Volume 268 — Federal Reporter

<p>Shipping <@=>153 — Evidence held insufficient to show shipper agreed to pay increased rato required fey shipping permit.</p> <p>Evidence that a shipper, who had a contract with a shipping agent which specified the freight, had informed the agent with reference to a prior contract that it had an arrangement with a foreign government for shipment at the contract rate, under which it could recover any excess it was required to pay, but that, with reference to the contract in controversy, it had insisted on holding the shipping agent to the contract rate, held, insufficient to show that the contract had been modified, so as to require the shipper to pay the increased rate necessary to obtain from the foreign government a permit for the shipment.</p>

<p>Appeal from the District Court of the United States for the Western District of Kentucky; Walter Evans, Judge.</p> <p>Suit in equity by the Western Union Telegraph Company against the Louisville & Nashville Railroad Company. From an order denying a motion to dissolve injunction, defendant appeals.</p>

E. Hamilton and others were convicted of endeavoring and conspiring to make a revolt as merchant seamen, and they bring error.

<p>In Error to the District Court of the United States for the Eastern District of Eouisiana; Rufus E. Foster, Judge.</p> <p>Action at law by Esteve Bros. & Co., against the Western Union Telegraph Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from the District Court of the United States for the Western District of Missouri; Arba S. Van Valkenburgh, Judge.</p> <p>Suit in equity by the Hartford Uife Insurance Company against Garland S. Johnson, administrator of the estate of Nannie M. Johnson, deceased. From our order dissolving a temporary restraining order and denying a preliminary injunction, complainant appeals.</p>

Pollock, Judge. Suit by the Wichita Railroad & Light Company against the Public Utilities Commission of the State of Kansas and others. Decree for complainant, and defendants appeal.

<p>L Sales <&wkey;l?9(4)&emdash;Purchaser estopped by acceptance to deny equality to sample.</p> <p>Defendant held not justified in refusing to accept further deliveries under a contract for the purchase of 2,500 self-starters for motorcycles, to be made by plaintiff, on the ground that they were not like the sample before the contract was made, where the principal difference was that the sample was made by hand, plaintiff not having previously made starters for motorcycles, while the parts of the commercial articles were machine-made, as must have been contemplated by the contract, and where a sample of the latter was also submitted before deliveries began, and defendant, during ensuing months, accepted and paid for several hundred.</p> <p>2. Evidence &wkey;441(9)&emdash;Warranty cannot be imported into written by prior conversations.</p> <p>A warranty cannot be imported into a written contract of sale which is silent on the subject by conversations or correspondence between the •parties before the contract was made.</p> <p>3. Sales <&wkey;271&emdash;Contract held to raise no implied warranty of fitness under Uniform Sales Act.</p> <p>Where defendant, a maker of motorcycles, desired a self-starter for its machines, and plaintiff, a manufacturer of self-starters for and motorboats, thereupon made a model, which, after alterations agreed upon, was approved by defendant after a test of some weeks, and a contract made for several hundred, there was no implied warranty, under Gen. Code Ohio, § 8395(1), of general fitness for the use intended, or beyond a warranty of suitable materials and proper workmanship.</p> <p>4. Sales <&wkey;384(6)&emdash;Uniform Sales Act construed as to vendor’s damages for vendee’s refusal of article to be specially manufactured.</p> <p>Under Gen. Code Ohio, §§ 8443, 8444, as to damages recoverable by for buyer’s breach, where buyer of motorcycle self-starters specially manufactured for it repudiated the contract, plaintiff seller was properly allowed to-recover the full contract price of the starters delivered, and, as to those not delivered, the contract price, less the cost of completion, and less the value of the finished starters and of the unused materials procured or made for this purpose, all as left on plaintiff’s hands, and such measure of damages as to the undelivered goods, even if title had not passed, was not erroneous, on the ground that damages should properly be stated as cost incurred, less salvage, plus lost profits, for cost plus profit equals contract price, and whether this damage is given under the name of the whole or under the names of the parts is unimportant.</p> <p>5. Sales <&wkey;384 (6)&emdash;Lost profits recoverable for refusal to accept goods to be specially manufactured.</p> <p>The provision of Gen. Code Ohio, § 8444 (4), “The profit the seller would have made if the contract or the sale had been fully performed shall be considered in estimating such damages,” does not change the settled rule that lost profits, in case of buyer’s refusal to accept goods to be specially manufactured for it, are recoverable as such, nor contemplate that lost profits shall be treated only as an element of the situation, to be given such force as the trier of fact may think proper, but rather declares that this element of damage shall remain, and shall be added to whatever other elements appear.</p> <p>6. Interest <&wkey;53 — Inclusion of interest on verdict not error.</p> <p>Where judgment on a verdict was delayed pending a motion for new trial, the inclusion in the judgment of interest on the amount of the verdict, although the verdict itself included interest, held not error, under Gen. Godo Ohio, § 8305, and the established practice in the slate.</p>

<p>1. Limitation of actions &wkey;>55(7) — Right of action for obstruction of stream accrues at date of injury.</p> <p>A right of action for damage to plaintiff’s land from overflow of a river, caused by permanent obstructions built by defendant below plaintiff’s land, held to accrue at the time of the injury, and not from the time the obstructions were built.</p> <p>2. Waters and water courses &wkey;>171(2) — One knowingly obstructing stream liable for resulting damage.</p> <p>A railroad company, which filled in a side channel of a river through which it was obvious that the water flowed in time of flood, cannot claim exemption from liability for the flooding of land above because of such obstruction, on the ground that the freshet was so unprecedented as to be an act of God.</p>

Simon Brasley and others, indicted for alleged violations of Act Aug. 10, 1917 (Comp. St. §§ 3115%e-3115%r) as amended by Act Oct. 22, 1919 (41 Stat. 297), and Criminal Code, § 37 (Comp. St. § 10201), petition for an order upon the United States attorney, requiring the return of sales slips, papers, and records alleged to have been unlawfully taken from defendants.

<p>Shipping <&wkey;208 — Owner of barge, sunk because not properly manned held guilty of personal fault and not entitled to limitation of liability.</p> <p>A barge was improperly loaded under direction of her master, so that during the night she sprang a leak and sank at the loading wharf in the port of Boston. The leak could have been controlled, if seasonably discovered; but the master left the barge, on which he was the only man, unattended during the night. The owner of the barge had given orders that barge captains were to remain on board at night, when away from the home dock; but it had'no system of following them up to see that the order was obeyed, and it had reason to believe that its barges were frequently left unattended at night when lying at Boston wharves. An action was brought by the dock owner against the barge owners to recover damages due to her sinking. Held, that the barge owners were not free from personal fault for the unmanned condition of the barge, and were not entitled to limit their liability.</p>

<p>At Caw. Petition for habeas corpus by the United {States, on the relation of William McMaster, against Jacob F. Wolters and others.</p>

<p>1. Criminal law <§=>987 — Presence of defendant essential to validity of sentence.</p> <p>A corrected sentence, imposed by a federal court on a prisoner in his absence, although he was present when the original sentence was pronounced, held, void.</p> <p>3. Habeas corpus <S=:5109 — Prisoner held under void sentence remanded to trial court.</p> <p>Where it is determined by a federal District Court on habeas corpus that the,sentence of another District Court, under which a prisoner is held, is void, the proper practice is to remit the. prisoner to the court wherein he was sentenced, for further action by that court.</p>

<p>In Equity. Suit by Patrick Healey, trustee in bankruptcy of the Malay-Wilson Company, against the Boston Batavia Rubber Company.</p>

<p>1. Salvage ,S=2(i — Yaluo of cargo salved not increased by freight prepaid.</p> <p>Where a schooner laden with lumber, on a voyage from Mobile to a Spanish port, was stranded and brought by salvors into the port of Tampa, Fia., the value of the cargo at Tampa cannot be increased for salvage purposes by addition of the amount of freight prepaid, under a provision of the charter party that it should be considered earned and not returnable “vessel and/or cargo lost or not lost.”</p> <p>2. Salvage —Salvors not allowed for unnecessary expense.</p> <p>Salvors of a stranded vessel held not entitled to an increased award by reason of their taking the vessel to a port over 200 miles distant, when there was a port equally available within 40 miles.</p> <p>3. Salvage <¡^21 — Right to compensation forfeited by embezzlement of property.</p> <p>The master of a salving tug, who took from the salvaged vessel nautical instruments, books and papers, and a boat, which were retained until after answer was filed in a salvage suit, excluded from participation in the salvage award, and allowance for salvage of such articles denied.</p>

<p>1. Habeas corpus @=>117 (1) —Order in excess of jurisdiction not binding on another court.</p> <p>An order of a District Court of the United States in a habeas corpus proceeding, directing that petitioner, who is imprisoned under sentence of another District Court, be returned to the district of conviction for correction of the sentence by the court that imposed it, held of no binding effect on such court.</p> <p>2. Habeas corpus @=>45(1) — Court without jurisdiction to review judgment of co-ordinate court.</p> <p>A District Court of the United States is without jurisdiction on habeas corpus to review and adjudge invalid the judgment and sentence of another District Court, which had jurisdiction of the defendant and the subject-matter.</p> <p>3. Criminal law @=>1218 — Hard labor not requisite of sentence of federal convict to Atlanta.</p> <p>Tlio power of a federal court to direct imprisonment in the United States penitentiary at Atlanta of a defendant convicted of an infamous crime is not limited under present statutes to cases where hard labor is a part of the sentence imposed.</p>

<p>In Admiralty. < Libel by Catherine Earles, as administratrix of the estate of George W. Cartledge, against Frank A. Howard. On motion to dismiss libel.</p>

Wolverton, Judge. Suit in equity by Jane W. Muir, executrix of the will of William T. Muir, deceased, against James H. Morris and Fred S. Morris, partners as Morris Bros., James H. Morris, and Fred S. Morris. Decree for defendants, and complainant appeals.

<p>1. Shipping <&wkey;58(2) — Charterer by demise prima facie liable for damage to scow.</p> <p>Where a scow without motive power, demised to a charterer, was received in good condition and was to be returned in like condition, but was returned in bad condition, it is incumbent on the charterer to show (1) how the damage occurred, and (2) that it was not caused through its negligence, or through the negligence of any one to whom it had intrusted the boat.</p> <p>2. Shipping &wkey;54 — In absence of covenant to return in good condition, charterer liable only for negligence.</p> <p>Where a charter party contains no covenant for the return of the vessel in good order and condition, there is no liability for injury to the vessel without proof of negligence.</p> <p>3. Shipping <&wkey;58(2) — Negligence of charterer, causing damage to scow, shown by evidence.</p> <p>A finding that damage to a scow was caused by negligence of a sub-charterer held, sustained by evidence showing that it placed 1,200 drums of caustic soda on the scow’s deck, where it remained uncovered for 50 days, that under such conditions some of the soda would leak from the drums, that the deck and sides of the scow were eaten and decayed, and that similar effects on wood had previously resulted from like cause.</p>

In the matter of B. Solomon & Co., bankrupt. On petition of Deo Kahn to revise an order of the District Court. Leo Kahn filed a petition in the court below in which he alleged: That Benjamin Solomon, Joseph H. Sugarman, and Philip Kastel were partners in ¡business under the name of B. Solomon & Co., and were engaged as brokers for the purchase and sale of stocks and other securities, with an office in the city of New York.

<p>1, Bankruptcy <&wkey;303(3) — Evidence held to sustain findings that conveyances . were fraudulent.</p> <p>Evidence tending to show that conveyances by a voluntary bankrupt to his son and by the son to the bankrupt’s wife were without consideration, and were made shortly before bankruptcy, though dated four years earlier, and that no change in possession of the property had occurred, held to sustain the findings of the master approved by the trial court that the conveyances were in fraud of the bankrupt’s creditors.</p> <p>%. .Appeal and error <&wkey;193 (4) —Insufficiency of averment in petition must be , objected to below.</p> <p>An assignment of error based on insufficiency of averment in petition that plaintiff trustee in bankruptcy represented creditors who were such at the time of the execution of the conveyances attacked, does not require reversal of the decree, where the only objection before the master and the court was to the failure to prove the existence of such creditors, and there was sufficient proof to sustain the master’s findings on that point.</p> <p>3. Trial <&wkey;85 — Objection to bankruptcy record must specify incompetent portions.</p> <p>. An objection to the reception in evidence, in a suit by a trustee in bankruptcy to set aside fraudulent conveyances, of the record in bankruptcy, much of which was admissible, is insufficient, where there was no particular objection to any portion of the record claimed to be inadmissible.</p> <p>4. Evidence @==>591 — Party not' bound by conclusions of adverse party called as witness.</p> <p>Even if a party to a suit in equity, who calls an adverse party as his witness, is bound by the testimony of such witness to the same extent as by the testimony of another witness, he is not bound by every statement or conclusion of the witness, so that statements that the conveyances were made for a valuable consideration are not binding, where the facts testified to showed the contrary.</p> <p>5. Appeal and error <&wkey;1022(3) — Findings of master, supported by evidence and approved, almost controlling.</p> <p>On appeal, the findings of the master, approved by the trial judge, are well-nigh controlling, where there is any evidence to sustain them.</p>

<p>1. Dower <S=>44 — Under Oregon statute nonresident widow not entitled to dower in lands conveyed by husband.</p> <p>Under the Oregon Statute (U. O. L. § 7306), providing that “any woman residing out of the state shall be entitled to dower o£ the lands of her deceased husband lying in this state of which her husband died seized,” a wife, who was a nonresident of the state at the time of the conveyance of lands within the state by her husband in which she did not join, and also at the time of his death, is not entitled to dower in such lands.</p> <p>2. Constitutional law '2^206 (1) —Dower not a “privilege or immunity,” within the Constitution.</p> <p>A state statute, limiting the right of dower in case of nonresidents to lands of which the husband died seized, hold not invalid, as abridging the privileges or immunities of citizens, within the meaning of Const. TT. S. Amend. 14.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Privileges and Immunities.]</p>

<p>Appeal from the District Court of the United States for the District of Oregon.</p> <p>Suit in equity by Evelyn P. Perry against Henry L. Corbett and others. Decree for defendants, and complainant appeals.</p>

<p>In Equity. Suit by the Westinghóuse Electric & Manufacturing Company against the Diamond State Fibre Company. On motion to strike counterclaim and for preliminary injunction.</p>

<p>1. United States <2^67 (3) —Final settlement made six months before action on contractor’s bond.</p> <p>A letter of the Bureau of Yards and Docks to a contractor, with other correspondence, held a final settlement as of the date of such letter, within Act Feb. 24, 1905 (Comp. St. § 6923), requiring government contractors to give bond, and providing that, if suit be not brought by the United States within six months from completion, then those supplying labor and materials may sue, notwithstanding correspondence by the architect, wherein he confused final payment and final settlement, and the further fact that a voucher and final release prepared by the architect was not signed by the bureau.</p> <p>2. United States <S=’67(3) — “Final, settlement” and “final payment” on government contracts distinguished.</p> <p>Within Act Feb. 24, 1905 (Comp. St. § 6923), relating to actions on bonds of government contractors, the term “final settlement,” which marks the beginning of the six-months period at the expiration of which materialmen, etc., may sue, refers to the administrative settlement, occurring when the department determines the amount due, and is entirely distinct from the “final payment.”</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First Series, Final Payment; First and Second Series, Final Settlement.</p> <p>3. United States ®=:>67(3) — Subsequent consideration of exstras held not to affect final settlement.</p> <p>In an action on a government contractor’s bond, the time of final settlement made by the department, which started the running of the six-months period that must elapse under Act Feb. 24,1905 (Oomp. St. § 6923), before materialmen can sue, was not affected by the fact that the department thereafter considered small claims for extras.</p>

<p>At Raw. Action by the Pipe & Contractors’ Supply Company against the First National Bank of Litchfield.</p>

<p>1. Evidence <§=>383(8) — Books of gas company, kept as required, are prima fade “evidence” of expenses.</p> <p>Though “evidence” has been variously defined, and is a relative term, it always contains the element of the relation between a proposition to bo established and material to establish the proposition; and books of account kept by a gas company in the manner required by the Public Service Commission, for the purpose of enabling tbe commission to keep watch of tbe public utilities of the state, would be tlie first source for information as to the cost of making the gas, and are prima facie evidence of such expenses on behalf of a gas company, as well as when used against it.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Evidence.]</p> <p>2. Gas <§=>14 (1) — Eighteen months’ operation at loss suffident to entitle company to relief.</p> <p>Even if a period of 18 months, when conditions were abnormal, was insufficient experience on which to fix a reasonable rate, it is sufficient to show that the existing rate was confiscatory, where the gas plant was operated at a loss during the entire period, since, even if the gas company should have temporarily operated at a loss during readjustment periods, the 18 months was a reasonable time for such operation.</p> <p>3. Courts @=>99 (1) — Question considered by three judges, granting temporary injunction, not reconsidered.</p> <p>While the decision of three judges in granting a temporary injunction is only a District Court decision, not binding on the judge who hears the case finally, the decision of those judges on a contention presented to them, which was not affected by the cross-examination of the witnesses, or by additional evidence at the final hearing, will not be disturbed.</p> <p>4. Gas @=>14 (1) — Noncompliance with statutory requirement, because of necessity, does not defeat right to injunction.</p> <p>A manufacturer of gas is not deprived of his right to an injunction against a statutory rate, which compelled him to operate at a loss, by his failure to comply with the statutory requirement as to the quality of the gas, which requirement might itself have been held confiscatory under the conditions.</p> <p>5. Judgment @=>828(3) — Finding gas rate not confiscatory by state court not conclusive under changed conditions.</p> <p>A judgment of a state court, finding a statutory rate, for gas not confiscatory under conditions existing before that suit, is not conclusive that the same rate is not confiscatory under changed conditions existing thereafter.</p> <p>6. Gas <S=14(1) — City not necessary party to suit to enjoin statutory gas rate. ,</p> <p>A city in which a gas company is operating is not a necessary party to a suit by that company against the Public Service Commission and others to restrain the enforcement of the statutory rate for gas.</p> <p>7. Stipulations @=>18(1) — Master’s findings of value in excess of stipulation improper.</p> <p>Where the parties to a suit to restrain the inforcement of a statutory-rate for gas stipulated as to the value of the gas company’s plant for the purposes of that suit, a finding by the master, adding to the stipulated value an additional value for necessary improvements, was improper.</p> <p>8. Gas @=>14 (1) — Where statutory rate fails to pay expenses, holding as to fair return is immaterial.</p> <p>In a suit to restrain the enforcement of a statutory rate for gas, where it was shown that the cost of making the gas exceeded the rate, a holding as to the return to which the company was entitled on its capital was immaterial.</p> <p>9. Gas @=>14 (1) — Courts cannot make rates.</p> <p>Courts cannot make rates for charges; their only power being to pass upon rates after they are made.</p> <p>10. Stipulations @=>18(1) — Stipulation held not to preclude evidence subsequent to decree.</p> <p>Where the parties to a suit to restrain the enforcement of a statutory rate for gas stipulated that for the purpose of that litigation the gas company had an investment of a stated value, either party dissatisfied with that stipulation or the legal effect thereof after the decree nlay, in proper proceedings, seek and obtain opportunity to present evidence as to value.</p> <p>11. Gas @=>14(1) — Company held entitled to credit for 15 per cent, of unaccounted-for gas.</p> <p>A gas company operating within the legal boundaries of a large city, but in fact supplying numerous- small consumers through long mains in sandy soil, where the amount of metering was excessive, is in reality operating in a country town, and is entitled to 15 per cent, of unaccounted-for gas, which experience shows common in towns of that character.</p> <p>12. Gas @=»14(1) — Evidence held to sustain item for repairs.</p> <p>In a suit to restrain the enforcement of a statutory gas rate, evidence that any gas-making company is entitled to take in its meters for repair after they have been in service for five years, is sufficient to sustain the master’s allowance of an item of repair which does not exceed the expenditure thereby required.</p> <p>13. Gas ■®=»14(1) — Increased cost of gas oil does not require change to coal gas plant.</p> <p>The fact that the cost of oil for the manufacture of gas has been increased by the demands for oil and gasoline, so as to make the cost of the gas exceed the statutory rate, does not require the gas company to manufacture gas from coal, for which it possessed no equipment, before seeking to enjoin the enforcement of the rate.</p>

