Volume 269 — Federal Reporter

<p>In Error to the District Court of the United States for the District of New Jersey; Lynch, Judge.</p> <p>At law. Action by Robert Smith, administrator of Peter Bogdan against John Barton Payne, Director General of Railroads. Judgment for defendant and plaintiff brings error.</p>

Evans, Judge. Suit in equity by the American Bank & Trust Company and others against the Eederal Reserve Bank of Atlanta, Ga., and others. Decree for defendants, and complainants appeal.

Smith, Judge. Action at law by Alfred Dendy and others against the Southern Pine Dumber Company and others. Judgment for defendants, and plaintiffs bring error.

<p>Appeal from the District Court of the United States for the Northern District of Texas; James C. Wilson, Judge.</p> <p>Suit in equity by the Associated Oil Company against W. L. Miller and others. Decree for defendants, and complainant appeals.</p>

<p>1. Municipal corporations Word “adjacent” as used in statute for attachment of territory to city for school purposes.</p> <p>The word “adjacent,” as used in a statute authorizing cities to attach territory oirtside the city limits, but adjacent thereto, to the city for school purposes, has a broader meaning than contiguous, and signifies also neighboring, or in close proximity, though not touching.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Adjacent.]</p> <p>t. Municipal corporations ,§=338—City held authorized to atüich territory for school purposes, though not part of city, but within limits.</p> <p>Under Gen. St. Kan. 3935, § 9114, authorizing cities of che first class to attach to the city for school purposes territory outside the city limits, but adjacent thereto, held to authorize the city to attach a tract of land which, although within the city limits, was not a part of the city, but was entirely surrounded by city streets and blocks.</p> <p>3, Municipal corporations -@=^38—Application for attachment of territory for school purposes need not be signed by residents on each subdivision.</p> <p>A provision of such statute that territory may be attached on application by a majority of the electors of such adjacent territory does not require the application to be signed by residents oh each subdivision thereof, but it is sufficient if signed by a majority of the electors of the entire territory and may bring in an included tract on which no one resides; nor is it material that the territory attached is separated into two parts by an intervening strip of the city.</p> <p><§=s>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>4. Municipal corporations <§=^38—In attaching territory for school purposes, notice to each landowner not required.</p> <p>In a proceeding under such statute notice is not required to be given to each owner of land within the territory sought to be attached.</p> <p>®=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the District of Kansas; John C. Pollock, Judge.</p> <p>Suit in equity by the Jacob Dold Packing Company against W. R. Hewey, County Treasurer of Sedgwick County, Kan., and others. Decree for complainant, and defendants appeal.</p>

<p>In Error to the District Court of the United States for the Southern District of Mississippi; Edwin R. Holmes, Judge.</p> <p>Action at law by Julia A. Whitehead against the Railway Mail Association. Judgment for defendant, and plaintiff brings error.</p>

Smith, Judge. Eibel by the United States against 1,135 ounces of silver bullion and 56 ounces of gold bullion; Antonio L. Shaar, claimant. From a judgment of forfeiture, claimant brings error.

<p>In Equity. Suit'by the Macmillan Company against T. E. Johnson, as Superintendent of Public Instruction of the State of Michigan. Decree for complainant in part.</p>

<p>Criminal prosecution by the United States against Sacein Rouhana Farhat. On motions for new trial and in arrest of judgment.</p>

<p>Suit by the Baldwin Locomotive Works against the Missouri, Oklahoma & Gulf Railway Company and others, in which receivers were appointed. On petition by the Fidelity National Bank & Trust Company, and Henry C. Flower, Lester W. Hall, and George T. Tremble, trustees.</p>

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

<p>1. Internal revenue <3=38—Protest before payment unnecessary to refund of excess profits tax.</p> <p>Under Revenue Act 1918, § 252 (Oomp. St. Ann. Supp. 1919, § 6336%uu), authorizing a refund of the amount paid as excess profits tax above the amount due, notwithstanding the provisions of Rev. St. § 3228 (Oomp. St. § 5951), a taxpayer is entitled to refund as a matter of right, without proof of duress or protest.</p> <p>2. Internal revenue <3=38—Computation under compulsion and claim for refund establish protest.</p> <p>A complaint alleging that the excess profits tax was computed under compulsion of invalid regulations of the Commissioner of Internal Revenue and that the taxpayer filed claim for the abatement of the .taxes before he paid them, shows compliance with every requisite of the payment under protest, the objects of which are to define the taxpayer’s attitude and to notify the government thereof.</p> <p>3. Constitutional law <@=77—Regulations as to computing excess profits tax cannot alter statute.</p> <p>Regulations issued by the Commissioner of Internal Revenue, describing the method of computing the excess profits tax, have no binding, force, if they alter, amend, or extend the statute levying the tax.</p> <p>4. Internal revenue <3=25—Deductions not made from income before computing excess profits tax.</p> <p>Under Revenue Act 1917, § 201 (Oomp. St. 1918, Comp. St. Ann. Supp. 1919, § 6336%b), imposing, a tax on the net.income in excess of the deducüons and not in excess of 15 per cent, of the invested capital, and a tax at greater rates on income exceeding 15 per cent., the deductions are to be made only in computing the amount of the tax, not to be made from the net income before computation begins, especially in view of the Revenue Act of 1918, which contained a similar tax, but provided that the amount of deduction exceeding the income taxable at the minimum rate should be allowed from the amount taxable in th.e second bracket, thereby indicating a construction that there was no provision for such allowance under the law of 1917.</p> <p>^cs>For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Action <§=>69—Federal courts will not stay action because of pendency of action in state court, where full relief can be given.</p> <p>An action in a federal court, which first acquired jurisdiction will not be stayed to await determination of an action in a state court be: tween the same parties and involving the same matters, where the federal court has power to grant full and complete relief.</p> <p><g^s>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>At Taw. Action by the Heppes-Nelson Roofing Company against Joseph Tewis and others. On motion by plaintiff for severance and judgment for part of claim.</p>

Criminal prosecution by the United States against Edward Anderson and others. Judgment of conviction, and defendants bring error. This case is a consolidation of writs of error sued out by the plaintiffs in error from the judgment against them upon a verdict of guilty under four counts of the indictment, the sufficiency of each of which to constitute a crime is challenged by the respective plaintiffs in error.

<p>1. Waters and water courses '®^142—Appropriator can conserve appropriated waters, regardless of seepage law.</p> <p>An appropriator of waters for irrigation is entitled to save, and use for the beneficial irrigation of the lands under its canal, water which had escaped therefrom by seepage, independent of the legislation of the state in relation to seepage waters.</p> <p>2. Waters and water courses <§=*151—Appropriated water, allowed to return to river, is subject to new appropriation.</p> <p>Where an appropriator of water permits a portion thereof, which had seeped from its canal, to return to and mingle with the waters of a river from which it had been taken, such returned waters are to be considered part of the water of the river, as though never diverted therefrom, and inures to the benefit of the appropriators on the river in the order of their appropriations.</p> <p><©=5For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes-</p> <p>3. Waters and water courses €=151—Intent is essential to abandonment of appropriated waters.</p> <p>Seepage and waste water, allowed to return to its natural channel, with no intention by the appropriator to recapture it, is abandoned; but the intention to abandon is essential, and it must be determined as a question of fact from the evidence in each particular case.</p> <p>4. Waters and water courses €=151—Abandoned water may be reclaimed, if there are no intervening rights.</p> <p>An appropriator, who has abandoned his rights to water, may at any time resume possession and exercise all such rights, if no new rights have intervened.</p> <p>5. Waters and water courses €=>145—Appropriation cannot be transferred to new source with old priority.</p> <p>The Nebraska board of irrigation, highways, and drainage had no authority to transfer an appropriation from a natural stream to a channel deriving its waters from seepage from another canal, and to give the appropriation of such seepage waters the priority of the old appropriation from the natural stream.</p> <p>6. Waters and water courses €=151—Appropriator has reasonable time to reclaim seepage.</p> <p>Appropriated water is not deemed abandoned as soon as it seeps from the canal in which it is being conveyed; but the appropriator must be allowed a reasonable time in which to save and use water escaping by seepage and waste from his canal or ditch.</p> <p>7. Waters and water courses €=133—State statute authorizes reclaiming seepage water without appropriation.</p> <p>Rev. St. Neb. 1913, § 3426, authorizing the owner of an irrigation canal to collect seepage water thereunder to apply to the irrigation of land covered by the original appropriation of such canal, gives the right to the use of such water without formal appropriation proceedings, since the objects of the state laws regulating proceedings for appropriation to provide water for as many owners of land as possible, and to decide priority between tho different claimants, do not apply to the use of seepage water by the original appropriators. f</p> <p>8. Waters and water courses €=>140—Change of appropriation of seepage waters from a canal cannot be given date of original appropriation.</p> <p>Even if the seepage waters flowing in the channel not the original and natural stream are public waters, subject to appropriation under Rev. St. Neb. 1913, § 3427, an appropriation of such waters by a former appropriator from the natural stream cannot be given the date of tho original appropriation from the stream, so as to take priority over a diversion of the water by the appropriator from whose canal it had escaped, which diversion was made before the change of appropriation.</p> <p>9. Waters and water courses €=144—Lands irrigated from reclaimed seepage held within original project.</p> <p>Where the original application by the United States for appropriation of water stated an intention to irrigate all the lands shown on the accompanying plats, and to irrigate all lands on the north side of the river, supplementing those with an adequate supply, and furnishing full rate to all others, an approval of the application as one for the irrigation of lands described therein, not covered by prior existing rights, did not exclude lands under the other existing canals intended to be covered by the new project, so that the United States could reclaim seepage waters from its canals to irrigate such lands with the provisions of Rev. St. Neb. 1913, § 3426.</p> <p><§=>For other eases see same topic & KEY-NXJMBER. in all Key-Numbered Digests & Indexes</p> <p>10. Waters and water 'courses <§==5222—Warren Act authorized contract between United States and a land company for irrigation by reclaimed seepage waters from canal of reclamation project.</p> <p>Under the Warren Act (Comp. St. §§ 4738-4740), and Laws Neb. 1911, c. 151, passed in aid thereof,- a contract between the United States and a land company for the delivery to the latter of water which escaped by seepage from the canal-of a reclamation project was a valid contract, which gave the United States the right to conserve and deliver water thereunder.</p> <p>11. Waters and water courses <®=>222—Reclamation appropriation having source in another state is valid.</p> <p>In view of Reclamation Act (Comp. St. §§ 4700-4708), the Warren Act (Comp. St. §§ 4738-4740), and the legislation of Wyoming and Nebraska, an appropriation by the United States Reclamation Service for the irrigation of lands in Nebraska is valid, though the source of the supply is in Wyoming.</p> <p>12. Waters and water courses <§^247 (2) —Injury to reclamation service, by taking seepage water which United States had a contract to sell, may be enjoined.</p> <p>The United States suffers injury, entitling it to an injunction, by the prevention of delivery of water which seeped from its irrigation canal to a corporation with whom it had a contract to deliver the water at á substantial price.</p> <p><§z^For other cases see same topic & KEY-’NUMBER in all Key-Numbered Digests & Indexes</p>

<p>< In Error to the District Court of the United States for the District of Massachusetts; James M. Morton, Judge.</p> <p>Action by the United States against the Boston & Maine Railroad. Judgment for defendant, and the United States brings error.</p>

<p>In Error to the District Court of the United States for the Northern District of Alabama; William I. Grubb, Judge.</p> <p>Action at law by Mrs. Carrie Daily Allison against the State Life Insurance Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Courts 3^337—Federal procedure follows common law.</p> <p>■ In tbe absence of statute, courts of the United States will observe tbe common-law procedure in criminal cases, as modified by tbe law of tbe, state in which the trial is beld at the time that state was admitted into tbe Union.</p> <p>2. Perjury <S=>6—May be predicated on false oath to application for continuance.</p> <p>By tbe common law and tbe law of Texas when it was admitted as a state, applications for continuance in criminal cases were required to be supported by oatb, and a prosecution for perjury under Rev. St. § 5392 (Comp. St. § 10295), may be based on a false oatb to sucb an application in a federal court in Texas, wbicb follows that procedure.</p> <p>3. Conspiracy <S¡=*45—Testimony showing nonparticipation of defendant held admissible.</p> <p>Testimony held material in a prosecution for conspiracy wbicb would tend to impeach a witness for tbe government and to show that a defendant was not in the conspiracy.</p> <p>4. Perjury '§^32 (2)—Evidence admissible to show that defendant knew that statement would not be true.</p> <p>In a prosecution for perjury in making false oatb to an application for continuances containing statements of what would be testified to by an absent witness, evidence tending to show that defendant knew that sucb testimony, if given, would not be the truth, held admissible on tbe issue as to whether defendant believed his statement to be true.</p> <p><§s5>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>5. Criminal law ©=>1044—Admission of evidence not objected to not error, in absence of motion to strike out.</p> <p>Admission without objection of evidence which was subject to be stricken out, if not subsequently connected with defendant, held not reversible error, where no motion to strike it out was made.</p> <p>6. Criminal law ©=>878 (2)—General verdict, under indictment containing' two counts, good.</p> <p>Under an indictment for perjury containing two counts, both good, the verdict may be general.</p> <p>@s»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Morton, Judge. ’ Action at law by the West & Dodge Company against the Bethlehem Shipbuilding Corporation, Rimited. Judgment for plaintiff, and defendant brings error. Affirmed, subject to right of defendant to amend answer.

Grubb, Judge. Action at law by Martha E. Eogan, administratrix of the Estate of John R. Eogan, deceased, against Walker D. Hines, Director General of Railroads, operating the Southern Railway Company. Judgment for plaintiff, and defendant brings error.

