acts under war powers subject to constitutional restrictions.</p> <p>Measures enacted under war powers must stand the test of constitutional limitations, and they fall, if rights guaranteed by the Constitution are thereby infringed.</p> <p>3. Constitutional law <@=278(1) — Eminent domain <S=2(1) — Fixing price for sale is depriving of property.</p> <p>The right to freely sell commodities in course of trade is inherent m ownership, and is ultimately and actually the property, so that the amendment of October 22, 1919, to the Lever Act, forbidding unreasonable eliarges for necessaries, violates Const. Amend. 5, by depriving of property without due process of law and without compensation.</p> <p>4. Criminal law <@=13 — Food control amendment does not define offense.</p> <p>The amendment of October 22, 1919, to the Lever Act, which forbids unreasonable charges for necessaries, without defining what is an unreasonable charge, is insufficient to inform the accused of the nature of the accusation against him, as required by Const. Amend. 6.</p> <p>5. Conspiracy <@=25 — Food Control Act, punishing conspiracy, invalid.</p> <p>The provision of Lever Act Aug. 10, 1917, as amended October 22, 1919, denouncing conspiracies to exact excessive prices for necessaries, is invalid, since a conspiracy must involve a common purpose to do an unlawful act, or a lawful act by wrongful means, and the sale of private property, not devoted to public use, for whatever price it will bring, is not unlawful.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Conspiracy.]</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Bankruptcy <3=81(1) — Allegation that security held by petitioners is of no value sufficient.</p> <p>An allegation in a petition by creditors that certain of the petitioners are secured by maritime liens on vessels, but that the liens are of no value, held sufficient on demurrer to show such petitioners qualified under Bankruptcy Act, § 59b (Comp. St. § 9643b).</p> <p>2. Bankruptcy <3=81(4) — Allegations of acts of bankruptcy not sufficiently specific.</p> <p>An allegation in a petition by creditors that the alleged bankrupt within four months, with intent to prefer, paid $500,000 on indebtedness to a creditor named and “several persons, firms, and corporations, creditors of said alleged bankrupt, upon antecedent indebtedness,” held not sufficiently specific.</p> <p><@cs>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Bankruptcy <S=»84 — Four-months period computed from filing of amended petition.</p> <p>Where acts of bankruptcy are sufficiently alleged for the first time in an amended petition, the four-months period within which such acts must have been committed must be computed from the filing of the amended, and not the original, petition.</p> <p><g=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from Ihe Supreme Court of the District of Columbia.</p> <p>Action by Ethel M. Gernat against Grace McMillan Gibson. Judgment for plaintiff, and defendant appeals.</p>

Herman M. Bernelot Moens was convicted of having in his possession obscene pictures and prints for the purpose of exhibiting the same, and appeals.

<p>Patents —Wind-shield cleaner held not to involve invention.</p> <p>A wind-shield cleaner, formed by bending a metallic rod upon itself to form a cleaning portion and a handle which can be firmly grasped, though it apparently possesses utility, held not to involve invention.</p> <p><®=oFor other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Patents ‘§=>91(3) — Finding as to priority not sustained by the evidence.</p> <p>In an inference proceeding in the Patent Office, a finding iliat one of the parties first conceived and disclosed the invention held contrary to the evidence.</p> <p>2. Patents <®^87 — Burden, of showing abandonment on one asserting it.</p> <p>In an interference proceeding in the Patent Office, the burden of affirmatively proving abandonment of an invention is on him who asserts it.</p> <p>3. Patents <©=^83 — Delay in filing application explained by financial condition.</p> <p>In an interference proceeding in the Patent Office, failure of a party for about 10 months after reducing his invention to practice to file his application held sufficiently explained by his financial condition, so that there was no abandonment.</p> <p><§=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests"* Indexes'</p>

<p>Appeal from a Decision of tbe Patent Office.</p> <p>Interference proceeding between Harry Edward Hoenig ana Julian H. Ken-dig. From a decision awarding priority to the latter, the former appeals.</p>

In the matter of the application of Charles C. Zenk for a patent for a moM and method or process of making commutators. Prom a decision rejecting the application, he appeals.

<p>Appeal from the Supreme Court of District of Columbia.</p> <p>Bill by Joseph Giuffrida and John Giuffrida, copartners trading as J. Giuffrida & Bro., against Charles M. Grant and others. From an order enjoining certain defendants from paying over to defendant Grant moneys, credits, or securities pending the final determination of the suit against him, defendant Grant appeals.</p>

Habeas corpus proceeding by Barnett Levy against Maurice Splain, United States Marshal in and for the District of Columbia. From a judgment remanding him to the custody of the marshal, petitioner appeals.

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Suit by Isabel J. Gordon against William A. Hammer and wife. Decree for plaintiff, and defendants appeal.</p>

<p>Appeal from Commissioner of Patents.</p> <p>Proceeding between Frederick A. Bruckman and Frederick A. Miller in the Patent Office. From a decision in favor of the latter, the former appeals.</p>

<p>Appeal from Commissioner of Patents.</p> <p>Interference proceeding between Joseph R. Blaine and Joseph White. From an award of priority against him, the former appeals.</p>

Proceeding between Eric Lambert and John F. Hope and another in the Patent Office, to obtain a patent for a drying kiln for drying wood veneer. From an award of priority to the latter, the former appeals.

<p>1. Trade-marks and trade-names <8=>21 — Use of sign “Esco” likely to produce confusion with goods sold under the sign “Crisco.”</p> <p>The use of the sign “Esco,” as a trade-mark for a lard substitute, would be likely to produce confusion with lard substitute sold under the sign “Crisco,” and registration was properly refused.</p> <p>2. Trade-marks and trade-names <@=343 — Origin of mark immaterial.</p> <p>The trade-mark statute takes no account of the origin of a mark; the only question being, Would its use be likely to result in confusion? in which ease it is unregisterable.</p> <p><SfcsaFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the Commissioner of Patents.</p> <p>Interference proceeding between Hermann E. T. Erben and John L. Mok Yardley. Prom a decision awarding ’priority to the latter, the former appeals.</p>

<p>Patents <@==>90(5) — First inventor not affected by attempts to perfect before applying for patent.</p> <p>Where it clearly appears that the first party to conceive an invention was in good faith engaged in perfecting it at the time his adversary entered the field, he should not be deprived of the fruits of his discovery because his efforts were not as successful as he hoped they would be, unless further tests were so unnecessary as to constitute evidence of negligence or bad faith; and that the further experiments led to nothing so far as benefiting the public was concerned, is immaterial.</p> <p><£x=»I’or other cases seo same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In the matter of the application of the Scholl Manufacturing Company, Incorporated, to have registered a trade-mark for instep supports. From a decision rejecting the application, applicant appeals.

<p>Appeal from Commissioner-of Patents.</p> <p>Interference proceeding between William Grus, Jr., and George A. Eynon. From an award of priority to the latter, the former appeals.</p>

<p>Appeal from a Decision of the Patent Office.</p> <p>Trade-mark opposition proceeding between the Prest-O-Lite Company, Incorporated, and the Play-O-Dite Company, Incorporated. From concurrent decisions, the former appeals.</p>

<p>Appeal from Commissioner of Patents.</p> <p>Interference proceeding between Charles Terry Du Rell and Dennis Frederick’Haley. From concurrent decisions of the Patent Office, the former appeals.</p>

<p>In Error to the District Court of the United States for the Southern Division of the Northern District of California; Oscar A. Trippet, Judge;</p> <p>Action by Charlotte Burton Lerche against the Essanay Film Manufacturing Company. Judgment for plaintiff, and defendant brings error.</p>

Bledsoe, Judge. Petition by Akira Ono for a writ of habeas corpus to obtain release from custody in deportation proceedings by the United States. From a judgment denying relief, petitioner appeals.

<p>1. Evidence ^lSKS) — Declarations by possessor, claiming title, are competent as res gestas.</p> <p>Declarations made by one in possession of land that he held it as his own are admissible to show adverse possession, as explanatory of the possession and part of the res gestas.</p> <p>2. Evidence <3=5273(4) — Declarations of possessor, claiming to hold under another, are competent.</p> <p>Declarations by a person in possession of land that he held it for another, who claimed ownership, are competent to establish adverse possession, whether the possessor was a tenant of the claimant, or was a slave belonging to the claimant, who could not claim possession in his own right.</p> <p><§z=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>3. Evidence ©=266 — Witnesses ©=38 — Testimony and declarations made by slaves admissible.</p> <p>Since the removal of the disability of slavery, the testimony of former slaves as to transactions occurring during their slavery, and testimony as to acts and declarations by slaves, are as competent as though the state of slavery had never existed.</p> <p>4. Adverse possession ©=>27 — Evidence held to show possession by slaves.</p> <p>In an action of trespass, where defendant claimed by adverse possession under color of title, evidence field sufficient to sustain the jury’s finding that slaves were in possession under defendant’s predecessor in title, and that the cabin in which they lived was located on the disputed tract.</p> <p>5. Appeal and error ©=1053(1) — Admission of irrelevant documents subsequently excluded is harmless.</p> <p>Error in the admission in evidence of documents, which it subsequently appeared were entirely irrelevant, and which were then excluded from the consideration of the jury, was harmless.</p> <p><gz=oFor otber cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Banks and banking <S^>140 (2) — Payment of check on unauthorized indorsement is conversion of payee?» property.</p> <p>A bank, which cashed a check on indorsement by its agent, with knowledge that the indorsement was unauthorized, and charged the check against the drawer’s account, is liable to the payee of the check for conversion of his property, though it would not be liable to him in an action for breach of contract.</p> <p>2. Pleading <§»214(3) — Demurrer held to admit knowledge of agent’s authority.</p> <p>A bank cannot rely upon the trust and confidence reposed for years by the payee of a check in its agent as a defense to payment of the check on the agent’s indorsement, where it admitted by demurrer that it had knowledge that the agent was not authorized to indorse the check.</p> <p>3. Pleading '§^192(2) — Insufficiency as to details does not render complaint demurrable.</p> <p>An objection that the allegations of the complaint are not sufficient to inform defendant fully as to the transactions referred to therein does not support an order sustaining a demurrer to the complaint, though defendant would be entitled to have the complaint amended in those respects.</p> <p>Rose, District Judge, dissenting.</p> <p>other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

, Judge. Fibel by E. Andersen, as master of the steamship Herm, against W. T. Reed, master of the barge R. W. McDonald, and others, for damages arising from collision. From a decree holding libelant solely at fault, libelant appeals.

<p>1. Master and servant <§=286 (8) — Negligence in not using insulating shield held question for jury.</p> <p>Evidence that an employé on a railroad pile driver was required to work within 2% feet of a highly charged uninsulated wire of an electric block signal system, and that there was on the market a safety device which could have been put over the wire for his protection, held sufficient to go to the jury on the issue of the railroad’s negligence, though the company was shown to have done all that is customarily done by other railroads in like circumstances.</p> <p>2. Master and servant <§=>288(5) — Assumption of risk held question for jury.</p> <p>In an action for the death of a railroad employé, killed by an electric wire touched while working on a pile driver, evidence that he had' general knowledge of the danger and received some warning, which was uncertain as to the time of the warning and as to whether it was calculated to give him a real sense of his peril, does not establish assumption of risk as a matter of law.</p> <p>3. Death <§=>79 — Surviving wife, though separated from husband, may recover substantial damages.</p> <p>A wife, who had separated from her husband soon after their marriage, and had thereafter received no support from him, but who was not divorced, can recover substantial damages for his death.</p> <p>4. New trial <§=>162(1) — Judgment after remittitur affirmed.</p> <p>Where, in death action, widow was awarded $3,500, and child $7,000, and court, on motion for new trial for excessive recovery, affirmed award as to widow, but reduced award to child to $3,500, and granted a new trial as to child unless abatement of excess of verdict be filed, judgment entered after filing of abatement affirmed.</p> <p><§xs>For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Suit by the Twin Falls Salmon River Land & Water Company against D. W. Davis and others. From a decree dismissing the complaint (260 Fed. 270), plaintiff appeals. This is an appeal from a decree dismissing the complaint. Plaintiff, appellant here, a corporation formed under the Carey Act, and its .assignors, under contract with the state of Idaho, constructed what is known as the Salmon River Carey Act project.