<p>In Equity. Suit by the Willys-Overland Company against the Akron-Overland Tire Company, Inc. On motion for preliminary injunction.</p>

<p>1. Property <3=2 — Person honestly acquiring formula using common materials may reproduce it.</p> <p>The first user of a formula for medicine composed of common materials and which is not patented acquires no monopoly therein; but any one acquiring knowledge of the formula without any breach of trust or good faith can reproduce it and market it, with the representation that it is the same as the original.</p> <p>2. .Trade-marks and trade-names <§=>17 — Right to cocoa as coloring and flavoring matter cannot be monopolized.</p> <p>The right to use cocoa in connection with quinine and yerba santa cannot be monopolized, on the claim that the use of the cocoa is merely to give a distinctive color, since it also has a distinctive flavor, attractive to the public, which cannot be given by any other means, and the right to such flavor is not one which can be exclusively claimed.</p> <p>3. Trade-marks and trade-names <§=>3 (4) — “Coco-Quinine” is a descriptive name.</p> <p>The name “Coco-Quinine,” applied to a liquid preparation of quinine, in which the bitterness of the quinine is disguised by yerba santa and cocoa added jto give a distinctive color and flavor, is a mere descriptive name, which cannot be an exclusive trade-mark.</p> <p>4. Trade-marks and trade-names <3=93 (3) — Evidence held not to show unfair selling methods.</p> <p>Evidence that dealers inferred from statements by defendant’s salesmen that they were to substitute defendant’s preparation for plaintiff’s when it was called for, with denials by the salesmen that they made such representations, and without evidence that any officer or sales manager of defendant had authorized such representations, held insufficient to show unfair selling methods by defendant.</p> <p>5. Trade-marks and trade-names <§=593(3) — Testimony of unfair sales should be direct and positive.</p> <p>Testimony of unfair sales, by defendant, for the purpose of substituting their product for that of plaintiff, when the latter was called for, should be established by direct, clear, and positive testimony.</p>

<p>In Bankruptcy. In the matter of Perry Anderson Irwin, bankrupt. On review of order of referee.</p>

<p>In Bankruptcy. In the matter of the Robinson Machine Company, bankrupt. On review of order of referee denying petition of the C. E. Eales Machinery Company for reclamation of property.</p>

<p>1. .Sales <&wkey;172 — Must be reasonable effort to obtain product to exempt from liability for nondelivery under “short pack” provision of contract.</p> <p>In an action for short delivery under a contract by a canning company for sale of a stated number of cases of a tomato product from the season’s pack, to constitute a defense under a provision of the contract that “in case of short pack seller agrees to make pro rata delivery,” it is not sufficient to show a shortage of the tomato crop in the immediate vicinity of defendant’s plant, but it must be further shown that it could not have obtained them within a reasonable distance.</p> <p>2. Sales <&wkey;172 — Trouble with machinery is not a “circumstance beyond control,” so as to excuse for nonfulfillment of contract for product.</p> <p>Trouble with machinery in the plant of a canning company held not to exempt it, from liability for short delivery under a contract for sale and delivery oí a stated quantity of its product, as a “circumstance beyond its control.”</p> <p>3. Contracts &wkey;l'J0(1.) — Acts constituting construction by parties must be done with full knowledge of facts.</p> <p>To constitute a binding construction by the parties of a written contract, it ought to appear with reasonable certainty that the acts of both parties were done with knowledge, and in view of a purpose at least consistent with that to which they are sought to be applied.</p>

In the matter of the petition of Boruch Kornstein for naturalization, wherein the government praj^ed that the petition be denied with prejudice, and that the verifying witnesses thereon be disqualified from further appearance in naturalization causes in the District Court.

<p>1. Internal revenue <&wkey;8 — Transfer of corporate stock held not made in "contemplation of death.”</p> <p>A transfer of corporate stock by a father to his son, made to settle family quarrels and to assure the father an income after the death of his wife, who had been furnishing him money, is not made in “contemplation of death,” within the statute imposing the inheritance tax, where the father, though advanced in years, was in vigorous health, but died unexpectedly shortly after the transfer.</p> <p>[Ed. Note. — -For other definitions, see. Words and Phrases, First and Second Series, Contemplation of Death.]</p> <p>2. Internal revenue <&wkey;8 — Transfer of corporate stock for interest thereon during transferor’s life takes effect immediately.</p> <p>A transfer of corporate stock by a father to his son, in consideration of the son’s promise to pay the father during his life a stated interest on the par value of the stock, takes effect immediately, and is not postponed till the death of the father, and is therefore not subject to the inheritance tax.</p>

Van Valkenburgh, Judge. Action by Roland R. Conklin against G. A. Barnett and others. From an order denying defendant Barnett’s petition to enjoin plaintiff from taking proceedings to satisfy the judgment rendered therein, defendant Barnett appeals.

Action by J. A. McCormick, individually and as assignee, against the National Surety Company. Judgment for plaintiff, and defendant brings error.

<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 Steve Vastag against the Michigan Central Railroad Company. Judgment for plaintiff, and defendant brings error.</p> <p>Action to recover damages for injury to person. Verdict and judgment for plaintiff. Defendant in error, herein called plaintiff, while crossing the tracks of defendant in error, herein called defendant, caught his foot between the rail and the sidewalk, and was run over by a passenger train, losing a leg thereby.</p> <p>On the evening in question, at about 7 o’clock, plaintiff was about to leave Hammond for his home in Gary. Missing a street car, he walked along a street parallel to and immediately south of some railroad tracks, seven in number, two of which belonged to defendant. He reached Howard street (running north and south), and went north on the east sidewalk, crossing five of the tracks, before his progress was interrupted by a long freight moving eastward. Here he waited until the train had cleared the crossing some 40 or BO feet, and then resumed his journey northward. As he stepped on the last track, the so-called west-bound Michigan Central main track, the heel of his. foot caught between the north edge of the south rail and the south edge of the adjacent sidewalk. This space was approximately 2% inches wide, a trifle over 2 inches deep, the width of the bottom being 2% inches. This flangeway, found in all crossing structures, is left for the engine and car wheels to pass along, and in the instant case was made of two car rails. One old rail was laid on its side, so that its ball fitted along the ball of the rail over which the car wheels passed. The bottom of the old 'rail, therefore, was flush with and formed the edge of the sidewalk.</p> <p>The train that struck plaintiff was coming from the west, was in plain sight, and could be seen from the Howard street crossing a distance of 2 miles. It was moving rapidly, and the engineer neither rang the bell nor blew the whistle. Upon being struck, plaintiff was rendered unconscious, and remained so for some time after he reached the hospital. He was discovered by passers-by about 15 minutes after the accident, being found some 15 to 35 feet east of the sidewalk, and “a foot or so” north of the north rail. No blood was found on the south rail, where plaintiff claimed to have caught his foot, or elsewhere, except on. the north rail, near where he lay. One witness testified that when he saw plaintiff his shoe was on his foot and the heel on the shoe intact. Another witness stated he found “a heel” on the east sidewalk the following morning. Neither the heel nor the shoe was offered in evidence.</p> <p>Plaintiff’s declaration consisted of four common-law counts. The first charged a failure to “use due care in managing, controlling, and operating its railroad and its train and said crossing, so that plaintiff might not be injured.” The second charged defendant with having failed “to properly grade and gravel its road and tracks.” The third charged defendant with having “carelessly and negligently constructed and maintained said crossing, * * * so that a certain opening next to and adjoining the, south rail of said west-bound track was arranged and allowed to be and remain so that pedestrians were 'liable to catch their feet in said place and be held and fastened there.” The fourth count charged defendant with having failed “to use due care to sound the bell and whistle as required by the statute,” etc.</p> <p>Defendant assigns error: (a) In refusing to direct a verdict in its favor, (b) In refusing to admit evidence offered by it. (e) In refusing its requested instructions.</p>

<p>In Error to the District Court of the United States for the Western District of Wisconsin.</p> <p>John M. Becker was convicted of violation of the Espionage Act, and brings error.</p>

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Petition to Review and Revise an Order of the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>In the matter of the bankruptcy of the Consumers’ Packing Company. Application by Edward J. Ader to file an intervening petition against the Central Trust Company of Illinois, trustee in bankruptcy, was denied, and petitioner appeals and petitions to review and revise.</p>

<p>1. Patents <&wkey;328 — 892,603, for process for making arsenate of lead, not void for lack of invention.</p> <p>Luther & Yolck patent, No. 892,603, for a process for making arsenate of lead, held not void for lack of invention.</p> <p>2. Patents &wkey;>328 — 892,603, for method of preparing arsenate of lead, sufficiently disclosed process.</p> <p>Luther & Volck patent, No. 892,603, for a process for making arsenate of lead, held to sufficiently disclose the process involved, although the patent does not state at what stage the catalyzer is added.</p> <p>3. Patents &wkey;>328 — 892,603, for process for making arsenate of lead, infringed.</p> <p>Luther & Volck patent, No. 892,603, for a process for making arsenate of lead, held infringed by process using the same formula although defendant made only pyro-arsenate, while plaintiff made its ortho-arsenate product more prominent than its pyro-arsenate.</p>

<p>1. Patents <&wkey;292 — -Inspection liberally allowed.</p> <p>Tbe court will allow inspection and compel answer to interrogatories in patent cases very liberally, stopping little short of requiring everything but the names of witnesses and such information as would enable the interrogator to bring forward untruthful testimony to meet the evidence of his adversary.</p> <p>2. Patents &wkey;>292 — Inspection not denied because disclosing trade secrets.</p> <p>In a tire patent case, inspection of working drawings or blueprints from the records of defendant, showing molds, cores, and other working parts used in the commercial production of defendant’s tires, would not bo denied because of defendant’s objection that these represented the details of a secret process of manufacture employed by defendant, although the secrecy of the process would be safeguarded by the order so far as possible.</p>

<p>1. Internal revenue >&wkey;7 — Interest on purchase price of bonds not included in cost in computing profit.</p> <p>In computing plaintiff’s profit on a sale of bonds claimed to be taxable as income, where plaintiff paid for the bonds when they were allotted to him as member of an underwriting syndicate, but did not receive them for three years, interest on the price to the date of receipt of the bonds cannot bo included as a part of the cost.</p> <p>2. Internal revenue &wkey;>7 — Stock dividend not taxable as “income.”</p> <p>A stock dividend declared by a corporation is not taxable as “income” under the Sixteenth Amendment to the Constitution.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Income.]</p> <p>3. Internal revenue <&wkey;7 — Sixteenth Amendment dees not extend subjects of taxation, but merely dispenses with apportionment.</p> <p>The Sixteenth Amendment does not extend the taxing power to new subjects, but merely removes all occasion otherwise existing for an apportionment among the states of taxes laid on income, from whatever source derived.</p> <p>4. Constitutional law —Congress and state Legislatures presumed to have knowledge of construction of language used in amendment.</p> <p>Congress and the several state Legislatures, in adopting the Sixteenth Amendment, are presumed to have had knowledge of the meaning attributed by decisions of the state and federal courts to the words “incomes from whatever source derived.”</p> <p>5. Internal revenue &wkey;>7 — Increase in capital investment not income.</p> <p>Enrichment through increase in the value of capital investment is not income, within the Sixteenth Amendment.</p> <p>6. Internal revenue <&wkey;7 — Tax is on capital, and not on income, when payment requires conversion of capital.</p> <p>If it requires conversion of capital in order to pay a tax, the tax is on capital increase, and not on income, within the meaning of the Sixteenth Amendment.</p> <p>7. Internal revenue <&wkey;2, 7 — Increase in value of bonds sold at profit not taxable as income, and statute attempting to tax it is unconstitutional.</p> <p>The appreciation in the value of corporate bonds owned by a person not engaged in trading in such securities, though realized by a sale of the bonds at a profit, is not income, within Amendment 16, but merely a capital increase, and so much of Income Tax Law 1916, § 2, subds. (a) and (e), as attempts to tax the profit from such a transaction, violates Const art. 1, § 9, cl. 4, prohibiting direct taxes, unless in proportion to population.</p> <p>8. Internal revenue <&wkey;7 — Sixteenth Amendment cannot be extended to property not income, though described as such by Congress.</p> <p>The word “incomes,” as used in the Sixteenth Amendment, cannot be construed to include property other than income, even if such property is described as income by an act of Congress.</p>

<p>1. Aliens &wkey;>60 — Naturalization is matter of grace.</p> <p>Foreigners are not granted citizenship as a privilege which they may demand, but as an act of grace by the government, which may fix such conditions as it sees fit.</p> <p>2. Aliens <&wkey;(>2 — Character of applicant for naturalization considered, to determine benefit to state.</p> <p>The character of the applicant for citizenship is considered, with reference to the probability of his citizenship resulting beneficially to the government.</p> <p>8. Aliens <&wkey;62 — Naturalization denied to applicant desiring citizenship to return to native country, for abandoned family.</p> <p>Where the purpose of an applicant for naturalization was to secure the protection of the government and obtain a passport for his return to his native country for his wife and children, whom he had left there seven years before, and with whom he had not communicated since, his abandonment of his family and the possible obligations to protect him which would be imposed upon the tlnited States are sufficient to warrant denial of naturalization, especially where he had sought deferred classification under the draft laws because of the dependency of his family, to whom he was making no contribution, thereby evidencing an intent to evade the duties of citizenship.</p>

<p>1. Constitutional law <&wkey;56, 106 — Legislature may provide for terms of court.</p> <p>Acts Tenn. 1915, c. 18, § 2, as amended by acts 3915, c. 140, § 1, providing that in the Sixth judicial circuit, composed of Hamilton county, there should be opened and held 12 appearance terms and 3 trial terms, is not unconstitutional, as the Legislature is empowered to provide such terms as it deems requisite; future litigants having no vested rights'as to procedural matters.</p> <p>2. Bemoval of causes &wkey;>79(2) — Petition must bo filed within two days, though declaration filed out of tim,e.</p> <p>Under Shannon’s Code Tenn. §§ 6076, 6077, requiring a plaintiff to file his declaration within the first three days of the term to which process is returnable, and defendant to answer within two days thereafter, and the established state practice by which plaintiff may file his declaration later as of right unless a motion to dismiss has been interposed, where a plaintiff so filed his declaration later in the term, defendant held re-* quired to file a petition for removal within two days thereafter.</p>

<p>Criminal law <&wkey;395 — Forfeited liquors can be used in evidence after seizure without process.</p> <p>Intoxicating liquors and the automobile in which they are being unlawfully transported are already forfeited to the United States, so that the forcible seizure of such property without process by officers of the United States, even if irregular, was not a seizure of the property of defendants, and did not violate Const. Amends. 4 and 5, so that the whisky and automobile so seized were competent evidence against accused, notwithstanding their motion for return of the property.</p>

Condemnation proceedings by the United States, opposed by Clarence E. Holden and others.' On application by the named owner for interest on an award.

<p>1. Associations &wkey;>14 — Sal© contract held subject to rule fixing percentage of estimated output.</p> <p>A contract between two members of a voluntary association- for the sale of the season’s output of the seller, estimated at a stated quantity, is subject to the rule of the association that the seller is required to deliver at least 85 per cent, of the estimate, where the contract did not contain an express exception from that rule, as required by another rule of the association permitting specific written contracts at stated special conditions.</p> <p>2. Accord and satisfaction <&wkey;21 — Unexecuted accord does not bar recovery.</p> <p>A plea of accord and satisfaction does not bar recovery for failure to deliver the quantity of goods sold, where the defendant’s own testimony that plaintiff agreed to accept a specified shipment in full satisfaction of its demands also showed that the goods in that shipment were rejected by plaintiff, with defendant’s acquiescence, because of their condition.</p> <p>3. Arbitration and award <&wkey;82(5) — Accord and satisfaction, not presented to arbitrators, no defense to award.</p> <p>A plea of accord and satisfaction is not a defense to counts based on an award by arbitrators, where the defendant had neglected its opportunity to present that defense to the arbitrators.</p> <p>4. Arbitration and award <&wkey;16(4) — Agreement not revoked, unless notice is given arbitrators.</p> <p>An agreement for arbitration, even if revocable by act of the parties, is not revoked, unless there is notice thereof to the arbitrators; defendant’s failure to sign the submission not being sufficient.</p> <p>5. Arbitration and award &wkey;>57 — Award by weight not beyond submission . - as to number of bales.</p> <p>Where the question submitted to the arbitrators was whether the seller should deliver a stated number of bales to the buyer, an award fixing the number of pounds which should have been delivered according to the average weight of the bales is not beyond the submission.</p> <p>6. Arbitration and award <&wkey;60 — Award held not uncertain, because quantity already delivered was not stated.</p> <p>An award finding that the seller should have delivered a specified quantity under its contract, hut stating that the amount delivered was not shown before the arbitrators, but could be determined by the parties and deducted from the amount which should have been delivered, to ascertain the amount yet to be delivered, is not invalid for uncertainty.</p> <p>7. Appeal and error &wkey;>10'3'3(7) — Verdict on award not excessive, where evidence authorized larger verdict on contract.</p> <p>A verdict and judgment based on an award by arbitrators cannot be held excessive, where the evidence was ample to sustain a verdict and judgment on a count for damages for breach of contract, the amount of which would have been larger than the judgment rendered.</p>

<p>1. Statutes &wkey;>245 — Tax law construed in favor of taxpayer.</p> <p>All doubts concerning the scope and meaning of a tax law are to be resolved in favor of the taxpayer.</p> <p>2. Internal revenue &wkey;>7 — Accumulation not taxable, where ultimate recipients not in esse.</p> <p>Prior to amendatory apt of September 8,1916, where a decedent’s estate produces an increment payable only at times and to persons not presently determinable, such increment was not, during a tax year, income of that tax year, assessable under Internal Revenue Act 'Oct. 3, 1913.'</p>

Action by the First Trust & Savings Bank, trustee under the agreement of John II. Barker, deceased, against Julius E. Smietanka, as Collector of Internal Revenue for the First District of Illinois. Judgment for defendant, and plaintiff brings error.