<p>Appeal from the District Court of the United States for the Southern District of Georgia; Beverly D. Evans, Judge.</p> <p>In the matter of A. M. Marshall, bankrupt. The Liberty Bank & Trust Company and another, executors of the will of A. M. Martin, deceased, appeal from an order of the District Court.</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 by Isaac C. Weber, surviving partner of W. E. Jacoby and Isaac C. Weber, trading under the firm name of W. E. Jacoby & Co., against the Pennsylvania Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from the District Court of the United States for the Northern District of Texas, at Abilene; James C. Wilson, Judge.</p> <p>Suit in equity by Mrs. J. E. Trammell against Charlie Trammell. Decree for complainant, and defendant appeals.</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 Horace Turner, managing owner of the American bark Doon, against Ferdinand Petit. Decree for libelant, and respondent appeals.</p>

<p>In Error to the District Court of the United States for the Amarillo Division of the Northern District of Texas; James C. Wilson, Judge.</p> <p>Action at law by H. W. Skinner against C. U. Kilgore. Judgment for plaintiff, and defendant brings error.</p>

John Stalick appeals from a decree of the District Court, affirming an order of the referee disallowing, on the objection of Harry Slack, trustee in bankruptcy, appellant’s claim.

<p>Brokers ©=>60—Broker held not entitled to commission when sale was pre>vented by bankruptcy.</p> <p>A broker, employed to sell the property of a telephone company, who negotiated a sale, which could not be carried through because of legal obstacles, held not entitled to a commission because, after the bankruptcy of the company and a sale of the property by the trustee, the -proposed buyer secured it from tbe purchasers, who were officers of the company, where it appeared that the bankruptcy and sale were bona fide, and not a subterfuge to avoid paying the commission.</p> <p><gr=>For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

B. Sheppard, Judge. ' In the matter of Holton & Strickland and others, bankrupts. The Walton Land & Timber Company appeals from an order denying its claim to a lien, on objections filed by William B. Runyan, trustee in bankruptcy.

<p>Appeal from the District Court of the United States for the Northern District of Florida; Wm. B. Sheppard, Judge.</p> <p>In the matter of Holton & Strickland and others, bankrupts. Tlie Walton Land and Timber Company appeals from an order of the 'District Court giving William B. Runyan, trustee in bankruptcy, the right to the fund paid into court.</p>

Cushman, Judge. Action at law by Etta Eichelbarger and Stanley Eichelbarger, her husband, against the Al. G. Barnes Show Company and Al. G. Barnes. Judgment for plaintiffs, and defendants bring error.

Ervin, Judge. Criminal prosecution by the' United States against D. M. Hardy and others. Judgment of conviction, and defendants bring error. Reversed as to Hardy, and affirmed as to remaining defendants.

Whitaker Thompson, Judge. Action at .law by the Phœnix Portland Cement Company against the Baltimore and Ohio 'Railroad Company. Judgment for defendant, and plaintiff brings error.

<p>Petition for Writ of Mandamus by the American Surety Company of New York against John A. Riner, Judge of the District Court for the District of Wyoming.</p>

Petition to Superintend and Revise from the District Court of the United States for the Northern District of Texas; Tames C. Wilso-n, Judge. In the matter of the Curtis-Clark Company, bankrupt; George F. Rockhold, trustee. Petition by the Charles Ii. Brown Paint Company to revise order of District Court.

<p>Appeal from the District Court of the United States for the District of Massachusetts; George W. Anderson, Judge.</p> <p>Suit in equity by Schaum & Uhlinger, Incorporated, against Copley Plaza Operating Company. Decree for complainant and defendant appeals.</p>

In Equity. Suit by the Wenborne-Karpen Dryer Company against the Rockford Bookcase Company for infringement of a patent. Decree rendered finding patent valid and infringed, with reference for an accounting.

<p>In Equity. Suit by William B. Palmer and Jesse V. Palmer against John K. Stewart & Sons, Incorporated. Decree for complainants.</p>

<p>1. Constitutional law —Provision as to jurisdiction of inferior federal courts not self-executing.</p> <p>Const, art. 3, § 2, extending the judicial power to all cases in law and equity arising under the Constitution and laws of the United States, is not self-executing as to the courts inferior to the Supreme Court; but those courts can exercise only so much of that jurisdiction as is conferred upon them by Congress.</p> <p>2. Courts <©^>265—General jurisdiction of District Court does not include' original mandamus proceedings.</p> <p>The general jurisdiction conferred on District Courts over all suits of a civil nature at law or in equity arising under the Constitution and laws of the United States does not confer on those courts jurisdiction over applications for mandamus, where that relief is the object of the suit, but only authorizes such writs as auxiliary to a jurisdiction already existing and being exercised.</p> <p><@=aPor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes-</p> <p>3. Courts <®=^2(>5—Corrupt Practices Act does not authorize mandaimjs by United States District Courts.</p> <p>The federal Corrupt Practices Acts (Act Aug. 19, 1911 [Comp. St. § 192 et seq.]; Act Oct. 16, 1918 [Comp. St. Ann. Supp. 1919, § 10251a]), requiring certain tilings in elections for Senators and members of Congress, and forbidding others, and prescribing punishment for violations, do not confer on the federal District Courts power to enforce the rights thereby given by mandamus.</p> <p><3=»For other cases see same topic & KISY-NUMBElt in all Key-Numberod Digests & Indexes</p>

<p>L Internal revenue <©=>2—Additional tax in case of violation of Liquor Law valid.</p> <p>Congress may impose a tax in one sum on one dealing in intoxicating liquors, through sales for limited purposes, and another additional tax on him if he exceeds such limit.</p> <p>2. Constitutional law <@=>38—“Unconstitutional” defined.</p> <p>The word “unconstitutional,” as understood by the courts, means that the act assailed is in conflict with some provision of the Constitution; not that it is contrary to sound principles of legislation.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Unconstitutional.]</p> <p>3. Constitutional law <§=>286—Special tax in addition to criminal punishment not denial of duo process.</p> <p>The act of Congress enforcing the Eighteenth Amendment, in making it a criminal offense to violate the terms of the act, and in addition subjecting the offender to the payment of a special tax, collectible by the ordinary processes, is not a derial of due process of law.</p> <p>4. Internal revenue <©=28—Injunction not granted to restrain enforcement of internal revenue tax.</p> <p>A federal court will not grant an injunction to restrain collection of an internal revenue tax (Comp. St. § 5947) ; Congress having provided a different and not inadequate remedy.</p> <p><@=>For other casos seo same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Trusts <3=>247—Beneficiary may sue to enjoin trustee from paying tax on trust property.</p> <p>A suit in equity may be maintained by a beneficiary of a trust to enjoin the trustee from making return and paying a tax on the trust property alleged to be illegal.</p> <p>2. Internal revenue <§^>1—Creation of trust to lessen tax liability held legal.</p> <p>The dissolution of a joint-stock company and the transfer of its property to a trustee on a trust such as designated in Revenue Act, § 219 (Comp. St. Ann. Supp. 1919, § 6336J/í¡ii), helé valid, where the transfer was permanent and made in good faith, although its purpose was to avoid or lessen future tax liability under the statute.</p> <p>(©=>For other cases see same topic & KBY-NUMBER, in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by the Payette-Boise Water Users’ Association, Limited, against J. S. Bond and others. John Pipher and others intervened. On final hearing.</p>

<p>Intoxicating liquors <§=134—“Preserved sweet cider” not within National Prohibition Act.</p> <p>The unadulterated juice of apples, preserved by the addition of one-tenth of 1 per cent, of benzoate of soda, known and dealt in generally as “preserved sweet eider,” and made by the only known practicable process, and which is not and cannot become intoxicating while it remains fit for beverage purposes, held within National Prohibition Act Oct. 28, 1919, tit. 2, § 4, providing that “the articles enumerated in this section shall not, after having been manufactured and prepared for the market, be subject to the provisions of this act if they correspond with the following descriptions and limitations, namely: * * * (f) Vinegar and preserved sweet cider,” and its manufacture and sale held not a violation of the act.</p> <p>¡grsoFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Aliens —Deserter from United States army will not be admitted to citizenship.</p> <p>An alien who deserted from the military service of the United States, and was convicted and sentenced therefor by a court-martial, will not be admitted to citizenship.</p> <p><§zs3For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by the Columbia Graphophone Company against tEe 330 West Ninety-Fifth Street Corporation. On motion to dismiss bill.</p>

<p>On petition of Francesco Aldani for naturalization.</p>

<p>1. Certiorari @=24—Does not lie to review administrative order.</p> <p>A writ of certiorari, which lies to inferior courts and to special tribunals exercising judicial or quasi judicial functions, cannot be issued to review an administrative order by an executive officer of the United States government.</p> <p>2. Certiorari @=24—Orders determining inheritance of Indian lands administrative.</p> <p>An order of the Secretary of the Interior under the authority of Act May 8, 1906 (Comp. St. §§ 3951, 4203), and Act June 25,1910, determining the right to inheritance of Indian lands, is an administrative order, and a subsequent setting aside of the order is likewise administrative.</p> <p>3. Indians @=27(2)—Court can determine inheritance of Indian lands after department decision.</p> <p>After the Department of the Interior has rendered a decision awarding Indian land to certain claimants as heirs, the land becomes private property, subject to the jurisdiction of the courts, to determine conflicting claims thereto, and to render complete justice to all parties concerned.</p> <p>4. Certiorari @=24—Lack of other remedy does not authorize certiorari to review administrative order.</p> <p>Even if there was no other remedy by which an administrative order might be reviewed by the courts, that fact would not warrant the issuance of certiorari to review such order.</p> <p>©ssFor other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Mandamus by the United States, on relation of William F. Olson, against John Barton Payne, Secretary of the Interior. Judgment for relator, and respondent appeals.</p>

<p>Appeal from- the Supreme Court of the District of Columbia.</p> <p>Petition for mandamus by the United States, on the relation of Stephen E. McCullough and another, against Eranklin K. Lane, as Secretary of the Interior. Judgment for respondent, and petitioners appeal.</p>

Suit by William L. Shanks against Franklin K. Lane as Secretary of the Interior, to restrain defendant from carrying into effect a decision adverse to plaintiff. Judgment for defendant, and plaintiff appeals.

<p>Appeal from the District Cpurt of the United States for the Western Division of the Southern District of Ohio; Howard C. Hollister, Judge.</p> <p>Suit by the Upjohn Company against the Wm. S. Merrell Chemical Company. Decree for defendant, and plaintiff appeals. Affirmed.</p> <p>The plaintiff below, appellant here, is a well-known manufacturer of pharmaceutical preparations. In the spring of 1908 it became convinced that there was a large field for the marketing of phenolphthalein, a laxative or cathartic drug, and determined to select the most desirable tablet form in which to put the same on the market. Tablets of this class were usually composed of the drug, an excipient or carrier (commonly cane sugar), a flavor, and a color. Several colors were in common use and regarded as more or less suitable— among them, pink. A great variety of shapes had been employed; among them, a thin, oblong, rectangular form, properly called a wafer, had been used. Wintergreen and other flavors or mixtures of flavors, to cover and disguise the taste of the drug and make the tablet acceptable, were in common use. The size could be as desired; but, if the tablet was to contain one grain of the drug and sugar enough for most efficient mixing, a particular size would result. If it was thought that one-half the dose given by the complete tablet might be sufficient in some cases, it was known that the tablet could be scored across the center, so that it would easily break into two equal parts. With this situation before it, plaintiff made a thin, oblong, rectangular wafer, colored pink, with a specially compounded flavor, of a size appropriate to one grain of the drug, and scored across the center. While all these various elements were old, no one had ever put upon the market a tablet having this combination of size, shape, and color or any one near enough thereto so as to make confusion.</p> <p>For this article plaintiff adopted the arbitrary trade-name “Phenolax” or “Phenolax Wafer” and during the spring and early summer advertised it extensively in the medical and trade journals, and sent circulars and samples generally to the druggists, physicians, dentists, and nurses throughout the United States. The extent of this advertising is indicated by the cost, which (perhaps including the whole year) was $30,000. A force of salesmen at once began making sales and was successful on a large scale. Reduced to terms of single wafers (though the sales were in packages) more than a million had been sold by July 1st, and 18 million by the end of the year. It may fairly be assumed that by October the sales had been 6 or 8 million. So far as appears, these sales were to druggists and pharmacists, wholesale and retail. The advertising sent to physicians had been intended to bring about purchases by them from the druggists, or prescriptions by them to be filled by druggists.</p> <p>Defendant was also an established manufacturing chemist or pharmacist. The fair inference from the testimony is that, in the summer or early fall of 1908, the salesmen of the defendant found the phenolax wafers on the market, sent them to defendant, and defendant determined to make the same thing, in the same form, with the expectation that it would thereby be able to fill with something “equally as good” a part of the demand for a phenolphthalein tablet which plaintiff was creating. To this end defendant put out a tablet, which was indistinguishable from plaintiff’s, and was of the same shape, size, color, and flavor. It did not, however, use in any form the name “phenolax,” and it put its product up in bottles or packages of standard form, bearing prominently its own name as manufacturer, and marked “phenolphthalein wafers.” It is not claimed that in the bottles or cartons, or anything except the wafer itself, there was fraudulent imitation or unfair competition.</p>