<p>1. Courts ®=»101 — Preliminary injunction suit not within requirement of hearing by three judges; “suit to restrain enforcement or operation of state statute.”</p> <p>A suit against a state council of defense and its members, to enjoin acts alleged to he outside of and beyond the powers conferred on them by the statute creating such council, held not one to restrain the enforcement or operation of a state statute, within the meaning of Judicial Code, § 266 (Comp. St. § 1243), requiring an application for preliminary injunction in such case to be heard and determined by three judges.</p> <p>2. War —Action by state council of defense not action by Governor.</p> <p>That proposed action by a state council of defense was made known to and approved by the Governor, before it was taken, held not to render such action that of the Governor in the exercise of special war powers conferred on him by statute.</p> <p>3. Equity <®=»65(3) — Corporation not subject to defense of unclean hands because. of acts of stockholder.</p> <p>A claim that a corporation complainant comes into court with unclean hands cannot be predicated on acts of a stockholder, unconnected with any action by the corporation.</p> <p>4. Monopolies (1) —Unlawful interference with interstate trade in magazines.</p> <p>The action of the state council of defense of New Mexico, not authorized by anything in the statute creating it, in appealing through a paper published by its authority to newsdealers and citizens of the state not to sell or read magazines published by complainant corporation in New York and sent into the state for sale by newsdealers under contracts, and in otherwise inducing such newsdealers to cancel their contracts and refuse to handle complainant’s magazines, held an unlawful interference with interstate commex’ce, in violation of the Sherman Act, not justified on the ground that tile majority stockholder of complainant, through newspapers owned or controlled by him, was expressing disloyal and pro-German sentiments, calculated to interfere with successful prosecution of the war; no claim being made that complainant’s magazines contained objectionable matter.</p> <p><§^For other cases see same tos'ic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Post office <@=>49 — Evidence held not to show fraudulent use of mails.</p> <p>A count charging that defendant, pursuant to a scheme to defraud, sent through the mails an application for employment at a salary of $2,500 and travel expenses, in which he made false statements and representations in respect to his age, character, qualifications, and present salary, conceding that it charged an offense, held not supported by the evidence, which showed that the obtaining of the salary was not the object of the application.</p> <p>2. Post office <@=>48 (4) —Indictment for using mails to defraud insufficient.</p> <p>A count charging that defendant, pursuant to a scheme to defraud the United States, sent through the mails an application for employment, for the purpose of obtaining, by virtue of the position which he sought, exemption from military service, held not to charge an offense, where it alleged no facts showing that defendant was a person subject to the Selective Draft Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 2019a, 2019b, 2044a-2044k), and where the position for which he applied would not, as matter of law, exempt him from selection under such act.</p> <p>3. Criminal law <@=564 (1) — In prosecution for using mails to defraud, place of mailing letter held not proved.</p> <p>Under an indictment for using the mails to defraud, proof that defendant resided in the city where a letter was alleged to have been mailed held insufficient alone to sustain such allegation, or to prove the venue as laid.</p> <p><@s»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Southern Division of the Southern District of California; Oscar A. Trip-pet, Judge.</p> <p>Action by Gideon L. Moye against the American Film Company, Incorporated. Judgment for plaintiff, and defendant brings error.</p>

Sanborn, Judge. Suit by the Dalton Adding Machine Company and the Addograph Manufacturing Company against the Rockford Milling Machine Company and others. From a decree for defendants (253 Fed. 187), plaintiffs appeal.

<p>1. Patents —Ability of other inventors in art to make combination does not disprove invention.</p> <p>The fact that other inventors working in the same art would, have been able to make the combination made by patentee does not disprove invention, if the ordinary journeyman in the art could not have made such combination.</p> <p>2. Patents <8=»20 — Invention may lie in adaptation of tools of intermittent process to continuous process.</p> <p>Though the change from an intermittent to a continuous process is not invention, the adaptation of the tools used in the intermittent process to the continuous process may involve invention.</p> <p>3. Patents —Adaptation of old tools can be infringed only if same means are used.</p> <p>Where the invention consists only in the adaptation of tools used in the intermittent process to a continuous process, there can be no infringement, unless the same means are used to accomplish the synchronization of the movements.</p> <p>4. Patents —1,193,395, for book binder, held valid, but infringed only as to claim 53.</p> <p>The Juengst patent, No. 1,193,895, for machines for binding books by continuous process, held valid, but infringed only as to claim 53 thereof, relating to a detector to provide against a missing sheet.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digeste & Indexes</p>

Action by Charles A. Juengst and another, a copartnership doing business under the name and style of George Juengst & Sons, against the Hill Publishing Company. Prom a decree (267 Fed. 428) finding the patent in suit valid, but infringed as to only one claim, plaintiffs appeal.

<p>In Equity. Bill by Samuel Kauffman against the Sodemann Heat & Power Company.</p>

<p>1. Patents @=328 — 1,239,249, claims 1-4, 8, for rectifier for alternating currents, held infringed.</p> <p>The Ballman patent, No. 1,239,249, for a rectifier for alternating currents, if valid, is infringed by a device which merely changes the position of two of the elements, and substitutes a closed path for the air gap in the patent in suit.</p> <p>2. Patents @=27 (2) —Application of old device to new use not invention.</p> <p>The mere application of existing devices for the rectification of alternating electrical currents to the production of direct currents for charging storage batteries does not in itself disclose invention.</p> <p>3. Patents @=26(1) — Production of old result by new means is patentable.</p> <p>The production of an old result by new means constitutes invention, and is patentable.</p> <p>4. Patents @=328 — 1,239,249, claims 1-4, 8, for rectifier for alternating currents, held valid.</p> <p>The BalJman patent, No. 1,239,249, claims 1-4, 8, for a rectifier for alternating currents, consisting of a main magnetic path, with moans to form a shunt magnetic path, and to set up alternating flux, held to disclose invention, and to be valid.</p> <p>5. Patents @=26(1) — Combination of old elements to eliminate objections involves invention.</p> <p>A new combination ánd utilization of similar parts, which had been used in previous devices to produce a similar general result, but so as to avoid waste and danger of destruction of the former devices, is invention.</p> <p>6. Patents @=35 — General use of new device tends to show invention.</p> <p>Though the mere fact that a device has gone into general use does not establish invention, it is a circumstance to be considered, where the question of invention is a doubtful one, and the use of the patented article has become general.</p> <p><®c^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>Í. Patents <3=283(1) — Patent for defendant's device no defense against infringement.</p> <p>The fact that defendant’s device is manufactured under a patent granted by the Patent Office subsequent to plaintiff’s patent is no defense to the charge of infringement.</p> <p>@=»For other eases see same topic ft KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Patents <S=>828 — 743,206, claims 1 and 4, and 916,812, claim 1, for electric lamp sockets, held infringed.</p> <p>The Weber patents, No. 743,206, claims 1 and 4, and No. 916,812, claim 1, for an electric lamp socket adapted to automatically interlock with a snap action, held infringed.</p> <p>®=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Action by the Weber Electric Company against W. R. Ostrander & Co. for infringement of a patent. From a decree (267 Fed. 445), granting injunction against the infringement, defendant appeals.</p>

<p>1. Sales 0=1 (1) — Contract held one of sale.</p> <p>A contract, consisting of plaintiff’s acceptance of an offer to purchase logwood, held, with respect to plaintiff and the immediate purchaser, one of sale.</p> <p>2. Sales 0=3 — Agreement to pay price on buyer’s default held one of guaranty, and not sale.</p> <p>An agreement whereby defendant jointly obligated itself for the payment of logwood to be delivered to purchaser, who was to deliver same to defendant for manufacture of extract, held one of guaranty, and not of sale.</p> <p>3. Guaranty <§=59 — As between seller and guarantor, shipments paid for by buyer held made pursuant to the contract.</p> <p>In an action against a guarantor for an alleged balance due on a contract of sale, held, that shipments delivered to the buyer, and for which payments were made, should be treated as made pursuant to the contract, thus reducing the extent of the guarantor’s liability.</p> <p>4. Guaranty <§=59 — Guarantor of price of goods entitled to credit for amount realized on resale.</p> <p>In an action for an alleged balance due on a contract of sale, where the commodity which was stored was resold by the seller in the exercise of its statutory lien, held, that the amount realized should be credited on behalf of the guarantor.</p> <p>5. Guaranty <§=53 (1) — Guarantor of price of goods released, where seller delivered goods without notice and took lien contrary to agreement.</p> <p>Where the seller of logwood under a contract providing for payment at dock, delivered, without notice to the guarantor, to the buyer the bill of lading for a shipment consigned to the guarantor, and a third person advanced money on the bill of lading, the seller accepting such person’s notes for the balance, the guarantor was discharged by reason of the modification of the contract, and placing of the lien.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numhered Digests & Indexes</p>

<p>1. Evidence 0=589 — Testimony of plaintiff of some value, although unconscious after injury.</p> <p>Although plaintiff in personal injury action was, for a long time after the injury, incapable of memory, his testimony is of some value.</p> <p>2. Master and servant 0=278(6) — Evidence held to warrant recovery under federal act for injury to brakeman from defective miming board.</p> <p>In action under the federal Employers’ Liability Act (Comp. St. §§ 8657-8665) for injuries to a brakeman through violation of the Safety Appliance Act, evidence on issue whether he fell from a car on which the running board was defective, or from another car, hold to support verdict for plaintiff.</p> <p>3. New trial 0=81 — Damages cannot be claimed excessive on account of issue of contributory negligence, not requested to be submitted.</p> <p>In brakeman’s action for injuries, new trial because of excessive damages would not be granted, on tbe ground that the question of plaintiff’s contributory negligence, as diminishing damages pro rata under the Employers’ Liability Act (Comp. St. §§ 8657-8665), was not submitted to the jury, where defendant did not request such submission.</p> <p>4. New trial <§=162 (3) — In ease of passion or prejudice, court may order new trial on condition of remittitur.</p> <p>Where it appears that sympathy, passion,- or prejudice has affected the result, a federal court may order that the verdict be set aside and a new trial granted, unless tlie plaintiff allows judgment to be entered for some lesser amount, for which, in the opinion of the court, the verdict may be sustained, and it then becomes the duty of the court to permit a verdict for the largest amount which the testimony will support.</p> <p><§zs>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>5. Damages <3=5132(9) — $38,625, for loss of legs, reduced to $39,000.</p> <p>Where brakeman, 28 years old, with income of less than $1,800, suffered loss of both legs, verdict for $38,625 would be reduced to $30,000.</p> <p><£rs>For other oases see same topic & 3£EY~NUMBEtt, in all Key-Numbered Digests & Indexes</p>

<p>1. Intoxicating liquors <§=>325 — Before Eighteenth Amendment, whisky was “property.”</p> <p>Before the adoption of the Eighteenth Amendment, whisky was “property,” and property rights therein were as full and complete as they were with reference to any other sort of personal property.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Property.]</p> <p>2. Constitutional law <§=>87 — Statute restricting use and possession of property confiscates it.</p> <p>A statute, which has the effect of restricting the use and possession of personal property owned by a citizen, confiscates such property within the purview of Const. Amend. 5.</p> <p>3. Injunction <S=»22 — Equity will not compel, acceptance of tax on whisky which plaintiff cannot remove.</p> <p>Even though the National Prohibition Act does not prohibit the acceptance of the internal revenue tax on whisky stored in bond from one who had no right under that act to remove the whisky from the warehouse, equity will not compel the acceptance of such tax, and the delivery of possession to the owner of the whisky.</p> <p>4. Intoxicating liquors <§==>17 — Prohibition of transportation of liquor valid under Eighteenth Amendment.</p> <p>Volstead Act, tit. 2, § 3, forbidding the transportation of liquor for beverage purposes, is valid under Const. Amend. 18, which forbids the manufacture, sale, or transportation of such liquor for beverage purposes.</p> <p>5. Constitutional law <§=>87 — Intoxicating liquors <§=>13 — Provisions of Eighteenth Amendment, contrary to Fifth Amendment, are controlling.</p> <p>Though the Eighteenth Amendment to the. Constitution did not abrogate the Fifth Amendment, its provisions are - controlling, where they conflict with the provisions of the earlier amendment, so that the prohibition of the transportation of intoxicating liquor authorized by the later amendment is constitutional though it amounts to a confiscation of property under the Fifth Amendment.</p> <p>6. Intoxicating liquors <@^138 — Liberal construction of Volstead Act prevents removal of whisky for personal consumption.</p> <p>Under the provisions of Volstead Act, tit. 2, § 3, that the act shall be construed liberally to prevent the use of liquor for beverage purposes, it will not be construed to permit the removal of the whisky stored in warehouses for such purposes, unless such construction is too clear for reasonable dispute.</p> <p><g^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>At Law. Action by John W. Kirwin against the Mexican Petroleum Company. On demurrers to declaration.</p>

In Admiralty. Suit by Eugene Van Quekelberg, master, and the Société Anonyme Anversoise de Navigation, owner, of the steamship Anversoise, against the steamship Hampden, the Coastwise Transportation Company, claimant, with cross-libel.