<p>1. Criminal law <&wkey;1036(l) — Objections to evidence must be made at the trial.</p> <p>In prosecution of physician for violation of Harrison Anti-Narcotic Act (Comp. St. §§ 6287g-6287q) by selling morphine without a dealer’s license, the defense being that the morphine was given in good faith as part of morphine habit treatment, testimony by government officers that when they searched accused’s office they found eight or ten bottles of morphine and three or four bottles of cocaine, being pertinent as to whether accused was dealing in the drugs, was not open to the objection on appeal that it was inadmissible, because the search was unlawful, where no such objection was made at the trial.</p> <p>2. Poisons <&wkey;9 — Record of disposition of narcotics admissible.</p> <p>In prosecution of physician for violation of Harrison Anti-Narcotic Act (Comp. St. §§ 6287g-6287q) by selling morphine without a dealer’s license, the defense being that the morphine was given in good faith as part of morphine habit treatment, it was proper for accused on cross-examination to be required to exhibit the record of his disposition of narcotics, it being the record required by law to be kept, as the testimony was competent on the issues both of good faith and of the character of business conducted by accused.</p> <p>3. Criminal law <&wkey;1038(l), 1056(1), 1129(1) — Vocal emphasis of certain word in instructing jury not reviewable, in the absence of trial objection, exception, or assignment of error.</p> <p>In prosecution of physician for violation of Harrison Anti-Narcotic Act (Comp. St. §§ 62S7g-6287q) by selling morphine without a dealer’s license, the defense being that the morphine was given in good faith as part of morphine habit treatment, the appellate court will not consider the objection that the trial court placed peculiar emphasis or stress upon the word “dealer” in his instructions to the jury, where no such objection or exception appeared at the trial or in the assignments of error, and the appellate court is given no basis from which to determine the existence or measure of such verbal stress.</p>

<p>1. Courts <&wkey;366(11) — Federal courts governed by state decisions as to state Constitution and statutes.</p> <p>Federal courts accept as conclusive the decisions of the highest court of the state with respect to the meaning and effect of state Constitutions and statutes on right to interest on recovery for diminution of value by closing of street.</p> <p>2. Eminent domain <&wkey;148 — Interest not allowable prior to verdict on damages.</p> <p>In view of Hurd’s Itev. St. Ill. 1917, e. 74, § 2, in property owner’s action against city to recover compensation pursuant to Const. Ill. 1870, art. 2, § 13, for diminution in value of property caused by closing a street to vehicle traffic, it was error to allow interest from the time of the street closing, for, the damages being unliquidated, interest was allowable only from the date of the verdict and on the amount thereof.</p> <p>3. Eminent domain &wkey;>145(2) — Special benefits from track elevation may be considered as against special damages.</p> <p>In property owner’s action against a city for causing diminution in value of nis property by closing a street on which the property was located to vehicle traffic by track-elevation improvement authorized by ordinance, it appearing that on other neighboring and parallel streets vehicle subways were provided, the jury could consider, as against plaintiff’s special damages, his property’s special benefits, in that vehicle traffic thereto along such parallel streets was, by the improvement, rendered safer, speedier, and more convenient.</p>

<p>Appeal from the .District Court of the United States for the District of Massachusetts; Edgar Aldrich, Judge.</p> <p>Action by Albert G. Groblewski against the John Chmiell Company. Decree for defendant, and plaintiff appeals.</p>

<p>In Error to the District Court of the Ünited States for the District of Indiana.</p> <p>James Ozello was convicted of violating the Reed Amendment, and brings error.</p>

Williams, Judge. C. B. Holland was convicted of introducing liquor from outside the state of Oklahoma into that part of the state that was formerly Indian Territory, and brings error.

<p>In Error to the District Court of the United States for the Southern District of Georgia; Beverly D. Evans, Judge.</p> <p>Action for personal injuries by C. R. Gammage against the International Agricultural Corporation. Judgment for defendant, sustaining a demurrer to the petition, and plaintiff brings error.</p>

Newman, Judge. Action by W. 'M. Drake against the Tennessee, Alabama & Georgia Railroad Company. From a judgment dismissing the petition for want of jurisdiction, plaintiff brings error.

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Ohio; D. C. Westenhaver, Judge.</p> <p>Suit by the I. T. S. Rubber Company against the Tee Pee Rubber Company, Incorporated. From an order granting a preliminary injunction, defendant appeals.</p>

<p>In Equity. Suit by the Cincinnati Milling Machine Company against the Oakley Machine Tool Company and others.</p>

In Equity. Suit by the Westinghouse Electric Manufacturing Company against the Binghamton Railway Company. Petition of William G. Phelps, as receiver of the Binghamton Railway Company, for authority to execute a contract for the construction of power transmission line.

<p>In Equity. Suit by the St. Joseph Railway, Eight, Heat & Power Company against the Public Service Commission of the State of Missouri and others to enjoin the enforcement of a rate prescribed by the commission. On final hearing.</p>

<p>Internal revenue <&wkey;7 — Corporation’s right to deduct salaries from taxable profits depends on bona fides, not reasonableness, of salaries.</p> <p>A corporation’s right to deduct from its taxable profits salaries paid to officers depends, not -on how much of such salaries represented reasonable compensation for the services rendered, but on how much of the salaries were paid, not for services, but by way of distribution of profits.</p>

Clayton, Judge. Condemnation proceedings by the United States against A. G. Forbes and others. Judgment permitting condemnation and assessing damages (259 Fed. 585),- and defendants bring error.

Sibley, Judge. Separate actions by Mrs. J. C. Young and by J. C. Young against the Woodstock Operating Corporation, consolidated for trial. Judgment for plaintiff in each action, and defendant brings error.

<p>Appeal from the District Court of the United States for the District of Nebraska; Joseph W. Woodrough, Judge.</p> <p>Suit by Roth Dixon and another against Jesse H. Cox and others. From a decree of dismissal, plaintiffs appeal.</p>

Separate actions by A. H. Bryson, as administrator of Walter C. Bryson, deceased, and by Emma C. Swann, as administratrix of Philetus C. Swann, deceased, against Walker D. Hines, Director General of Railroads, and the Atlantic Coast Dine Railroad Company, tried together by consent. Judgment for defendants on directed verdict, and plaintiffs bring error.

<p>1. Criminal law <©=>1044 — Court may consider whether there was any substantial evidence, though motion for directed verdict was not renewed.</p> <p>Though a mption for directed verdict at thé close of the evidence for the prosecution was not renewed after accused had introduced his evidence, the Circuit Court of Appeals may determine whether there was any substantial evidence to support the verdict, though the question was not properly raised, where a plain error was committed at the trial.</p> <p>2. Criminal law <§=>1159(2) — Whex-e there was no substantial evidence to support a conviction, judgment will be reversed.</p> <p>In a prosecution under Penal Code, § 237 (Comp. St. § 10407), for bringing into Porto Rico from a foreign country lottery tickets and lists, evidence that accused had such tickets and lists in his possession when leaving a ship which had come from another country, but had previously touched at two other Porto Rican ports,' and that he threw them into the water when they were demanded, held, that there was no substantial evidence to sustain a conviction, so that judgment will be reversed.</p> <p>3. Criminal law <§=>1159(2) — Evidence sustaining inference consistent with innocence, equally with guilt, will not support a verdict of guilty.</p> <p>While it is the province of the jury to draw inferences which may reasonably be drawn from the evidence, there is not substantial evidence to support a conviction, where inferences as consistent with innocence as with guilt may be drawn from the proven facts.</p> <p>4. Criminal law <§=>552(1) — Attempt to destroy evidence relevant, but not conclusive.</p> <p>While the attempt of accused to destroy evidence against him is competent to go to the jury, it is not alone conclusive evidence of guilt.</p>

<p>In Error to the District Court of the United States for the Western Division of the Northern District of Alabama; William I. Grubb, Judge.</p> <p>Action by W. J. Massey against the Central Iron & Coal Company. Judgment for plaintiff, and defendant brings error.</p>

* Appeal and Petition to Superintend and Revise from the District Court of the United States for the Northern District of Georgia; William T. Newman, Judge. Voluntary proceeding in bankruptcy by John K. Swift. The petition of the Bank of Elberton to set aside the adjudication on the ground of fraud was denied (259 Ecd. 612), and petitioner appeals and files petition to superintend and revise.

M. Rogers and others against II. W. Desportes, County Jailer for Richland County, and another. From an order (268 Fed. 83) refusing to discharge petitioners, they appeal.

<p>Petition to Review and Revise an Order of the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Involuntary proceeding in bankruptcy against the Garden City Parlor Furniture. Company, bankrupt. On the finding of the District Court that the Commerce Trust Company was entitled to retain, from amounts received by it on claims assigned by the bankrupt, sufficient sums to reimburse it for money advanced to the bankrupt, with interest, Samuel Rusnak, as trustee in bankruptcy, brings petition to .review and revise.</p>

<p>1. Criminal law <$=>1169 (1) 1172(1) — Sharp conflict as to uttering words charged requires particular freedom from error.</p> <p>Where there was a sharp conflict in the evidence as to the utterance by defendant of words charged to be violation of Espionage Act, § 3 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 10212c), it is particularly essential that there be freedom from error in the admission and rejection of evidence, and in charging the jury, in order to sustain the conviction.</p> <p>2. Criminal law <§=>361(1) — Exclusion of explanation of damaging evidence and attitude toward war held error.</p> <p>In a prosecution for violation of Espionage Act, § 3 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 10212c), where evidence was admitted Jshat a newspaper containing a picture of the Kaiser was kept in defendant’s house, and the court charged the jury could consider it as tending to give character to the man and to the statements alleged to have been made by him, it was error to exclude evidence that the paper was given to defendant’s wife to read with a request- that she keep it for the donor and that defendant had supported the war by money contributions.</p> <p>3. Criminal law @=>761(18) — Charge held erroneous as assuming proof of government’s case.</p> <p>In a prosecution for violation of Espionage Act, § 3 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 10212c), where there was a sharp conflict in the evidence as to the statements uttered by accused, a charge referring to the purpose of the Espionage Act, and stating that the purpose of prosecuting accused was to punish Eim for having violated the act, was erroneous, as assuming that the government’s case was-proved.</p> <p>4. Criminal law @=>823(2) — General statement held not to cure assumption of guilt.</p> <p>Where, at the conclusion of the court’s charge, accused excepted to the portions of it assuming his guilt, a statement that the facts were for the jury, and that the court assumed nothing to be true from the evidence, was insufficient to neutralize the necessarily prejudicial effect of the main charge, which assumed defendant’s guilt.</p>

<p>In Error to the District Court of the United States for the Southern Division of the Eastern District of Tennessee; Edward T. Sanford, Judge.</p> <p>Walter W. Clark was convicted of an offense, and brings error.</p>

<p>1. Appeal and error <©=>927 (7) — Case considered most favorably to appellee on review of denial of directed verdict.</p> <p>In reviewing a denial of motion to peremptorily direct verdict for defendant, the case must be considered in its aspect most favorable to plaintiff.</p> <p>2. Master and servant '©=’286 (19) — Mine operator’s negligence in providing working place question of fact.</p> <p>In action for death of coal miner by falling slate, held,, that it could not be said, as a matter of law, that the portion of the “breakthrough” between one entry and another, in which decedent was when the slate fell, was not part of the working place provided for decedent.</p> <p>3. Master and servant >©=>107(2) — Duty to furnish safe place not confined to precise spot.</p> <p>A coal-mining company’s duty with respect to furnishing an employe a safe place to work held not necessarily confined to the precise spot in which he was to work.</p> <p>4. Master and servant >§=>103(1) — Duty to furnish safe place nondelegable.</p> <p>A master owes a servant the nondelegable duty of reasonable care to furnish him a reasonably safe place to work.</p> <p>5. Master and servant <©=>231(1) — Servant may presume performance of master’s duty.</p> <p>A coal company’s employee, assisting in breaking up slate and removing it, could properly act on the presumption that the company’s duty as to furnishing a safe place to work had been performed, unless he knew or by the exercise of care should have known of defect and danger.</p> <p>6. Master and servant <©=>107 (5) — Mine owner’s duty to make working place safe stated.</p> <p>The common-law rule, which relieves a mine owner from the obligation to provide his employee a safe place to work, and throws upon, the latter the responsibility of looking out for his own safety, where he is engaged in “making his own place,” and where the character of the work is such that the condition of the place as respects safety necessarily changes as the work progresses and by reason of such work, has no application where the work in which the employee is engaged does not necessarily change the. character of the place as respects safety.</p> <p>7. Master and servant <©=>243 (12) — Nonobservance of mine owner’s rules no defense in view of statute.</p> <p>In view of Ky. St. § 2726, subd. 4, requiring the mine foreman to see that the working is safe, rules casting on employees the duty of examining .tools, equipment, etc., cannot be invoked by the employer to support its contention that it was the duty of deceased, killed by falling slate, to examine carefully “for dangerous top,” where it had notice that the place to which it had sent him not as trackman, or to carry on mining operations therein, but to remove fallen slate, was apparently dangerous.</p>

J. Cochran, Judge. Suit by John W. Lindley and others against Winfield S. Raydure. From a decree denying defendant relief on an amended and supplemental answer and cross-bill, filed after affirmance' of final decree for plaintiffs, defendant appeals.

<p>In Error to the District Court of the United States for the Northern Division of the Western District of Washington; Jeremiah Neterer, Judge.</p> <p>Criminal prosecution by the United States against Ed Hagen, Ed Carey, Walter F. Patton, and Dick Russell. Judgment of conviction, and defendants bring error.</p>

<p>1. Fish <^>8 — Effect of agreement between states for joint regulation of fishing.</p> <p>The legislative agreement between the states of Oregon and Washington that all regulations for preserving and protecting fish in that part of Columbia river over which the states had concurrent jurisdiction should be approved by both states, ratified by Congress April 8, 1918, held not to affect the right of one of the states to prescribe qualifications of those to whom licenses to fish in the river would be granted by that stare, as that a licensee must be a citizen of the United States.</p> <p>2. Constitutional law <®=^70(3) — Court cannot inquire into motives of Legislature.</p> <p>It is not within the province of the judiciary to inquire into the motives of a Legislature in enacting a statute.</p>

Reo Sturtz was convicted of introducing intoxicating liquor from without the state of Oklahoma into that portion of the state, which prior to its admission had been a part of Indian Territory, and he brings error.

<p>Bankruptcy <§=>414 (3) — Evidence held not to warrant refusal of discharge.</p> <p>On evidence that the property, for failure to schedule which bankrupt was denied discharge by the lower court, in fact belonged to the bankrupt’s wife, held, that the bankrupt was entitled to discharge as recommended by the special master.</p>

<p>Patents <5^rii2ii — 1,023,126, for chain-making machine, void.</p> <p>The Coulter patent, No. 1,023,126, for a wire chain machine for automatically forming chain links for electric welding, hold void on the ground that it was issued to Coulter as sole inventor, whereas the machine was the joint conception of Coulter and one Hoff, each of whom contributed elements of the combination embodied therein.</p>

Dickinson, judge. Suit in equity by the Churchward International Steel Company against the Bethlehem Steel Company, with the Carnegie Steel Company, intervening. Decree for complainant, and defendant Bethlehem Steel Company appeals.

<p>1. Patents @=>328 — 86(1,929, for a process of condensing and pulverizing milk, held infringed.</p> <p>The Merrell-Soule patent, No. 860,929, for a process for condensing and pulverizing milk, one step in which is the admission of dry heated air through a slit into the drying chamber, is infringed by a process in which heated atmospheric air is admitted into the chamber through several openings, since it is manifest that such air must be dry to accomplish its purpose, and the difference in arrangement of the openings does not avoid infringement.</p> <p>2. Patents <&=25 — Use held to establish invention, not mere aggregation of process.</p> <p>Where claims for a milk drying and pulverizing process were finally allowed by the Patent Office because the condensing of the liquid before the pulverizing produced substantially different and better product, the fact that other manufacturers, after the expiration of the patent covering the pulverizing process, deemed it necessary to use the condensation before pulverizing, shows that the claim of patentee that he produced an improved result, which was an invention, and not a mere aggregation of former processes, is well founded.</p> <p>3. Patents @=>16 — Possibility' of achieving same result by old methods with greater skill does not disprove invention.</p> <p>That it would be possible to achieve the results obtained by patentee by the use of old processes with greater care and skill than had been for'merly used does not disprove invention, since the elimination of the necessity of great skill may itself show an improvement, evidencing invention.</p> <p>4. Patents 0^328 — 860,929, for process for pulverizing milk, held sufficiently to disclose invention to warrant preliminary injunction.</p> <p>The Merrell-Soule patent, No. 860,929, for an improved process for pulverizing milk and other liquids, held, in view of its general use, sufficiently to disclose invention to warrant a preliminary injunction against infringement.</p>

In Equity. Suit by F. A. Bruckman and others against J. Q. Stephens and others. This is a suit for infringement of letters patent No. 1,071,027, dated August 26, 1913, covering a machine for the manufacture of ice cream cones. The purpose of the machine is to manufacture these articles in a clean, wholesome way, entirely automatically. The batter is introduced into a tank and flows down, and is automatically fed to the baking molds.

<p>1. Statutes <§=^>219 — Treasury rulings that word was omitted by oversight cannot change statute.</p> <p>In construing a revenue statute, the fact that rulings by the Treasury Department indicate that a word was omitted from the statute by oversight is immaterial, since treasury rulings cannot modify or add to the clearly expressed language of Congress.</p> <p>2. Internal revenue —Corporation licensing us© of patents has only “nominal capital,” term “capital” not embracing patent rights.</p> <p>Within Revenue Act Oct. 3, 1917, §§ 201, 209 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 6330%b, 6336%j), “capital,” which is defined as wealth employed in or available for production, including whatever is intended to furnish shelter, tools, and materials and maintenance for the laborers during production, does not include patent rights, so that a corporation which had an authorized capital only sufficient to maintain its organization between the royalty payments, and derived its income, which largely exceeded its total capital, from royalties on its patents, had oidy nominal capital, under section 209. •</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Capital.!</p> <p>3. Internal revenue <@=>7 — Corporation licensing use of patents is in a sense furnishing skill and service.</p> <p>A corporation, which merely licenses others to use patents owned by it, is in a sense furnishing- skill and service represented by the patents to others, so as to come within the spirit of Internal Revenue Act Oct. 3, 1917, § 209 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 6336%j), imposing a _ smaller excess profits tax on trades or businesses having only a nominal capital, which was intended for the protection of those whose income arose chiefly from personal services.</p>

In Bankruptcy. In. the matter of Sol Rosenblum, bankrupt. On order to show cause why the bankrupt should not be punished Cor contempt.

<p>1. Fines <^18 — Under Lever Act not remitted, summarily.</p> <p>Comp. St. § 10130, as to remission of fines on summary investigation before District Judge, does not authorize him to recommend remission of a fine by the Secretary of the Treasury for violation of National Defense Act Aug. 10, 1917 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 3U5%e-3115%kk, 3115%*-3115%r).</p> <p>2. Fines <&wkey;18 — Not remitted summarily by District Court, sitting as Court of Claims.</p> <p>The concurrent jurisdiction with the Court of Claims given by Comp. St. I 991(20), does not authorize tbe District Court to sit as a Court of Claims to remit a fine imposed under National Defense Act Aug. 10, 1917 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§' 3115%e-8115yskk, 3115%i-3115%r), where the claimant has not complied with the formal statutory provisions as to suing in the Court of Claims, but has merely presented a petition asking the court to act summarily.</p>

<p>1. Raiiroads &wkey;5V'2, New, vol. 6 A Key-No. Series — Federal control did not suspend Hours of Service Act.</p> <p>Tbe taking over by tbe government of control of tbe railroads for war purposes, under Act Aug. 29, 1916, § 1 (Comp. St. § 1974a), did not suspend tbe. operation of Hours of Service Act March 4, 1907 (Comp. St. S§ 8677-8680), and officers and agents of a railroad company retained in their positions, by tbe Director General of Railroads, remained subject to its provisions.</p> <p>2. Master and servant <&wkey;17 — Unavoidable accident, within Honrs of Service Act, affirmative defense.</p> <p>In an action against officers or agents of a railroad company to enforce tbe penalty for permitting employees to remain on duty for a longer period than 16 consecutive hours, in violation of Hours of Service Act March 4, 1907, § 2 (Comp. St. § 8678), that tbe case was one of unavoidable accident, within tbe proviso of section 3 (section 8679), is an affirmative defense, which must be specially pleaded and proved.</p> <p>3. Master and servant <&wkey;13 — Unavoidable delay of train no excuse for extension of hours of service.</p> <p>Delay of a train by unavoidable accident is not a license to a carrier for any officer or agent to keep tbe crew of such train on continuous duty over 16 hours, under the proviso in Hours of Service Act March 4, 1907, § 3 (Comp. St § 8679) ; but to excuse such service it must be shown that tbe officer or agent made at least some effort to avoid excess service.</p>

<p>Criminal prosecution by the United States against Andy Puhac. On motion to revise sentence.</p>

Criminal prosecution by the United States against John B. Dodson. An Information was filed against the defendant, alleging that on or about the 2d day of April, 1920. he did “knowingly, willfully, and unlawfully manufacture, prepare for market, and sell for beverage purposes and not for tbe purposes of export certain intoxicating liquors in tlie manner as follows, that is to say: Said.