<p>1. Prostitution <§=>1—Under White Slave Traffic Act, transportation need not be by common carrier.</p> <p>To constitute the offense of transporting a woman in interstate commerce for immoral purposes, under White Slave Traffic Act, § 2 (Comp. St. § 8813), it is not essential that the transportation be by a common carrier.</p> <p>2. Criminal law <§=>1166Já (12)—Question by court, at, once withdrawn, not prejudicial.</p> <p>■ A question and remark addressed by the court to a witness held not prejudicial to defendant; where, on attention being called to it, the court stated that it misunderstood the witness/withdrew the remark, and ordered the question stricken out.</p> <p>3. Prostitution <§=>4—Evidence admissible in prosecution for violation of White Slave Traffic Act.</p> <p>In a prosecution for violation of the White Slave Traffic Act (Comp, St. §§ 8812-8819), by transporting a woman from one state into another lor the purpose of illicit intercourse, evidence is admissible which tends to show that defendant is the father of a child of the woman.</p> <p>4. Criminal law <§=>1171(1)—Remarks of counsel not prejudicial.</p> <p>Remarks made by the district attorney in argument cannot be held to have prejudiced the jury against defendant, where his counsel, while objecting generally, stated that he did not know to what they referred.</p> <p>5. Criminal law <§=>778(4)—Instruction as to presumption of innocence.</p> <p>A correct instruction respecting the presumption of innocence held not rendered erroneous because it stated that the law “in its charity” raised such presumption.</p> <p>(gs.For other cases see same topic & KEY-NUMBEK in all Key-Numbered Digests & Indexes</p>

<p>1. Dedication <>=>-14—Evidence held to establish dedication of street.</p> <p>The making of a plat of au addition to a city by the proprietor, showing a full-width street, one-half of which was on his land, which plat was adopted by city ordinance and filed as the official plat of the addition, together with evidence of the continuous use of the street by tbe public for more than 20 years, held to establish a dedication.</p> <p>2. Dedication <¡=>>1—No particular form essential.</p> <p>All that is required to constitute a dedication of land for a street is the assent of the owner of the land and the fact that it has been used for the public purpose intended.</p> <p><©s»For other cases see samo topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Judgment <8=760—Lien of federal court judgment dependent on state law.</p> <p>Under Act Aug. 1, 1888, § 1 (Comp. St. § 1606), providing that judgments and decrees of federal courts shall be liens on property in the same manner and to the same extent as the judgments of the courts of the state where rendered, and Code 1900, Miss. § 822, providing that a judgment or decree of a federal court, of the state Supreme Court or chancery court, or of any state court of a different county, shall not be a lien on property of the defendant in any county until enrolled in the office of the clerk of the circuit court of such county, a judgment rendered by a federal court in Mississippi is not a lien on property in any county unless so enrolled in that county and then only from the date of enrollment.</p> <p>2. Bankruptcy <8=157—-No judgment recoverable after adjudication.</p> <p>The lien of a judgment which became effective as a lien after the bankruptcy of the defendant held ineffective against his trustee who, under Bankruptcy Act, § 47a(2) (Comp. St. § 9631), became vested with the rights of a judgment lien creditor as of the date of the adjudication.</p> <p>3. Bankruptcy <8=155—Trustee not estoppedi to deny lien.</p> <p>That a marshal holding an execution was prevented from making a levy by the statement of the judgment defendant that it had given a supersedeas bond, when in fact it was a cost bond, which did not operate as a supersedeas, held not to estop the defendant’s trustee in bankruptcy from denying that a lien was acquired as by making a levy.</p> <p><gs»E'or other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Hollister, Judge. Suit by Nannie Wright Verity Whiteside against George M. Verity. Decree for defendant, and complainant appeals. Affirmed. This suit was brought to vacate a trust deed executed by plaintiff (Mrs. Whiteside) to defendant, and to annul the remainder of the transaction of which the deed was a part. The parties were half brother and sister.

<p>In Error to the District Court of the United States for the Eastern Division of the Southern District of Ohio; John E. Safer, Judge.</p> <p>Action at law by John Y. Bassell against Walker D. Hines, Director General of Railroads. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Monopolies <§=>24 (1)—Private suit cannot be maintained under Sherman Act to restrain illegal coiniMmation.</p> <p>Anti-Trust Act July 2, 1890, § 4 (Comp. St. § 8823), limits suits to enjoin violations to those brought by the government, and does not authorize a stockholder to maintain a suit to restrain his corporation from consolidating with another on the ground that it would be an illegal combination under the act</p> <p>2. Courts <«=>489(8)—-Clayton Act does not give state courts jurisdiction to enjoin violations; “courts oí United States.”</p> <p>Clayton Act, | 16 (Comp. St. § 88350), vesting “any court of the United States having jurisdiction over the parties” with jurisdiction to grant injunctive relief to any person, firm, or corporation against threatened loss or damage by violation of the anti-trust laws, does not confer such jurisdiction on state courts.</p> <p>[Ed.- Note.—For other definitions, see Words and Phrases, First and Second Series, Courts of the United States.]</p> <p>8. Removal of causes <3=>11.L—Jurisdiction on removal dependent on that oí state court.</p> <p>Wlioro a state court is without jurisdiction of the subject-matter of a suit, a federal court does not acquire jurisdiction by removal, although it would have had original jurisdiction.</p> <p>4. Railroads <§=>144(2)—BUI by stockholder to enjoin consolidation insufficient.</p> <p>A bill to restrain consolidation of two railroad companies on the general ground that it would be a violation of the constitutions, statutes, and public policy of the slates concerned, filed by the holder of a fraction of 1 per cent, of the stock of one of the companies, purchased after the consolidation agreement was made, held not to state ground for equitable relief, where no objection to the consolidation is made by state authorities, and there is no allegation showing that complainant would suffer injury by depreciation of the value of its stock.</p> <p>5. Appeal and error <©=>1194(2)—Questions concluded on reversal.</p> <p>Where a deeree dismissing a suit is reversed on appeal, and the case remanded for further action, only the questions which were considered and determined by the appellate court are concluded by its decision.</p> <p>?. Removal of causes <§=>111—Jurisdiction acquired continues for all purposes.</p> <p>Whore a cause was removable on the ground that the ease as made by the bill was one arising under the laws of the United States, jurisdiction of the federal court, acquired by the removal, continues for all purposes.</p> <p>(@¿^Eor other cases see same topic & KBY-NTJMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Second Division of the Northern District of California; William C. Van Fleet, Judge.</p> <p>The International Banking Corporation appeals from an order obtained by John C. Lynch, as receiver of the Pacific Coast Casualty Company, in a suit by Daniel Combs against such Company.</p>

In Equity. Suit by Kathryn Struett, formerly Kathryn Smith, against Harry B. Hill. From a decree for the defendant, the complainant appeals. On motion by appellant for an order, directed to the United States District Judge, requiring him to show cause why he should not approve the record of the evidence and proceedings.

<p>Counterfeiting <§=>16—Indictment describing "die” as “mold” not objectionable.</p> <p>In Penal Code, § 169 (Comp. St. § 10339), making it an offense to make or have in possession “any die, hub or mold * * * in likeness or similitude, as to the design or the inscription thereon, of any die, hub or mold designated” for the coining of coins of the United States, the words “die” and “mold” are used interchangeably, and either may be used to designate the same article, and an indictment for its violation is not bad because an article described therein as a “mold” is technically a “die.”</p> <p>[Ed. Note.—For. other definitions, see Words and Phrases, First and Second Series, Die; Mold.]</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Western District of South Carolina, at Greenville; H. H. Watkins, Judge.</p> <p>Bruce Reed was convicted of unlawfully removing distilled spirits on which a tax had not been paid from a distillery, and of unlawfully concealing spirits which had been so removed, and he brings error. Reversed.</p>

<p>Internal revenue '§^47—Conviction for operating unregistered still sustain-' ed by evidence.</p> <p>Evidence held to sustain a conviction for operating an unregistered still.</p> <p>other cases see same topic & ICEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Eirst Division of the Northern District of California; Maurice T. Dooling, Judge. •</p> <p>Habeas corpus by K. Shigezumi, on behalf of Denhichi Ohgi, against Edward White, Commissioner of Immigration. Petition denied, and petitioner appeals.</p>

<p>Sales <§=>81(1)—Delivery held-in compliance with contract.</p> <p>Where a contract for an irrigation pump, to be supplied by defendant to plaintiff; contained no requirement as to time of delivery, but in plaintiffs letter transmitting acceptance of the contract it was stated that use of the pump would be needed within a stated time, and requested delivery within that time, defendant held entitled to rely on such statement, and delivery within that time held a compliance with the contract.</p> <p>or other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Northern Division of the Eastern District of Washington; Frank H. Rudkin, Judge.</p> <p>Suit in equity by the Diamond Drill Contracting Company against William J, Mitchell and others. Decree for defendants, and complainant appeals.</p> <p>The appellant, as assignee of Frederick Stone,’ to whom had been granted on May 11, 1904, letters patent No. 761,332, for an improvement in core drills, brought a suit against the appellees herein for infringement of said patent. One of the defenses interposed by answer was a prior patent for the same invention or improvement issued to Samuel W. Douglass, on November 3, 1891. The appellant thereupon dismissed the suit and caused application to be made to the Patent Office for a reissue, on the ground that the original patent was defective and inoperative, by reason of the patentee claiming as his own invention more than he had a right to claim as new, and stating that the error arose by inadvertence, accident, or mistake on the part of the Patent Office, and without any fraudulent or deceptive intention on the part of the applicant. The application was at first rejected, on the ground that the new claims were anticipated by the Douglass patent; but, upon the appellant filing affidavits to the effect that the Douglass patent was inoperative, the application was finally allowed, and on September 11, 1917, reissue letters patent No. 14,356 were granted.</p> <p>The appellant thereupon brought the present suit against the appellees, who were the defendants in the prior suit. The appellees by answer denied infringement and challenged the validity of the reissue. The court below was of the opinion that the reissue letters patent were invalid, first, because the application therefor was not timely made; and, second, because the reissue patent seemed to cover an entirely new invention, not disclosed by the original patent, and also held that the devices manufactured and used by the appellees did not infringe.</p>

Morris, Judge. Suit by the Minerals Separation, Limited, and another against the Miami Copper Company. From orders of the District Court, denying injunctive relief against modified operations charged to be infringements of the patents in the suit (268 Fed. 862), plaintiffs appeal.

<p>Patents <^=>328—Reissue 14,049, for rubber heel, valid and infringed.</p> <p>The Tufford reissue patent, No. 14,049, for a rubber heel, held valid and infringed.</p> <p><§^?For other cases- see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Equity. Suit by the Bonnie-B Company, Incorporated, against Julien Giguet and another, for infringement of a patent. On rehearing and reargument on motion to dismiss the bill.

<p>In Equity. Suit by the Bonnie-B Company, Incorporated, against Julien Giguet and another, for infringement of a patent. On final hearing. Decree ordered dismissing the bill.</p>