<p>Collision <§==>72(1) — Mutual faults of anchored vessels.</p> <p>A collision at night between a steamship and bark anchored in Elizabeth river helé due to faults of both vessels; the bark being primarily in fault for allowing her anchor to drag, an,d the steamship for failing to take measures to prevent the collision, when the danger became apparent, some three hours before it occurred.</p> <p><@=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Intoxicating liquors ©=250 — Procedure for forfeiture of vehicle used in transportation must be strictly followed.</p> <p>Under National Prohibition Act, § 26, providing that, on seizure of liquor being illegally transported, the officer shall take possession of the vehicle and arrest any person in charge, and that on his conviction, unless good cause is shown, the court shall order a sale of the property seized, the procedure prescribed is jurisdictional, and the arrest of a defendant for a previous illegal transportation of liquor does not authorize the seizure without warrant, and forfeiture, of an automobile used in such transportation.</p> <p><§c»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Criminal prosecution by the United States against Gordon 'Graham and others. On motion for forfeiture of boat.</p>

<p>1. Release <®=529(1) — All joint tort-feasor’s released by release of one.</p> <p>The release of one joint tort-feasor, being valid, operates as a release of the others.</p> <p>2. Torts <^22 — Who are “joint tort-feasors.”</p> <p>Where the negligence of two or more persons concurs in producing a single indivisible injury, such persons are “joint tort-feasors,” though there was no common design or concert of action.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, Second Series, Joint Tort-Feasors.]</p> <p>3. Release <8=29 (3) — Injured miner's release of employer releases manufacturer of defective fuse.</p> <p>Where a miner, -injured when a fuse manufactured by defendant burned its entire length instantly and set off a blast before he had an opportuity to seek a position of safety, released his employer, which furnished the fuse, such release will be deemed as a matter of law to release the defendant manufacturer of the fuse, on the theory that it and the employer were joint tort-feasors, notwithstanding the miner in his complaint against defendant alleged that the accident was caused solely by its negligence, for under the circumstances he cannot deny the liability of his employer, which is presumed; hence defense setting up the release is good, notwithstanding the averments of sole negligence.</p> <p>4. Release <8=558 (1) —Whether defendant and another were joint tort-feasors question for the court.</p> <p>In an action by a miner, injured when a fuse burned instantly, where the defendant manufacturer asserted that the miner’s release of his employer was a release of it, that question will be determined by the court as a matter of law, notwithstanding the averment of the complaint that the injuiy was solely the result oí defendant’s negligence, and the court will not submit to the jury the question whether defendant and the employer were joint tort-feasors.</p> <p><§£s>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>At Law. Action by the Board of Supervisors of Buena Vista County, Iowa, acting for and in behalf of Drainage District No. 34, in said county, against the Title Guaranty & Surety Company of Scranton, Pa., and another. On motion to remand to the state court.</p>

<p>At Law. Action by C. E. Batchelder against the S. C. Quimby Land Company and Clayton Dumont. On motion to remand to state court.</p>

<p>1. Injunction <@=»84 — Passage of resolution declaring forfeiture of franchise -held by receivers cannot be enjoined.</p> <p>The court which appointed receivers for a street railroad corporation cannot enjoin the passage by the hoard of estimate of the city of a resolution declaring a forfeiture of the franchise held by the receivers.</p> <p>2. Receivers @==>73 — Court can restrain interference by officers acting under municipal'resolution forfeiting franchise.</p> <p>The court which appointed receivers for a street railroad corporation can enjoin municipal officers acting under the authority_ of a resolution declaring a forfeiture of the franchise held by the receiver from interfering with the operation of the property by the" receiver.</p> <p><g^»]Tor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Courts <§fe»264(3) — Ancillary proceedings may involve litigation of separate issues.</p> <p>Proceedings ancillary to receivership may be brought in aid thereof, though they involve litigation of other issues.</p> <p>2. Courts <S=^264(3) — Ancillary proceedings, involving independent action, should be set forth in form of pleadings.</p> <p>Where ancillary proceedings in aid of a receivership involve the trial of an independent action, they should be set forth in the form of pleadings, not merely by affidavit.</p> <p>3. Receivers <S=»73 — Ancillary proceedings to restrain interference with receiver may be instituted by affidavit.</p> <p>Ancillary proceedings to restrain interference by municipal officers with a receiver do not involve the trial of an independent action, and may be instituted by affidavit and petition for order to show cause.</p> <p>other cases see same topic & KEY-NUMBER, in all Key-Numbered Digests & Indexes</p>

<p>1. Indians <S=15(3) — Construction of statute; “noncompetent” Indians are those without full power of alienation.</p> <p>In Act March 1, 1907 (Comp. St. § 4225), providing that “any non-competent Indian,” who has an allotment of-land in severalty subject to restrictions on alienation, or an interest in such an allotment by inheritance, may sell the same under such rules and regulations as the Secretary of the Interior may prescribe, the word “noncompetent” is not used as denoting mental incapacity, but as descriptive of any Indian who holds only under a trust patent, and is inclusive of all Indians who are without full power to alienate their property.</p> <p>2. Taxation <@=181 — Land bought with proceeds of trust allotment to Indians exempt from taxation.</p> <p>Where trust allotments of Indians are sold as authorized by Act March 1, 1907 (Comp. St. § 4225), with the consent of the allottees, and the proceeds invested in other lands, which are also hold in trust for them, such substituted lands are exempt from taxation.</p> <p><g^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by Alvan Maride and others against Fred C. Kirkendall, Collector of Internal Revenue for the Twelfth District of Pennsylvania. On motion to dismiss the bill.</p>

<p>Forfeiture Libel. Proceeding by the United States against One Machine for Corking Bottles, etc.</p>

<p>At Law. Action by Ollie Lovelace and others against the Southwestern Petroleum Company and others. On motion to direct verdict for defendants.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Kentucky; Andrew M. J. Cochran, Judge.</p> <p>Suit by Ollie Lovelace and others against the Southwestern Petroleum Company and others. From a judgment for defendant (267 Fed. 504), plaintiffs appeal.</p>

In the matter of the estate of James Bicknell Castle, deceased. William R. Castle, Eorrin A. Thurston, and Alfred E. Castle, trustees under the will, appealed from an order of distribution of the circuit court, and from a judgment of the Supreme Court of Hawaii, reversing such order, Julia White Castle brings error.

<p>1. Criminal law <§=>823(1) — Entire charge must be considered.</p> <p>On assignments.of error to the charge of a court, the entire charge must be considered.</p> <p>2. Conspiracy <§=>47 — For illegal transportation of liquor shown by evidence.</p> <p>A conviction for conspiracy to transport liquor into a prohibition state,in violation of Reed Amendment, § 5 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 8739a), held sustained by evidence tending to show that defendant, who was a wholesale dealer in Missouri, had made an arrangement with a customer in Omaha, pursuant to which on three occasions he delivered to an agent of such customer an automobile load of whisky, knowing that it was to be transported to Omaha in a prohibition state.</p> <p><te>For other cases see same topic & KEY-NUMBER in all Key-Numhered Digests & Indexes</p>

<p>1. Criminal law <©=13 — Statute punishing stealing of arms void for uncertainty of punishment,.</p> <p>Criminal Code, § 36 (Comp. St. § 10200), providing that whoever shall steal arms or stores, etc., furnished for the army or navy, “shall be punished as prescribed in the preceding section,” held inoperative as a criminal statute for uncertainty as to the punishment prescribed; the preceding section prescribing different punishments for different offenses therein defined.</p> <p>2. Conspiracy <3=47 — Larceny <3=55 — Evidence sustaining conviction for conspiracy and stealing arms.</p> <p>A conviction for conspiracy to steal arms furnished for the army, and for stealing such arms, held sustained by evidence tending to show that defendant, through another, induced soldiers to commit the thefts for purpose of procuring the arms to be illegally carried by him into Mexico.</p> <p>3. Conspiracy <3=47 — Sufficiency of evidence to sustain charge.</p> <p>Evidence hold to sustain a conviction for conspiracy to export arms to Mexico without license.</p> <p>4. Criminal law <3=1169 (5) — No error in admitting evidence competent as to some defendants, whore court instructed jury as to bearing on other defendants.</p> <p>Error cannot be predicated on the admission of evidence which is conpetent and admissible as to some of the defendants being tried together, where the jury is correctly instructed as to its bearing on the other defendants.</p> <p><§=»Eor other eases see same topic & KEY-NUMBEH in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Northern District of West Virginia, at Parkersburg; Alston G. Dayton, Judge. v</p> <p>Bankruptcy proceedings against the Evansville Contract Company. From a decree granting the petition of the United States Fidelity & Guaranty Company to set aside as fraudulent a sale of claims by the bankrupt, made by M. J. Bray, as trustee in bankruptcy, to Jacob Eichel,'the trustee and the buyer appeal.</p>

<p>1. Internal revenue <@=2 — Harrison Narcotic Act is constitutional.</p> <p>The Harrison Narcotic Act (Comp. St. §§ 6287g-6287q), forbidding the sale of preparations of opium not for use as a medicine, without having paid the tax therein required, is constitutional.</p> <p>2. Indictment and information <@=>111(1) — Indictment need not negative exceptions to Harrison Narcotic Act.</p> <p>Under Harrison Narcotic Act, § 8 (Comp. St. § 6287n), the indictment need not negative the exemptions from the act, so that an indictment for sale of a preparation containing more than the specified minimum of opium, substantially in the language of section 6 (Comp. St. § 6287¿), was not only sufficient, .but was unnecessarily specific in negativing the exception of sale for medicinal purposes by alleging the sale was not as medicine, but for the purpose of evading the act.</p> <p>3. Internal revenue <@=>47 — Evidence held to warrant submission to jury of question of intent to evade Narcotic Act.</p> <p>' In a prosecution for the sale of a preparation containing opium without a license, contrary to Harrison Narcotic Act, § 6 (Comp. St. § 6287t), evidence that sales -were knowingly made to drug addicts held sufficient to go to the jury on the question of intent by defendant to evade the provisions of the act.</p> <p>4. Internal revenue <@=>47 — Charge that Harrison Drug Act was to discourage .trade held not error.</p> <p>In a prosecution for violation of the Harrison Narcotic Act (Comp. St. §§ 6287g-6287q), a charge that the purposes of the act were, first, to obtain a license tax, and incidentally to prevent sales being made to addicts, was not error.</p> <p>5. Criminal law <@=>1153 (2) — Determination of competency of child witness •is in trial court’s discretion.</p> <p>The determination of the competency of a child to testify is very largely intrusted to the discretion of the trial court, and its ruling will not be reviewed, in the absence of abuse of discretion.</p> <p>6. Witnesses <@=>79 (1) — Appearance and manner considered in' determining competency.</p> <p>In determining the competency and intelligence of a witness, the court should take into consideration the general appearance and manner of the witness, as well as statements made by him.</p> <p>7. Internal revenue <@=>47 — Compromise is bar to prosecution.</p> <p>Under Rev. St. § 3229 (Comp. St. § 5952), a compromise with the consent of the Commissioner 'Of Internal Revenue before suit, and with the consent of the Secretary of the Treasury, and the Attorney General, after suit, is as complete a discharge from a prosecution for violation of the revenue laws as would be an acquittal by the jury.</p> <p>8. Criminal law <@=>304(17) — Consent of officers to compromise by Commissioner is presumed.</p> <p>The duty of securing the consent of the Secretary of the Treasury and the recommendation of the Attorney General to a compromise of a violation of the internal revenue laws after prosecution is begun devolves upon the Commissioner of Internal Revenue, and not upon accused, and it will be presumed that the Commissioner of Internal Revenue performed that duty before entering into the compromise</p> <p><g^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>9. Internal revenue <©==>47 — Receipt of money by Commissioner evidence of compromise.</p> <p>In a prosecution for a violation of the Harrison Narcotic Act (Comp. St. §§ 6287g-6287q), the receipt by the Commissioner of Internal Revenue of an amount paid by defendant in alleged satisfaction of a compromise of the prosecution is at least competent evidence from which the jury could infer a compromise which would bar the conviction, so that the exclusion of such receipt from evidence was error.</p> <p>Waddill, District Judge, dissenting.</p> <p><@^>For other cases see same topic & KFY-NUMBFR in all Key-Numbered Digests & indexes</p>