<p>Criminal prosecution by the United States against Felix Borkowski and John Lucas. On application for return of property seized.</p>

<p>1. Aliens <&wkey;53 — Membership in Communist Party ground for deportation..</p> <p>The manifesto and programme of the Communist Party, for the overthrow of the present system of government by mass strikes and the substitution of .communist rule, even if not directly advocating force and violence, do not exclude the use of such means, so that the holding of the Department of Labor that the party is an organization for the overthrow of the government by force and violence, membership in which is ground for deportation of an alien, will not be set aside on application for habeas corpus.</p> <p>2. Aliens &wkey;>54 — Denial of violent intent by member of Communist Party does not prevent deportation.</p> <p>A denial by a member of the Communist Party of intention to use force or violence for the overthrow of the government does not prevent, deportation of that member, if the programme of the party fairly supports a finding that the party advocated the use of force and violence.</p> <p>3. Aliens <&wkey;53 — Improbability of success of violent organization does not prevent deportation.</p> <p>If the ultimate purpose of an organization is the overthrow of the government by force and violence, its alien members can be deported, though there is no apparent possibility of such overthrow in the immediate future.</p>

Chris Elioff Stafoff, alias Chris Elioff, and another, were indicted for setting up a_ still without registering it, and for making a mash fit for the prodúcton of distilled spirits, and they demur to the indictment.

<p>1. Nuisances <&wkey;l — Common-law definition.</p> <p>. At common law a “nuisance” is a wrong arising from an unreasonable or unlawful use of property, to tbe discomfort, annoyance, inconvenience, or damage of another, and, even if the definition does not always specify the element of continuous or recurrent acts, it includes that element.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Nuisance.]</p> <p>2. Constitutional law «&wkey;253 — Eminent domain <&wkey;2 (1) — Statute cannot declare a nuisance that which is obviously not one, and thus deny due process of law or take property without just compensation.</p> <p>A statute cannot declare a thing a nuisance which is obviously not a nuisance, the abatement of which as a nuisance would violate the constitutional guaranty of due process of law and just compensation for private property taken for public use.</p> <p>3. Constitutional law <©=»81 — Bi”oad police power is modified by rights of individuals.</p> <p>As a general rule, the valid exercise of the police power includes all tilings essential to the conservation of the public safety, public health, and public morals; but that rule is modified, in consideration of the rights of the private individual, to the protection of the public generally, as distinguished from that of a particular class, and to the use of means reasonably necessary to accomplish the purpose, and not unduly oppressive to individuals.</p> <p>4. Intoxicating liquors <&wkey;259 — Volstead Act presumed to use “nuisanecP* in ordinary significance.</p> <p>It must be presumed that Congress, in enacting Volstead Act, § 21, declaring places for sale of intoxicating liquor common nuisances, and section 22, authorizing the abatement of such nuisances, used the word “nuisance” in its usual and ordinary legal significance, having in mind that it could not pass a law which would wipe out the constitutional rights of the citizen in private property.</p> <p>5. Intoxicating liquors <&wkey;28® — Sales must be continuous or recurrent, to make place nuisance under Volstead Act.</p> <p>Under Volstead Act, § 21, declaring a place for the unlawful sale of intoxicating liquor a common nuisance, it must appear that the sales therein were continuous or recurrent, since authorizing abatement for a single sale would be to authorize a suit in equity, where the legal remedy by prosecution for the sale was adequate.</p> <p>6. Intoxicating liquors &wkey;>274 — Bill to abate nuisance should allege facts showing inadequacy of legal remedy.</p> <p>A bill for the abatement as a nuisance of a place wherein intoxicating liquor is kept for unlawful sale, brought under Volstead Act, § 22, should allege facts which show that the legal remedy by prosecution under that act is inadequate to protect the rights of the public; otherwise, the proceeding, in which defendant is not entitled to a trial by jury, either before the injunction is issued or in proceedings to punish for contempt, under Volstead Act, § 22, and Act Oct. 15, 1914, e. 323, § 24 (Oomp. St. § 1245d), might deprive defendant of his right to a trial by jury, guaranteed by Const. Amend. 6.</p> <p>7. Injunction @=>129(1) — Affidavits insufficient to authorize temporary injunction, do not require dismissal of MU.</p> <p>The insufficiency of affidavits to warrant the issuance of a temporary in-junction does not warrant the dismissal of the bill, if its allegations are sufficient to warrant the issuance of an injunction after a final hearing.</p> <p>8. Intoxicating liquors &wkey;>13, 274 — Congress has full police powers under eighteenth Amendment as to intrastate transactions; biU to abate nuisance need not allege sales wore in interstate commerce.</p> <p>Const. Amend. 18, conferred on Congress the full police powers with reference to intoxiedting liquors which it could have exercised theretofore with respect to such liquors in interstate commerce, and which the states could have exercised with respect to liquor within their jurisdiction; so that a bill under Volstead Aet, § 22, to abate a place for the unlawful sale of liquor as a common nuisance, need not allege that the sales therein were in interstate commerce.</p> <p>9. Intoxicating liquors <§^21 — Congress can authorize abatement as nuisance of place for illegal sale.</p> <p>Congress had authority, under Const. Amend. 18, to enact Volstead Act, §§ 21, 22, declaring a place for the unlawful sale of intoxicating liquor a common nuisance, and authorizing its abatement by injunction.</p>

<p>1. Internal revenue <&wkey;38 — Claim for refund! of income tax not necessary before suit, when abatement has been denied.</p> <p>Where a claim for abatement of income tax has been rejected by the Commissioner of Internal Revenue, it is not necessary to file a claim for refund of such part of the tax, paid under protest, before commencing suit for its recovery.</p> <p>2. Internal revenue &wkey;>7 — Profit made, but embezzled, and not received, not taxable as income.</p> <p>Where plaintiff, although engaged in other business, during the tax year speculated in stocks, through which he made a profit, but such profit was embezzled by his broker, and was never received nor recovered by him, held,, that he was not taxable on such sum as a part of his income.</p>

<p>1. Bankruptcy <&wkey;211 — Title to property ordinarily tried by bankruptcy, instead of state, court.</p> <p>Title to property in the possession of and claimed by bankruptcy trustees should ordinarily be determined by the bankruptcy court, and only in exceptional cases will the property be delivered to a state court for such determination.</p> <p>2. Bankruptcy <&wkey;211 — Vacation of referee’s order permitting replevin invalidates previous replevin proceedings.</p> <p>AYhcre a bankruptcy referee’s order permitting replevin proceedings against the trustees is vacated, the rights of the parties are unaffected by the actual replevin of the goods, since the replevin action falls with the order on which it was based.</p>

<p>Habeas Corpus. Petition by Eouis Goldstein.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Kentucky at London; Andrew M. J. Cochran, Judge.</p> <p>Suit in equity by Walton Sudduth against the Storm King Coal Company and others. From a decree dismissing the bill, plaintiff appeals.</p>

<p>1. Criminal law <&wkey;irn — (Judgment sustained by one of two counts sufficient.</p> <p>A judgment of conviction, sustained by the second count, should not be reversed for failure of proof on the iirst count, where the conviction was upon both counts, and the sentence imposed could have been based upon either count.</p> <p>2. Post office <&wkey;48 (4) —-Indictment regarding fraud in using mails sufficient.</p> <p>An indictment that defendants used the mails to defraud by trickery, etc., to the grand jurors unknown, held sufficient against tlie objection that the specific trickery and chicanery to bo employed were not stated, in view of Comp. St. § 1691, and Judicial Code, § 269, as amended by Act Feb. 26, 1919 (Comp. St. Ann. Supp. 1919, § 1249), prohibiting reversal for nonprejudicial error.</p> <p>3. Indictment and information <&wkey;59 — Purpose of indictment stated.</p> <p>The object of an indictment is to fairly inform the accused of the charge against him, so as to enable him to prepare his defense and protect him against further prosecution.</p> <p>4. Post office <&wkey;50 — -Whether one accused cf fraud in us© of mails received a letter a jury question.</p> <p>In a prosecution for using the mails to defraud, evidence that a special delivery letter addressed to defendant was delivered at the hotel at which defendant was stopping, that it was later given to him, and that he accepted and acted upon it, held to make a jury question whether he received the letter in execution of the fraudulent scheme.</p> <p>5. Post office <&wkey;35 — ■Receiving of letter charged to confederates.</p> <p>If several defendants were associated in a scheme to defraud by use of the mails, the act of one in receiving a letter in the course of the scheme was the act of the other defendants also.</p> <p>6. Post office <&wkey;ñ9 — Evidence makes participation in scheme to defraud a jury question.</p> <p>In a prosecution for using the mails to defraud, evidence that the defendant had previously been involved in a similar scheme, and that he had dealings with the other defendants during the course of the present scheme to defraud, etc., held to make his participation a jury question.</p> <p>¶. Post office <5=^35 — Success of sehem© unnecessary to establish guilt.</p> <p>In a prosecution for using the mails to defraud, a conviction may be had, although the scheme was unsuccessful.</p> <p>8. Criminal law <&wkey;312(l) — Evidence regarding similar swindle admissible, to show participation in fraud involved.</p> <p>In a prosecution for using the mails to defraud, evidence that a defendant liad been involved in a similar scheme two years previously is admissible to show bis participation in tbc present swindle, provided the jury was convinced a common plan existed among defendants to perpetrate a swindle, even though the previous fraud did not involve use of the mails.</p> <p>9. Post office <&wkey;49 — Letter and telegrams held admissible.</p> <p>In a prosecution for using the mails to defraud, a special delivery letter and telegrams addressed to defendant held admissible, under conflicting testimony as to when and by whom they were sent.</p>

Sibley, Judge. Suit in equity by Henderson D. Lanham, trustee in bankruptcy of the Armuchee Pants Manufacturing Company, against the State Bank of Rome, Ga., and others. Decree for defendants, and complainant appeals.

<p>1. Admiralty <§=»60 — Libel held to allege assault on steamboat showing admiralty jurisdiction.</p> <p>A libel, alleging that a steamboat plying on the Mississippi river was discharging freight consigned to a certain landing when libelant was assaulted, and that after the assault libelant was compelled to leave the steamboat, held sufficient to aver that the assault was committed while the boat was on the navigable waters of tlie Mississippi river and while libelant was on the boat, so that a court of admiralty had jurisdiction.</p> <p>2. Admiralty <©=>60 — Jurisdictional ■ facts need. noi¡ be alleged with technical accuracy.</p> <p>While the libel must expressly state the facts on which admiralty jurisdiction depends, it is not necessary that those facts should be stated in such clear and positive language as to defy technical or hypercritical attack ;\but it is sufficient if the language conveys the idea to be expressed thereby to men of average intelligence, and especially to those engaged in the particular art, profession, craft, or business.</p> <p>3. Evidence <^>129 (5) — Of subsequent separate assault on shore not admissible.</p> <p>On a libel in admiralty for an assault and battery by the master of the steamboat on a seaman, evidence that some appreciable time after the assault on the boat the master again assaulted the seaman while they were on shore, and inflicted injuries much more serious than those previously inflicted, is inadmissible, as tending to establish a separate assault, over which the court of admiralty had no jurisdiction.</p> <p>4. Admiralty <§=>20 — Action for assault on boat within jurisdiction, though main injuries resulted from subsequent shore assault.</p> <p>Where the master of a steamboat first assaulted a seaman while on the boat, and thereáfter made a second assault after they were on shore, a court of admiralty can award damages which the libelant shows resulted from the first assault, although the principal injuries were sustained in, the second assault.</p>

<p>1. Obstructing justice @=>3 — Unnecessary that person to be arrested be present to make offense of obstructing service.</p> <p>The offense of obstructing an officer in serving or attempting to serve a warrant may be committed at any time while the officer is on Ms way to make the arrest, though the person to be arrested was not then present, and was in fact such distance away that a railroad journey was necessary.</p> <p>2. Obstructing justice @=>15, 16 — Evidence held admissible, but insufficient to show defendant knew officer had warrant to serve.</p> <p>Evidence that accused, at the time of assaulting the United States officer, who was then on his way to serve a warrant for the arrest of a person accused of illegal sale of liquor, exhibited an animosity against all United States officers, and’ stated that a man could not get a drink of whisky for them is admissible to show knowledge of the officer’s mission, but is not alone sufficient to establish knowledge. • ></p> <p>3. Obstructing justice @=>14 — Government has burden of proving knowledge of warrant.</p> <p>To establish the offense of knowingly and willfully obstructing an officer of the United States in serving a warrant for arrest under Criminal Code, § 140 (Comp. St. § 10310), the government has the burden of proving that accused knew that the officer at the time had a legal warrant, and was then on his way to serve it.</p> <p>4. Assault and battery @=>48 — Knowledge of warrant not essential to offense of assaulting officer.</p> <p>It is not essential to a conviction for the offense of assaulting a United States officer who was serving a warrant, that the person committing the assault knew at the time that the officer had a legal warrant, which he was on his way to serve, if accused knew that the person he assaulted ivas an officer.</p> <p>5. Criminal law @=>1117 — Sentence sustainable under either count not reviewed for error as to one count.</p> <p>Where the indictment contained two counts, each charging a separate offense, a conviction and sentence which could be sustained under the second count of the indictment, which was supported by sufficient evidence, will not be reversed because the evidence was insufficient to establish one element of the offense in the first count, provided the sentence is not in excess of the sentence that might properly be imposed on either count in the indictment.</p>

<p>1. Army and navy <S=>20 — President authorized to revoke temporary certificates of exemption.</p> <p>Under Selective Service Act 1917, § 4 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 2044d), authorizing the President to exclude or discharge from the draft persons engaged in essential industries or having depend- ents, and to create local district boards and make rules and regulations governing them, and providing for the issuance of certificates of exemption, the President had authority to revoke, as he did by regulations prior to December 15, 1917, all exemptions and certificates theretofore made, since the act itself gave no absolute industrial or dependency exemption.</p> <p>2. Army and navy @=>29 — Proclamation revoking exemption applies to all not actually drafted.</p> <p>The President’s foreword of November 2, 1917, to the new draft regulations, revoking all exemptions and certificates thereof theretofore issued, was by its terms made applicable to all men subject to draft, except those already inducted into the military service.</p> <p>3. Habeas corpus @=>16 — Person arbitrarily denied deferred classification is entitled to habeas corpus.</p> <p>Where a person was denied exemption -or deferred classification, to which he was entitled under the Selective Service Act and the President’s proclamation, by the district board, unfairly, and by gross abuse of discretion, and without good-faith opportunity for a hearing, be is entitled to relief by habeas corpus, but otherwise he is not.</p> <p>4. Habeas corpus @=>16 — Record held not to show claim of deferred classification so arbitrarily denied as to warrant relief.</p> <p>Where petitioner in his draft questionnaire stated he was engaged in necessary industry, but that he did not claim deferred classification on that ground, and he did not file the two affidavits required to support sucn claim, though there was some evidence that one at least of such affidavits was presented to the district board by his employers after the local board had recommended denial of deferred classification, the denial of such classification by the district board is not so arbitrary or unreasonable, or such an abuse of discretion, as to warrant relief by habeas corpus.</p> <p>5. Army and navy —Industrial exemption must bo claimed in new questionnaire, notwithstanding prior exemption.</p> <p>The right to deferred classification, because engaged in a necessary industry, must be claimed by petitioner in the answers 'to the second questionnaire, after former certificates of exemption have been expressly revoked by proclamation of the President, though petitioner held a certificate of such exemption, revoked by the proclamation.</p> <p>6. Army and navy <§^»44(2) — Person ordered to entrain for military duty is subject to military law.</p> <p>Tinder Selective Service Act, § 2 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 2014b), declaring all persons drafted into the service to bo subject to the laws governing the regular army, and Articles of War, art. 2, making persons lawfully called to duty or for training in the military service subject to military law, a person ordered by the district draft hoard to entrain for an encampment for induction into the military service is subject to military law, and liable to punishment by a military court for desertion.</p> <p>Army and navy @==>44(1) — Pending indictment no bar to trial by military court.</p> <p>Under Selective Service Act May 18, 1917, § 6 (Comp. St. 1918, Comp. St. Ann. Snpp. 1919, § 2044f), making failure or neglect to perforin any duty required by tiiat act a misdemeanor, if the person is not subject to military control, a man who had been ordered to entrain for military service, and thereby became subject to military law, can, notwithstanding his indictment for violation of the Selective Service Act (Comp. St. 1918, Comp. St. Ann. Supp. 3919, § 2044a et seq.), be delivered by the civil authorities to the military court for trial and punishment for desertion.</p>

<p>1. Appeal ami error <S=»8? (6) —Order denying rehearing on claim against insolvent not appealable.</p> <p>The overruling of a motion for rehearing on the claim of á creditor of an insolvent corporation to priority held within the discretion of the court and not reviewable on appeal.</p> <p>2. Appeal and error <@=>80 (3) — Appeal lies only from final decree.</p> <p>A decree directing payment of the proceeds of a mortgage sale and other funds into the registry of the court to await the determination of priorities of claims based on receivers certificates held not a final decree, and not appealable.</p>

Dickinson, Judge. Action at law by Minnie Témplin, administratrix of Burd Templin, deceased, against the Director General of Railraods. Judgment for plaintiff, and defendant brings error.

<p>Appeal from the District Court of the United States for the Eastern District of Missouri; Charles B. Earis, Judge.</p> <p>Suit by Henry Clay Pierce against the National Bank of Commerce in St. Eouis. From a decree of dismissal, and an order denying a temporary injunction, complainant appeals.</p>

Clayton, Judge. Action by Carl E. Spicer, administrator of the estate of Nobie N. Spicer, deceased, against the New York Rife Insurance Company. Judgment for defendant (263 Fed. 764), and plaintiff brings error.

<p>In Error to the District Court of the United States for the District of New Jersey; Charles F. Lynch, Judge.</p> <p>Action by Joseph Trapnell against Walker D. Hines, Director General of Railroads. Judgment of nonsuit, and plaintiff brings error.</p>

<p>Commerce •§^27(5) — Crane for unloading eoa! cars not engaged in "interstate commerce,” raider Employers’ liability Act.</p> <p>A crane used for unloading coal cars, so as to create a coal reserve to be used in both interstate and intrastate commerce in case of a tbreatened strike, was not engaged in “interstate commerce,” and a person killed while on his way to work upon snch crane could not recover under the federal Employers’ liability Act (Comp. St. §§ 8657-8665).</p> <p>[E<1. Note. — For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.]</p>

<p>1. Bankruptcy @=>95 — Scope of issues in involuntary proceedings submitted to jury stated.</p> <p>A trial by jury upon a petition for involuntary bankruptcy is confined to the issues of insolvency and whether acts of bankruptcy were committed.</p> <p>2. Bankruptcy @=>95 — Jury trial in involuntary proceedings governed by common-law principles.</p> <p>A jury trial upon a petition for involuntary bankruptcy is governed by common-law principles, including right of court to direct a verdict.</p> <p>3. Bankruptcy @==>91 (2) —Insolvency held established as matter of law.</p> <p>Evidence regarding an alleged bankrupt’s assets, consisting principally of disputed claims against railroads and others, and liabilities, composed largely of petitioning creditors’ claims for breach of contract to accept corn tendered it, held to establish insolvency as matter of law.</p> <p>4. Bankruptcy @=>467 — Directed verdict on requested peremptory instructions unassailable, if supported by evidence.</p> <p>Where an alleged bankrupt and its petitioning creditors requested peremptory instructions on the issue whether acts of bankruptcy had been committed, a directed verdict on this issue is unassailable, unless there was no sufficient evidence to support it.</p>

<p>In error to the District Court of the United States for the Eastern District of Texas; W. Dee Estes, Judge.</p> <p>Action by the Gateway Produce Company against Farrier Bros. Judgment for defendants, and plaintiff brings error.</p>

Charles G. Sherman was convicted of having unlawfully, received and concealed imported intoxicating liquors, and brings error.