<p>In Equity. Suit by the New York & Queens Gas Company against Charles D. Newton, as Attorney General of the State of New York, Denis O’Eeary, as District Attorney of the County of Queens, and Eewis Nixon, constituting the Public Service Commission for the First District. On motion by complainant for permanent injunction on the report and opinion of the special master, to which each of the parties had filed exceptions.</p> <p>The opinion of Abraham S. Gilbert, as special master, is as follows:</p> <p>The complainant New York & Queens Gas Company is engaged in the business of manufacturing gas in that part of New York City known as Flushing. It delivers gas to consumers in the Third ward of the borough of Queens in the city of New York. By statute it is required to furnish gas to its private consumers at a price not exceeding $1 per 1,000 cubic feet. It is also required by statute to furnish gas to the municipality at a price not exceeding 75 cents per 1,000 cubic feet.</p> <p>In this action the complainant company attacks the constitutionality of tne statute which limits its charges to private consumers to the sum of $1 per 1,000 cubic feet, upon the ground that such statute is confiscatory of its property. The complainant contends that it does now and has for some time past cost more than $1 per 1,000 cubic feet to make, distribute, and deliver the gas to its consumers. If that claim is sustained by the evidence in this case, the value of the property used' in the manufacture and distribution of the gas is of only secondary importance. The question involved in this case is not what rate ought to be authorized by statute, or by order of the defendant Public Service Commission, had no statutory limitation been imposed, but whether the maximum rate now permitted by statute is confiscatory.</p> <p>Necessary Elements m Gomplamant’s Operating Oosts.—It is conceded at the outset that, in order to make gas, it is necessary to have coal, oil, and other incidental manufacturing material and the labor necessary to make and distribute the gas. It is also conceded that, in the operation of a gas plant, repairs are required which call for repair material and repair labor. In order to determine the cost of making and distributing gas, it becomes important to find out how much of the various materials is actually and reasonably used in the manufacture of gas and the reasonable cost of that material; the amount of labor required in the manufacture of gas, and the reasonable cost of that labor; the amount of repairs required, on the average, and the amount of material and labor required for that purpose, and the reasonable cost thereof; and the reasonable expenses of managing the business, delivering the gas to the consumers, and collecting the moneys payable therefor, including the necessary clerical hire, the pay of meter readers, indexers, and bill clerks, the executive salaries, and the like.</p> <p>Scope of the Complainant’s Proofs.—For the purpose of proving the quantity and cost of materials, labor, and the like, as well as the revenues and expenses of its gas business, the complainant company presented to me, as previously to the accountants and experts of the defendants, all of its invoices and vouchers for coal, oil, and other materials and supplies purchased, together with its various pay rolls, works reports, records of manufacture, office reports, and the like, together with its books of account, in which the items oí expenditure and revenue shown by these underlying records had been entered. All of this data covered the year 1919 and the first five months of the year 1920. To the invoices for coal, oil, and other materials were attached the certificates evidencing the receipt of the quantities indicated, and to the oil invoices were also attached the certificates of the New York Produce Exchange inspectors, attesting the quantity and quality of the oil delivered. The public accountants employed by the complainant had checked these vouchers and records to the books and certified to the accuracy of both. There was. also submitted to me the sworn testimony of qualified witnesses as to the actual cost of oil, coal, and other materials from 1906 down to the present time, including the years 1919 and 1920, and the sworn testimony of experienced operating engineers as to the quantities of coal, oil, and other materials, and of the labor, actually required for the manufacture of gas, and the wages necessarily paid to labor during this period, including 1919 and the first five months of 1920.</p> <p>The defendants also offered in evidence data showing the operating results, the unit quantities of materials used, the unit costs thereof, and other information as to the revenues and expenses of the complainant company during the years-from 1906 to 1920. Various of the underlying records of 1918 and prior years were also produced in court at the instance of the defendants, and various of the entries in the books of the complainant and its predecessor company were placed in evidence by the defendants.</p> <p>Increased Sales and Increased Costs.—The evidence before me is practically without dispute that since the 1st of January, 1920, labor cost has considerably increased over the year 1919, and that material cost has considerably increased over the year 1919. On the other hand, the vice president and operating manager of the complainant, Mr. Spear, stated on one of the closing days of the trial that in his judgment the sales of the complainant company during 1920 will be about 15 per cent, in excess of the sales during 1919. In my opinion, a finding to this effect is justified and required by all the evidence, although counsel for the complainant points out that from 1918 to 1919 the increase in sales was only 2.G per cent., and that the average increase during the past five years has been only 7.02 per cent.</p> <p>An Increase of 15 per cent, in the volume of sales will, in my judgment, necessarily tend to reduce the cost, in terms of cents per 1,000 cubic feet of gas sold, of certain of the items classified as distribution costs, particularly in the category of commercial and general office expenses. Any such decrease in the unit cost of these commercial expenses (in the meter-reading, bookkeeping, and billing departments, for example) will probably prove less than would otherwise he the ease, by reason of the fact that the company’s present office force is small, and is compelled to work on an overtime basis to look after the present volume of sales, and additional staff may be required for increased sales; but, as faii'ly as 1 can figure it, increased sales of 15 per cent, over 1919 would ordinarily make a difference of about 4 cents per 1,000 cubic feet, in the distributing cost of the gas sold by the complainant. Any such saving in the unit expenses of the general office and commercial departments will, however, be at least absorbed by the increased cost of gas manufacture and the increased cost of the labor and material entering into the work of distribution, so that the net effect on the unit distribution costs as they now appear for 1920 will be that, despite the prospective increase in sales the gas as delivered to the consumer, including the commercial expenses, does and will cost considerably more per 1,000 cubic feet than in 1919 or early 1920.</p> <p>WHO Costa Higher Than Those of 19W.—If, therefore, the actual results of operations for the year 1919 show the rate to be confiscatory, it follows that the net result of operations for the year 1920, which can only be determined in definite figures when the year has ended and the books for 1920 have been closed, will show a larger deficiency than appeared as the result of operations in the year 1919. I have therefore concluded to base my. findings as to the cost of making and distributing gas especially upon the operations and costs established for the year 1919, those figures being taken, of course, in the light of what I have just said, that the cost of making and distributing gas in the year 1920 will be in excess of the figures I reach for the year 1919.</p> <p>Details of 1919 Costs as Shown by the Company’s Books.—The books of account, vouchers, manufacturing records, works reports, and the like of the complainant company were placed at the disposal of the defendants, more than six months in advance of the beginning of the trial before me, along with copies of the principal statistical exhibits which the complainant proposed to offer in evidence upon the trial, and were carefully and thoroughly examined and analyzed by counsel for the defendants, their accountants, and engineers. These operating records show that in the year 1919 the actual cost of the gas made at the complainant’s works was 63.45 cents per 1,000 cubic feet of gas made, and that the loss in volume, based upon the quantity of gas metered at the consumers’ premises, to which I shall presently refer in discussion of this so-called “unaccounted-for gas,” was 11.03 per cent, of the gas made. On that basis, the complainant’s actual cost of making gas in the year 1919 was 71.73 cents per 1,000 cubic feqt of gas sold. The actual distribution expenses, including the commercial expenses (and including also an item of 0.22 cents for defensive emergency service still required in Y919, and 4.62 cents on account of the expenses of the present suit in equity, totaling 4.84 cents, both of which items it is my judgment that I ought to disregard for the purposes of my present inquiry, for reasons hereinafter indicated), aggregated 32 cents per 1,000 cubic feet sold; renewals and replacements, 3 cents per 1,000 cubic feet sold; taxes and interest thereon, 7.07 cents per 1,000 cubic feet sold, making a total actual cost of $1.138 per 1,000 cubic feet of gas sold. The complainant’s income from the sale of gas in 1919, according to these same books and records, was 99.51 cents per 1,000 cubic feet, showing a deficiency below actual cost of 14.29 cents per 1,000 cubic feet of gas sold. As against this deficiency, however, the complainant company credits the account with the profit made on its sale of gas appliances, the moneys received as rental of such appliances, and certain interest items, aggregating 6.75 cents per 1,000 cubic feet of gas sold, leaving a net deficiency during the year 1919 of 7.54 cents per 1,000 cubic feet of gas sold, or, in money, the sum of $25,340.89.</p> <p>The Uniform, System of Accounts.—It becomes important, therefore, to determine whether these figures appearing in' the books and records of the complainant company have been sustained and confirmed by the proofs submitted in the present record, and whether any of the items of expenditure shown in the accounts should be disregarded by me in determining whether the statutory rate was and is confiscatory.</p> <p>The books and accounts of the complainant company, like the accounts of all other gas companies in the city of New York since the year 1908, have been kept under the jurisdiction of the- defendant Public Service Commission of the state of New York for the First district. The Public Service Commission has prescribed a uniform system of accounts, which is observed by the complainant company, \and possesses authority to examine the complainant’s books and records at all times, and require changes in the accounts, if deemed advisable. The powers and duties of the defendant eommission are set forth in full in the statute known as the Public Service Commissions Law, and it is unnecessary, I think, for me to dwell at length upon the provisions of that statute at this point.</p> <p>Unit, Quantities of Materials and Labor.—The first question to determine is whether the quantities used by the complainant company, as they appear from the books and records of the company, are correct and set forth a reasonable and necessary use of materials and of labor, or whether there Has been a waste of gas-making material and unnecessary use of labor forces, and the books do not accurately reflect the quantities actually needed and used. I have analyzed these figures in the light of the defendants’ proofs, and also of the sworn testimony given by Mr. Woods, an operating engineer of wide experience produced by the complainant company, whose testimony has not been directly attacked or contradicted by any witness. Except for some minor variances, when contrasted with the 3919 operating results, such as his estimate of “unaccounted-for” gas at 10 per cent, (the record for 1919 shows 11.03 per cent.), his slight underestimate of the required boiler fuel, and the slight difference as to the figures given by him for the gas oil required, it may be said that the results shown in the operating records closely accord with the sworn expert opinion of Mr. Woods, and are confirmed by his judgment as to the results which might reasonably be looked for and secured.</p> <p>Complainant’s Records Accurately Kept and Reflect Efficient Results.—As to some items, the complainant company in 1919 did a little better than Mr. Woods said he would expect to find its operating staff doing under average operations as of the present time. As to gas oil, Mr. Woods’ estimate was the average use of 4.2 gallons per 1,000 cubic feet; the operating results showed an actual use of 4.19 gallons in 1919 and of 4.26 gallons in 1918. As 1 have already indicated, Mr. Woods thought that the “unaccounted-for” gas would ordinarily not exceed 10 per cent.; whereas, the operating records showed an actual unaccounted for in 1919 of 11.03 per cent., which seems to me a reasonable figure, having in mind all present conditions. On the whole, I am convinced that the operating records of the complainant company have boon honestly and accurately kept, and accurately reflect actual, efficient, and reasonable operating results. In arriving at a conclusion, therefore, in this case, I have accepted the actual operating results for the year 1919 as they appear from the books of the complainant company, showing the cost of manufacture to be 63.45 cents per 1,000 cubic feet of gas made.</p> <p>The Volume of “Unaccounted-for” Gas—The question of the so-called “unaccounted-for” gas becomes important, in order to determine the cost of the gas actually supplied to consumers. It is conceded that there is an unavoidable loss in gas volume, known in the art as “unaccounted-for” gas. The fact that in any year, in order to deliver a certain number of million cubic feet of gas to consumers, a larger quantity of gas has to bo made and sent out than is ever metered on the consumers’ premises, is one of the factors affecting and determining the cost per 1,000 cubic feet of the gas delivered to the consumers. Counsel for the defendants contend that the “unaccounted-for” gas of the complainant in the year 1919 was greater than in prior years. That appears to be the fact. I am asked by counsel for the defendants to find that this increase in the “unaccounted-for” gas during the year 1919 has not been explained by the complainant. I am unable to make such a finding, because there is ample evidence in the case indicating that it is practically impossible to regulate the amount of “unaccounted-for” gas, and that factors were operative in 1919 which tended to increase the percentage. Weather and other conditions affect the gas in such manner and form that it is impossible to say that “unaccounted-for” gas should be. kept below a certain percentage. Some years it seems to run very high, and in other years it seems to run quite low. This variance is caused by a number of changing conditions. I feel that I am compelled, in considering the operating results of the complainant company, to accept the actual conditions as I find them during the year 1919, and to accept the “unaccounted-for” gas at the figure of 11.03 per cent., which was the exact amount of such loss in volume during that year. In this connection, of course, it should be borne in mind that in 1920, or in some subsequent year, this percentage may be lessened, so that the actual cost of making the gas in such year, if based upon the rates of pay for labor and the prices of materials prevailing in 1919, might be somewhat less than the figures now shown for 1919. But here, again, it should be noted that, although there may be a reduction in the percentage of “unaccounted-for” gas, whatever reduction may take place from such a cause will be more than absorbed and offset by the increased cost of materials and of labor. Upon the basis of 11.03 per cent, of. “unaccounted-for” gas, the complainant’s actual cost of manufacture during the year 1919 was 71.73 cents per 1,000 cubic feet of gas sold.</p> <p>The Cost of Distribution.—This brings me to the cost of distribution and other expenses, including the commercial expense. The defendants challenge only four of the items included in this general item of “distribution and other expenses.” They ask me to strike out from the 1919 outlays the item of $747.46 for “defensive emergency service”; the item of $15,518.73, representing the charges made in 1919 on account of the expenses of the present rate suit; interest on insurance, amounting to $57.58; and increased fire insurance, $477.30. Í cannot agree with counsel for the defendants in their claim that I ought to eliminate the item “interest on insurance, $57.58” and the item "increase in fire insurance, $477.30.”</p> <p>Eliminated Items.—I do, however, agree with counsel for the defendants that, for the purposes of the test I am required to make in this case, X should eliminate the amount charged in 1919 to the account of the present rate case, amounting to $15,518.73 and the items appearing in the 1919 accounts for defensive emergency service, amounting to- $747.46. I limit my statement as I have with respect to these two items last mentioned, because I agree with counsel for the complainant that in establishing a new rate an allowance must be made for the necessary expense to which the complainant company has been put in establishing its right to charge an adequate and remunerative rate for the gas sold by it, despite the existing statutory limitation, which I herein find to be confiscatory. I draw a distinction between analyzing the usual and necessary operating expenses of the company for the purpose of determining whether, in the first instance, the maximum rate fixed by statute is confiscatory, and the analysis of the complainant’s expenses which must be made in fixing the fair rate for the future. The latter, of course, must make provision for the complainant’s reimbursement for the expense of freeing itself from a statute which the complainant has proved to be confiscatory. That, however, remains to be considered in the fixation of a new rate.</p> <p>The two items which I have thus stricken out for the purposes of the present inquiry aggregate $16,266.19. The total amount of actual distribution expense for 1919 was $107,597.82. Deducting $16,266.19 from $107,597.82 gives $91,331.-63; this divided by 336,000,000 cubic feet, sold in 1919, makes the allowable distribution expense approximately 27 cents, instead of 32 cents; as shown on the books of the complainant company.</p> <p>Renewals, Replacements, and Taxes.—The item of the cost of providing for the renewal and replacement of property withdrawn from service seems to be agreed upon by all parties at 3 cents per 1,000 cubic feet of gas sold. As to the taxes and interest thereon, amounting to $23,794.71, or 7.07 cents per 1,000 sold, the defendants ask me to eliminate the interest on unpaid taxes, amounting to $233.71, and the federal income tax item of $443.25. I doubt whether these items, particularly the latter, should be included in the cost of taxes to the complainant company; but, if I should eliminate either or both of them, it would make no substantial change in the tax figure, so that, in arriving at my figures, I have taken the tax item as 7.07 cents per 1,000 cubic feet of gas sold.</p> <p>Conclusions as to 1919 Results.—There appears to be no dispute that the income from sales of gas amounted to 99.51 cents, nor does there appear to be any dispute as to the amount of credit for miscellaneous operating revenue, viz. 6.75 cents per 1,000 cubic feet of gas sold. I have reached the conclusion, therefore, that the actual cost of making and distributing gas during the year 1919, including taxes and the renewal and replacement of property, was $1.088, against which there is to be credited 6.75 cents, leaving a net cost of $1.0205, or a deficiency over the sum realized from gas sales (99.51 cents) of 2.54 cents per 1,000 cubic feet of gas sold. This sum, multiplied by 336,241,400 cubic feet of gas sold during tbe year 1919, gives $8,540.53 as tbe actual deficiency in operating expenses for the year 1919, without regard to any return upon any of the complainant’s investment in the property used in its gas business. These figures show a confiscation of the complainant’s property in 1919, and a confiscation thereof to an even greater extent thus far in 1920, and there might appear to be no necessity for my going further and ascertaining the present fair value of the property, upon which the complainant was and is entitled to earn a reasonable return. Both sides, however, have asked that I make findings with respect to the complainant’s property and its value, and in order that the reviewing court may have before it the exact situation of the complainant, I have made my findings in detail with respect to the property and its value.