<p>1. Bankruptcy <@=>390 — No power to enter decree pro confesso during abatement of suit by reason of plaintiff’s bankruptcy.</p> <p>While equity rules 12, 16 (198 Fed. xxii, xxiii, 115 C. C. A. xxii, xxiii), require a defendant to answer within 20 days after service of the subpoena, and provide that in default of such answer an order may be entered that the bill be taken pro confesso, where the suit abates by the bankruptcy of plaintiff before that time, no answer is required until a plaintiff has been substituted by order of the court, nor has the court power to order entry of a decree pro confesso.</p> <p>2. Bankruptcy <@=>156 — Substitution of trustee can be effected only by order of court.</p> <p>A motion by a trustee in bankruptcy to be substituted as plaintiff in a pending suit by bankrupt does not effect such substitution, which can only be made by a judicial order.</p> <p><§=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Appeal and error <3=84(3) — Reversal and remand for proceedings consistent with opinion is not final decree.</p> <p>A decree of the Supreme Court of Hawaii, reciting that, pursuant to the opinion of that court, the decree appealed from was reversed, and the cause remanded, for such further action compatible to the decision as may be necessary, is not a final decree from which an appeal can be taken to the Circuit Court of Appeals, though the opinion in fact disposed of the merits of the controversy.</p> <p>2. Courts <®=403 — Circuit Court of Appeals cannot require Hawaii Supreme Court to correct its judgment.</p> <p>The Circuit Court of Appeals has not the power to direct the Supreme Court of Hawaii to correct a judgment reversing a decree, so as to set forth what further action would be compatible to the decision, and to direct the lower judge to take such action, so as to render the decree final in form and appealable.</p> <p>On Petition for Rehearing.</p> <p>3. Appeal and error <3=1166 — Statute requiring disregard of technical errors not applicable to jurisdictional defeets.</p> <p>Act Feb. 26, 1919, amending Judicial Code, § 269 (Comp. St. Ann. Supp. 1919, § 1246), which requires the court on appeal to give judgment without regard to technical errors, relates only to the determination of the case pending in court on appeal) not to the preliminary steps by which it is brought into the appellate court, and it cannot affect jurisdiction of the court, or sustain appeals or writs of error in cases where the judgment, ■ before the enactment of the amendment, was not appealable.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the District of South Dakota.</p> <p>In the matter of Louis Henkin, bankrupt; Charles B. Fousek, trustee. From an order adjudging him in contempt, the bankrupt appeals.</p>

<p>1. Intoxicating liquors «^158 — Salo of liquor to soldiers in uniform unlawful, wherever made.</p> <p>Selective Draft Act, § 12 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 2'019a), authorizing the President to make regulations governing prohibition of liquor in or near military camps, and also providing that “it shall be unlawful to sell any intoxicating liquor * * * to any officer</p> <p>or member of the military forces, while in uniform,” prohibits the sale o£ liquor to soldiers in uniform from the date of its enactment, irrespective of the regulations subsequently made by the President or of the place of sale.</p> <p>2. Intoxicating liquors <S=^28(i (11) — Evidence insufficient to show sale of liquor to soldiers in uniform.</p> <p>Evidence held insufficient to sustain a conviction of defendant, a married woman, of selling liquor to soldiers in uniform, where it showed without contradiction that two soldiers, one of whom was an acquaintance, and who had been sent out to obtain evidence of illegal sales, called at defendant’s house and inquired for her husband, who was absent; that they asked her for liquor, which she denied having, but that on then-urging their need she filled and gave them a half pint bottle from a small quantity kept for household use; that there was no question of sale, but that after they left she found some money on the table, which had been left without her knowledge.</p> <p><§37>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Criminal law <©=371 (1) — In prosecution under Espionage Act evidence of other statements admissible to show intent.</p> <p>On trial of a defendant charged with, violation of Espionage Act, tit. 1, § 3 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 10212c), by giving counsel and advice against enlistment evidence of statements and conversations of defendant other than those charged in the indictment held admissible to show the intent with which the words charged were spoken, when properly limited to such purpose.</p> <p>2. Army and navy —Evidence held to show attempt to obstruct enlistments.</p> <p>Evidence held to sustain a conviction for attempting to obstruct enlistments, in violation of Espionage Act, tit. 1, § 3 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 10212c).</p> <p><@C5>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Separate suits for infringement of two patents by Harvey Hubbell, Incorporated, against the General Electric Company and against the Bryant Electric Company, respectively. From decrees for plaintiff, defendants appeal. The General Electric Company appeals from a decree entered in the District Court for the Southern District of New York and the Bryant Electric Company from a similar decree entered in the District Court for the District of Connecticut.

Suit for infringement of patent by the Bryant Electric Company against Harvey Hubbell, Incorporated. Decree for defendant, and plaintiff appeals.

Suit by the Damascus Brake Beam Company against the American Steel Foundries. Decree for complainant, and defendant appeals. Suit to enjoin infringement of two patents Nos. 1,161,737 and 1,-192,466, to Frederick J. Schroeder, and assigned to appellee.

<p>Appeal from the District Court of the United'States for the Eastern Division of the Northern District of Illinois.</p> <p>Suit by Frederick C. Taxis and others against the Universal Form Clamp Company. From a decree for complainants, defendant appeals.</p>

Petition for Return of Whisky Seized under the National Prohibition Act. Petition by Henry B. Masters against the United States for the return of 15 barrels of rye whisky, in the possession of the Federal Prohibition Agent.

<p>At Law. Action by Lela B. Perrette against the Illinois Commercial Men’s Association. On motion to remand to state court.</p>

<p>1. Carriers <S=>18(6) — Showing held to authorize temporary injunction against enforcement of rate by state commission.</p> <p>An uncontradieted showing that an interurban railway was losing money, though it was charging a higher rate in its interstate traffic and traffic in another state than was permitted by a state Public Service Commission’s order, is sufficient, in the absence of a satisfactory explanation why the business within that state should be more profitable than the other business, to authorize a temporary injunction against the enforcement of the order prescribing the rate.</p> <p>2. Injunction (3) — Granted to maintain status where questions are difficult and damage would be irreparable.</p> <p>A temporary injunction may be issued to maintain the status quo pending a final hearing, where the questions of law and fact are intricate and difficult and where the rights of all parties can be easily safeguarded if the injunction is wrongfully issued, while the injury to complainant would-be irreparable if the injunction were wrongfully denied.</p> <p>fgssoFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Bankruptcy. In the matter of Joseph Weissman, bankrupt. On petition of trustees respecting payment of certain bills.</p>

Separate informations were filed against Louis Adíen and David Weiss, charging them with violation of the National Prohibition Act. On motions by each defendant to quash the information.

<p>In Admiralty. Suit by Benjamin J. Eldred and others against the derrick lighter Arizona and cargo. On objection to issuance of process.</p>

<p>In the matter of the petition of Julius Briese for naturalization.</p>

<p>John Pitotto and one Battaglia were separately indicted for resisting a revenue officer in the execution of a search warrant, and he demurs to the indictment.</p>

<p>1. Logs and logging <S=^3 (10) — Size restriction in timber conveyance generally refers to date of conveyance.</p> <p>Generally, a provision as to the size of timber conveyed will be held to rotor to the size at the date of the conveyance, rather than to some time in the future, in the absence of anything showing a contrary intention.</p> <p>2. Logs and logging ©^3 (10) — Conveyance held to include timber becoming merchantable during lease for cutting.</p> <p>Where a lease of timber lands for 15 years was given, and shortly thereafter the merchantable timber thereon was conveyed to the lessee, with right to cut the timber at any time during the term of the lease, the purchaser can cut timber which becomes merchantable at any time during the lease.</p> <p><§x^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & indexes</p>

<p>Bankruptcy <§=188 (2) — Although conditional sale contract void, seller had lien for purchase money.</p> <p>A contract, denominated a lease, under which bankrupt obtained possession of a display counter, on agreement t.o pay $125 rental in installments, with an option to purchase for $10, after such payments, held in fact a contract of conditional sale, and void, under the law of Louisiana; but the seller held entitled to a lien on the property for unpaid purchase money.</p> <p>@=pFor other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Admiralty. Suit by the North River Coal & Wharf Company against the Steamtug Castor.</p>

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>' Action by Edward R. Cunningham against James Finn Rodgers and others. From an order sustaining a demurrer, and dismissing the action, plaintiff appeals.</p>

<p>1. Larceny ©=>15(1) — Embezzlement ©=>13 — Hotel clerk not an “innkeeper,” “agent,” “attorney,” “clerk,” or “servant,” and taking guest’s money was larceny, and not embezzlement.</p> <p>A bookkeeper and clerk in a hotel, who was given two envelopes containing money to be placed in hotel safe, and who during the night opened the safe, took the money, and absconded, was not an “agent,” “attorney,” “clerk,” or “servant,” under Code of Law 1901, § 834, or an “innkeeper” as defined by section 837, relating to embezzlement by innkeepers, etc., and was guilty of larceny.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, Eirst and Second Series, Agent; Attorney; Clerk; Innkeeper; Servant.]</p> <p>2. Indictment and information ©=>125(45) — Taking property of several persons at one time one offense, chargeable in one count.</p> <p>The taking of property at the same time and from the same place constituted a single offense, chargeable in one count of indictment, although the property taken belonged to several different persons.</p> <p><®s»For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Landlord and tenant proceeding by Louis Hirsh against Julius Block, carrying on business under the name and style of White's. From a judgment in favor of defendant, plaintiff appeals.

Action between Julius Block, trading and carrying on business under the name and style of. Whites, and Louis Hirsh. Judgment for the latter, and the former appeals.

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Petition by the United States, on the relation of Sarah E. McOathran, for a writ of mandamus to compel Michael M. Doyle, as Judge of the Municipal Court of the District of Columbia, to proceed with a landlord and tenant case. Judgment for defendant, and relator appeals.</p>

<p>1. Street railroads <8=117(23) — Contributory negligence in failing to look and listen a question of fact.</p> <p>Failure to look and listen before attempting to cross a street railway track is not generally negligence per se; but when the undisputed evidence establishes exceptional circumstances, which so conclusively indicate negligence that there can be no reasonable basis for drawing a different conclusion, the question is one of law for the court.</p> <p>2. Street railroads <8=112 (3) — Railroad has burden of proving contributory negligence.</p> <p>The burden of establishing contributory negligence on the part-of the driver of an automobile, struck by a street car at a crossing, is on the street railway.</p> <p>3. Appeal and error <3=930(1) — Testimony construed in favor of successful party.</p> <p>In reviewing a judgment on a verdict in favor of plaintiff, he must be given the benefit of the most favorable construction which the testimony will admit of.</p> <p>4. Street railroads <3=99 (10) — Driver of automobile, seeing street car at considerable distance, need not stop and wait.</p> <p>An automobile driver, seeing a street car coming a considerable distance away, is not bound to stop and wait for it to pass.</p> <p>5. Street railroads <3=99 (9) — Automobile driver may assume that street car is going at lawful speed and under control.</p> <p>An automobile driver about to go on a street railway track at a street intersection, has a right to assume that an approaching street car is moving at a lawful speed and that the motorman is on the lookout and will bring his car under control.</p> <p>6. Evidence <8=5(2) — Common knowledge that it is difficult to judge ef speed of approaching vehicle.</p> <p>It is a matter of common knowledge that it is very difficult to judge of the speed of a vehicle approaching directly toward one.</p> <p>7. Street railroads <8=117(29) — Automobile driver’s contributory negligence at street intersection held a question for jury.</p> <p>In an action for injuries in a collision on a street intersection between plaintiff’s automobile going 2 miles an hour, and a street car, running 30 miles an hour, whether plaintiff was guilty of contributory'negligence m failing to look and in proceeding across the double tracks, after having stopped to allow another car to pass, held a question for the jury</p> <p>8. Street railroads @=>117(35) — Negligence under last clear chance doctrine held a question for jury.</p> <p>In an action for injuries in a collision between plaintiff’s automobile and a street car at a street intersection, evidence held to justify the submission of the case to the jury under the last clear chance doctrino.</p> <p>Van Orsdel, Associate Justice, dissenting.</p> <p>On Motion for Rehearing.</p> <p>9. Appeal and error @=>833(4) — On rehearing, matter claimed to have been determined on things dehors record should he definitely pointed out.</p> <p>When counsel charges, in support of a motion for rehearing, that the court based its opinion on things dehors the record, he should point out definitely the matter referred to, or be prepared to have his ciaim put aside as inconsequential.</p> <p>10. Appeal and error @=>713 — Court of Appeals is confined to facts disclosed in record.</p> <p>The Court of Appeals confines itself scrupulously to the facts disclosed by the record and the inferences legitimately dedueible therefrom.</p>

<p>1. Municipal corporations <@=70® (5) — Finding of violation of law of road, which was proximate cause of injury, justified by evidence.</p> <p>In an action for personal injuries received in a collision at street intersections, evidence held sufficient to justify the jury in finding that a police regulation that vehicles should keep to the right-hand curb was violated, and that its violation was the proximate cause of the injury.</p> <p>2. Negligence <@=13® (25) — Proximate cause question of fact.</p> <p>What is the proximate cause of an injury is a question of fact, in view of the attending circumstances.</p> <p>3. Appeal and error <2=232 (3) — Objection to instruction held not to raise question 'of application of police regulation.</p> <p>In an action for injuries by one injured at a street intersection in a collision between an automobile and defendant’s truck, an objection to an instruction, that there was no evidence that the violation of said regulation was the proximate cause of the accident, or had any relation whatever to the accident, did not raise the question of the applicability of the regulation, which required vehicles to keep to the right-hand curb, to the plaintiff.</p> <p>4. Appeal and error <@=232 (1) — Statute as to tedmieal errors does not entitle party to urge different objection than that made below.</p> <p>Judicial Code, § 269, as amended by Act Feb. 26, 1919 (Comp. St. Ann. Supp. 1919, § 1246), providing that on hearing of an appeal the court may order judgment after an examination of the record, without regard to technical errors, does not afford ground for holding that a party who assigns one reason in the court below for his objection to an instruction may urge an entirely different one on appeal and have it considered.</p> <p>(@ss>Foi other cases sec same topic & KEY-NUMBER in all Key-Numbered Digeste & Indexes</p>

<p>Appeal from the Supreme Court of the District of Columbia, Sitting as Criminal Court..</p> <p>Frank Bowman was convicted of murder in the first degree, and appeals.</p>

Bill by the Santa Fé Pacific Railroad Company against Franklin K. Lane, Secretary of the Interior, and continued against John Barton Payne, his successor in office, to enjoin the canceling of a selection made in exchange for lands relinquished. From a decree dismissing the bill, the plaintiff appeals.