<p>1. Salvage <&wkey;51 — Finding, supported by sufficient oral evidence, will not be disturbed.</p> <p>Where there is sufficient oral evidence to warrant a finding awarding salvage for towing a disabled vessel to port, the finding will not be disturbed by the Circuit Court of Appeals.</p> <p>2. Salvage <&wkey;34 — Salvage award for towing disabled vessel not excessive.</p> <p>That a vessel was unable to move under her own power, that the flooding of her engines and disabled steering apparatus made her handling peculiarly difficult, etc., held, to sustain a salvage award of §10,000 for towing to safety a vessel whose value, including her cargo, exceeded $277,000.</p>

<p>In Error to the District Court of the United States for the Southern District of Georgia; Beverly D. Evans, Judge.</p> <p>Action at law by the Elwood Grain Company against the Whitfield Grocery Company. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Appeal and error <&wkey;9OT(3) — Directed verdict, on motions by both parties, conclusive if supported by any evidence.</p> <p>Where both parties move for a directed verdict, a judgment based thereon will not be disturbed, if there is evidence to support it, and a. conflict in evidence becomes immaterial.</p> <p>2. Adverse possession <&wkey;19 — Fencing for pasture constitutes.</p> <p>The fencing of land for pasturage purposes by a lessee for more than five years constitutes adverse possession under Texas law.</p>

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Suit by the White-Wilson-Drew Company against the Dyon-Rat-cliff Company and others. From a decree of dismissal, plaintiff appeals.</p>

<p>Bail <&wkey;42 — Accused cannot be denied bail, because of previous absconding, after release on bail.</p> <p>The provision of Rev. St. § 1015 (Comp. St. § 1679), that bail shall be admitted upon all arrests, where the offense is not punishable by death, is mandatory, especially in view of the permissive language in section 1019 (section 1680), relating to bail in capital eases, so that the District Court had no discretion to refuse hail to one indicted for using the mails in furtherance of a scheme to defraud, though accused had been twice before arrested, and had absconded after being released on bail; the remedy being to fix an amount of bail sufficient to prevent absconding, by analogy to the authority of section 1019 (section 1683), which provides for increase of bail when proof is made that accused is about to abscond.</p>

Habeas corpus proceeding by Charles H. Rowan against Samuel W. Randolph, United States Marshal for the Eastern District of Wisconsin, to secure the discharge of petitioner from custody on a cash bail. Petition for writ denied, and petitioner appeals.

<p>Post office ^49 — Conviction of using mails to defraud supported by evidence.</p> <p>Evidence that a defendant knew of the preparation by his partner of a false and fraudulent claim for money on behalf of the firm and the mailing of such claim with a letter to the person charged, held to support a conviction for using the mails to defraud, under Criminal Code, § 215 (Comp. St. § 10385).</p>

<p>Petition to Superintend and Revise from the District Court of the United States for the Southern District of Alabama; George W. Jack, Judge.</p> <p>In the matter of Mollie Wallace, bankrupt. Petition by the Burrow, Jones & Dyer Shoe Company to revise an order of the District Court.</p>

Petition to Superintend and Revise an order of the District Court of ■ the United States for the Western District of Texas; Duval West, Judge. In the matter of J. P. Ermis, bankrupt. Petition by S. E. Stratton, trustee, to revise order of District Court.

<p>Appeal and error 0^265(1) — Exceptions necessary to review finding of court.</p> <p>Where an action at law is tried to the court without a jury, pursuant to Rev. St. § 649 (Comp. St. § 1587), a general finding by ihe court is not reviewable, in the absence of exception to a ruling made in the progress of the trial.</p>

<p>Equity <§=>295 — Supplemental petition for damages subsequent to accounting proper.</p> <p>In a suit to establish a trust in land, in which there was an accounting, plaintiff can, after final decree and appeal therefrom, file a supplemental petition for damages for the deprivation of his property which accrued subsequent to the accounting, though he could not file such petition for damages which he could have claimed on the t (.counting,</p>

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Ohio; D. C. Westenhaver, Judge.</p> <p>Suits by the Meurer Steel Barrel Company, Incorporated, against the Cleveland Steel Barrel Company and against the Ohio Corrugating Company, respectively. From the decrees, plaintiff and defendants appeal, and defendants move to dismiss plaintiff's appeals.</p>

<p>1. Patents <©=>167(1) — Claims construed in light of specification.</p> <p>A claim must be construed in the light of the specification.</p> <p>2. Patents <©=>229 — Process patent not infringed, if part of process is omitted*</p> <p>A process patent is not infringed, where any one of the series of acts which constitute the process is omitted, unless some equivalent act is substituted for the one omitted.</p> <p>3. Patents <@=>328 — 1,231,183, for method of malting moccasins, not infringed.</p> <p>The Merrill patent, No. 1,231,183, for method of constructing moccasin shoes, held not infringed.</p>

<p>1. Patents —46,108, for burial casket handle design, not infringed.</p> <p>Design patent No. 46,108, for burial casket handle, held not infringed.</p> <p>2. Patents <©=>252 — Test of similarity of design stated.</p> <p>If, in the eye of an ordinary observer, giving such attention as a purchaser usually gives, two designs are substantially the same, if the resemblance is such as to deceive such an observer, inducing liim to purchase one, supposing it to be the other, the first one patented is infringed by the other.</p>

<p>In Equity. Suit by Beecroft & Blackman, Incorporated, against Laurence J. Rooney, doing business as Laurence J. Rooney Company, and the Long Furniture Company.</p>

<p>In Equity. Suit by Shapiro & Aronson, Incorporated, against the Eranldin Brass Foundry and A. Slotko, doing business as the Famous Chandelier Company.</p>

Action by James Sayre and another, as executors of the last will and testament of Theodore S. Sayre, deceased, against Neal Brewster, as Collector of Internal Revenue for the Twenty-First District of the State of New York, demanding judgment in the sum of $19,657.49, with interest on $17,999.71 of said sum from February 23, 1917, and interest on $5.12 of said sum from April 4, 1917, and interest oh $1,-542.66 of said sum from January 30, 1918. On demurrer to the complaint.

<p>1. Courts <S=>101 — Application for preliminary injunction against Public Service Commission must be heard by three judges.</p> <p>In suit by a railroad against a state Public Service Commission, plaintiff’s application for preliminary injunction restraining tlie commission from enforcing its order requiring plaintiff to file an amended tariff of passenger rates at 2 cents a mile, instead of 3, on the ground that the commission’s order was a denial of the equal protection of the law and a deprivation of property without due process, violating Const. Amend. 14, must be heard by a court composed of three judges, as required by Judicial Code, § 266 (Comp. St. § 1243).</p> <p>2. Railroads <©=>5)4, New, vol. 6A Key-No. Series — Federal control of rates valid.</p> <p>Intrastate passenger rates of 2 cents a mile, authorized by state statutes, were lawfully changed to 3 cents a mile by General Order No. 28, issued May 25, 1918, by the Director General of Railroads, under Federal Control Act March 21, 1918, § 8 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3115%h) ; it being a constitutional exercise of the war power of Congress.</p> <p>3. Railroads <S=>5}£, New,' vol. 6A Key-No. Series — Termination of federal control restored state regulations of rates.</p> <p>The Federal Control Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 3115%a-3115%p) merely suspended existing state laws regulating rates, and upon termination of federal control the state laws continued to control the rates ex proprio vigore, so that where a railroad, before federal- control was required by Laws N. Y. 1853, c. 76, § 7, and Railroad Law N. Y. § 57, to charge not more than 2 cents a mile for way passengers, such rate automatically became effective after September 1, 1920, the limit of time after return of railroads to private ownership, under Federal Transportation Act Feb. 28, 1920, § 208 (a), during which the states could not reduce rates; the state not being required to express its intention to continue its established rates by enacting a new law in the same terms; and, under Public Service Commissions Law N. Y. § 48, an order of the commission requiring the railroad to file with the commission, on or before August 1, 1920, an amended tariff restoring the 2-cent passenger rate, and a suit by the commission against the railroad to enforce the order, were proper.</p> <p>Hough, Circuit Judge, dissenting.</p>

In Admiralty. Suits by the Murray Transportation Company against the steam tug Henry Koerber, Jr., and by William Dolloff and by George Wagner against the steam tug Charlotte. On motion to dismiss monition.

<p>In Equity. Suit by the American Coal Mining Company against the Special Coal and Food Commission of Indiana and others. Application for temporary injunction denied, and bill dismissed without prejudice.</p>

<p>In Equity. Bill by the Vandalia Coal Company and the Vigo Coal Products Company against the Special Coal and Food Commission of Indiana, James P. Goodrich, Otto E. Klauss, and Jesse E. Eschbach.</p>

At Raw. Action by the Federal Sugar Refining Company against the United States Sugar Equalization Board, Incorporated. On demurrer to answer. To the complaint herein the answer has interposed three affirmative defenses, and to each and every one of these defenses plaintiff has demurred.

<p>In Equity. Suit by William A. Tilden and Charles D. Thompson, receivers of the Great Western Cereal Company, against Ohio C. Barber and others.</p>

<p>At Raw. Action by one Nickels against the Pullman Company. On motion to remand to state court.</p>

<p>1. Counterfeiting <§^>2 — Altering nonnegotiable government ■ securities offense.</p> <p>Pen. Code, §§ 148, 151, 154 (Comp. St. §§ 10318, 10321, 10324), making it an offense, with intent to defraud, to alter or counterfeit any security or obligation of the United States, or to pass such forged security, or to buy or sell the same, with intent that it be passed, are applicable alike to negotiable and nonnegotiable securities or obligations.</p> <p>2. Counterfeiting <®=>2, 8 — Alteration of war savings certificates constitutes crime; “obligation of United States.”</p> <p>A war savings certificate, issued pursuant to Act Sept. 24, 1917, § 6 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 6829*), with stamp or stamps affixed thereto, and the name of the owner written thereon, is an obligation of the United States within Penal Code, §§ 148, 151, 154 (Comp. St. §§ 10318, 10321, 10324), and the removal of the stamp therefrom with intent to defraud constitutes an alteration within section 148, and the uttering or passing the stamp so removed with like intent is an offense, under section 151. When such a certificate has been registered, the removal or erasure of the registration number with intent to defraud < constitutes an alteration; but the erasure of the serial number, which is not material to its validity, does not.</p> <p>[iEd. Note. — For other definitions, see Words and Phrases, Second Series, Obligation of United States.)</p> <p>3. Counterfeiting ■®pl6 — Indictment for altering war savings certificates good.</p> <p>An indictment for altering or counterfeiting war savings certificates is not predicated on a violation of the regulations under which such certificates are issued, but solely on the provisions of the Criminal Code.</p> <p>4. Counterfeiting <§^16 — -Indictment for altering government obligation should set out obligation.</p> <p>An indictment for altering or counterfeiting a government obligation, or for passing the same, or having it in possession with intent to defraud, should set out the obligation in htee verba, or’ allege some potent reason why that cannot be done.</p> <p>5. Counterfeiting <§=»16 — Indictment for altering war savings certificate insufficient.</p> <p>An indictment for altering a war savings certificate with intent to defraud, by erasing the registration number, held bad, where it did not show by appropriate allegation that the certificate had been registered.</p>

In Equity. Suit by the Sloan Shipyards Corporation against the United States Shipping Board Emergency Fleet Corporation. On motion by the United States to dismiss bill. This is an action by a corporation of the state of Washington against the United States Shipping Board Emergency Fleet Corporation.

<p>At Law. Action by the Bernheim Distilling Company against T. Scott Mayes, Collector of Internal Revenue, and J. Rogers Gore, Deputy and Acting Collector. Trial to court.</p>

<p>1. Contracts <&wkey;316(4) — ■Principal and surety <&wkey;129(2) — Permitting subcontractor to do work is consent to subcontract.</p> <p>The contractor and, its surety cannot avoid liability to an assignee o£ subcontractor under a provision that the subcontract should not be (sublet without the written consent of the principal contractor, whore that contractor knowingly permitted the doing of the work required by subcontractor by one to whom the subcontractor had sublet the contract.</p> <p>3. Contrasts «Sal'll(I)- — Construed to ascertain intent of parties m situation.</p> <p>In the construction of contracts the court seeks to ascertain the intention of the parties in view of the purpose to be accomplished, the situation of the parties at the timé of its execution, and the subject-matter of the contract.</p> <p>3. United States <&wkey;87 (2) —“Ccnstrurthm” of breakwater held to Include transporting stone to it.</p> <p>Where the specifications and map for a proposed breakwater, with reference to which a contract for its construction was made, showed that the stone for the breakwater must be secured from distant quarries and transported by rail and barge to the site of the breakwater, the term “construction,” as used in the contract, is not confined to the last act of putting the stone in place in the water, but includes the essential steps of getting it to that place, so that services in transporting the stone were protected by the contractor’s bond.</p> <p>[Ild. Note.- — For other definitions, see Words and Phrases, First and Second Series, Construction.]</p> <p>4, United States &wkey;>67(2) — Dredging for transportation of stone held covered by bond for construction of breakwater.</p> <p>Where it was necessary to dredge a harbor to enable barges to reach a pier where they could be loaded with stone for transportation to the site of the breakwater under construction, the work of such dredging was covered by a bond of the contractor given pursuant to Comp. St. § 6923, which required the contractor to pay all persons supplying labor or materials in prosecution of the work.</p> <p>5. United States <&wkey;67 (2) — Bond of contractor for breakwater held to cover-charges for barges for transporting stone.</p> <p>Where it was necessary that stone for the construction of the breakwater covered by the contract be transported in barges from the railroad to the site, and there were no barges of sufficient size available in the vicinity, charges for the rent of barges from a distant city or their transportation to and from the place of work, and for their repairs while engaged in the work, are covered by the contractor’s bond for the payment of those furnishing labor or materials for the prosecution of the work.</p> <p>6. Evidence <&wkey;12 — Court takes judicial notice of size of towns.</p> <p>The court will take notice of the fact that Beaufort and Morehead City, in North Carolina, are small towns at which it would have been impossible to secure the barges necessary to transport stone for the construction of a breakwater near them.</p> <p>7. Assignments f&wkey;48 — Equitable assignment decreed only to eifect intention of parties.</p> <p>While equity will, on sufficient evidence establishing a clear intention of the parties to make an assignment based on valuable consideration, treat the assignment as. made to effectuate the intention of the parties, it will do so only when the evidence of such intention is clear and free from uncertainty.</p> <p>8. Mechanics’ liens <&wkey;315 — Loan to pay laborer does not establish assignment of wage claimed.</p> <p>One who loaned to a subcontractor money with which to pay his workmen, and which was used for that purpose, did not become the assignee of the wage claims paid with that money, so as to be entitled to recover it from the surety of the principal contractor.</p> <p>9. Subrogation <&wkey;26 — Doctrine of "subrogation” is not applicable to volun-téer payments.</p> <p>Equitable subrogation is a legal fiction by which an obligation extinguished by a payment made By a third person is treated as still subsisting for the benefit of the third person, so that by means of it one creditor is substituted to the rights, remedies, and securities of another, but it is not applied in the absence of agreement where the payment is madé by a mere volunteer, who is under no legal obligation to make the payment, and who is not compelled to do so for the preservation of any rights or property of his own.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Subrogation!]</p> <p>10. Subrogation <&wkey;26 — Loan to pay laborer held volunteer payment.</p> <p>One who had rented barges to a subcontractor, the rental for which was secured by the bond of the original contractor, had no-finaneial interest in keeping the subcontractor at work, so that a loan by him to the subcontractor of money to pay wages to prevent the subcontractor from quitting work was a volunteer payment for which he was not entitled to be subrogated to the rights of the workmen paid therewith against the surety of the principal contractor.</p> <p>11. United States <&wkey;67(2) — Contractor completing subcontract not required to pay higher rental for barges.</p> <p>One who had rented barges to a subcontractor for use on the contract, and who recovered from the surety on the principal contractor’s bond for repair charges and transportation to and from the work, cannot recover for the use of the barges by the principal contractor, after the subcontractor had failed, at a rate of compensation greater than that he was entitled to under his agreement with the subcontractor.</p>

P. Mozzone and others were charged with violating the National Prohibition Act, and filed plea in abatement. On demurrer to the plea.

<p>Joseph Freedman and others were prosecuted for receiving stolen property, the subject of interstate commerce. Sur motion for new trial.</p>

In Bankruptcy. In the matter of Joseph L. Rosenberg, individually and trading as the Rose Shop & Capitol Millinery, bankrupt. Ida L. Frese filed objections to tlie bankrupt’s discharge, and the referee recommended that such discharge be denied.