</p> <p>Franchises and Rights Acquired by the Complainant.—The complainant company was organized in the month of July, 1904. Between the time of its organization and its merger with the Newtown & Flushing Gas Company, it acquired all of the outstanding securities of the Newtown & Flushing Gas Company. It issued for these securities its own securities—$600,000 of stock and $650,000 of bonds. At the time of the merger, the complainant company apparently, so far as this record discloses, owned no property, had no cash, and had no assets of any kind or description. No inventory and appraisal of the property acquired by the complainant seems to have been made the basis of tbe merger. The securities issued by the complainant for this purpose cannot, it seems to me from the present record, be considered to have been worth more than the property thereby acquired.. The Newtown & Flushing Company, when it was merged with the complainant company, owned certain tangible and intangible properties, including certain franchises issued by various village and town officials. No proof was offered tending to show any specific sums as paid to the public authorities for franchises, or what specific amounts were paid by the companies which acquired these franchises to the persons and corporations which theretofore owned them. The record does not show to what extent the cost of these franchises and rights to the Newtown & Flushing Gas Company, as shown by its books placed in evidence by the defendants, represented actual payments for the same to public authorities by that company or its predecessors.</p> <p>Agreement as to the Cost of Present Tangible Property.—Fortunately, there has been agreement between tbe parties upon this record as to the cost, up to and as of August 1. 1904, of the tangible properties still in existence and use, which were acquired by the complainant company on that date. The complainant and the defendants agree that the tangible property acquired on August 1, 1904, and still in existence and use, did cost, and as of that date was reasonably worth, at least §280,108, and I adcept that figure in arriving at the complainant’s total investment and the present value of its property. Since that date, the net additions to the plant and property of the complainant have cost $850,389.08, and there is no dispute as to this item. These two items, not in controversy, cover the actual cost of the tangible property now in use, aggregating $1,130,497.08.</p> <p>Additional Elements of the Original Investment.—To the first of these items, the complainant asks me, on the basis of Mr. Miller’s testimony and the book entries as of 1904 and subsequent years, to add $320,350 for the preliminary organization and development expenses of tbe enterprise and other items of cost set forth in Mr. Miller’s estimate (Complainant’s Exhibit 96). It is conceded by the defendants that in the initiating of a gas enterprise there is necessarily incurred preliminary and development expenses, cost of financing, engineering and superintendence expenses, interest and taxes during construction, and the like, as to which varying amounts were testified by the witnesses on each side, principally based upon opinions as to the proper percentages to be allowed for such items. The defendants contend, moreover, that there is no adequate proof before me on which I should base any finding of value for tne franchises and rights.</p> <p>“Going Value.”—The complainant further contends that, under the decisions of the courts, I must include in my figures, if they are to be complete and state the full reproduction cost, an amount for so-called “going value.” I readily agree that, in arriving at a statement of the full cost of bringing such a gas project into being and its business to a profitable point, an allowance for “going- value” would have to be included. The complainant’s testimony in this case was that these elements of cost, commonly referred to as “going value,” would, as to this company, amount to at least $500,000. My present task, however, does no necessarily call for such an effort to cover specifically all elements of reproduction cost. I also readily accept the argument that, in arriving at the cost of the tangible and intangible property of the complainant, I should expect to find that the franchises and rights had cost a substantial sum, and that some allowance must be made for the necessary, but undistributable, expenses already referred to. The difficulty here, however, is in finding a satisfactory figure from the evidence available in this record.</p> <p>The $650,000 of bonds originally issued by the complainant company upon the purchase of the securities of the Newtown & Flushing Company are probably now in the hands of persons who at that time had no connection with the Newtown & Flushing Company. All of the stock of the complainant company is owned by the Consolidated Gas Company of New York. As-I have already pointed out, one difficulty here is that I have not before me the satisfactory basis for a finding that the securities issued by the complainant company were worth any more than the book value of the tangible and intangible property acquired, or that under the circumstances already referred to, such property, at the time it was acquired, had cost or was worth more than was shown by the books of the company from which it was acquired.</p> <p>Bahis of Finding as to TJndistributaible Structural Costs.—At the time of the merger of the Newtown & Flushing Gas Company into the New York & Queens-Gas Company, the total property and assets of the former (exclusive of working'capital) were carried on the books of the former at $694,678.’00. Since that time, p)ant and equipment so acquired by the complainant on August 1, 1904, has been retired, at a book cost totaling $24,189.14. The tangible property acquired on August 1, 1904, and still in service, is agreed to have cost before August 1, 1904, and to have been worth on that date, the sum of $280,108, exclusive of franchises and rights and “going value,” and the undistributed structural items under consideration. The deduction of these two items from the book total of $694,678 leaves only $390,380.86 as representing the book cost to the Newtown & Flushing Gas Company of the franchises and rights, the “going value,” and the undistributable structural items hereinbefore mentioned. There is sufficient evidence to warrant my conclusion upon the present record that the item of “franchises, good will, etc.,” on the books of the complainant and its predecessors, covered, among other things, preliminary and development expenses, and the various other items which Mr. Miller puts in at a total of $320,350, and also the cost of “franchises and rignts,” which Mr. Miller puts in ,at $500,000; and I think it will be fair for me to say, for the purposes of the present case, that for all of these items just referred to the New York & Queens Gas Company actually paid no-more than their book cost to the Newtown & Flushing Gas Company and its predecessors, viz. $390,380.86, and that these elements had cost the Newtown & Flushing Gas Company and its predecessors, and were worth, on August 1, 1904, at least that sum.</p> <p>Worlcing Capital.—To the cost of the present property acquired in 1904 and the net additions to such property since 1904, totaling $1,520,877.94, there must be added an item for materials and supplies, cash on hand and in-banks, and the like, commonly called working capital. The experts for the defendants figure this item for the year 1919 at $80,000. Mr. Miller, on behalf of the complainant company, figures the item at $165,000. The expert witnesses called by the defendants frankly concede that the amount to be allowed for working capital is such amount as reasonable business men of experience would require in the conduct of this kind of a business. Taking into consideration the various elements which are and must be provided for in arriving at the necessary amount of working capital, I have reached the conclusion that $135,000 would be a fair sum to be allowed for working capital. I therefore reach the conclusion that the tangible and intangible property, including working capital, used and useful during the year 1919 and as-of January 3, 1920, by the complainant company in the conduct of its gas business, represents an actual invesfment, and is reasonable and fairly worth at this time, at least the sum of $1,655,877.94, and that it is on at least this amount that the complainant company was and is entitled to have its rate such as to yield a fair return.</p> <p>Cost and Present Value of Land.—In view of some statements made by me on the record with reference to the value of land and my statement that I would fix the value of land at about $44,000, I should add that upon analyzing the figures 1 found that land acquired prior to August 1, 1904, is included in the agreed item of $280,108 at $39,423, plus grading and filling, $5,000, making $24,423 for land unimproved, and that additions to real estate since 1904, have cost the complainant $20,030.90, a total of a little more than §45,153.90.</p> <p>Compliance with Candle-Power Statute.—Statements made by me on the record indicate my views as to the claim made by counsel for the defendants that the complainant company was not entitled to equitable relief because or its alleged failure to comply with the statutory requirements as to candle power, and I therefore deem it unnecessary to say anything further herein upon that subject, which I discussed at considerable length in my opinion as special master in the Consolidated Gas Company Case. In view of tho similarity of the record facts, I refer to that opinion for a fuller statement of my views upon the subject. I am clear that this complainant has complied with the candle-power provisions of the statute.</p> <p>Basis of finding of “Present Value.”—It is proper for me to say, before concluding this opinion, that I have based my finding of fair present value upon what I conceive to he the actual cost of the property to the complainant company. My reasons for the adoption of this criterion or standard of present value in such a suit as this wore set forth at length in my opinion as special master in the Consolidated Gas Company Case, to which I refer for a more comprehensive statement of those reasons. In my opinion the property now used by the complainant company is worth at least that sum.</p> <p>The Undisputed Testimony as to Present Reproduction Cost.—The complainant company offered testimony as to the present reproduction cost of the tangible property of the complainant company. The proof was undisputed that the complainant owns and uses the items of tangible property which It inventoried as of January 1, 1920, and that, exclusive of working capital and the undistributablo structural costs, the cost of reproducing the tangible property, as of January 1, 1920, would he at least $2,099,621, as compared with the complainant’s actual and unimpaired investment in the same tangible items of only §1,130,497.08. In other words, leaving out working capital and the undistributable working costs, it would cost nearly twice as much to reproduce tho tangible property to-day as it did actually cost the complainant and its predecessors.</p> <p>Of course, to this figure of $2,099,621, to reach a complete figure of present reproduction cost, there must be added amounts, based on the present cost of such items, for organization and development expenses prior to construction; cost of financing; engineering, superintendence, and general contractors’ expense and profit; interest during construction; taxes on land during construction ; the cost of franchises and rights; administrative, legal, and miscellaneous expenses during construction; certainly the sum of $135,000 for working capital; and perhaps also a suitable amount for “going value.” The above-stated investment figure of $1,130,497.08 likewise does not include any allowance for the cost of these items prior to August 1, 1904, although they were, of course, principally incurred before that time. In so far as these undistributed elements arise in connection with the present cost to reproduce this property, I have not thought it necessary to make a finding as to any of them; and in so far as they arise in connection with the complainant’s present aggregate investment, I have declined to make any finding assigning to them a value in excess of the item representing their cost to the complainant and its predecessors, viz. $390,380.86, in which they are included to an extent deemed adequate for the purposes of this case.</p> <p>A7o Reduction for “Accrued Theoretical Depreciation.”—In determining that the complainant’s property has a fair present value of at least tho amount of the complainant’s actual investment therein as found by me, viz. at least $1,655,877.94, I have made no deduction for what is termed “depreciation,” in whatever way calculated. Under any basis of determining present value, the complainant’s property is now worth at least the amount of such investment therein, and the sound rule of law and policy seems to require the allowance of a reasonable return upon at least that sum.</p> <p>Upon the present trial, it was- insistently urged upon me by some of the defendants that there should be deducted from the cost of the property (irrespective of whether “original,” “pre-war,” or “present reproduction” cost be under consideration) an amount claimed to represent so-called “accrued theoretical depreciation,” based upon an assumption of “life expectancy” for a gas plant and equipment and the estimated or known number of years since the same was erected or installed. From the testimony given upon the trial, I was strongly impressed that, in respect of a very large proportion of gas property, there is no ascertainable “life expectancy.” The withdrawal of such property from service comes about from inadequacy or obsolescence, which cannot be forecast in terms of years or even satisfactorily guessed at. Certain parts of operating machinery and equipment are of course subject to the effects of use. The replacement of these wearing parts enters into the cost of repairs. As to the substantial units of structures, apparatus, mains, and equipment, their withdrawal from the property accounts comes about from causes not attributable to the condition of the property itself, or any diminution in its operating efficiency, but varying utterly with the particular plant, time, local conditions, and service demands, and hence capable of being forecast only as the occasion for such change in plant or equipment becomes imminent.</p> <p>Tile Renewal and Replacement of Gas Property.—In other words, in order to keep abreast of improvements in the art of making and distributing gas when and as it becomes economically advantageous to do so, and to meet the growing demand of the public for service more adequately and economically than would be possible through merely making additions and extensions to existing plant and equipment, larger or better and more economical and efficient units of plant and equipmerit are from time to time installed, to take the place of units which are still operating as efficiently as when first installed. The loss due to such supersession cannot properly be said to have accrued during the period the superseded unit was in service. It occurred when super-session took place. It became a proper charge against the economies to be realized therefrom. It furnished no basis for the imposition of an additional charge against the user of the superseded unit during the period of its useful service, over and above the higher cost of operating it. Such a charge could not be justified, either on the ground that the unit was losing potential life, or that the capital invested in it was being consumed, because neither is true.</p> <p>Additional Burden on the Consumer Unwarranted.—In order to justify the deduction of “theoretical depreciation,” I was asked in this case to assume that a .“depreciation reserve” equal to the computed “theoretical depreciation” had been collected from the public, and then to deduct from the company's investment the amount of such assumed reserve. No such reserve had, in fact, been collected or accumulated by this company. The rate chargeable did not permit it, and there is no reason to believe that the Legislature, in prescribing the rate, ever confemplated it. As I have set forth in findings Nos. 32 and 27 of my report, and as I have elsewhere indicated herein, the complainant gas company has maintained its property and investment intact in the past, through renewals and replacements, at an average actual cost of approximately 3 cents per 1,000 cubic feet of gas sold, and no reason appears for believing that it cannot continue to do so on that basis. Even assuming that the statute permitted such a rate, to have imposed on the company’s consumers an additional burden nearly twice as great, representing a purely theoretical item of operating cost, merely to accumulate a useless reserve to justify a drastic deduction from investment in some ultimate proceeding as to rates, could not have been justified on any sound theory in the past, and cannot now be sustained as to the future.</p> <p>Effects of an Unnecessary Reserve.—In order to justify the assumption that a “depreciation reserve” was or should have been collected, defendants’ witness'Hine testified in uiis case that such a reserve was necessary, “so that when the property is retired for any cause whatsoever the fund can be charged with the cost of the property.” He testified, also, that the reserve should be in his opinion “invested in the property,” and that when the funds were needed for renewals and replacements they would be provided “by issuing securities against construction work which had been done originally our, ox this fund, for the money laid aside for this fund, just to reimburse the treasury on account of these expenditures.” This view seemed to me to disregard the obvious fact that, having deducted the amount of the reserve temporarily invested in property from that on which he proposed the company should be allowed to earn a return, he, to all intents and purposes, destroyed the earning power of such property and investment; that therefore he could not issue any securities against such property, there being no earnings therefrom with which to pay interest on the securities; that the reserve could never thereafter be availed of for the purpose for which it was alleged to have been created; and that it would be, in fact, as if it had never been create,d. Thus he not only failed to sustain his contention that a “depreciation reserve” was necessary for the purposes which he alleged, but he proposed to treat the reserve as if he himself believed it to be both unnecessary and ineffectual, except for the purpose of justifying a deduction from the complainant’s investment.</p> <p>It is obvious that the collection of an unnecessary reserve and its periodic deduction from the value of the property in service would operate to effect a piecemeal purchase, on the part of the public, of the property used by the utility in its service. In other words, it is really asking the consumer to pay for the plant, instead of paying a return on tho investment. If such a consummation is desirable, of which there is no evidence, it should be effected openly, and not surreptitiously, under the guise of providing for so-called “theoretical depreciation.”</p> <p>Present Condition of the Property.—Mr. Miller testified that, as of April, 1020, the expenditure of $(>,144.07 for repairs, renewals, and replacements, would put the plant, structures, machinery, and equipment in condition substantially as good as when they were erected or installed. His testimony in this respect was not contradicted by that of any witness. This sum, however, does not, in my opinion, measure any impairment in the present value of the property used and useful in the gas business. It represents merely an miniatured obligation to maintain tho property in efficient operating condition out of future earnings; the expert witnesses of both the complainant and the defendants agreeing that it was and is maintained in efficient and first-class condition. I therefore have not deducted this or any other sum representing so-called “accrued depreciation” from the amount found by me to represent the investment of the complainant in its gas property upon which it is entitled to have its rate such as to yield a reasonable return.</p>