Suit by the Santa Fé Pacific Railroad Company against Franklin K. Dane, Secretary of the Interior, and continued against John Barton Payne, his successor in office. Decree for defendant, and plaintiff appeals.

<p>Evidence <52=^323(4) — Testimony of value based on unaxithenticated market record incompetent as hearsay.</p> <p>In an action for the value of hay alleged to have been negligently destroyed by fire by defendant railroad company, where there was testimony that the value óf hay where destroyed was governed by the Kansas City market, testimony as to the market value of such hay in Kansas City on the day of the fire, based iii one case on a bulletin and in the other on records, held hearsay and incompetent, wlierq, neither the bulletin nor record was authenticated or produced, and it was not shown by whom they were made.</p> <p><§E»For other cases see same topic & KKY-NUMBElt in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Eastern District of Oklahoma; Ralph E. Campbell, Judge.</p> <p>Suit in equity by Ered W. Warner and J. A. Jackson, copartners as Warner & Jackson, against the Citizens’ National Bank and others. Decree for defendants, and complainants appeal.</p>

<p>In Error to the District Court of the United States for the District of Nebraska; Joseph W. Woodrough, Judge.</p> <p>Criminal prosecution by the United States against J. Sidney Smith, Charles M. Thompson, and C. A. Smith. Judgment of conviction, and defendants bring error.</p>

<p>In Error to the District Court of the United States for the Eastern District of Arkansas; Jacob Trieber, Judge.</p> <p>Criminal prosecution by the United States against W. C. McNutt. Judgment of conviction, and defendant brings error.</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>Eibel by W. R. Grace & Co., Incorporated, against the Euckenbach Steamship Company, Incorporated, and another. Decree for libelant (258 Fed. 49; 248 Fed. 953), and respondents appeal.</p>

<p>Appeal from the District Court o£ the United States for the Southern District of West Virginia, at Charleston; Benjamin F. Keller, Judge.</p> <p>Petition by Manderville Farley for writ of habeas corpus against A. O. Ratliff, Deputy United States Marshal, and the Sheriff of Kanawha County, W. Va. From a judgment denying the petition, the petitioner appeals.</p>

<p>1. Collision @=106 — Special circumstance rule held applicable.</p> <p>Where a tug, with barge in tow, was coming up the river, while a steamship was turning around, so as to swing into a slip broadside, the situation was clearly one of special circumstance within article 27 of the Inland Regulations (Comp. St. § 7901), which required each vessel to navigate with prudence, so as to avoid immediate danger.</p> <p>2. Collision @=95(7) — Steamship navigator and tug with barge, which collided, held at fault.</p> <p>On cross-libels for damages caused by collision between a barge in tow of a tug and a steamship being turned around in the channel, the steamship and the master of a tug assisting her, who was in charge of her navigation, held at fault for insufficient loojiout, and the tug having the barge in tow held also at fault for insufficient lookout and failure to sound timely warning.</p> <p><©=s>Ii'or other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the District of South Dakota; james D. Elliott, Judge.</p> <p>Action at law by the First National Bank of Waterloo, Iowa, against W. C. Nissen. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Interpleader <©=’3 — Appropriate remedy when each of two bidders claims property as purchaser.</p> <p>Where each of two bidders claimed to be the purchaser of a vessel offered for sale by the government, a bill of interpleader held properly filed by the United States, which still retained possession of the vessel.</p> <p>2. United States =^40 — Not bound by unauthorized act of officer or agent.</p> <p>To bind the government, its agent must act strictly within his official authority, and every one who deals with him takes the risk of his doing so.</p> <p>3. United States <§=^58 — Not bound by delivery of bill of sale of vessel by department through mistake.</p> <p>Where the Secretary of the Navy, pursuant to orders of the President, advertised a vessel for sale to the highest bidder, but through a mistake in his department the highest bid was not properly filed, and he executed a bill of sale to a lower bidder, such act held without authority and not binding on the government, and as between the two the highest bidder' held entitled to the vessel, which had not been delivered.</p> <p>Hough, Circuit Judge, dissenting. ,</p> <p><&=}For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Southern District of Florida; Rhydon M. Call, Judge.</p> <p>Action at law by Emma Raulerson against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Appeal and error <§=>1008(1) — Finding by court conclusive on appellate court.</p> <p>A general finding of facts by the court in a case tried without a jury is binding on the appellate court.</p> <p>2. Tidal <§=>388(2) — Trial to court; special findings discretionary.</p> <p>In a case tried to the court by stipulation under Rev. St. § 649 (Comp. St. § 1587), it is entirely for the discretion of the court whether to maire special findings of fact.</p> <p>@^>For other cases see same topic & KBY-NUMBBR in all Key-Numbered Digests & Indexe»</p>

<p>Appeal from the District Court of the United States for the Eastern District of New York.</p> <p>Suit in admiralty by George W. Lethbridge against Winant B. Ward-ell and the Commercial Coal Company. Decree for respondents and plaintiff appeals.</p> <p>The following is the opinion of Garvin, District Judge, in the court below:</p> <p>The canal boat Agnes Hickey, with a cargo of coal, was injured at a pier at the foot of Twenty-Fifth street, Brooklyn. She arrived there on September 6, 1917, with a cargo of coal consigned to the respondent the Commercial Coal Company. The slip was not clear, and as she proceeded to the coal pockets of the Commercial Coal Company, which are situated at the inner end of the slip, she found her passage barred by a stone barge.</p> <p>The respondent Wardell controlled the pier, and when his son learned of the difficulties he at once went to the canal boat and was active in persuading those in control of the stone barge to move it across the slip, so that the canal boat might go through. The employSs of the Commercial Coal Company assisted in moving the latter boat. This moving, however, should have been done under the direction of the captain of the canal boat. Inasmuch as the space between the wharf and the stone barge-was too narrow to permit the canal boat to go through, and as the tide fell, she was injured.</p> <p>It seems to the court that, even if either one or both of the respondents was prevented access to the pockets of the Commercial Coal Company, nevertheless the canal boat had no right to attempt to pass any point in the slip where conditions were such that a passage could not be effected without danger to the boat. The testimony shows that the captain was warned of this danger, and in view of the fact that he nevertheless made the attempt, neither one of the respondents should be held responsible.</p> <p>The libel is dismissed.</p>

<p>1. Bills and notes <S=»523 — Evidence held to show indorsed note was delivered to defendant for collection.</p> <p>In an áetion for proceeds of a noto, evidence that neither the original note nor the renewal note was entered on the books of tbo defendant, and that defendant had no record showing that anything was advanced for the note, with testimony of defendant’s witness that it made no claim to the note, held to justify the jury’s finding that the note indorsed by plaintiff was delivered to defendant for collection only.</p> <p>2. Evidence <§^420(7) — Parol evidence admissible to show delivery of noto for collection.</p> <p>Parol evidence is admissible to show that a note indorsed by plaintiff and delivered to defendant was delivered for collection only; such evidence merely tending to show a condition to the delivery, and not to deny the liability on the indorsement.</p> <p>3. Pleading- ‘2=^345 (1) — Complaint to recover money collected on note held mot</p> <p>to allege unconditional indorsement, so as to authorize judgment on motion.</p> <p>In an action for the proceeds of a note, a complaint alleging that the • note was duly indorsed and delivered to defendant does not entitle defendant to judgment on the pleadings, where it also alleged in detail the circumstances showing the delivery to have been conditional for collection and application on plaintiff’s debt to defendant. .</p> <p>4. Corporations @=^417 — President held to have authority to release collateral.</p> <p>The president of a corporation, who was shown by the testimony to have authority to release collateral, and to have released other collateral, had authority to act for the corporation in settling a disputed question and avoiding litigation, and in doing so to release collateral pledged to the corporation.</p> <p>3. Limitation of actions <8=>41 — Claim barred by limitations as counterclaim not available as set-off.</p> <p>A claim which defendant cannot interpose against plaintiff as a counterclaim, because it is barred by limitations, is not available to him as a set-off against plaintiff's claim.</p> <p>■6. Limitation of actions ‘S^S5 (1) —Knowledge of cause of action essential.</p> <p>Where defendant, in settlement of a claim against plaintiff, took a note payable to plaintiff and secured by bonds already pledged to defendant for other ‘notes, and thereafter defendant released a portion of the bonds from the prior pledge and agreed to apply the proceeds of the sale to plaintiff’s note, plaintiff’s right to sue for the proceeds of the sale of such bonds did not accrue until he knew that defendant had sold the particular bonds, though he knew that some of the bonds had been sold.</p> <p>7. Limitation of actions @=»83 — Action may be brought within limitation period after foreign corporation secures state license.</p> <p>Under Code Civ. Proc. N. Y. § 401, allowing an action accruing against a person without the state to be commenced within the time limited therefor after his return into the state, an action against a foreign corporation can be brought within the period of limitations after the corporation first procured a license to do business within the state, though the debt matured many years before.</p> <p>8. Limitation of actions 88 — -Allowing action against foreign corporation securing license held not contrary to oilier statute.</p> <p>The application of Code Civ. Proc. N. Y. § 401, allowing actions after defendants acquired a residence within the state, to a foreign corporation first procuring a license within the state, does not make that statute conflict with section 390, as amended by Laws 1916, c. 536, which relates generally to causes of action arising outside the state, without regard to the residence of the persons against whom they accrue.</p> <p><©C5>For other cases see, same topic & KEY-NUMBER in all Key-Numbered. Digests & Indexes</p> <p>9. Equity —Estoppel 'S=»7(M2) — Laches and estoppel not a bar, where delay was due to advice of counsel.</p> <p>The fact that the delay in bringing a cause of action was due to the advice of an attorney of recognized ability that plaintiff.had no cause of action is a complete answer to the defense of estoppel and laches, especially where the defendant, by bringing suit on notes held by it, could have secured a settlement of all the issues involved.</p> <p>@=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Equity. Suit by William G. Street against the Lincoln Safe Deposit Company and Daniel L. Porter. On motion of complainant for preliminary injunction, and by defendant Porter to dismiss the bill.

In Equity. Suit by the Wisconsin-Minnesota Eight & Power Company against the Railroad Commission of Wisconsin and John J. Blaine, Attorney General. On motion for preliminary injunction. Denied.