<p>In Equity. Suit for injunction by the Herket & Meisel Trunk Company and others against the United Leatherworkers’ International Union, Local Lodge or, Union, No. 66. On final hearing on the merits.</p>

<p>In Equity. Bill by John Kausch against George H. Moore, Collector of Internal Revenue, First District of Missouri. On motion to dismiss plaintiff’s bill.</p>

<p>In Bankruptcy. In the matter of the estate of William Gunzberger, bankrupt. Petition by tíre J. E. Dayton Company to have a sum of money awarded to them as a secured claim was denied by the referee, and petitioner asks for review.</p> <p>The following is the opinion of Crandall, Referee:</p> <p>Prior to the adjudication in bankruptcy, J. E. Dayton Company entered judgment in the court of common pleas of Lycoming county against William Gunzberger, and issued a test, fi. fa. to Potter county. This judgment was entered upon a judgment note containing a waiver of exemption. Upon this execution a levy was made by the sheriff of Potter county upon the personal property of the bankrupt. Prior to the sale a petition in bankruptcy was filed in the District Court, and a restraining order issued and served upon the sheriff. Afterwards William Gunzberger was declared bankrupt.</p> <p>The bankrupt filed the schedule required by law and the rules of the Supreme Court, and claimed as his exemption, under the Pennsylvania statute, certain specific property (household goods) which he valued at $185. The bankrupt made no other or further claim for exemption. This property claimed as exempt was appraised and set apart by the trustee to the bankrupt. Subsequently, on the petition of J. E. Dayton Company, the restraining order was modified, so as to permit the sale by the sheriff of the said exempt property awarded set aside to the bankrupt.</p> <p>On February 4, 1920, J. E. Dayton Company filed a petition setting forth substantially the foregoing facts, and asked that the sum of $115 be awarded to them as the difference between the $300 exemption and the value of the property as claimed by the bankrupt for his exemption. A rule to show cause was granted upon this petition, returnable at the office of the referee Febra-ary 14, 1920. By consent of counsel this hearing was continued and A. F. Jones, attorney for Leon P. Root, trustee, filed an answer in the nature of a demurrer to the petition of the J. E. Dayton Company.</p> <p>Before filifig this petition, the said J. E. Dayton Company, after the sale of the exempt property, filed an amended claim, which was allowed by the referee so that the claim stood as $300 secured and $598.48 as an unsecured claim. It is upon the $300 secured portion that this company bases its claim for ttie $116 allowance.</p> <p>No claim for exemption was filed by the bankrupt other than that in his original schedule listing household goods to the amount of $185, nor has he made any claim for any proceeds derived from the sale of his property. The assets were entirely personal property and were converted into money by the trustee. The facts in the case are all shown by the records and conceded in the pleadings and arguments.</p> <p>The question submitted to the referee was: Can an execution creditor, with a lien by levy on personal property prior to an adjudication in bankruptcy, claim funds secured by the trustee to the extent of the difference between' the property set aside to the bankrupt, and his Pennsylvania $300 exemption, when the bankrupt has not made any further claim for- exemption?</p> <p>[1, 2] There is no douht that, under the Bankruptcy Aet (Comp. St. §§ 9585-9656), the practice and exemption rights are governed by the Pennsylvania law. Under this law it is thoroughly settled that a person can waive his exemption in favor of his creditors, for the reason that it is recognized as a personal privilege. Appeal of the Overseers of the Poor of White Deer Township, 95 Pa. 191; Kyle and Dunlap’s Appeal, 45 Pa. 353. In this case Mr. Justice Woodward uses this language on page 360: “A debtor is offered an exemption of $300 by the aet of 1849, if he claims it in due time. But because it is a personal right he may waive it. Ho is not compelled to accept the bounty of the statute. He is not permitted to assign it, but it is impossible to say that he may not release it, and that at any time before the money is actually in Ms pocket. Heller’s conduct was capricious and unreasonable, beyond doubt, but the positive release of a personal right, even by a capricious and unreasonable man cannot be judicially set aside. And where a debtor Jails to claim his exemption, or having claimed it afterwards releases it, lie stands as if there wore no exemption statute. As to him it is a dead letter.”</p> <p>In Be Pfeiffer (D. C. Pa.) 19 Am. Bankr. Rep. -230, 155 Fed. 892, Swing, District Judge of the Western District, said; “Under the Bankruptcy Act claims for exemption are to bo allowed and administered under the state laws and in accordance with the decisions of the Supreme Courts of the respective states. Under the decision of the Supreme Court of this state in the case of Hammer v. Freese, ID Pa. 255, the claim for exemption in this case could not be allowed as made in the bankrupt’s schedules. The act of 1849 (P. U. 533) provides chat ‘property to the value of $300 shall be exempt,’ etc., and does not permit, under the decision aforesaid, the claimant for the exemption to take the proceeds of property to be subsequently sold. A debtor may waive Ms right to the exemption (Case v. Dunmore, 23 Pa. 93), but may not assign it (Bowyer’s Appeal, 21 Pa. 210; Bogart v. Batterton, 6 Pa. Super. Ct. 408), and lie may withdraw his claim (Appeal of Overseers of the Poor, etc., 95 Pa. 391; Kyle & Dunlap’s Appeal. 45 Pa. 353).”</p> <p>[3J It was also held in the Pfeiffer Case, last cited, that the claim under the Pennsylvania statute must be taken in property and cannot be claimed out of the proceeds of property subsequently sold. In the Freese Case, 19 Pa. 25T, this language is used; “The act speaks of property, not money. It requires him to elect the goods he wishes to retain, and have them appraised ; and property thus chosen and appraised shall be exempt from levy and sale. * * * There are sound reasons why he should take the goods or take nothing.”</p> <p>To the same effect, in Bonsall et al. v. Ootniy, 4.4 Pa. 442, Justice Thompson on page 4ÍG says: “The right of exemption is a personal privilege, and not an incident of property. If this were not so, the debtor might follow the proceeds of the property after the sale. This we know ho cannot do, as it is property, in case of a levy on goods or chattels, and not money which he is entitled to claim. Hammer v. Freese, 7 Harris, 255.”</p> <p>To the same effect are the Pennsylvania bankruptcy cases of In re Staunton, 9 Am. Bankr. Rep. 79, 137 Fed. 507, In re Haskin (D. C.) 6 Am. Bankr. Rep. 485, 109 Fed. 789, In re Manning (D. C.) 7 Am. Bankr. Rep. 571, 112 Fed. 048, and In re Yon Kerin (D. C.) 14 Am. Bankr. Rep. 403, 135 Fed. 447. These are all Pennsylvania bankruptcy eases and Judge Holland states in the latter case: “Where * * * the bankrupt flies no schedule or makes no request upon the trustee to set aside specific articles of exemption until after the sale, he must be regarded as having waived, his right of exemption, and he cannot claim $300 out of'the proceeds of sale.”</p> <p>[4] The referee has been shown no authority which will give any execution creditor rights superior to those of the bankrupt, and the conclusion is reached that an execution creditor cannot follow the proceeds from the sale of personal property after they are cash in the trustee’s hands. The copy of the judgment entered by the J. E. Dayton Company against the bankrupt, on which the execution was issued, shows the date of entry to be March 22, 1919, on which date the test. fi. fa. was issued. The adjudication in this case was on April 5, 1919. The lien obtained by the sheriff accordingly was not four months old, and would be rendered void under the Bankruptcy Act as to all personal property except the exempt property of the bankrupt.</p> <p>The bankruptcy court has no jurisdiction over the exempted property, except to make the appraisal and set it aside to the bankrupt. The right of creditors as to the exempted property must be determined by the stare courts. 7 Corpus Juris, 363, § 613, citing Lockwood v. Exchange Bank, 190 TJ. S. 294, 23 Sup. Ct. 751, 47 L. Ed. 1081, 10 Am. Bankr. Rep, 107, and other cases.</p> <p>[5] By claiming no other exemptions than the listed articles, this act of bankruptcy constituted a waiver in favor of the general creditors of all claims to exemption upon any other property than that specified. Where a bankrupt fails to make claim for his exemption in the manner and within the time provided by the Bankruptcy Act and General Orders in Bankruptcy, the right of exemption is waived. In re Exum (D. C. Ala.) 31 Am. Bankr. Rep. 691, 209 Eed. 716; In re Gerber, 26 Am. Bankr. Rep. 608, 186 Eed. 693, 108 C. C. A. 511. In Re Wunder (D. C.) 13 Am. Bankr. Rep. 701, 133 Fed. 821, it is held that, where an involuntary bankrupt neglects to file his claim for exemption within the time specified by section 7, clause 8, of the Bankruptcy Act, or before a sale of his assets as required by the state law, his rights thereto are waived.</p> <p>[6] Furthermore, the position contended for by the petitioners in these proceedings will operate as if an assignment of the exemption right had been made to this company. The authorities above quoted show this to be clearly contrary to the Pennsylvania law. If the petitioner’s contention is maintained, it will give it a preference over other creditors upon the property and proceeds clearly and distinctly within the jurisdiction of the bankruptcy court to administer.</p> <p>Counsel for the petitioning company cites In re Goldberg (D. C.) 254 Fed. 440, 42 Am. Bankr. Rep. 299. A careful reading of the opinion in this case fails to disclose sufficiently the facts to ascertain whether it will rule the case at bar. From the conclusion reached by Judge Thompson we prefer to think that the facts distinguish that case from the case at bar. We are forced to this conclusion in deference to the opinion of Judge Thompson, rather than think he stated the rule of law to be applied in this case contrary to the Pennsylvania rules so well established by numerous cases.</p> <p>The learned court did not discuss these principles in their application to the Goldberg Case, nor give any logical reasoning to distinguish the application of these principles, even if the facts in the Goldberg Case are similar to those before us. For the reasons above stated, the claim of J. E. Dayton Company for $115 must be denied.</p> <p>And now, April 30, 1920, it is ordered that the claim of J. E. Dayton Company for an allowance of $115 out of funds in the trustee’s hands be denied, and that an order of distribution be made, allowing said company to participate in the funds for distribution only to the extent of its unsecured claim pro rata with other -unsecured creditors.</p>

<p>At I,aw. Action by James M. Anders against the Security Mutual Rife Insurance Company of Binghamton, N. Y. On rule by plaintiff.</p>

<p>At Law. Suit to recover penalties by the United States against the Cornwall & Lebanon Railroad Company.</p>

<p>In the matter of the petition of Bhagat Singh Thind for admission to citizenship.</p>

Anthony Shumpka was indicted in a state court for violating the state Liquor Tax Law, and applies for removal of the proceedings to the United States District Court.

In Equity. Suit by the American National Bank of Macon against the Commercial National Bank of Macon and others. On motion for apportionment of costs. Costs apportioned in accordance with the opinion.

<p>1. Bankruptcy &wkey;>409(2) — Destruction of records without intent to conceal does not prevent discharge.</p> <p>Proof that the bankrupt destroyed his canceled checks and stubs in cleaning out his safe, after turning his business over to his principal creditor, but that thereafter he and his attorney stood ready to produce all books desired by the trustee, does not show an intent to conceal his financial condition, which intent is necessary to prevent his discharge for the destruction of the cheeks. 0</p> <p>2. Bankruptcy <&wkey;408(3) — Use of money for individual purposes is not concealment.</p> <p>The use by the' bankrupt of money taken from the business for his personal expenses, and for the discharge of individual debts, is not a concealment of his assets with intent to hinder or delay creditors, which prevents his discharge.</p> <p>3. Bankruptcy <&wkey;409(2) — Change of books, not made to conceal situation, does not prevent discharge.</p> <p>Proof that two entries in one of the bankrupt’s books had been changed by some one, without proof that it was done by the bankrupt, and where the change was obvious, and the true situation was apparent from^ other books, does not establish a falsification of the books with intent to conceal his financial condition, and does not prevent discharge in bankruptcy.</p>

<p>At Law. Action by Thomas H. Gaither, Jr., against Joshua W. Miles, Collector of Internal Revenue.</p>

<p>Libel for Forfeiture. Information by the United States against the Goodhope, a gasoline launch, her engines, etc. On exceptions to the sufficiency of the libel.</p>

<p>Post office &wkey;>48 (1) —Indictment for libelous matter on envelope need not allege character of contents.</p> <p>Under Criminal Code, § 212 (Comp. St. § 10382), making it an offense to mail “matter otherwise mailable by law, upon the envelope or * * * wrapper of which, or any postal card upon which,” is any language of a libelous or defamatory character, the contents of such an envelope is immaterial, and an indictment thereunder held not insufficient because it did not allege that the envelope contained “mailable matter.”</p>

Criminal prosecution by the United States against the Philadelphia & Reading Railway Company. On rule to require clerk to file praecipe without payment of fee.

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Action by Plummer Barner against Joseph W. Collins to recover damages for personal injuries. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Jiraame persons <&wkey;33(i)~Appointment o? committee without hearing relatives voMaM® only.</p> <p>Under Code oC Law 1901, § 115b, giving the court authority to direct the affairs of insane persons and to appoint & committee for such persons after hearing the nearest relatives, 1he hearing of the relatives is not essential i:o the court’s jurisdiction, so that an appointment of a committee without such hearing is an irregularity, and is voidable only, not void, and can be confirmed by the court after hearing a relative.</p> <p>3. Insi'jE© parsons <&wkey;34 — (ffouri lias discretion i© name committco, re-viewable only for abuso.</p> <p>Under Code of Law 1901, § 115b, no one has the right to be appointed committee of an insane person; but the court can name such person as it may think proper, and its action is subject to review only where its discretion has been abused.</p> <p>3. Insane persons <&wkey;84 — Appointment as committee of trustee under nwtsier's will Md not abuse of discretion.</p> <p>It was not an abuse of discretion for the court to appoint as committee of an insane person the executor and trustee designated by the mother of the insane person, since the court lias jurisdiction to supervise the Acts of-the trustee and the committee, and there is no necessity that the duties be performed by separate persons.</p>

<p>JLantJIot'd and tenant <&wkey;94 (4) —lidivcry of notice to quit to tenant’s wife, #o delivered to tenant at request!;, sistiffieient personal service.</p> <p>Where a landlord delivered a notice to quit to the tenant’s wife, with request that she deliver it to the tenant, which she agreed to do and did do, there was sufficient service to comply with Code of Law 1901, § 1223, which requires personal service, but does not specify by whom tiie service shall be made, since the notice was personally served on the tenant by iiis wife.</p>

<p>Petition to Set Aside Order of the Federal Trade Commission.</p> <p>Original petition by the National Harness Manufacturers’ Association against the Federal Trade Commission and others, to review an order of the Commission requiring petitioner and its co-respondents to cease certain alleged unfair methods of competition in interstate commerce.</p>

<p>1. Bills and notes '2^161 — Provisions of mortgage do not affect negotiability of note.</p> <p>Provisions in a mortgage securing a note against waste, and requiring the mortgagor to pay taxes and maintain insurance, relate to the security only, and do not affect the negotiability of the note.</p> <p>2. Bills and notes —Bad faith only will defeat title of purchaser of negotiable note.</p> <p>The title of a purchaser of negotiable paper in due course before maturity is not defeated by his suspicion of a defect of title, or knowledge of circumstances which would excite the suspicion of a prudent man, or . gross negligence; but that result can be produced only by bad faith on his part. //</p> <p>3. Evidence @=>182 — Existence of writing must be proved before secondary evidence of contents admissible.</p> <p>The existence of a paper must be established before its contents may be proved by secondary evidence.</p> <p>4. Mortgages <§=»249(3) — Bona fide purchaser takes free from mortgage appearing satisfied of record.</p> <p>A bona fide purchaser of land held to take it free from the lien of a mortgage which had been satisfied of record by the mortgagee, although he had previously transferred the mortgage by an assignment not recorded.</p>

<p>In Error to the District Court of the United States for'the Western District of Texas; William R. Smith, Judge.</p> <p>Criminal prosecution by the United States against John Gilmore. Judgment of conviction, and defendant brings error.</p>

Suit by the Fortuna Estates against Rafaela Castillo Veitia and others, in which Russell & Co. were substituted as plaintiffs, and in which the People of Porto Rico intervened. Decree for the plaintiffs,- and the- intervener appeals.

<p>In Error to the District Court of the United States for the Eastern District of Texas; Duval West, Judge.</p> <p>Actions at law by Angeline Louise Bailey Dolbear and others against the Gulf Production Company and others and by Caro Minor Penn and others against the Phoenix Development Company and others. Judgments for defendants, and plaintiffs bring error.</p>

Sawtell, Judge. Action by Ignacio S. Espinoza, as administrator of the estate of Jose Maria Ochoa, deceased, against the New Cornelia Copper Company. Judgment for plaintiff, and defendant brings error.

<p>1. Public lands <S=»92 — <Grant of right of way to Central Pacific Railroad Company in prees-enil.</p> <p>Act July 1, 1862, held to have granted to the Central Pacific Railroad Company of California ill prmsenti right of way for its road through the territory of Nevada over all land which was then public land of the United States the title of the company to which attached on the definite location of its route as of the date of the act, and any rights acquired by others to the lands under the land laws subsequent to that, date held subject to such grant.</p> <p>2. Public lands <S=>92 — Grant of right of way to Central Pacific Railroad Company unconditional.</p> <p>In Act July 1, 1862, granting to the Union Pacific Railroad Company and the Central Pacific Railroad Company of California right of way through the public lands and also subsidy lands, the conditions attached to the subsidy grant that the lands shall be free from homestead or other claims at the date of definite location are not contained in the grant of right of way, and do not apply thereto, but such grant applies to all lands the title to which was then in the United States and which were then subject to disposition by Congress.</p> <p>3. Public lands @=>92 — Congress may grant right of way over, irrespective of state action.</p> <p>It is within the jurisdiction of Congress to grant to a railroad company right of way through public lands of the United States in a state or territory, and the exercise of such power is' not dependent on legislative action by state in which the company is incorporated or by the state or territory in which the land lies.</p> <p>4. Public lands @=>31 — Settler on unsurveyed land acquires no vested right against the government.</p> <p>A settler upon unsurveyed public land acquires no vested right until survey and entry which will prevent the government from otherwise disposing of the land.</p> <p>5. Public lands <§=>92 — Unsurveyed land is “public land,” although occupied by settler.</p> <p>A tract of land within the unsurveyed lands of the United States in the territory of Nevada held “public land,” within the meaning of Act July 1, 1862, § 2, granting right of way through the public lands to the Central Pacific Kailroad Company of California, although a part of such tract was then occupied by a settler, who afterward filed a preemption claim thereon.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Public Land.]</p> <p>6. Public lands @=>34 — Statutory conditions to pre-emption right of settler.</p> <p>Under Act June 2, 1862, a settler on unsurveyed public land acquired no pre-emption right, unless he complied with the requirement of the act by filing notice of the specific tract claimed within six months after the survey in the field.</p> <p>7. Public lands <§=>92 — Patent to pre-emption subject to railroad right of way.</p> <p>A patent for a pre-emption, following proceedings in the Land Office, in which the claim was filed subsequent to the grant of a right of way to a railroad company, held to convey title subject to such right of way.</p>

<p>Appeal from the District Court of the United States for the District of Oregon; Robert S. Bean, Judge.</p> <p>Suit in equity by the Western Union Life Insurance Company against A. C. Barber, State Insurance Commissioner of Oregon. Decree for defendant, and complainant appeals.</p>

<p>In Error to the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge.</p> <p>Action by Mabel Bennett, administratrix of Frank Bennett, deceased, against the Director General of Railroads. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the Eastern District of Pennsylvania; J. Whitaker Thompson, Judge.</p> <p>Action at law by Harvey K. Keyser against Walker D. Hines, Agent. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the District of Wyoming; John A. Riner, Judge.</p> <p>Action by Albert W. Hausheer against John Snyder and another. Judgment against the named defendant, and he brings error.</p>

<p>1. Banks and banking <&wkey;261(4) — In action for deceit against national bank, ultra vires no defense.</p> <p>A national bank held liable for deceit, where its president, who transacted its business, purporting to act for the bank, sold to paintiff a note and real estate mortgage, and received payment by drafts payable to liim as president, when in fact the bank did not own the note and mortgage, and did not deliver them, although it did not recfeive the purchase money, and although plaintiff knew it had no authority to make such loans, either for itself or as broker, where he had previously during several years purchased such loans from it, through its president, in the same manner.</p> <p>2. Banks and banking <&wkey;261(4) — In action for deceit against national bank, ultra vires no defense.</p> <p>In such case, the action is not one to enforce an ultra vires contract, hut in tort, and plaintiff’s right arises out of the fact that the hank held itself out as having such loans for sale, and as negotiating them through its president, and is therefore liable for his acts and statements in such negotiations.</p> <p>3. Estoppel <&wkey;90(2) — Acts not prejudicial do not raise equitable estoppel.</p> <p>Where a national bank sold a note and mortgage, which it did not own and could not deliver, subsequent negotiations between the purchaser, the president of the bank, and the actual owner of the note and mortgage, by which the purchaser obtained the same, thereby reducing liis loss, and consequently the liability of the bank, held not to estop him from maintaining an action against the bank for the deceit.</p>

of Georgia; Beverly D. Evans, Judge. Suit by Laura E. Clark and Anna E. Holliday against D. Stewart Dodge and others, as executors of Norman W. Dodge, deceased, and others. Decree for complainants, and defendants appeal.

! In Error to the District Court of the United States for the Eastern Division of the Northern District of Illinois. Action by Otto Bollman against the Hamilton Investment Company and another. Judgment for plaintiff, and defendants bring error.