In Equity. . Suit by Harold A. Howard and John C. Howard, trustees under the will of Sarah J. Howard, deceased, against the Maxwell Motor Company, Incorporated, and the Maxwell-Briscoe Motor Company. Held: the reorganized corporation is bound by its own recital of the value of the property, the plaintiffs’ case is clear. For the situation here is substantially similar to the situation outlined by the Supreme Court in the Boyd Case.

In Equity. Suit by the Marcus Brown Holding Company against Marcus Feldman and others. On hearing on application to show cause why an injunction pendente lite should not be granted. Application denied, and bill dismissed.

<p>At Law. Action by J. W. Pope against the United States Shipping Board Emergency Fleet Corporation. On motion to dismiss, and on demurrer to a plea to the jurisdiction.</p>

<p>1. Internal revenue @=8—Estate tax applies to prior transfers in contemplation of death.</p> <p>Under Revenue Act 1916, tit. 2, § 201 (Comp. St. § 6336%b), imposing tax on the estate of every person dying after the act took effect, section 202, subjecting to the tax all transfers made at any time in contemplation of death, and section 202b (Comp. St. § 6336%e), creating presumption that transfers without consideration made within 2 years of death are in contemplation of death, transfers made before the act took effect by one who died after it became effective are taxable, since the death is the generating source of the tax, whether the transfer took effect immediately or only at death, and there is no reason why both classes of transfers should not be equally taxed.</p> <p>2. Internal revenue @=2—Classification of transfer in contemplation of death as testamentary is within power of Congress.</p> <p>A classification of transfers made in contemplation of death and of those intended to take effect after the death of grantor as equally testamentary in character is one within the power of Congress.</p> <p>3. Constitutional law @=>286—Internal revenue @=2—Tax on testamentary transfers made before act took effect does not deny due process of law.</p> <p>Internal Revenue Act 1916, tit. 2, § 202 (Comp. St. § 6330%c), when construed to impose a tax on transfer made before the act became effective by one who died thereafter, is not void, as denying due process of law or as violating Const, amend. 5.</p> <p>4. Internal revenue @=6—Tax on testamentary transfers is not “direct tax.”</p> <p>The óslate tax Ioviod by Internal Revenue Act 1916, tit. 2, § 202 (Comp. St. § 8336%c), on transfers made in contemplation of death, is not a “direct tax,” within the constitutional requirement of apportionment, but is clearly an excise or duty tax.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Direct Tax.]</p> <p>5. Constitutional law @=>42—Executor, paying tax, cannot object that it destroyed vested rights of transferees, if not injured.</p> <p>The executor of a decedent, who paid the estate tax on a transfer made in contemplation of death before the act became effective, cannot, in an action to recover the tax, object to the statute as unconstitutional, because interfering with the vested rights of the transferees, since any one attacking a statute as unconstitutional must show that the alleged unconstitutional feature injures him.</p> <p>6. Constitutional law @=190—Retroactive tax on testamentary transfers is valid.</p> <p>The estate tax levied by Revenue Act 1916, tit. 2, § 202 (Comp. St. § 6336%e), on transfers made in contemplation of death, is not unconstitutional merely because it is retroactive, in that it applies to transfers made before it took effect by those who died thereafter.</p> <p>7. Internal revenue @=S—Subsequent statute held not construction that earlier one did not tax transfers made before enactment.</p> <p>The fact that the Revenue Act of 1919 (Comp. St. Ann. Supp. 1919, § 6336%a et seq.) expressly states that transfers in contemplation of death are taxable, whether made before or after the passage of the act, was not a construction by Congress that Revenue Act 1916, tit. 2, § 202 (Comp. St. § 6336%c), which imposed a similar tax without such express provision, did not apply retroactively.</p> <p>other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>8. Internal revenue @=8—Transfer in “contemplation of death?’ need not be based on apprehension from existing bodily condition.</p> <p>A transfer is taxable, as made in “contemplation of death,” if the expectation or anticipation of death in either the immediate or reasonably close future is the moving cause of the transfer; it not being necessary that death is immediately impending by reason of bodily condition, though the condition of grantor’s health at the time of transfer is an important feature in determining the ultimate question whether she was directly actuated by a contemplation of death.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, .Contemplation of Death.]</p> <p>9. Appeal and error @=215(1)—Use of particular word in instruction held not reversible, without objection.</p> <p>In an instruction defining the term “contemplation of death,” within the federal estate tax statute, the use of the word “distant,” in the phrase, “anticipation of death in the reasonably distant future,” instead of the word “close,” does not require reversal, where there was nothing in the exception to call the trial court’s attention to the proposition that the word “close” should have been used, instead of “distant.”</p> <p>10. Trial @=139(1)—Court cannot weigh evidence on motion for directed verdict.</p> <p>A motion to direct a verdict is properly overruled, if there is substantial testimony tending to support a conclusion to the contrary, since the court cannot weigh the testimony.</p> <p>11. Internal revenue @=38—Evidence held to sustain vei’dict finding transfer made in contempla,tion of death.</p> <p>Evidence that 1% years before her death decedent, who was then about 77 years of age and was suffering from a disease which is usually fatal, made a trust deed without consideration, transferring more than half her property, and shortly thereafter made a will containing some references to the transfer, held sufficient to sustain a verdict finding the transfer was made in contemplation of death.</p> <p>12. Internal revenue @=38—Statutory presumption of fact can be considered in determining whether transfer was in contemplation of death.</p> <p>In an action to recover an estate tax collected on a transfer alleged to have been made in contemplation of death, it was proper to instruct the jury that the presumption created by Internal Revenue Act 1916, tit. 2, § 202b (Oomp. St. § 6336%c), that voluntary transfers within 2 years before death are in contemplation of death, could be taken into account in determining whether the transfer was made in contemplation of death.</p> <p>13. Evidence @=472 (1) —Witness cannot state fact which was for ultimate conclusion of jury.</p> <p>In an action to recover a tax collected on a transfer charged to have been made in contemplation of death, it was incompetent for plaintiff to state whether the grantor had an expectation of death in the near future, which was the ultimate fact for the conclusion of the jury.</p> <p>14. Evidence @=471(9)—Witness without personal knowledge cannot testify to understanding.</p> <p>A witness who apparently had no first-hand knowledge of the matter cannot testify as to his understanding of the purpose of grantor in making a transfer.</p> <p>15. Trial @=75—Objection to testimony as incompetent too late, where same objection to same matter was previously overruled.</p> <p>Where the objection to a question as to the inclusion of income from a trust in the income tax returns of the grantor for the first year as inlmaterial was overruled, and the witness answered, a subsequent objection to substantially the same question, and motion to strike substantially the same answer because they were incompetent, is too late to raise the question of the competency of the evidence.</p> <p><@^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>16. Internal revenue <^38—Payment of state taxes held material as to purpose of transfer.</p> <p>In an action to recover a tax collected on a transfer charged to have been made in contemplation of death, where plaintiff claimed the transfer was made for the purpose of avoiding a state tax, it was material to show that the grantor and the grantee liad not paid any taxes in the state and were not liable so to pay.</p> <p><@5»For other cases see same topic & KI2Y-NUMB1SB in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Western Division of the Western District of Tennessee; John E. McCall, Judge. _</p> <p>_ Petition of the Patton-Tully Transportation Company for limitation •of liability. Petitioner appeals from a decree denying such limitation as to the claim of Robert Turner, administrator, and others, and Lizzie Clark, administratrix, and Edward Freeman, administrator, appeal from disallowances of their claims.</p>

Petition for Revision of Proceedings of the District Court of the United States for the Western Division of the Southern District of Ohio; Howard C. Hollister and John W. Peck,'Judges. In the matter of the Orinoco Corporation, bankrupt. Petition by George N. Baxter to revise orders of the District Court.

<p>In Error to the District Court of the United States for the Middle District of Tennessee; Edward T. Sanford, Judge.</p> <p>Action by the United States against the Nashville, Chattanooga and St. Eouis Railway Company. Judgment for the United States, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the Eastern District of Michigan; Arthur J. Tuttle, Judge.</p> <p>Action at law by Carrie Smoots against the Valmas Drug Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Appeal and error <©=>927(6)—Direction of verdict not without effect on reviewing court.</p> <p>Where the 'trial court has directed a verdict for defendant, the reviewing court may safely assume that plaintiff’s case was not helped out by an impressive atmosphere not shown in the record.</p> <p>2. Master and servant <©=>286(34)—Evidence insufficient to take question of railroad flagman's negligence to jury.</p> <p>Where plaintiff’s intestate, who was engineer of a following train on a foggy night, disregarded two block signals set against him and the signal given by a brakeman sent back for the purpose, and although the rules required him, in ease he could not see the signals, to stop or proceed with great caution, ran at full speed into a stalled train ahead, evidence that the brakeman sent back to signal had proceeded but half the distance required by the rules and practice when he met the coming train, but not showing that he delayed unduly, beyond that he walked very slowly on account of the fog, held insufficient as matter of law to establish negligence of the railroad company contributing to the death, which entitled plaintiff to recover under Employer’s Liability Act (Gomp. St. §§ 8657-8665).</p> <p>3. Master and servant <©=>137 (7)—Warning to following train by block signal sufficient.</p> <p>It was not negligence for a railroad company to fail to give warning through its train dispatcher to a following train that the train ahead was stalled, where it ,had established an efficient block signal system, which gave sneh warning.</p> <p><S=>For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexed</p>

<p>In Error to the District Court of the United States for the District of Nebraska; Joseph W. Woodrough, Judge.</p> <p>On petition for rehearing.</p>

<p>In Error to the District Court of the United States for the District of Minnesota; Page Morris, Judge.</p> <p>Action by the Chemung Iron Company agains.t Edward J. Lynch, Collector of Internal Revenue. Judgment for defendant, and plaintiff' brings error.</p>

Rose, Judge. Suit by Joseph F. Wireback and others, partners doing business as the Pittsburgh Orthopedic Company, against Thomas D. Campbell and others, partners doing business as the Maryland Orthopedic Company. Judgment for plaintiffs (261 Fed. 391), and defendants appeal.

Suit in equity by the American Merchant Marine Insurance Company of New York against H. G. Tremaine, S. D. Buckley, and John. Doe Buckley, partners as the Buckley-Tremaine Dumber Company. From a decree dismissing the bill, complainant appeals. The court below dismissed the bill brought by the appellant to reform a policy of marine insurance.

<p>1. Reformation of instruments <§=36 (3)—Bill held to show mutual mistake in patent for land, warranting reformation.</p> <p>A bill by the United States, alleging that it sold a tract of public land to defendant by a written contract providing that, on completion of deferred payments, a patent should be issued to defendant, which should contain a provision “reserving to the United States a right of way for canals and public roads constructed or hereafter to be constructed,” but that, through inadvertence and mistake the patent issued reserved right of way only for “ditches or canals constructed by authority of the United States,” and that since its issuance a road maintained by complainant over the land since 1808 for the use of itself and the public, and the use of which was indispensable in connection with an irrigation system of complainant, had been fenced up and closed by defendant, held to state a cause of action for reformation of the patent.</p> <p>2. Equity <§sv>383—Motion to dismiss admits facts well pleaded.</p> <p>A motion to dismiss a bill in equity for want of equity admits the facts well pleaded.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Intoxicating liquors ¿=236(5)—Evidence of possession insufficient to warrant inference liquors were destined to point within state.</p> <p>In prosecution for transporting intoxicating liquor into the state, contrary to the Reed Amendment (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 8739a, 10387a-103S7e), evidence that the defendant was a Pullman car porter on a run extending through the state, and that the liquor was found in his possession on the car, held insufficient to warrant the inference that the liquor was destined for points within the state, and therefore insufficient to sustain a conviction for violating the Reed Amendment.</p> <p><g=3For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Western Disrict of South Carolina, at Greenwood; Henry H. Watkins, Judge.</p> <p>T. E. Harley and another were convicted of illicit distilling, and they bring error.</p>

<p>In Error to the District Court of the United States for the District of Oregon; Robert S'. Bean, Judge.</p> <p>Criminal prosecution by the United States against George E. Knowlton and Jerry Knowlton. Judgment of conviction, and defendants bring error.</p>

<p>In Equity. Suit by the Morgan Construction Company against the Donner Steel Company. Decree for complainant.</p>

<p>Aliens @=>62—Qualifications for citizenship stated.</p> <p>It is an indispensable prerequisite to the admission of an alien to citizenship that he possess an acquaintance with and working knowledge of the Declaration of Independence and Constitution of the United States, and have a comprehension of the obligations and responsibilities of citizenship arising from his taking the oath of allegiance, and it is not sufficient that during his residence he has been peaceable, industrious, of good character, and law-abiding.</p> <p><J=s>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes ■</p>