<p>1. Partition <§=>16 — Plaintiff not required to go behind common source of title.</p> <p>While complainant in a suit for partition, in which his title is disputed, must recover on the strength of his own title, it is sufficient for him to show a right to recover against the defendant, and when it appears that both derive title from a common source he need not go behind that source.</p> <p>2. Tenancy in common @=>15(4) — Twenty years necessary to adverse possession.</p> <p>Under the law of North Carolina an adverse possession of 20 years by one tenant in common is necessary to Bar the entry of his cotenant.</p> <p>3. Infants @=>31(1) — Deed disaffirmed by another deed after reaching majority.</p> <p>Under the law of North Carolina a deed by an infant may be avoided or disaffirmed by the execution of another deed to the same land within 3 years after the infant reaches the age of 21 years, hut not thereafter.</p> <p><©E=>For other eases see same topic & KDY-NUMBüttt in all Key-Numbered Digests & Indexes</p>

<p>In Admiralty. Suit by Ole Tolo against the steamship Hanna Nielsen ; B. Stolt-Nielsen & Co., Incorporated, claimant.</p>

In Admiralty. Libel by the Aktieselskabet Fido against the Lloyd Brazileiro, with Gano Moore' & Co., Incorporated, and another, impleaded, heard with libels entitled'as follows: Lloyd Brazileiro v. Aktieselskabet Fido, Claimant; Gano Moore & Co., Incorporated, v. Aktieselskabet Fido; Aktieselskabet Christianssand Corporation, Owner of the Sordwig, v. Berwind-White Coal Mining Company; Berwind-White Coal Mining Company v. Aktieselskabet Christianssand Corporation;…

<p>1. Internal revenue @=»7 — “Capital” defined.</p> <p>The word “capital” is used in Internal Revenue Act, § 209 (Comp. St. 1918, Comp. St. Ann. Supp. .1919, § 6336%j), providing for excess profits tax on a trade or business “having no invested capital or not more than a nominal capital,” as meaning money or property, as distinguished from labor or personal service.</p> <p>2. Internal revenue <3=^7 — Excess profits tax; “business having no invested capital.”</p> <p>Act Oct. 3, 1917, § 209 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 6336%j), providing that, “in the case of a trade or business having no invested capital or not more than a nominal -capital,” an excess profits tax of 8 per cent, shall be levied on the net income, after allowing certain deductions, in lieu of the tax imposed by section 201 (sec. 6336%b), is intended to include any trade or business in which the return does not come in any substantial part from money or property invested.</p> <p>3. Internal revenue >3^7 — Excess profits tax; commission firm taxable as business without invested capital.</p> <p>A partnership engaged in the commission business, in which capital was not required nor used, held taxable on excess profits, under Act Oct. 3, 1917, § 209 (Comp. St. 1918, Comp. St. Arm. Supp. 1919, § 6336%)), and not under section 201 (section 6336%b), although in isolated transactions growing out of war conditions they bought and sold.</p> <p>4. Internal revenue <S=>7 — -Excess profits tax; undrawn profits not capital.</p> <p>The fact that the profits of a business having no capital are not wholly withdrawn, but are allowed to accumulate, does not make such profits a capital fund, where they are not employed in the business.</p> <p><§^>For other cases see same topic & KEY-NCJMBhllt in all Key-Numbered Digests & Indexes</p>

. Interference proceeding between Pierson E. Wells and another and Hans Honigmann. Prom a decision of the Commissioner, awarding priority of invention to the latter, the former appeal.

<p>1. Judgment '©=^17 (1) — No personal judgment on substituted service.</p> <p>A personal judgment cannot be obtained on substituted service.</p> <p>2. Equity ©=^418 — Decree pro confesso on bill for injunction not authorized on service by publication.</p> <p>A bill by a contractor’s sureties against a subcontractor, to restrain defendant from prosecuting on action on the bond pending plaintiffs’ suit against the contractor for discovery, sought only personal relief, and decree pro confesso was not authorized on service by publication.</p> <p><@E»For other cases see same topic & KEY-NUMBER, in all Key-Numbered Digests & Indexes</p>

<p>1. Trade-marks and trade-names <§=43 — Intestate “use” contemplated by-registration act, is personal use.</p> <p>The use contemplated by Trade-Mark Act, § 2 (Comp. St. § 9487), providing that an applicant for registration accompany his application by a written declaration that such trade-mark is used in commerce among the several states, is a use by the applicant himself, or by one for him, and not an independent or an incidental use by a third party.</p> <p>3.. Trade-marks and trade-names <§=43 — No interstate trade shown; “interstate business.”</p> <p>Where parties outside a state wrote to friends in the state and.had them purchase clothing from a department store and send it to them, the proprietor of the store was not engaged in interstate business, so as to entitle him to a registration of a trade-mark used on his clothing, under Trade-Mark Act, § 2 (Comp. St. § 94S7).</p> <p><§zz>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Proceeding by R. H. Macy & Co. against the New York Grocery Company for the cancellation of a trade-mark. Decision for defendant, and plaintiffs appeal.

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Action by D. H. Roland Drury against T. Cushing Daniel. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Counties @=^213 — Failure to act on claim equivalent to disallowance for purpose of suit.</p> <p>Under Code Miss. 1909, § 311 (Hemingway’s Code, § 684), providing that a claim against a county must first be presented to the board of supervisors, and that on refusal of the board to allow it suit may be brought thereon, failure of the board to act on a claim presented within a reasonable time is equivalent to its disallowance for purpose of suit.</p> <p>2. Counties —Can he bound only by action of governing board entered on minutes.</p> <p>A county can only be bound to the extent and within the limitations which its regularly constituted authorities have bound it, and having contracted by an order of its governing board entered on its minutes, no additional burden or obligation can bo imposed on it, except by an order duly entered on the minutes of the hoard.</p> <p>3. Highways <S=3113(4) — Direction of verdict for contractor for excess work held error.</p> <p>Direction of a verdict for a contractor with a county for road work, for excess work done as extra work, held error, where the contract expressly provided that excess work of the same kind as that specified should not be considered extra work, but be paid for at contract price, while extra work was to be paid for on a different basis.</p> <p>4. Highways <3^118 (4) — Engineer in charge of work not authorised to determine legal effect of uisambiguous terms of contract.</p> <p>An engineer in charge of work done under a contract for making roads is not authorized to determine the legal effect of plain and unambiguous terms of the contract, which is the duly of the courts, hut his authority extends only to the application of his engineering judgment to matters of fact in controversy.</p> <p>5. Highways <§=113 (4) — Breach of contract by county not authorizing abandonment and recovery of prospective profits.</p> <p>Failure of a county to furnish gravel to road contractors as required ny the contract held not to authorize the contractors to abandon the contract and recover their prospective profits.</p> <p>6. Damages <S=j40(2) — To warrant recovery of profits, breach must relate to essential part of contract.</p> <p>To warrant the recovery of profits for the uncompleted portion of a contract, the breach relied upon must be in such an essential part of the contract as that it makes the fulfillment of the contract impossible; there being a clear distinction between acts which might justify a contractor in abandoning his contract with recovery for work already done, and those which would justify him in abandoning the contract and recovering for prospective profits.</p> <p>©=>Eor other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>7. Damages <©=124 (3) — Measure of prospective profits recoverable on breach.</p> <p>A contractor who has abandoned his wort for an alleged broach by the other party, even where entitled to recover prospective profits, may not select the more valuable portion of the contract and recover on that portion, without balancing against it losses and expenses which completion of the entire contract would have entailed.</p> <p><@z^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Commerce @=85 — Under power to suspend rules and, regulations, Interstate Commerce Commission cannot suspend statute fixing car distribution.</p> <p>Under the power given by Transportation Act Feb. 28, 1920, § 402(15), to suspend the operation of rules, regulations, or practices, the Interstate Commerce Commission cannot, in a period of ear shortage, suspend the rule prescribed by section 12 as to distribution of cars among coal mines; the expression “rules and regulations” referring to rules, etc., adopted by the commission or railroads, which may be suspended in an emergency.</p> <p>2. Commerce @=85 — In emergency Interstate Commerce Commission may provide for car distribution contrary to statutory rule.</p> <p>Under Transportation Act Feb. 28, 1920, § 402(15), providing that, when the Interstate Commerce Commission is of the opinion that a shortage of equipment or congestion of traffic requires immediate action, etc., it may give directions for priority in transportation, embargoes, etc., the commission, in case of an emergency arising out of shortage of cars, may suspend the rule for distribution of cars to coal mines prescribed by section 12; coal being a necessity, and Congress having vested in the commission the power to suspend, in time of emergency, the rule to be followed in case of ordinary long shortage of equipment.</p> <p>3. Commerce @=98 — Courts may not annul order of Interstate Commerce Commission on ground it was unwise.</p> <p>Where the Interstate Commerce Commission determined that an emergency existed, and under the authority of Transportation Act, § 402(15), suspended the rule prescribed by subdivision 12 for distribution of cars among coal mines, the courts cannot annul the order on the ground that the power conferred upon the commission was unwisely or improvidently exercised.</p> <p>4. Constitutional law @=43(2) — One claiming benefit of Transportation Act cannot assert unconstitutionality of limitations.</p> <p>Coal company, claiming the benefit of Transportation Act, § 402(12), providing for distribution to mines of ears in time of scarcity, cannot, at the same time, question other provisions of the act giving the Interstate Commerce Commission power in an emergency to suspend the statutory rule without a hearing. »</p> <p>5. Courts @=101 — Order of Interstate Commerce Commission can be enjoined only by three judges.</p> <p>Under Act Oct. 22, 1913, Comp. St. § 998, an order of the Interstate Commerce Commission annulling in an emergency the provision of Transportation Act, § 402(12), for distribution of coal cars, can be enjoined only by three judges, one of them being a Circuit Judge, after notice to the commission and to the Attorney General; consequently an injunction against such an order, issued by a District Judge alone, was invalid.</p> <p>i@=3For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Mines and minerals <©=>59 — Lease held not conditioned on finding iron ore.</p> <p>A lease of a large tract of land, at a fixed royalty on iron ore extracted therefrom and the customary royalty on other minerals taken therefrom, with a fixed minimum royalty, is not impliedly conditioned on the existence of iron ore in commercial quantities on the land, even though the mining of iron ore was the lessee’s principal purpose, so that the lessee cannot have the lease set aside merely because of failure to find iron ore.</p> <p>2. Mines and minerals <©=>59 — Lease held not to be set aside because of mutual mistake as to existence of ore.</p> <p>A lease for a royalty on ores produced from the land, with a fixed minimum, cannot be set aside for mutual mistake as to the existence of ore, where the evidence showed that the lessee had caused his engineer to examine the property and signed the lease on the engineer’s report showing the existence of ore.</p> <p>3. Evidence <©=>433(5) — Parol evidence of negotiations admissible against party attacking lease for mutual mistake.</p> <p>Where plaintiff was seeking to set aside a lease for mutual mistake, parol evidence as to the situation of the parties and the negotiations leading to the lease is admissible against him.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>4. Mines and minerals ®=>70(2) — Minimum royalty under lease held payable until lessor terminated lease.</p> <p>Under a lease for royalty on ores produced, with a stated minimum, for 20 years, unless sooner terminated under its provisions, which gave the lessee no option to terminate the lease, except by purchase of the property, but did give the lessor the option to terminate at the end of 5 years, or to extend for 15 years, the lessor was not bound at the end of 5 years to terminate or extend, but could allow the lease to continue, and collect the - minimum royalty thereunder after the expiration of the 5 years, until he did elect to terminate the lease.</p> <p><§=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Action at law by the Cowen Company against the Houk Manufacturing Company, Incorporated. Judgment for plaintiff, and defendant brings error. The plaintiff in error was defendant below and is hereinafter referred to as defendant.' The defendant in error was plaintiff below and is hereinafter referred to as plaintiff.

<p>1. Assault and battery —Attempt by plaintiff to evade draft law no defense to civil action.</p> <p>That plaintiff acquired possession of land for the fraudulent purpose of obtaining a deferred classification under the Draft Law as an agriculturist held, not to warrant his dispossession by defendant, a stranger to the title, nor to constitute a defense to an action for assault and battery committed in attempting plaintiff’s ejection.</p> <p>g". Appeal and error 1031(1) — Where judgment is substantially just, prejudicial error must be shown.</p> <p>It is incumbent on a party, appealing from a judgment substantially just, to point out not merely that there was technical error in the admission or rejection of evidence, but that it was of such a nature that prejudice might reasonably have resulted therefrom.</p> <p><@ss>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Hutcheson, Jr., Judge. Libel by the United States against 141 bottles, more or less, of drug products; E. W. Hall, claimant. Judgment of condemnation, and claimant brings error.

<p>1. Judgment ■§=>444 — Fraud warranting equitable relief against.</p> <p>Where plaintiff, in an action for personal injury, feigned total paralysis of his legs as a result of his injury, falsely testifying, and causing others to testify, that it had continued from the time of the injury to that of the trial, six months later, and through conspiracy with others fabricated a history of the case showing such continuance, and caused to be produced a temporary paralysis at the times of examination by medical experts, which could not be detected by ordinary medical tests, upon which history and examinations the experts based their testimony that the paralysis was permanent, and such facts were not known, to, or discoverable by, the defendant until after judgment, against which it had no remedy at law, the case held to warrant injunction.</p> <p><gz^>For other cases see same topic & KDY-NIIiVlBISR in all Key-Numbered Digests & Indexes</p> <p>2. Courts «®=»508 (3) — Federal court has jurisdiction to enjoin enforcement of judgment of state court.</p> <p>That a judgment was rendered by a state court does not affect the power of a federal court of equity to enjoin its enforcement, since the ‘injunction acts on the party, and not on the court.</p> <p>q@zs>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Appeals from the District Court of the United States for the Eastern District of New York. Suits in admiralty by Harry G. Smith and Eugene E. Smith against the Steamship Susquehanna, the Susquehanna Steamship Company, claimant, and against the steamship Schuylkill, the Schuylkill Steamship Company, claimant.