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Bill in equity by Edwin B. Buell, trustee in bankruptcy of the estate of Sam Schissel, bankrupt, against Louis Benjamin, to require repayment of alleged preferences. Decree for complainant, and defendant appeals.</p>

William D. Haywood and others were convicted and sentenced on each of four counts of an indictment for conspiracy to violate or obstruct the execution of sundry laws of the United States, and they bring error.

<p>In Error to tbe District Court of tbe United States, for tbe Eastern Division of tbe Northern District of Illinois.</p> <p>Vincent St. John was convicted on an indictment containing four counts charging conspiracy, and he brings error.</p>

Habeas corpus by George F. Rowe against John M. Boyle, United States Marshal. From an order discharging the writ, petitioner appeals. Rowe appeals from an order discharging a writ of habeas corpus and directing his removal to the jurisdiction of New York for trial.

<p>1. Post office 0^48(4) — Indictment for using mails to defraud sufficient.</p> <p>Indictment for using the mails to defraud field sufficient, when it charged that defendants devised a scheme to sell stock of a copper company by means of representations known to be false, and that they used the mails in distributing letters and circulars containing such representa”Jons.</p> <p>2. Conspiracy <®=>43 (0) — Indictment for conspiring to use mails to defraud sufficient.</p> <p>An indictment under Penal Code, § 37 (Comp St. § 10201), for conspiring to use the mails to defraud, charging that defendants devised a scheme to sell stock of a copper company, that false representations were made, that they used the mails in distributing letters and circulars containing such representations, that they contracted with a stock brokerage firm for sale of such stock, and that a certain defendant had paid another defendant money for securing his aid, is sufficient.</p>

<p>Appeal from the District Court of the United States for the Southern District of Alabama; Robert T. Ervin, Judge.</p> <p>Suit in admiralty by the Mobile & Gulf Navigation Company against the Sugar Products Company. Decree for libelant, and respondent appeals.</p>

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>In the matter of the Fred D. Jones Company, bankrupt; the Central Trust Company of Illinois, trustee. From a decree approving a finding of the master that he had received an illegal preference, Julius N. Heldmau appeals.</p>

<p>In Error to the District Court o£ the United States for the Western District of Oklahoma; John H. Cotteral, Judge.</p> <p>Action at law by the United States against L. L. Baldridge. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Waters and water courses (3)— Contract to convey “water rigMs” mot breached; “right.”</p> <p>A contract to convoy certain lands, together with all water rights used and enjoyed therewith, was satisfied by an instrument conveying the land, together with all water rights and appurtenances thereunto belonging, although the vendor had sometimes used more water than he was entitled to, since the term “water right” means legal right to use water from irrigation stream, and a "‘right” is an interest that a person actually lias in property.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, .Eight; Water Eight.]</p> <p>%. Appeal and error “florid) — -Conflicting evidence sustains trial court’s finding.</p> <p>Where the evidence conflicted as to whether the vendor made false representations regarding the water rights appurtenant to the land involved, the trial court’s finding will prevail.</p>

McCall, Judge. A. B. Ramsey was convicted of selling distilled spirits for beverage purposes, in violation of the War-Time Prohibition Act, and he brings error.

<p>Corporations (1) —Stockholder cannot bo transmuted into creditor by executory contract for sale of stock to corporation,</p> <p>A stoeliliolcler of a corporation cannot, through an executory contract for the sale of his stock to the corporation, cease to be a stockholder a,nd become a creditor, with the right to share in competition with other creditors in the assets of the corporation, when insolvent.</p>

<p>In Error to the District Court of the United States for the Northern District of Texas; James Clifton Wilson, Judge.</p> <p>Action at law by R. R. Hazlewood against the Empire Gas & Fuel Company. Judgment for defendant, and plaintiff brings error.</p>

<p>In Error to the District Court of the United States for the San Antonio Division of the Western District of Texas; Duval West, Judge.</p> <p>Criminal prosecution bv the United States against Guadalupe O. Saucedo. Judgment of conviction, and defendant brings error.</p>

<p>1. Patents <§=328 — 934,568, for suspending device for trolley wires, held valid, bat not infringed.</p> <p>McCallum patent, No. 934,562, for suspending device for trolley wires, held valid, although first two claims thereof held too broad; also held not infringed.</p> <p>2. Patents <®=165 — InterationaS limitation binding, though voluntary.</p> <p>An express, intentional limitation of claims is binding on the patentee, although entirely voluntary.</p> <p>3. Patents <§=»23? — Different and poorer way of obtaining same result not mechanical equivalency.</p> <p>In patent infringement suit, held, there was no mechanical equivalency, where defendant’s device, although effecting substantially the same result as complainant’s, effected it in a different way, and probably not as well.</p>

<p>In Equity. Suit by the Thomson Spot Welder Company against the Ford Motor Company.</p>

In Equity. Suit by the Minerals Separation, Limited, against the Miami Copper Company. On motion of defendant to dismiss petition for contempt, and motion by complainant for leave to file supplemental bill.

<p>1. Criminal law &wkey;>201 — Intoxicating liquors <&wkey;X3 — Conviction under state law bar to prosecution under National Prohibition Act.</p> <p>Section 2, of the Eighteenth Amendment to the Constipation, providing that “the Congress and the several states shall have concurrent power to enforce this article by appropriate legislation,” does not confer power on state courts to enforce a congressional act, but on the Legislature of a state to enact legislation, not inconsistent with congressional legislation, for enforcement of the amendment; and a defendant who has been convicted in a state court for violation of such a state statute, whether enacted before or since the amendment, cannot be again prosecuted jn a federal court on the same facts for violation of the National Prohibition Act.</p> <p>2. Criminal law <©=>291 — Conviction under municipal ordinance not bar to prosecution under National Prohibition Act.</p> <p>A conviction for violation of a municipal ordinance is not a bar to a prosecution in a federal court for violation of the National Prohibition Act, based on the same facts.</p>

Forfeiture under Food and Drugs Act. Fibel by the United States for the seizure and condemnation of two cans of oil of sweet birch and three cans of oil of gaultheria; T. J. Ray, claimant. On claimant’s motion for release of the product under bond.

In Bankruptcy. In the matter of the John H. Parker Company, bankrupt. Petition by the United Cork Flooring Company to reclaim personal property in receiver’s possession. On receiver’s exceptions to special master’s report.

<p>1. Seamen <&wkey;7 — Port of discharge north of Cape Hatteras is Atlantic port.</p> <p>Under shipping articles for a voyage from New York “to a final port of discharge in the United States north of Cape Hatteras,” held, that such port was one on the Atlantic coast.</p> <p>2. Seamen <&wkey;13 — Entitled to transportation to port of discharge.</p> <p>Where seamen signed for a voyage from New York to “one or more ports in South America * * * and such other ports or places in any parts of the world as the master may direct and back to a final port of discharge in the United States north of Cape Hatteras,” and the ship fully discharged her cargo and reloaded at Tacoma and Seattle, and on refusal of the seamen to sign for a new voyage to Cuba discharged them, held, that they were entitled to transportation to New York.</p>

<p>1. Bankruptcy &wkey;>407(5)- — Obtaining oí credit on fats© statements ground for denying discharge, though debt would not fee released.</p> <p>Bankruptcy Act, § 14b (Comp. St. § 9598), specifying the obtaining of credit on a false statement, in writing made for that purpose as ground for denial of a discharge, and section 17 (section 9001), providing that liabilities for obtaining property by false pretenses are not released by a discharge, are not mutually exclusive, or even in pari materia, and such obtaining of credit is ground for denying discharge, though the debt so contracted would not be released by the discharge.</p> <p>2. Bankruptcy <&wkey;407 (5) —Obtaining credit on false statements is ground for denial ©f discharge to any bankrupt.</p> <p>Bankruptcy Act, § 14b (Comp. St. § 9598), providing for denial of a discharge to one obtaining credit on a false statement in writing made for that purpose, is not limited to merchants, but applies to all who ask a discharge in bankruptcy.</p> <p>3. Bankruptcy &wkey;4OT (5) —Obtaining credit by any material false statement of fact in writing is ground for denial of discharge.</p> <p>Bankruptcy Act, § 14b (Comp. St. § 9598), relative to tbe obtaining of credit on false statements in writing, is not confined to statements of general financial, condition, but covers any material statement of fact made in writing to tbe creditor to induce tbe credit.</p>

Leonard H. Fortman was indicted for violating the revenue laws relating to intoxicating liquors, and moves to quash the indictment.

<p>In Equity. Suit by T. C. Hurst '& Son against the Federal Trade Commission and its members and counsel. On motion for preliminary injunction.</p>

<p>In Equity. Suit by the Southwestern Telegraph & Telephone Company against the City of Houston.</p>

<p>1. Injnnd'ion G=>56 — -To prevent wrawvM use of disclosure of trade secret.</p> <p>Where complainant, who had devised a process or formula for making a furniture polish, which he held as a trade secret, disclosed such formula 1o defendant under a contract by which defendant was to manufacture the polish and in reliance on its agreement not to divulge the formula, nor make use of it, except for purposes of the contract, but defendant continued to use it, and to make and sell the polish after the contract had been terminated, complainant held entitled to an injunction.</p> <p>2. Trade-marks and ím&e-names Representing defendant’s product as eoMp'aimant’s, unfair competition.</p> <p>A. defendant, which not only wrongfully used a secret formula of complainant in making a furniture polish, but sold the product under its own label, representing it, however, as the same as that made by complainant, held chargeable with unfair competition.</p>

<p>George E. Mulligan was indicted for violating the Rever Act. On demurrer to the indictment.</p>

<p>1. Bankruptcy <S==54 — “Fair valuation” of property, as respects insolvency, defined. . .</p> <p>Within Bankruptcy Act, § 1, cl. 15 (Comp. St. § 9585), providing that a person shall be deemed insolvent when his property shall not at a fair valuation be sufficient to pay his debts, “fair valuation” means the fair market value, or value which the bankrupt might realize for itself, or the value that can be made promptly effective by the owner of the property for payment of debts.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Fair Value.)</p> <p>2. Bankruptcy <§^>60 — Appointment of receiver because of insolvency need not contesnplate statutory definition of insolvency.</p> <p>Under Bankruptcy Act, § 3a, cl. 4 (Comp. St. § 9587), specifying the appointment of a receiver because of insolvency as an act of bankruptcy, insolvency, as defined in section 1, cl. 15 (section 9585), need not be the ground of the appointment.</p> <p>3. Bankruptcy —Bankrupt must be insolvent at filing of petition and appointment of receiver.</p> <p>When the appointment of a receiver because of insolvency is the act of bankruptcy relied on, the bankrupt must be actually insolvent within the meaning of the Bankruptcy Act (Comp. St. §§ 9585-9056), both at the time of such appointment and at the time of filing the involuntary petition.</p> <p>4. Bankruptcy <S=6() — Appointment of receiver because of common-law insolvency is act of bankruptcy.</p> <p>Where the required degree of insolvency exists and is the proximate cause of a receivership, the appointment is because of insolvency, within Bankruptcy Act, § 3a, cl. 4 (Comp. St. § 9587), though the petition for a receivership alleges only common-law insolvency.</p> <p>5. Bankruptcy —Appointment of receiver Is act of bankruptcy, though petition for appointment was insufficient.</p> <p>Where a receiver was appointed because of insolvency, and the property was placed in his charge, the act of bankruptcy was complete, though the petition did not give the court jurisdiction to make the appointment, or though it was improvidently made.</p> <p>6. Bankraptcy <S=GÍÍ — Kcceiver held appoiiiled because of Insolvency.</p> <p>A receiver appointed by a state court for a corporation on a petition alleging that its assets were depreciating, that it was without funds to meet its obligations, etc., and asking the appointment of a receiver to manage the corporation, marshal its assets, etc., held appointed because of insolvency within Bankruptcy Act, § 3a, cl. 4 (Comp. St. § 9587).</p>

In Bankruptcy. In the matter of the estate of H. A. Hansen, bankrupt. A petition by the trustee for sale of the property free and clear of the chattel mortgage claimed by Celestine Dack was granted by the referee, and the claimant asks a review of the order.

<p>In Admiralty. Suit by Thomas Wilson Sons & Co. against the steamship Verdi.</p> <p>This suit was brought to recover damages for a collision off the quarantine anchorage, Staten Island, New York, on September 21,1915, between claimant’s steamship Verdi and libelant’s steamship Barrano. The vessels were each British-owned. The temporary, repairs and expenses in New York were $1,509. The permanent repairs and expenses were incurred in England, and were paid for there on or about January 1, 1916, in British currency, amounting to £1,791.2.6. The demurrage in New York and England occasioned by the collision amounted to £6,478.0.9. The commissioner converted these sums into American dollars at §4.74 per pound sterling, the rate of exchange on January 1, 1916, the date upon which it is apparently assumed by the parties that all the damages were ascertainable. The correctness of his decision is challenged here by exceptions to his report.</p>

<p>Payment <&wkey;12 (5) — Libelant’s advances to vessel payable at prevailing rate of exchange.</p> <p>Libelant made advances in France in francs to the master of respondent’s vessel, and brought suit to recover for such advances in the United States. Held that, the amount being payable in France, in French money, libelant was entitled to a decree for such sum in dollars as would purchase the requisite number of francs at the rate of exchange prevailing at the date of the decree.</p>

<p>Habeas Corpus. In the matter of the application of William Robert ■Harris for writ of habeas corpus.</p>

Action by the Vulcan Trading Corporation against the Kokomo Steel & Wire Company to recover damages for breach of contract. Judgment for defendant after a general demurrer to the complaint was sustained, and plaintiff brings error.

<p>1. Sales &wkey;79 — Parlies may agree to place of delivery different from that presumed.</p> <p>Though the law presumes, in the absence of agreement, that the seller’s place of business was mutually intended as the place of delivery, and that presumption is not overcome by a requirement that the seller place the goods on cars and prepay the freight, the parties to a contract of sale may nevertheless stipulate for a different place of delivery, and, if their intention so to stipulate is expressed in the contract, it will govern.</p> <p>2. Sales &wkey;V9 — Contract held to require delivery alongside steamer.</p> <p>Where a contract for the purchase of a quantity of barbed wire, known to be intended for export, not only stated the price as free alongside steamer, which would not be controlling as to place of delivery, but in a separate paragraph specified for delivery free alongside ocean steamer in New York, and required the seller to present shipping documents showiñg delivery as aforesaid, the wire remained the property of the seller until delivery at the designated place, and the railroad and light-erage companies were the seller’s agents, so that the seller could not require payment of the price on presenting railroad bills of lading with freight prepaid or to be deducted. ' ■</p> <p>3. Sales <&wkey;88 — Bayer’s instructions held not to alter contract place of delivery.</p> <p>Where a contract of sale required delivery alongside steamer, a letter of instructions relating to billing, marking, and shipping, which' directed consignment of the goods to the buyer’s shipping agent, with rail bills of lading marked “for export,” did not change the place of delivery, or at least did not change the requirement of the contract that the seller should present shipping papers before he was entitled to payment.</p> <p>4. Sales <&wkey;180(l) — Buyer held not to have waived requirement as to delivery.</p> <p>The fact that the fiscal agent of the buyer paid for certain quantities of wire intended for export on notice of its receipt at the rail terminus at the port does not waive the right of the buyer to insist on the provision of the contract that the seller present shipping documents before payment.</p> <p>5. Sales &wkey;>180(l) — Waiver of delivery to steamer does not establish right to deliver at railroad.</p> <p>Even if a buyer had waived his right to require delivery alongside steámer before payment by making payments on certain shipments on notice of the goods’ arrival at the rail terminus at the port, that waiver would not entitle the seller to require payment on loaded goods on ears at its factory.</p> <p>6., Trial <&wkey;4M(5) — General finding incorporates special finding' supported by evidence.</p> <p>In an action for breach of a contract for the sale of barbed wire, to be delivered free alongside ship, where defendant claimed a waiver of the provision for delivery, a general finding for the buyer incorporated in legal effect a special finding, whicli was supported by evidence, that the payments by the buyer’s agent were made on the understanding that the ' notices showed arrival of the goods alongside ship.</p> <p>5f. Sales <&wkey;418(7) — Buyer not required'to accept delivery at another place . to minimize damages.</p> <p>The measure of the buyer’s damages for breach of a contract for the sale of wire desired for immediate export, and which the seller was to deliver alongside steamer is the difference between the contract price and the market price of the wire at the port; the buyer not being required, in order to minimize the damages to accept the seller’s offer for delivery on cars at its factory.</p>

Bill by the United States against Minnie Atkins and others. From an adverse decree, the United States appeals, and defendants Nancy Atkins and others also appeal.

Appeal, from the District Court of the United States for the Southern District of Texas; Joseph C. Hutcheson, Jr., Judge. The Midland Bridge Company and others appeal from the decree on a petition of intervention in suits against the Houston & Brazos Valley Railway Company and others.

<p>Appeal from the District Court of the United States for the Western District of Missouri; Arba S. Van Valkenburgh, Judge.</p> <p>Suit by Anna E. Ritter against Emma J. Meyer and others. Decree for plaintiff, and defendants appeal.</p>

<p>1. Courts 4£»405 (7) — Federal Supreme Court has exclusive jurisdiction of appeal in habeas corpus, where Constitution is involved.</p> <p>Judicial Code, §§ 128, 238 (Comp. St. §§ 1120, 1215), governing appeals to the Supremo Court and Circuit Court of Appeals, applies to ha-beas corpus appeals, and where the only basis of jurisdiction of ha-beas corpus to determine legality of incarceration under state laws is violation of national Constitution, the Supreme Court has exclusive jurisdiction of appeal.</p> <p>2. Pardon @==>12 — Reprieve from death sentence pending litigation in federal court not governed by Bev. St. Neb. 1913, §§ 9222-9224.</p> <p>Rev. St. Neb. 1913, §§ 9222-9224, requiring reprieves by the Governor to bo accepted and signed by the prisoner, etc., are inapplicable to death sentence reprieves, granted to enable a prisoner to litigate his conviction in the federal courts.</p> <p>3. Constitutional law @=542 — Validity of statute questioned only by person affected thereby.</p> <p>No one can question the validity of a statute or official action, unless he has been harmed, or is liable to be harmed, thereby.</p> <p>4. Habeas corpus '©=’45 (.2) — Governor's reprieve from death sentence not basis for jurisdiction of federal court.</p> <p>In habeas corpus proceedings, petitioner’s claim that he was reprieved from a death sentence contrary to Kev. St. Neb. 1913, §§ 9222-9224, requiring reprieves to be accepted by the prisoner, etc., confers no jurisdiction on federal court, since the cited sections are inapplicable to reprieves granted to permit litigation of the conviction, especially as the only substantial result had been to lreep the prisoner alive while testing his conviction.</p> <p>5. Courts <©=’405(1) — Circuit Court of Appeals without jurisdiction ot appeal in habeas corpus, though no certificate of probable cause was issued.</p> <p>Where under Judicial Code, §§ 128, 238 (Comp. St. §§ 1120, 1215), the Supreme Court would have exclusive jurisdiction of appeal in habeas corpus proceeding to determine legality of incarceration under state laws, as involving violation of national Constitution that jurisdiction would not be affected by absence of certificate of probable cause, under Act March 10, 1908 (Comp. St. § 1293), requiring such a certificate in ha-beas corpus appeals to Supreme Court.</p>

J. Cochran, Judge. Action by Deslíe Reynolds against the Director General of Railroads. Judgment for plaintiff, and defendant brings error. In connection with its factory, the Huntington Lumber & Supply. Company maintained a loading and unloading platform 400 feet long alongside of the Norfolk & Western Railroad.