<p>Petition of Abraham Silberschutz for naturalization.</p>

<p>Application for naturalization by Sebastiano Tomarchio.</p>

<p>1. Gas ©=>14(1)—Plaintiffs in other suits held not necessary parties to suit to restrain enforcement of rates.</p> <p>in a suit against a state Court of Industrial Relations to enjoin the enforcement of rates fixed for gas companies, plaintiffs, in other suits against one of the gas companies to have legal and reasonable rates fixed, who do not ask leave to intervene in the suit at har, are not necessary parties to the latter suit, and a motion to make them partios defendant therein will be denied.</p> <p>2. Appeal and error ©=>1212(3)—Decision of Supreme Court held to require determination of controversy between defendants.</p> <p>In a suit by a gas supply company against a statfe Court of Industrial Relations and numerous distributing companies and municipalities, to restrain the enforcement of a rate fixed for the distributing companies, of which the supply company had received a proportion, the decision oí the Supreme Court on a former appeal, which, though determining that the supply company was not interested in the rate attacked, remanded the case to the trial court to determine all the issues involved, including those arising on the several bills and cross-bills, and answers in the nature of cross-bills, requires the trial court to determine the validity of that rate as affecting the defendant distributing companies.</p> <p>3. Public service commissions ©=>21—Provisions for attacking order within 30 days not a limitation.</p> <p>The provision of Laws Kan. 1911, c. 238, § 21, for affirmative action to question an order of the Public Uiilities Commission, applicable to the Court of Industrial Relations, within 30 days after the entry of such order, is not a statute of limitations, which bars the suit attacking the order after the expiration of that period.</p> <p>,i@=>For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>4. Equity <@=>87 (1)—Equity can restrain confiscatory rate after statutory period of limitations.</p> <p>A court of equity may entertain a suit to restrain the enforcement of a confiscatory rate established by a state Public Service Commission, even after the expiration of the period of limitations fixed by the statute for suits attacking the order.</p> <p>5. Gas <@=>14 (1)—Presumption in favor of orders lessened by irregularities at hearing.</p> <p>The presumption in favor of the validity of an order of the state Court of Industrial Relations fixing a rate for natural gas is greatly lessened, if not entirely removed, by a showing that it was not based upon evidence as to the plant values of the distributing companies or their operating expenses, and that some of them were given no notice of the proceedings.</p> <p>6. Gas <@=>14 (1)—Reasonableness of proportion paid to supply company material in determining reasonableness of rates.</p> <p>At a hearing to determine the reasonableness of rates fixed for gas distributing companies, a portion of which was paid to the supply company, the question whether the portion paid to supply company was reasonable for its services is material, even though the supply company was' not bound by the established rate, since it is essential, in determining whether the rate was reasonable, for the distributing companies to determine whether the payments by them to the supply company were reasonable or should be reduced.</p> <p>7. Gas <@=14 (1)—Rates fixed by Court of Industrial Relations for distributing companies held confiscatory.</p> <p>Evidence that under the 28-eent rate allowed by the Kansas Court of Industrial Relations, under Raws Kan. 1911, c. 238, § 30, for the sale of natural gas .by distributing companies, those companies were unable to earn in any case more than enough to meet operating expenses, cost of gas, and depreciation, and in some cases could not meet those expenses, held to show that the rate was unreasonable, unjust, and confiscatory, and violated the United States Constitution.</p> <p><§ss>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Suit by John M. I,andón and another, as receivers of the Kansas Natural Gas Company, against the Court of Industrial Relations of the State of Kansas and others. On hearing to determine whether the receivers or the Kansas Natural Gas Company are bound by contracts with the several defendant distributing companies. . Decree ordered that the contracts were of no force and effect.

In Equity. Suit by John M. Randon and another, as receivers of the Kansas Natural Gas Company, against the Court of Industrial Relations of the State of Kansas and others. On hearing on supplemental answers in the nature of applications by the defendant gas distributing companies for a decree setting aside the order of the Court of Industrial Relations, denying the petitions of the distributing companies for an increase in rates, and establishing a' standard of leakage.

In Equity. Bills by Tom Accardo, by William Struve, and by Sam M. Carlisi against Rufus W. Fontenot, Collector of Internal Revenue, to enjoin the collection of taxes and penalties assessed by the Commissioner of Internal Revenue under National Prohibition Act, tit. 2, § 35. Preliminary injunctions .issued.

<p>Gas <8=»14(1)—Enforcement of statutory rate may be restrained as confiscar tory, and temporary rate fixed.</p> <p>On a finding in suits by gas companies that, owing to changed conditions, the statutes of New York fixing the sale price of gas furnished by complainants to private consumers had become confiscatory, and the granting of preliminary injunctions restraining their enforcement, complainants permitted to collect a charge of $1.10 per 1,000 feet for gas so furnished until final hearing or the further order of the court, on depositing the difference between the statutory rates and the rate so collected in court, or at their option giving security for its payment when ordered by the court.</p> <p><§z»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Criminal law <§=>395—Property obtained by illegal search and seizure cannot be used as evidence of crime.</p> <p>Tbe Fourth and Fifth Amendments to the Constitution protect the citizen from the use against him as evidence of crime, not only of private books and papers, but of any article or property obtained by means of an illegal search and seizure.</p> <p>2. Indictment and information <§=>10—Indictment cannot be based on evidence obtained by illegal search and seizure.</p> <p>An indictment for receiving stolon property cannot be based on evidence found and seized by government agents while searching defendant’s dwelling for intoxicating liquors under an illegal warrant.</p> <p>3. Indictment and information <§=>10—Indictment based on evidence illegally obtained held invalid.</p> <p>That a defendant was arrested by a city police officer does not validate a federal indictment based solely on evidence obtained by federal agents through an illegal search and seizure.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Internal revenue —Deferred payments not taxable as “income.”</p> <p>Within Revenue Act Oct. 3, 1913, levying a tax on the net income arising or accruing from all sources in the preceding calendar year, section 2G (b) of which requires the income to be ascertained by deducting from the gross amount of income received within the year expenses paid and losses sustained within the year, “income” includes only what has actually been received, so that a corporation which sold property at a profit during the year is not liable to°taxation on deferred payments of the property not represented by notes or secured in any way.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Income.]</p> <p>2. Internal revenue “@=>7—Treasury rulings cannot add to taxable income.</p> <p>The regulations and rulings of the Treasury Department, under its authority to mate reasonable regulations for the execution of the Income Tax Law, cannot enlarge the net income of a corporation subject to the tax by the terms of the act.</p> <p><@s»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Petition by Edwin E. Graves for writ of habeas corpus.</p>

<p>Habeas corpus <§^113 (3)—Appeal denied, in absence of disputed questions of fact or unsettled questions of Jaw.</p> <p>Where all questions of law involved in a habeas corpus proceeding by a person in custody under an extradition warrant have been settled by decisions of the United States Supreme Court, and there is no doubtful question of fact, an appeal would be frivolous, apd will not be allowed.</p> <p><@E5>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Application of John Peter Cuny for naturalization. Dismissed without prejudice.</p>

<p>Petition by John Walford Watkiss for admission to citizenship.</p>

<p>Salvage ®=>18—Seamen not entitled for services to stranded vessel not abandoned.</p> <p>The seamen of a vessel, which stranded before the voyage was terminated, but which had not been abandoned, are not entitled to salvage for services in getting the vessel afloat, which were arduous and more exacting than the usual work at sea, but which entailed no hardship, and required no labor outside of usual working hours, except that which was paid for as overtime.</p> <p><§=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Salvage '2^13, 30—Tug, pulling barge off shore and towing to anchorage, held to have rendered salvage worth $1,500.</p> <p>Where a barge, which was being dragged out to sea in ice with the ebb tide, brought up on Sandy Hook near the turn of the tide, and, though there was no great immediate danger, the captain hoisted a distress signal, a tug, which pulled the barge off shore and took her to the anchorage off Staten Island, held to have rendered a salvage service, rather than a mere towage service, and entitled to an award of $1,500, though the difficulties encountered were no more than she would have undertaken in towing a schooner up the harbor at the same time.</p> <p>^rpFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Appéal from the Supreme Court of the District of Columbia. Spit for mandatory injunction by Catherin E. Brumbaugh and another against Samuel Gompers and others', trustees of the American Federation of Labor, and others. There was a decree dismissing the bill, and complainants appeal.

Action in the municipal court by George O. Murray and another against Thomas F. Monahan, appealed by defendant to the Supreme Court of the District, consolidated for hearing with an application by the United States, on the relation of George O. Murray and another,, against Michael M. Doyle, one of the Judges of the Municipal Court of the District of Columbia for mandamus, requiring the issuance of a writ of restitution.

<p>Mandamus <§=3(1)—Not issued to require licensing of dentist, where board offers another examination.</p> <p>Mandamus will not issue to compel the board of dental examiners to issue a certificate authorizing relator to practice dentistry, on the relator’s claim that he did not fail in his examination, but that the board willfully and fraudulently refused to issue the certificate, if the relator has a remedy by taking a second examination, which the board offered to give him.</p> <p><§cz»For other cases see same topic & KEY-NCJMBKR in all Key-Numbered Digests & Indexes</p>

<p>Appeal from Supreme Court of the District of Columbia.</p> <p>Daniel E. J. Harris was convicted of having carnally known a female child, and he appeals.</p>

Proceeding by Richard S. Shreve, as landlord, against Gertrude K. Hockman, as tenant, to recover possession of premises. Judgment for the landlord in the Supreme Court, on appeal from the municipal court, and the'tenant appeals.

Suit by Charles A. Hartmann and another against the Royal Insurance Company and others. From a final decree discharging the receiver previously appointed for the insurance company, plaintiffs appeal.

<p>Nuisance —Guilty knowledge of owner of disorderly house essential to justify abatement.</p> <p>Act Feb. 7, 1914, to enjoin and abate disorderly houses, which declares such houses to bo a nuisance and provides that evidence of general reputation is admissible to establish such nuisance, was not intended to subject owners or lessees to the provisions of that act, unless guilty knowledge was brought home to them, so that an injunction closing a hotel for a year must be reversed on the appeal of the owner, where the bill did not allege any facts showing his knowledge of the unlawful use.</p> <p><S=>For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the. Supreme Court of tpe District of Columbia.'</p> <p>Caveat by Lee Hutchins against Walter! Stilson Hutchins and another, to set aside the last will-and testament of Stilson Hutchins,' deceased. From an order dismissing the caveat, caveator appeals.</p>

Suit by the United States Mortgage & Trust Company and another against the Missouri, Kansas & Texas Railway Company of Texas and others. From a decree dismissing the hill, after denying complainants’ petition to make other parties defendants, plaintiffs appeal.

<p>In Error to the District Court of the United States for the Eastern District of Michigan; John M. Killits, Judge.</p> <p>Action at law by the Chicago Screw Company against the Michigan Copper & Brass Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1, Master and servant <§=»230(1)—Contributory negligence of child unlawfully employed no defense.</p> <p>An employer of a boy under 15 years of age in a mill or factory in. violation of Gen. Code Ohio, § 12993, prohibiting such employment, cannot avoid liability for the injury or death of the boy, of which such employment was the proximate cause, on the ground of contributory negligence of the child.</p> <p>2. Death —Parent cannot recover for death of child unlawfully employed with his consent.</p> <p>Gen. Code Ohio, § 12993, prohibits employment of a boy under 15 years of age in any mill, factory, etc., and section 13007—9 makés a violation of such provision a penal offense on the part of both the employer and a parent or guardian who permits such employment. Section 10772 of such Code gives a right of action for death caused by negligence, which would have entitled the deceased to recover if he had survived the injury, for the benefit of next of kin. Held, under the law of the state as established by its courts, that an action against the employer for the death of a boy under 15, killed while employed in a mill or factory in violation of the statute, cannot be maintained for the benefit of a parent who consented to such employment.</p> <p><@=s>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Bean, Judge. In the matter of the Pine Tree Lumber Company, bankrupt. Prom an order sustaining the validity of a chattel mortgage given by the bankrupt to the Good-Hopkins Lumber Company, W. R. Boyle, trustee, appeals.

■ In Error to the District Court of the United States for the Eastern District of Kentucky; Andrew M. J. Cochran, Judge. Action at law by the L. Lazarus Liquor Company against Julius Kessler & Co. Judgment for defendant, and plaintiff brings error.

<p>1. Courts ©=328(2)—Taxation ©=611(4)—National hank may sue to contest validity of tax against shareholders and amount in controversy is amount of tax on all shares.</p> <p>A national bank required by the laws of the state to pay the tax assessed against its shareholders on their stock may maintain a suit to test the validity of the tax and the total amount of the tax on all its shares determines the amount in controversy for the purpose of federal court jurisdiction.</p> <p>2. Taxation ©=10—Tax on shares of national banks not invalidated by provision that assessor shall make valuation from bank’s statement of its capital.</p> <p>Code Supp. Iowa 1913, § 1322, providing for the assessment of shares of national and state banks, savings banks, and loan and trust companies to the_ stockholders, held not invalid as to national banks as a taxation of their corporate property, because it provides that the assessor shall make his valuation of the shares from the bank’s statement of its capital, surplus, and undivided profits.</p> <p>3. Taxation ©=12—Tax on national bank shares invalidated by omitting to similarly tax other moneyed capital.</p> <p>A systematic and intentional omission to tax a material portion of other moneyed capital in the state may render invalid a taxation of national bank shares, under Rev. St. § 5219 (Comp. St. § 9784), equally with a similar omission to tax by legislative enactment.</p> <p>4. Taxation ©=386 (2) —Shareholder in national bank not entitled to deduction on account of government bonds owned by bank.</p> <p>The fact that a part or all of the capital of a national bank is invested in United States bonds, or securities which are exempt from taxation, does not entitle a shareholder to any deduction from an assessment on the full value of his shares.</p> <p>5. Taxation <s=12—Deduction of government securities by private bankers not discrimination against national banks.</p> <p>The fact that under a state statute, individuals, sueh as private bankers, may deduct from the amount of their property for assessment purposes the amount of United States securities held by them is not a discrimination against the owners of national bank shares, forbidden by Rev. St. § 5219 (Comp. St. § 9784), which, in requiring other moneyed capital to be assessed at an equal rate, refers only to such moneyed capital as the state has power to tax.</p> <p>6. Taxation ©=433—Failure to physically attach oath does not invalidate assessment.</p> <p>Under Code Iowa 1897, § 1365, requiring the assessor to attach his oath to the assessment rolls, a failure to make such oath invalidates the assessment ; but the essential requirement is that he should make the oath, and if it is taken, it is not necessary to the validity of the assessment that it should be physically attached to the papers constituting the assessment roll, provided it is in some way reasonably connected therewith.</p> <p><2^x>Foi other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>7. Courts <@=>366(1)—Decision of state court sustaining state statute binding on federal court.</p> <p>The decision of the highest court of a state, sustaining the validity of a state' statute under its Constitution, is binding on the federal courts.</p> <p>^ssFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Northern District of Iowa; Henry T. Reed, Judge.</p> <p>Suit in equity by Peter J. Hegnes against the Midland Packing Company.. H. M. Havner, Attorney General of the State of Iowa, and others, appeal from an order granting an injunction.</p>

Woods, Judge. . Suit for partition by Minnie F. Goode and others against F. M. Blythe and others. Held: if a devise be to A. for life, and then to the heirs male of his body and their heirs female, the rule does not apply, "because what would have been an indefinite succession in the heirs male without the added words was broken by a new succession in the heirs female. 2 Fearne, 240.