Bourquin, Judge. Action by the United States, for the use and benefit of John Mendenhall and others, against Alexander Pearson and another. Judgment for use plaintiffs, and defendants bring error.

Appeal and Petition to Superintend and Revise from the District Court of the United States for the Southern District of Florida; R. M. McCall, Judge. In the matter of G. S. Baxter & Co., a partnership, bankrupt; H. Lyle, trustee. J. & S. Ferguson appeal from an order of the District Court, and also petition to revise.

<p>1. Criminal law <2=1092 (4) — Time for settling bill of exceptions.</p> <p>A District Judge is without authority to sign a bill of exceptions after expiration of the term and any extensions, and after the cause has been removed by writ of error to the Circuit Court of Appeals.</p> <p>2. Criminal law <2=1030(1) — Errors appearing on record reviewable without bill of exceptions.</p> <p>Bill of exceptions is not necessary to authorize Circuit Court of Appeals to consider errors appearing on the face of the record.</p> <p>3. War <@=15 — Construction of Trading with the Enemy Act.</p> <p>Trading with the Enemy Act Oct. (!, 1917, § 3(c), being Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3'115%b(e), defines two separate offenses; First, bringing in or sending out of the United States a letter in any other way than in the regular course of mail: and, second, sending out of the United States in any way a communication intended for an enemy or ally of enemy.</p> <p>4. Indictment and information <@=>129 (1) — Offense and attempt to commit such offense may be charged in separate counts.</p> <p>A complete offense and an attempt to commit the offense may be charged in separate counts, when relating to the same transaction.</p> <p>5. Arrest <2=71 — Letter as instrument of crime may be seized from person.</p> <p>Where defendant was arrested in commission of a felony by bringing a letter into the United States in violation of Trading with the Enemy Act Oct. (>, 1917, § 3(c), being Comp. St. 1918, Comp. St. Ann. Supp. 1919; § 3115%b(e), it was lawful to seize such letter from his person as an instrument of crime.</p> <p>igrxoFor other eases see same topic & K3Y-NUMBRII in all Key-Numbered Digests & Indexes</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>In the matter of the bankruptcy of Elwood F. Moore, trading as the Minter-Moore Printing Company. J. A. C. Groner, trustee, appeals from a judgment in favor of the Babcock Printing Press Manufactuiing Company, which claimed a preference to the proceeds of the printing press.</p>

<p>1. Patents @=’82 — Patentee entitled to benefit of earlier application.</p> <p>In so far as an earlier application disclosed any invention contained in a patent subsequently issued, the patentee is entitled to the filing date of the earlier application.</p> <p>2. Patents <@=’328 — 1,082,933, for improvement in tungsten and methods for making filaments, held valid.</p> <p>Patent No. 1,082,933, for improvements in tungsten and methods for making the same for use as filaments in incandescent lights, held valid, showing invention, and not having been anticipated; the patent disclosing •a method of rendering ductile tungsten which had previously been considered a nonduetile and brittle metal.</p> <p>3. Patents @=5328 — 1,082,933 not invalid as claiming a principle.</p> <p>The Coolidge patent, No. 1,082,933, for improvements in tungsten and methods for making the same for use as filaments in incandescent electric lamps and other purposes, which is the pioneer patent for process for making ductile tungsten, is not invalid as claiming a principle.</p> <p>4. Patents @=>328 — 1,082,933, claims 33 and 34, for wrought tungsten, not invalid.</p> <p>The Coolidge patent, No. 1,082,933, claims 33 and 34, for wrought tungsten, are not invalid; the inventor having discovered a new substance ana the claims being-to cover the product, tungsten previously having been regarded as nonduetile.</p> <p>5. Patents <@=>328 — 1,082,933, claim 14, for process for forming a body of tungsten powder, valid.</p> <p>Coolidge -patent, No. 1,082,933, claim 14, for process for forming a body of tungsten powder, containing additional material which will prevent coarse crystallization at high temperature, etc., and then subjecting it to hot mechanical working, held valid; not being anticipated.</p> <p>6. Patents <@=>317 — Former infringement held to warrant decree enjoining future infringement.</p> <p>Although defendant showed that it had ceased part of its infringement of a patent, yet where there had undoubtedly been infringement, and it had secured the patent process from one of complainant’s former employ és, held, that it was proper to enjoin future infringement.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Patents ©=>328 — 1,254,764, for method of producing colored pictures, valid and infringed.</p> <p>The Owens, Beck & Steinman patent, No. 1,254,764=, for a method^ of reproducing pictures and designs, by which multicolor pictures, having an embossed effect, are produced by means of a screen through which coloring materials are forced, each succeeding color overlaying those previously applied, except as to such parts as are successively blocked out by the application of shellac to the screen to render it impervious to the coloring matters, held not anticipated and valid, but limited by the proceedings in the Patent Office to the use of a single screen for applying all of the colors, and, as so construed, held infringed.</p> <p>2. Patents ©=>65 — To constitute anticipation, patent must be .clear and specific.</p> <p>To be effective as an anticipation, a patent must he so clear and definite as to enable any mechanic skilled in hthe art to reach the patented invention certainly, directly, and without the necessity of experiment, and this rule is enforced with particular strictness when applied to a foreign patent.</p> <p>3. Patents ©=>58 — In infringement suit, anticipation must be proved beyond reasonable doubt.</p> <p>Where infringement is charged, the burden of proof is east on defendant to establish anticipation beyond a reasonable doubt.</p> <p>4. Patents ©=>49 — Infringer cannot deny utility of invention.</p> <p>The fact that a defendant has infringed a patent is sufficient to establish its utility as against him.</p> <p>5. Patents ©=>91(1) — Evidence to disprove joint invention must be clear and unequivocal.</p> <p>To overthrow the presumption of joint invention, created by the filing of a joint application on a joint oath, the evidence should be clear and unequivocal.</p> <p>@es>Fox other cases see same topic & KEY-NUMBÍ3R in all Key-Numbered Digests ^-Indexes</p>

<p>1. Patents <S=328 — '■ 845,224, for inijirovemcnt of Fourdrinier paper-making machine field not anticipated nor indefinite in claim; also held infringed as to claims 1-8, 12.</p> <p>The Eibel patent, No. 845,224, for improvement in Fourdrinier paper-making machine hold not anticipated, and not invalid for indefiniteness of claim, and claims 1, 2, 8, 7, 8, and J2 held infringed.</p> <p>2. Patents <©=>45 — Commercial utility resolves doubt as to patentable novelty in favor of patent.</p> <p>Where there is doubt as to patentable novelty, it may be resolved m favor of the patent by reason of its commercial utility.</p> <p>cteaFor other cases see same topic & KEY-NUMBER in all Key-Numhered Digests & Indexes</p>

L. Friedman and John N. Nesby were arrested for violation of the-National Prohibition Act. On petitions by defendants to have restored to them property taken from them under search warrants and to quash the search warrants.

In Equity. Suit by Bayley & Sons, Incorporated, against George Morgan, doing business as Morgan & Co. On motion by defendant to open default and permit filing of an answer, and to vacate decree taken pro confesso.

<p>Salvage ®=327 — Award of 75 per cent, of net proceeds for salvage of lumber cargo of wrecked schooner held proper. '</p> <p>An award of 75 per cent, of the net proceeds made for salvage of the lumber cargo of a wrecked and abandoned schooner, which lay in an exposed position, and where the work was difficult and had to be done for the most part in the water, held proper.</p> <p><g^s>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digeste & Indexes</p>

Application by the United States for an order to remove George W. Yount and others to the Northern District of Illinois, Eastern Division, to answer a charge of conspiracy to violate the Never Eood Control Act (Comp, St 1918, Comp. St. Ann. Supp. 1919, §§ 3115%e-3115%kk, 3115%/-3115%r), as amended.

<p>1. Intoxicating liquors @=>248 — Belief of affiant insufficient ground for issuance of search warrant.</p> <p>Under Volstead Act, tit. 2, § 2, providing that officers mentioned In Rev. St. § 1014 (Comp. St. § 1674), can issue search warrants under the limitations of Act June 15,1917, e. 30, an affidavit that affiant has reason to believe and does believe that a still is being conducted on certain premises is insufficient, either under section 1014 or the act of 1917; it being necessary that the affidavit state the facts showing probable cause for issuing the search warrant, or that the commissioner hear evidence to determine such cause.</p> <p>2. Intoxicating liquors @=>249 — Description of premises to be searched held not sufficient.</p> <p>A description of the premises to be searched for illicit operation of still, as a stated street and number in a named” city, is insufficient, where there were both north and south streets of that name.</p> <p>3. Intoxicating liquors @=>249 — Search of residence at night unlawful, unless directed by warrant.</p> <p>It was unlawful to search a residence at night for illicit operation of still, where the search warrant contained no direction that it might be served at any time of the day or night.</p> <p>4. Intoxicating liquors @=>255 — Illicit liquors and stills not returned, though seized unlawfully.</p> <p>Where liquors and stills being used by defendants in violation of the law were seized by officers acting under invalid search warrants, the property will not be returned to defendants, though the evidence obtained by the search cannot be used against them, because of the illegal methods by which it was procured.</p> <p>5. Criminal law @=>395 — To use evidence procured by illegal search, government must prove authority of wife to consent to search.</p> <p>Property seized under an unlawful search warrant cannot be used in evidence against accused, merely because his wife consented to the search, there being no presumption that she was his authorized agent to consent to such search, so that the government must prove that she had such authority before it can rely on her consent.</p> <p><g^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>At Law. Action by the Dayton Brass Castings Company against A. C. Gilligan, United States Collector of Internal Revenue, to recover a tax paid under protest.</p>

<p>In Admiralty. Libel by the Pacific Export Lumber Company against the Japanese steamer Saigon Maru, claimed by the Osaka Shosen Kaisha.</p>

<p>In Bankruptcy. In the matter of W. F. Ledbetter, bankrupt. On review of order of referee.</p>

<p>In Equity. Suits by the Commercial Trust Company of Hagerstown against Eaurens County, and against the Southern Exchange Bank. On motion in each case to dismiss bill.</p>

<p>1. Courts (2) — Indorser of notes held not “assignee,” so as to preclude right to sue.</p> <p>Whore the payee of notes was merely a broker for their negotiation, and they became effective only when sold and indorsed, a purchaser is not an “assignee,” within the meaning of Judicial Code, § 24, subd. 1 (Comp. St. § 991[t]), whose right to sue in a federal court is dependent on that of the indorser.</p> <p>(Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Assignee.]</p> <p>2. Estoppel €^32 ((i) — County hold not concluded by recitáis in promissory notes.</p> <p>General recitals, in notes executed by a county in Georgia for borrowed money, that all things necessary to render the notes valid obligations of the county had been done, held, not to estop the county to deny their validity, where such recitals also show that the money was borrowed to pay current expenses, which under the law of the state is unauthorized and beyond the powers of the county officers.</p> <p>3. Counties <®=»151 — What constitutes “casual deficiency,” authorizing temporary loan.</p> <p>Under the provision of Const. Ga. art. 7, § 7, prohibiting counties from incurring indebtedness unless authorized by vote of electors, exeept for a temporary loan “to supply casual deficiencies in revenue,” such a deficiency occurs only when the taxes laid for a year prove insufficient to meet the expenses for that year, and such a loan is not authorized because the funds on hand are insufficient to meet current expenses.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Casual Deficiency.]</p> <p><3=^For other casos see same topic & K13Y-NUMBER. in all Key-Numbered Digests & Indexes</p> <p>4. Counties <S=171 — Holder of notes exceeding debt limit not bona fide purchaser.</p> <p>Where notes executed by a county show on their face, in connection with the public records, that they are in excess of the constitutional limit, a purchaser is not protected as a bona fide holder without notice, and while the county may be held liable to the extent of the indebtedness which it might legally contract, recovery on such liability must be apportioned among all note holders entitled to share therein.</p> <p>5. Counties <§=>210 — Money furnished to pay legal indebtedness recoverable as money received.</p> <p>One who furnished money to a county, although under a contract which the county had no authority to make, which money it used in payment of legal indebtedness, may maintain an action for its recovery as for money had and received.</p> <p>6. Counties <§=>203 — Filing of suit, with service, sufficiently “presented for audit.”</p> <p>Under Oiv. Code Ga. 1910, § 411, providing that claims against a county must be presented for audit within 12 months, the filing of suit against the county, followed by service on the auditing officers within the 12 months, is a sufficient presentation.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Presented.]</p> <p>7. Pleading <@=>320 — Defendant not entitled to bill of particulars respecting papers in its possession.</p> <p>A county held not entitled to a bill of particulars respecting warrants on which a suit against it is based, where the warrants are in its possession and have never been in the possession of plaintiff.</p> <p><©spFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>At Law. Action by the Commercial Trust Company, of Hagerstown against H. C. Burch and others. On plea in bar and demurrers.</p>