<p>1. Appeal and error @==>84 (4) —Judgment for sum certain’ is final judgment.</p> <p>The judgment of an appellate court, directing entry by the trial court of a judgment for a specific sum of money, with a proviso that, if certain judgments should be released by a party, the amount thereof should not be included in the judgment, held a final judgment, reviewable on writ of error.</p> <p>2. Associations <@=>15 (1) — Shareholder in Hawaii land “hui" holds subject to regulations adopted by hui.</p> <p>Under the law of Hawaii, while the members of a Hawaiian land hui (an association of persons in the ownership of land) hold the property as tenants in common, the adoption of regulations concerning the management of the hui and the use of the land constitutes them a voluntary association, and persons entering into the membership through the acquisition of shares in the hui, and those claiming under them, take their interest subject to such valid regulations as may have been adopted by the hui with reference to the holding of the land in severalty.</p> <p>3. Landlord and tenant <@=>213 (5) —Tenant, after long occupancy, not entitled to recover rent paid, on ground of breach of quiet enjoyment.</p> <p>A lessee of an undivided interest in land for a term of 30 years held not entitled, after more than 20 years, to abandon the lease and recover the rent paid thereunder, on the ground of a breach of covenant for quiet enjoyment, where the evidence showed that she had possession and use of all the land claimed by her under the lease, with the exception of certain small and comparatively unimportant pieces held by others of the tenants in common.</p> <p>4. Words and phrases — “Mauka.”</p> <p>The Hawaiian word “mauka” means toward the mountain, or away from the sea.</p> <p>5. Words and phrases — “Makai.”</p> <p>The Hawaiian word “makai” means toward the sea.</p> <p>6. Words and phrases — “Kuleana.”</p> <p>The Hawaiian term “kuleana” means a small area of land, such as were awarded in fee by the Hawaiian monarch, about the year 1850, to all Hawaiians who made application therefor.</p>

Orr, Judge. Suit in equity by the Bankers’ Trust Company and others against the Wabash-Pittsburgh Terminal Railway Company. William M. Duncan, receiver of the Wheeling & Rake Erie Railroad Company, appeals from the order of distribution.

<p>1. Sircaí; raHroads (30)™AeíoieoMI® driver guilty of contributory negligence.</p> <p>An automobile driver, approaching a street railroad track crossing a familiar highway at an obtuse angle, bringing the street car coming toward him in the line of his forward unobstructed vision, when lie is in a place of safety, who drives on without stopping in time to prevent a head-on collision, is guilty of contributory negligence as a matter of law.</p> <p>2. Street railroads 183 (3) — Last dear chanco doctrina hold mappMcaSile.</p> <p>An automobile driver, injured in a collision with a street car at a highway crossing, cannot recover under the last clear chance doctrine, where the motorman did not apprehend danger until the front end of his car was up to line of the paved strip, about 8 feet from its center, when the automobile was 25 or 30 feet away, and ho did everything he could to stop the car, which went 8 or 10 feet further, when the automobile crashed into him.</p>

<p>Appeal from the District Court of the United States for the Western District of Texas; Duval West, Judge.</p> <p>Suit in equity by W. I,. Slayton & Co. against the City of Jourdan-ton and others. Decree for defendants, and complainant appeals.</p>

<p>1. Patents <S=>328 — 928,030, claims 1 and 3, for refrigerator latch, held not infringed.</p> <p>The Crampton patent, No. 928,030, claims 1 and 3, for refrigerator latch, an essential part of which was a pair of toggle arms, held not infringed by defendant’s latch in which the only equivalent for the toggle arms was similar to the construction in the prior art.</p> <p>2. Words and! pirrases — “Toggle.”</p> <p>The characteristic of a “toggle” is that it should comprise two arms with their ends pivoted together, permitting lateral motion at the pivotal point and longitudinal motion at one or both ends of the arms, and its usual office is to translate lateral into longitudinal motion.</p> <p>3. Patents <S^328 — 988,313, claim 5, for refrigerator latch, held not infringed.</p> <p>The Crampton patent, No. 988,313, claim 5, covering an easily assembled joint of toggle arms in a refrigerator latch, held not infringed by a latch which did not use the characteristic feature of the claim.</p> <p>4. Patents ®=’328 — Reissue No. 14,295 for refrigerator latch, held invalid, as not invention of patentee.</p> <p>The claims of the Young reissue patent, No. 14,205, the characteristic feature of which is a thumb lever on a refrigerator latch, adjusted to open the toggle and throw the striker pin out of engagement, held invalid, because that feature was the invention of another than the pat-entee.</p> <p>5. Patents <3^328 — Design patent No. 48,958, for refrigerator latch casings, held valid.</p> <p>The Young design patent, No. 48,958 for refrigerator latch casings, held valid as the invention of the patentee, who suggested the design in its final form, and supervised the execution thereof with his employes, and not the invention of customers of the patentee, who earlier suggested to the same employe of patentee a design embracing some feature of the patented design. ,</p> <p>6. Patents <@=’329 — Statutory penalties for infringement of design held sufficient.</p> <p>Where a design for refrigerator latch casing was infringed only by sale of such casings as a part of defendant’s refrigerators, so that the profits from the use of the patented design cannot be ascertained, a decree awarding $250 damages was all that 'could be ’ allowed,, under Act Feb. 4, 1887, § 1 (Oomp. St. § 9476), authorizing an award of $250, and in addition thereto the total profits from the sale of the article or articles to which the design has been applied.</p> <p>7. Patents <®=3320 — Statutory penalty for design infringement does not apply to each sale.</p> <p>The statutory penalty for infringement of design can be allowed only for the whole infringement, not as to separate sales, unless there is some measure of the infringing sales by subordinate units.</p>

Motion by the State of Oregon against W. R. Wood, E. M. Jackson, William D. Morris, James J. Biggins, and Delazon C. Smith, to set aside an order directing a writ of habeas corpus cum causa to issue, and to quash the writ.

<p>1. Corporations <&wkey;391 — Policy of controlling public utility is state question.</p> <p>The policy of the law, which controls or should control public utility corporations and their relations to the public, is peculiarly a domestic policy, to be determined by the state concerned and to be enforced as so determined.</p> <p>2. Courts <&wkey;493(3) — Federal coux*t will not entertain question already presented to state Publie Service Commission.</p> <p>Whether a state Public Service Commission is an administrative department of the state government, or whether it is possessed of judicial powers and functions, a court of the United States will not inquire into its powers and jurisdiction over a question pending before it, but will refuse to interfere, leaving the parties to the jurisdiction first invoked, and to their right of removal or áppeal to the courts of the United States.</p> <p>3. Courts <&wkey;490 — Comity yields to right to invoke United States courts.</p> <p>All considerations of comity must give way to a right of citizens of the United States to invoke the powers and process of a court of the United States to defend or enforce their rights.</p> <p>.4. Electricity <&wkey;ll — Court can restrain collection o£ new rates, without bond, pending hearing by commission.</p> <p>Where there was pending before the state Public Service Commission a proceeding to determine the legality of electric power rates, a United States court can restrain the power company from collecting the rates of the new schedule without giving bond to refund the amount, if that question'was not presented to the Public Service Commission, though it might have been.</p>

In Bankruptcy. In the matter of the estate of Leo E. Fosgate and others, bankrupts. On motion to strike the answer of the ancillary receivers to the petition of Mach Bros, to recover possession of an automobile truck.

<p>Bankruptcy 4&wkey;415 (bs) — Application'to vacate order dismissing petition for discharge denied for laches.</p> <p>An application to vacate an order dismissing a petition by an involuntary bankrupt lor discharge, made nine years after tile filing of the petition for discharge and five years after the making of the order dismissing it, will be denied for laches, where the bankrupt waited for over three years after learning of the dismissal without taking any action.</p>

<p>In Equity. Suit hy the United States against James E. Mooney, Mercantile Appraiser, and others.</p>

<p>1. Equity <&wkey;383 — Motion to dismiss bill confesses facts well pleaded.</p> <p>Motion to dismiss plaintiff’s bill in effect confesses all facts in the bill which are well pleaded.</p> <p>2. Intoxicating liquors >§=>138 — Transportation for beverage purposes forbidden.</p> <p>The transportation of liquor for beverage purposes, except by permit-tees, is forbidden by the Yolstead Act.</p> <p>3. Evidence <&wkey;34 — Judicial notice taken of duration of operation of Wartime Prohibition Act.</p> <p>The court will judicially notice whether Wartime Prohibition Act Nov. 21, 1918, continues in force.</p> <p>4. Internal revenue &wkey;>24 — -Internal revenue collector cannot lawfully accept taxes on and deliver warehoused liquor for beverage purposes.</p> <p>Wartime Prohibition Act Nov. 21, 1918 (Comp. St. Ann. Supp. 1919. § 311511Ki2f), prohibiting during its continuance the removal, for beverage purposes, of distilled spirits held in bond, precludes an internal revenue collector from accepting taxes on a barrel of wbisky stored in a bonded government warehouse, of which he is custodian, and affixing thereto and canceling the proper revenue stamps and delivering the barrel to the owner, a private individual, for the purpose of transporting it to his dwelling to be there used as a beverage for himself, his f.amily, and guests.</p> <p>5. Internal revenue @^24 — Right to delivery of liquor in bond confined to permittees.</p> <p>Under Yolstead Act, tit. 2, § 6, prohibiting the transportation, etc., of liquor without a permit, a collector of internal revenue, laving the custody of liquor in a bonded warehouse, is not allowed to accept any money as taxes on such liquor from, or to affix and cancel stamps thereon for, or to deliver such liquor to, any persons except those who present to him a permit issued by the Commissioner of Internal Revenue.</p>

<p>1. Bankruptcy &wkey;>91 (2) —Evidence field 4o sup-port referee’s fMiiigs that respondents wore not partners.</p> <p>In involuntai’y bankruptcy proceedings against three respondents, alleged to be partners, evidence held to support the referee’s finding that two of the respondents were not partners of the third, who had already been adjudicated a bankrupt, although the third had filed a certificate of partnership, which he testified was without the knowledge or consent of the supposed partners.</p> <p>2. BaBímiptey <&wkey;9fr — -Conclusions of refere© entitled to weight.</p> <p>In involuntary bankruptcy proceedings, the conclusions of the referee, who saw the witnesses and heard them examined, are entitled to much weight.</p> <p>3. BaElíimptey ‘&wkey;9i(2) — ffik/Merie© field not to show respondent was partner? notwithstanding Ms claim of partnership.</p> <p>In involuntary proceedings in bankruptcy against two respondents, evidence held to sustain the referee’s conclusion that one of the respondents was not a partner of the other, though he had recovered money in a suit in equity in the state court on the claim that he was a copartner.</p>

Forfeiture Libels. Eleven separate libels by the United States for the condemnation of one Haynes automobile, of one Buick automobile, of one Cadillac automobile, of one Kissel touring automobile, of one Reo automobile, of the gas screw vessel Voyager I, of one Hudson Super-Six automobile, of one Dodge automobile, of one Roamer automobile, of one G. M. C. truck, and of one seagoing yacht, No. V 69, each of which had been used for the transportation of liquors.

<p>1. Bankruptcy <&wkey;409(2) — Discharge denied for concealing books of account.</p> <p>A bankrupt, wbo bad been found guilty of fraud in transferring the assets of' a corporation controlled by him, held to have fraudulently concealed bis personal books of account, where there are no records regarding the disposition of many thousands of dollars, and a discharge in bankruptcy should be denied him.</p> <p>2. Bankruptcy c&wkey;497 (5) — Discharge refused for obtaining credit on false statement; “invested.”</p> <p>A bankrupt’s statement that he had a certain amount invested is a statement of fact, not of estimated value, and his discharge from bank-ruptey should bo refused, where be obtained credit by falsely making such a statement</p> <p>it Bankruptcy <3=S>407(1) — Banfempt’s acquittal on on® charge does not preclude' refusing flisdaaago oh other specifications.</p> <p>A bankrupt’s acquittal on the charge of fraudulently concealing his assets does not preclude refusing him a discharge from bankruptcy on the specifications that he hud concealed his books of account and had obtained credit by false statements.</p> <p>4. Banliraptcy <3=413 (3)— SpasIScaticms off objections t© bankrupt's fediarge IjoM siifficieiit.</p> <p>Specifications of objections to a bankrupt’s discharge are sufficient, if they fairly apprise him of the objections made to Ms discharge, at least where the sufficiency of the specifications was not challenged in time to permit amendments to it.</p> <p>5. ¡IBaiahs’mpfej <&wkey;418 (%)— Creditor's objections to Muge not Wswred.</p> <p>The law has gone far enough in making difficult objections by creditors to the discharge of a bankrupt.</p>

At Raw. Action by Edwin B. Dusenberry against the Rehigh Valley Railroad Company and Charles Schaefer, Jr. On demurrers to complaint. Demurrer by both defendants to a complaint at law under the Interstate Commerce Law (Comp. St. § 8563 et seq.) for insufficiency in law.

<p>1. Chattel mortgages <&wkey;6, 196 — Contract held a chattel mortgage, invalid as to creditors, if not recorded.</p> <p>A contract for sale of store fixtures to a merchant, to be paid for in installments, providing for the giving of notes for deferred payments, and retaining title in the seller “as security for the payment” of such notes, held in effect a chattel mortgage, and, not having been recorded, void as to creditors of the purchaser, under Comp. Daws Mich. 1915, § 11988.</p> <p>2. Courts &wkey;>366(18) — Federal courts follow state court’s construction of statutes.</p> <p>The decision by the Michigan Supreme Court of the question whether a chattel mortgage not filed and without change of possession is void as against creditors of the mortgagor’s assignee, under Comp. Daws Mich. 1915, § 11988, making such a mortgage void as against the creditors of the mortgagor, is binding on the federal bankruptcy court.</p> <p>3. Chattel mortgages <&wkey;197(l) — Invalidity of unrecorded mortgage does not extend to creditors of assignee of mortgagor, unless there is novation.</p> <p>Under Comp. Daws Mich. 1915, § 11988, providing that chattel mortgages, not accompanied by immediate delivery of the property and followed by continued change of possession, shall be void as against creditors of the mortgagor, unless filed for record, such invalidity does not extend to creditors of an assignee of the mortgagor, where the mortgagee does not release the mortgagor from liability and accept his assignee in his stead.</p> <p>4. Novation <&wkey;7 — Assent must be, not only to assignment, but to substitution.</p> <p>To establish a novation, substituting chattel mortgagor’s assignee in his place, it is not enough to show the conduct of the mortgagees in consenting to the assignment, but there 'must also be shown an agreement between the parties that the mortgagor should be released from liability to the mortgagees, and such liability transferred to the assignee alone.</p> <p>5. Bankruptcy &wkey;>185 — Trustee vested with no greater rights as to unfiled chattel mortgage than creditors.</p> <p>The amendment of Bankruptcy Act, § 47, by Act June 25, 1910 (Comp. St. § 9631), conferring on trustees “all the rights, remedies and powers of a creditor holding a lien by legal or equitable proceedings,” held not to give a trustee any better standing to attack the validity of a chattel mortgage on bankrupt’s property than his creditors would have had, if bankruptcy had not intervened.</p>

<p>1. Jury <&wkey;19 (19) — No jury trial in habeas corpus proceedings, where facts not in dispute.</p> <p>A jury trial will be denied in a babeas corpus proceeding by a person in custody under an extradition warrant, where the essential facts are not in dispute.</p> <p>2. Extradition <&wkey;24 — Request must be honored, unless defendant not in state when crime could have been committed.</p> <p>When a person is formally charged with crime, and his extradition is requested, the request must be honored, unless he proves that he was not in the demanding state at any time when it was possible for him to have committed the crime charged.</p> <p>3. Extradition <&wkey;35 — Sufficient if accused is shown to have been in demanding state about time alleged.</p> <p>As the prosecution is not bound to establish on the trial of a criminal ease that the crime charged was committed on the exact date specified, it is sufficient in extradition proceedings if accused is shown to have been in the demanding state “in the neighborhood of the time alleged.”*</p> <p>4. Extradition <&wkey;35 — Whether defendant’s presence in the demanding state had any connection with the crime cannot be tried.</p> <p>When it appears in an extradition proceeding that defendant was present in the demanding state at a time when it was possible for him to have committed the crime charged, the question whether such presence had any connection with the crime cannot be tried.</p> <p>5. Brokers &wkey;>5 — Principal liable under Blue Sky Law for sales of stock which he directed, though not personally present.</p> <p>Though defendant was not in Michigan when sales of stock in violation, of the Blue Sky Daw of that state were made by a branch office of his business, he may be criminally responsible for them while in that .state, if, when there previously, he directed or arranged for them.</p> <p>6. Habeas corpus (3) — Appeal disallowed when no doubtful questions-of fact or unsettled questions of law.</p> <p>In a habeas corpus proceeding by one in custody under an extradition warrant, when there is no doubtful question of fact, and all questions of law have been settled by decisions of the Supreme Court, an appeal will be refused as frivolous.</p>

<p>1. Bankruptcy @=>318(3) — Creditor may waive fraud and prove claim iu bankruptcy.</p> <p>One from whom a bankrupt obtained money by fraud, if he could have waived the fraud and sued in assumpsit, may prove his claim in bankruptcy.</p> <p>2. Bankruptcy @=58 — Transfer to creditor of stolen automobile, bought by bankrupt in good faith, held “act of bankruptcy”; “property.”</p> <p>A transfer by an alleged bankrupt to a creditor of an automobile, which he had bought in good faith, and to which he had added accessories which he paid for, held a transfer of property and an “act of bankruptcy,” within the meaning of Bankruptcy Act, § 3a (2), Comp. St. § 9587, although the automobile had been stolen and he did not acquire the legal title.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Act of Bankruptcy; Property.]</p>

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

<p>Appeal from the District Court of the United States for the Western District of Texas; W. R. Smith, Judge. In the matter of Samuel Foster Balentine, bankrupt. From an order of the District Court, the bankrupt appeals.</p>

<p>In Error to the District Court of the United States for the Southern District of Georgia; Beverly D. Evans, Judge. Criminal prosecution by the United States against Joe Bass and John Pitts. Judgment of conviction, and defendants bring error.</p>

<p>In Error to the District Court of the United States for the Southern Division of the Eastern District of Tennessee; Edward' T. Sanford and A. M. J. Cochran, Judges.</p>

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

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

<p>Appeal from the District Court of the United States for the Eastern District of New York; Thomas I. Cbatfleld, Judge. Libel by the Central Railroad Company of New Jersey against the New York Central Railroad Company. Prom a decree for libelant (254 Ped. 873), respondent appeals.</p>

<p>Appeal from the District Court of the United States for the Southern Division of the. Western District of Michigan; C. W. Sessions, Judge.</p>

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Ohio; D. C. West-enhaver, Judge.</p>

<p>No, 5657. In Error to the District Court of the United States for the District of North Dakota.</p>

<p>Appeal from the District Court ox the United States for the Southern Division of the Western District of Michigan; C. W. Sessions, Judge.</p>

<p>In Error to the District Court of the United States for the Southern District of Georgia; Beverly D. Evans, Judge. Oriini-nal prosecution by the United States against Adolphus Meadows. Judgment of conviction, and defendant brings error.</p>

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

<p>Appeal and Cross-Appeal from the District Court of the United States for the Northern Division of the Southern District of California.</p>

<p>Appeal and Cross-Appeal from the District Court of the United States for the Northern Division of the Southern District of California.</p>

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Illinois. Action between Ulysses S. Thomas and Matthew K. Parker and others. Judgment for the former, and the latter bring error.</p>

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

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

<p>Appeal from the District Court of the United States for the Western Division of the Southern District of Ohio; John W. Peck, Judge.</p>

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