<p>In Bankruptcy. In the matter of the Interborough Consolidated Corporation, bankrupt. On petition of H. Content & Co. and others, claiming special fund.</p>

<p>1. Shipping <^=>39 — Charterer liable for expense and delay caused by furnishing unsafe ballast.</p> <p>Where a charterer, pursuant to a requirement of the charter party that it should furnish ballast for stiffening the vessel while proceeding to the loading port, furnished 500 tons of coal, which was to be a part of her cargo, but which, because of its unfit condition, heated and was required by the government to be taken out, which on charterer’s refusal was done by the owner at large expense and delay, and replaced with sand, the charterer held liable for the cost of such removal and the delay caused thereby.</p> <p>2. Shipping <S=>39 — Charterer not liable for expense of discharging ballast.</p> <p>Under a charter party requiring the charterer to furnish free ballast for stiffening the ship to enable her to proceed to her loading port, the charterer held not liable for the expense of removing the same on reaching that port; such expense in the absence of charter provision, devolving on the vessel.</p> <p>3. Shipping 0=^39 — Ship not entitled to freight on cargo not carried.</p> <p>Where the charterer of a ship to carry a coal cargo furnished 500 tons of coal for ballast to enable her to proceed to her loading port, with the understanding that it should be a part of her cargo, but because of its heating it was necessary to remove the same and substitute other ballast, which was afterward discharged and a full cargo loaded, the ship held not entitled to freight on the 500 tons in addition to the cargo carried.</p> <p><§r»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>At Raw. Action by Edward Dahlen against Walker D. Hines, Director General of Railroads. On motion of plaintiff for new trial.</p>

<p>1. Admiralty @^43 — Immunity from arrest because of government ownership not ground for dismissal of cross-libel.</p> <p>That a vessel against which a cross-iibel in rem for collision is filed is owned and being used by the United States for purposes connected with the war, and is therefore immune from arrest, held ground for refusing to issue process against her, but not ground for dismissing the cross-libel, which may be prosecuted at any time possession by the United Stares ceases.</p> <p>2. Admiralty <§^58 — Cross-libelant entitled to security.</p> <p>Assuming that the claimant of a vessel libeled for collision is within the meaning of “respondent,” as used in admiralty rule 53 (29 Sup. Ct. xiv), such a claimant, which filed a cross-libel in rem, but could not arrest the other vessel because owned by the United States, held entitled to a stay of the suit until security is given under such rule.</p> <p><g=^For other eases see samo topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. United States @=>125 — -Submits to jurisdiction by filing bond for stay of proceedings in admiralty.</p> <p>The United States submitted fully to the jurisdiction of the admiralty court by causing to be filed the bond required to prevent a stay of proceedings in a libel to which it had been admitted as a colibelant.</p> <p>2. Admiralty @=>43 — Vessel liable m rem, though immune from process.</p> <p>A vessel is liable in rem, and subject to a lien, notwithstanding its use as a government vessel for strictly governmental purposes at the time of the collision, though the vessel cannot be seized during control by the government.</p> <p><Ss»For oilier eases see same topic & KKY-NUMBSR in all Key-Numbered Digests & Indexes</p>

<p>internal revenue —Compensation of receiver, not fixed in advance, taxable as income during the year received.</p> <p>Additional compensation awarded a receiver on his resignation is taxable as income for the year in which it was allowed and paid, though thereafter the court allotted the amount as having been earned during preceding years, under Revenue Act 1918, §§ 212, 213 (Comp. St. Ann. Supp. 1919, §§ 6336%f, 6336%ff) ; section 206 (section 6336%dd), providing for taxation on income subject to different rates for different years, not being applicable to such situation, in view of sections 201, 205 (sections 6336%b, 6336%d), and Treasury Regulations, art. 1641.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Appeal and error <@=361 (5) — Right to writ of error must be passed on when question raised.</p> <p>Under section 1 of rule 13 of the Circuit Court of Appeals for the Sixth Circuit (202 Fed. viii, 118 C. C. A. viii), authorizing District Judges to allow writs of error, when objection to such allowance is made on the ground that the time therefor has expired, the question must be passed on by the District Judge.</p> <p>2. Courts <@=354 — Signing judgment on separate paper, and not on order book, sufficient conformity to state practice.</p> <p>Signing of judgment on a separate paper handed to the clerk for entry in the order book conforms to the Kentucky practice “as near as may be,'’ as required by Rev. St. § 914 (Conip. St. § 1537), without signing the entry on the order book, in view of the impracticability of signing the order books kept at the different places at which court is held, and also in view of section 918 (section 1544), authorizing District Courts to make rules regulating their own practice.</p> <p>3. Courts <@=339 — State practice, to which federal court must conform, contained in state Code of Practice.</p> <p>In Kentucky, the practice, pleadings, and forms and modes of proceeding in civil causes, to which federal courts are required to conform as near as may be by Rev. St. § 914 (Comp. St. § 1537), are those prescribed by the Kentucky Civil Code of Practice.</p> <p>4. Courts <§=354 — Statute requiring signing of proceedings by judge not binding on federal courts.</p> <p>Ky. St. § 378, which is contained in a chapter devoted to the duties of the clerk of the court, and which provides that the proceedings of each day shall be'drawn up from the minutes in a plain, legible manner and, after being corrected as ordered by the court and read in an audible voice, signed by the presiding judge, is not a part of the pleadings and practice in civil cases, to which the federal District Court is required to conform by Rev. St. § 914 (Comp. St. § 1537).</p> <p>5. Appeal and'error ©=>347(1) — Time for taking runs from signing of judgment, though entry subsequently signed.</p> <p>Where judgment was signed on June 3, 1919, and handed to the clerk for entry in the order book, but several months later the order book was signed by the judge as a precautionary measure, the six months after entry of the judgment, allowed by Act March 3, 1891, § 11 (Comp. St. § 1647), for suing out a writ of error, ran from June 3, 1919.</p> <p><®=^For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Application for Allowance of Writ of Error to the District Court, of the United States for the Western District of Kentucky; Walter Evans, Judge.</p> <p>Action at law by the Ellicott Machine Corporation against the Vogt Brothers Manufacturing Company. ■ Judgment for plaintiff, defendant’s application for writ of error denied by trial court (267 Fed. 934), and defendant applies to the Circuit Court of Appeals for allowance of writ of error.</p>

<p>1. Pleading ©=>8(3) — Averment of illegal combination held a conclusion of pleader.</p> <p>Allegations of answer relative to plaintiff being an illegal combination under Anti-Trust Act July 2, 1890 (Comp: St. §§ 8820-8823, 8827-8830), and the leases of shoe machines sued on being direct and material parts of the combination and themselves illegal, held mere conclusions of pleader.</p> <p>2. Pleading ©=>8(3) — Averment of transaction in interstate commerce held a conclusion.</p> <p>Relative to leases of shoe machinery being transactions in the course of interstate commerce, which alone are made unlawful by Clayton Act Oct. 15, 1914, § 3 (Comp. St. § 8835c), allegation of answer merely that, they were made in the course of such commerce is a conclusion of the pleader.</p> <p>3. Pleading ©=214 (4) —Demurrer does not admit conclusions.</p> <p>A demurrer admits only facts well pleaded, and not conclusions of law.</p> <p>On Rehearing.</p> <p>4. Monopolies ©=12(2) — Requirement of royalties on output of other machines not prohibition of other machines.</p> <p>The requirement in a lease of shoe machinery that the lessee shall operate the machines to capacity limited only by his total output, and shall pay a royalty on all shoes made by him, without proof that the burden thereby imposed on the manufacturer was so great as to prevent him from obtaining machines from others, is not void under Acts Mass. 1907, e. 469, § 1, prohibiting provision in a lease of machinery that, the lessee shall not use machinery of any person other than the lessor, which is a penal statute and must be strictly construed.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>In the matter of Morgan, Truett & Co., a partnership, and 'Daniel, H. Morgan, Edward P. Truett, a’nd Frederick II. Ilovey, individually, bankrupts. On appeal by Daniel Ft. Morgan and Edward P. Truett, from an order denying them discharge.</p>

Uibel by the United States against nine cartons and eight cartons of Feathers of Wild Birds; Rene Arbib, claimant. Decree for libel-ant, and claimant appeals. Libel filed for forfeiture of certain cartons containing feathers of birds of paradise and ghoura pigeons.

<p>In Error to the District Court of the United States for the Eastern District of Wisconsin.</p> <p>Action by the Northwestern Mutual Life Insurance Company against Henry Fink, Collector of Internal Revenue. Judgment for plaintiff (248 Fed. 568), and defendant brings error.</p>

Suit in admiralty by Kittie Ten Eyck against the Director General of Railroads, with the Hartman-Blanchard Company impleaded. Decree for liftelant against the Hartman-Blanchard Company, which appeals.

<p>Petition to Revise Order of the District Court of the United States for the Southern District of New York.</p> <p>In the matter of Herbert E. Schaffner, trading as Schaffner & Rubstadt, bankrupt. On petition by Louis C. Strauss to revise order of District Court.</p>

Suit in equity by the Cutler Hammer Company against Pawling & Harnischfeger Company and Isaac G. Johnson & Co., Incorporated, for infringement of patent No. 1,096,485. Decree for complainant, and defendants appeal.

<p>1. Patents <§=>168 (2) — Inventor, acquiescing in rejection of claim, estopped from thereafter asserting it.</p> <p>Where the patent office rejects a claim covering a device on its merits, and the rejection is acquiesced in, and the patent issued, the applicant cannot afterwards be permitted a construction of the claims allowed wide enough to embrace the claim which was rejected.</p> <p>2. Patents <§=>174 — In crowded art, inventor is entitled only to his own device.</p> <p>A patentee of a new machine acquires a monopoly as against all formal variations; but if the advance is gradual, so no one can chum the complete machine, each inventor is entitled only to his own specific form of device.</p> <p>3. Patents <§=>328 — 799,549, for a button-setting device, not infringed.</p> <p>Patent No. 799,549, claim 4, for a button-feeding mechanism for a button-setting device operated by foot or other power, held, in view of the prior state of the art and the patentee’s acquiescence in the rejection of the original claim, which, as shown by the Me wrapper, was not allowed until a combination was described, limited to the particular construction, and, as limited, not infringed.</p> <p>ig^oPor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Admiralty. I,ibel by the Interstate Lighterage & Transportation Company against the Newtown Creek Towing Company, with cross-</p> <p>libel for damages.</p>

At Law. Action by George Randolph and others against E. B. Craig, Collector of Internal Revenue. On demurrer to declaration. Action by the executors and trustees under the will of Wm.

<p>Habeas Corpus. Petition by T. H. Harvell to procure the discharge of C. W. Harvell from custody in a county jail.</p>

<p>In Equity. Suit by William B. Edwards against Patrick H. Bodkin.</p>

<p>In Bankruptcy. In the matter of Englander’s, Incorporated, bankrupt. On review of order of referee.</p>

<p>In Equity. Suit by James Z. Benedict against J. S. Hall and the Hall Manufacturing Company. On motions to strike parts of answer and to dismiss counts of petition.</p>

<p>In Bankruptcy. In the matter of John A. Dix, bankrupt. Order of the referee, allowing the claim of the Glens Palls Trust Company,</p>

<p>In Bankruptcy. In the matter of Herbert H. Prentice, bankrupt.</p>

Libel of information by the United States for condemnation and forfeiture of an automobile alleged to have been used, while driven by one Green, in the removal and concealment of spirituous liquors, on which the tax had not been -paid, in violation of R. S’. § 3450 (Comp. St § 6352). The automobile having been seized by the marshal under a warrant of arrest, T. O. Tune, claiming to be its owner, filed a petition for its release and delivery to him upon executing proper bond.

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

<p>Appeal from the District Court of the United States for the First Division of the Northern District of California.</p>

<p>Appeal from the District Court of the United States for the Northern District of West Virginia, at Parkersburg.</p>

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

<p>Appeal from the District Court of the United States for the Southern District of New York, Suit in admiralty by the Texas Company against the Hogarth Shipping Company, Limited, owner of the steamship Baron Ogilvy, and Hugh Hogarth & Sons. Decree for respondents (265 Fed. 375), and libelant appeals.</p>

<p>Appeal from the District Court of the United States for the Second Division of the Northern District of California.</p>