<p>In Error to the District Court of the United States for the Eastern District of Virginia, at Norfolk; Edmund Waddill, Jr., Judge.</p> <p>■ Action by John Zanzinger against the United States Director General of Railroads. Judgment for plaintiff, and defendant brings error.</p>

Western District of South Carolina, at Greenville; Henry H. Watkins, Judge. . Action by the Johnston Manufacturing Company against the Wilson Thread Company to recover the balance due on a contract for the sale of yarn. From a judgment for plaintiff for only the amount due after deducting defendant’s claim for damages for defective quality, plaintiff brings error.

<p>In Error to the District Court of the United States for the Southern District of West Virginia, at Bluefield; Benjamin E. Keller, Judge.</p> <p>Action by the Amicon Eruit Company against the Norfolk & Western Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the Eastern District of Tennessee; John E. McCall, Judge.</p> <p>Criminal prosecution by the United States against E. R. Bates. Judgment of conviction, and defendant brings error.</p>

<p>In Error to the District Court of the United Slates for the Eastern District of Michigan; Arthur J. Tuttle, Judge.</p> <p>Criminal prosecution by the United Státes against Max Wagman. Judgment of conviction, and defendant brings error.</p>

<p>1. Deeds <©=»114(1)—Tracts of grantor, acquired from different sources within boundaries of conveyance, held excepted.</p> <p>Where the owner of two tracts of land subsequently acquired a larger tract, originally granted subsequent to. the grants of the first tracts, but including.them within its boundaries, a deed thereafter executed by him, conveying the tract last acquired, which expressly stated that it was a conveyance of the property acquired by the designated deed to him, did not convey the included tracts.</p> <p>2. Vendor and purchaser <@=3230(1)—Kecitals to former conveyances of exception of certain tracts held notice to purchaser.</p> <p>Conveyances contained in a chain of title to a larger tract of land, expressly excepting therefrom two smaller tracts included within its boundaries, are notice to subsequent purchasers of the larger tract of such exception, so they cannot claim that the two smaller tracts were included in a conveyance of the larger tract by one who also owned the two excepted tracts, where the conveyance was expressly limited to the property acquired by the conveyance of the larger tract.</p> <p><§s=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Libel by the Connecticut Transportation Company against the steamer Seaboard, claimed by the Hartford & New York Transportation Company, in which the barge J. A. Roe, owned by Cleary Bros., and Charles H. McWilliams and B. F. Kellers, as owners of the Blue Line stakeboat, were interpleaded under the fifty-ninth rule. Decree for libelant against the stakeboat owners, and they appeal.

Libel by McWilliams Bros., Incorporated, against the steam tug Winthrop, her engines, etc.; the Staples Transportation Company, claimant. Decree for cíaimant, and libelant appeals.-

Suit in admiralty by the Schoonmaker-Conners Company, Incorporated, against the Lambert Transportation Company. Decree for respondent, and libelant appeals. On December 4, 1917, the Schoonmaker Company chartered to Lambert Company two lighters.

<p>1. Shipping '§=’42—Owner ordinarily bound to have vessel seaworthy, but not if charterer undertakes to determine seaworthiness.</p> <p>As a general rule the owner of a vessel i&> bound to the charterer to see that she is seaworthy and suitable for the service in which she is employed; but the rule does not apply when the charterer expressly or impliedly undertakes to inspect .the vessel and ascertain her seaworthiness and fitness for himself.</p> <p>2. Shipping <3^42—Charterer held to have undertaken to inspect dredge and determine fitness and seaworthiness.</p> <p>Correspondence between the owner and charterer of a dredge held to show that the charterer took upon itself the burden of inspecting the vessel and ascertaining for itself whether it was'seaworthy and suitable for the service.</p> <p>3. Shipping <§=»54—Loss of hired dredge held due to charterer’s negligence.</p> <p>Where the charterer of a dredge undertook to determine its seaworthiness for itself and leaks could have been discovered by hauling the dredge out on the ways, but the charterer’s agent, though knowing that mud probably attached to the hull, so as to prevent leakage would eventually fall away, made no examination, and left the dredge at anchor and unguarded,- with its deck only a few inches above the water line, the sinking of the dredge was due to the charterer’s negligence.</p> <p>•<gs»Foi other cases see sanje topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>4. Shipping <®=»54—Charterer not relieved of liability for negligence because loss was not within its liability as insurer.</p> <p>■ Where the owner of a dredge required the charterer to insure the dredge, and the charterer replied that it did not believe it could get insurance, but would assume such responsibility itself, the fact that the loss of the vessel due to unseaworthiness was not within its liability as an insurer did not defeat its liability as charterer for the loss of the vessel by its negligence in inspection and navigation.</p> <p>5. Subrogation —Charterer of dredge not entitled to subrogation against insurer until payment by it.</p> <p>A charterer of a dredge, sued for its loss through its negligence, was not entitled to credit for the amount of outstanding insurance, as it had no right of subrogation until it paid its liability to the owner.</p> <p><grs>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Damages <S=>59—Damages from breach of transportation contract, causing breach of contract of sale, not reduced because market price had increased.</p> <p>Where plaintiff, engaged in mining and selling coal, contracted to sell 8,000 tons to an electric company, by reference to quantity and grade, and without reserving or setting apart any particular coal, and contracted with defendant to transport the coal, the damages from defendant’s breach, causing plaintiff to break its contract with the electric company, could not bo reduced because plaintiff sold coal to other parties at a price higher than the contract price, since, if defendant had performed, it would doubtless have, sold that much more coal.</p> <p>2. Appeal and error <©=^106?) (5)—Measure of damages for breach of transportation contract selected by court held not prejudicial to defendant.</p> <p>Where defendant’s breach of his contract to transport coal for plaintiff caused plaintiff to break its contract of sale with a third person, for which plaintiff was held liable to the third person, an instruction that the measure of damages was the difference between the contract rate for transportation and the increased market rates for the same period did not prejudice defendant; the theory of damages selected imposing the lowest damages of any theory conceivably applicable.</p> <p>.<§zs>For other cases see same topic & KEY-NUMBKR in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Southern District of West Virginia, at Charleston; Charles A. Woods, Judge.</p> <p>Action by Ott Rader against the Northrup-Williams Company. Judgment for defendant, and plaintiff brings error.</p>

Petition to Superintend and Revise from the District Court of the United States for the Eastern District of Louisiana; Rufus E. Foster, Judge._ Proceeding by the Sherer-Gillett Company against A. L. Pilsbury, trustee in bankruptcy of Henry C. Bentz, and others. A petition for an order requiring a surrender by the trustee of certain property was denied (267 Fed. 606), and the claimant brings a petition to superintend and revise the order.

<p>1. Telegraphs and telephones <§=>53—Nondelivery of telegram, creating void contract, does not cause damage.</p> <p>Plaintiff was not damaged by nondelivery of a telegram sent him by a Texas corporation, accepting his offer to exchange land in Texas for property of the corporation, where, under the laws of Texas, the executory contract thereby created would have been wholly void.</p> <p>2. Corporations <§=>435—Agreement to purchase land not needed in business, though with purpose of winding up affairs, held void.</p> <p>Under Rev. St. Tex. 1911, arts. 1164, 1175-1177, an agreement by a Texas corporation to exchange property owned by it for lands in Texas, which were not needed in any business it was authorized to transact, and were not taken in due course of business to secure the payment of a debt, would have been not merely ultra vires, but wholly void, though the exchange was for the purpose of winding up its affairs, paying debts, and distributing its assets.</p> <p><gzs>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes-</p>

<p>In Error to the District Court of the United States for the Eastern District of South Carolina, at Charleston; Henry A. Middleton Smith, Judge.</p> <p>Henry D. Lybrand and George S. Drafts, Jr., were convicted of false swearing, and they bring error.</p>

Action at law by the Snare & Triest Company against the St. Paul Fire & Marine Insurance Company. Judgment for plaintiff, and defendant brings error. This case is here after the retrial ordered in 258 Fed. 425, 169 C. C. A. 441.

Appeals from the District Court of the United States for the Southern District of Mississippi; Edwin R. Holmes, Judge. Three suits by Stokes V. Robertson, as State Revenue Agent, two against the Jordan River Dumber Company and one against the Wolf River Dumber Company. Decree for defendant in each suit, and complainant appeals. Reversed, with instructions to remand the causes to the state court.

<p>Appeal from the District Court of the United States for the Northern District of Georgia; Samuel H. Sibley, Judge.</p> <p>In the matter of George Washington Humphries, bankrupt. Said bankrupt appeals from an order denying his discharge, upon the objection of Lawton Nalley.</p>

<p>Jn líiTor to the District Court of the United States for the Western District of Texas; W. R. Smith, Judge.</p> <p>John Ford and others were convicted of selling intoxicating liquor, in violation of the War-Time Prohibition Act, and they bring error.</p>

<p>In Error to the District Court of the United States for the Eastern District of Virginia, at Norfolk; Edmund Waddill, Jr., Judge.</p> <p>Action by Annie V. Bishop, administratrix of T. M. Bishop, deceased, against the United States Director General of Railroads. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in admiralty for collision by the Hudson River Lighterage Company against the tug A. E. Ackerman; the Ackerman Towing Company, claimant. Decree for libelant, and claimant appeals.</p>

<p>Courts <@=>405(5)—Circuit Court of Appeals without jurisdiction, where jurisdiction of District Court as a federal court is involved.</p> <p>Where the question is as to the jurisdiction of a District Court as a federal court, the judgment is reviewablc by the Supreme Court, under Judicial Code, § 238 (Comp. St. § 1215), and the Circuit Court of Appeals is without jurisdiction, under section 128 (Comp. St. § 1120).</p> <p><55^»For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Hollister, Judge. Suit by the Excelsior Steel Eurnace Company against the Williamson Heater Company for infringement of patents, unfair competition, and fraudulent acquisition of trade secrets. From a decree dismissing the bill, plaintiff appeals. Decree reversed, in so far as it held one patent void.

<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>Two suits by the Enameled Metals Company against the Western Conduit Company and the Youngstown Sheet & Tube Company. Decrees for defendants, and complainant appeals.</p>

<p>1. Action <St=ri>3(l)—Cause of action for infringement of patent cannot be split.</p> <p>in a suit in equity for infringement, where an amended bill is broad enough to cover infringement by a new construction adopted by defendant pending the suit, a waiver by complainant of any claim for profits and damages does'not entitle him to maintain actions at law against defendant or its customers to recover damages for infringement by the new -machine.</p> <p>2. Judgment <®=>592—All claims for infringement of patent should be included in one suit.</p> <p>If different claims have been infringed, it is the patentee’s duty in his suit for infringement to set forth all such clams for adjudication; and the rule is the same in respect of damages and profits arising from infringements not presented, but which might have been, presented.</p>

<p>1. Patents <S=>lfi8 (2) —Patent held limited by amendment to meet objection of examiner, though based on erroneous supposition.</p> <p>Wliere an applicant for a patent yielded to the objection of the examiner, though based on an erroneous supposition, and limited bis claim accordingly, the patent was limited to the structure which the examiner had thought would secure the function which he supposed the applicant intended.</p> <p>2. Patents <@=>168 (1)—Claim not limited as examiner intended to, but failed to limit it.</p> <p>Where by mistake the examiner did not impose a close enough limitation to narrow a patent as he meant to do, the patent could not be made over, as against the patentee, because of the mistake of: the examiner in failing to phrase it properly.</p> <p><§=s>For other caaes sec same topic & KEY-NUMBER in. all Key-Numbered Digests & Indexes</p>

In Admiralty. Separate libels by E. Brown Baker, as owner of the dredge Empire State, against John Barton Payne, as Agent, and by Edward O’Neill and another, as owners of the canal boat E. M. Doran, against John Barton Payne, as agent, with E. Brown Baker, as claimant of the Empire State, impleaded. Decree rendered for libelants.

Proceeding by the United States against the steamship Saxon. On application,by the owner of the steamship for its release, and the cancellation of a bond given for its production. Steamship released, and bond annulled.

<p>Applications for admission to citizenship by Gerónimo Para and by Zasuechi Narasaki.</p>

<p>1. Internal revenue <&=>!—Income from sale of timber land attributed to partnership’s business of dealing in lumber.</p> <p>Under Act Oct. 3, 19:17, § 201 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 6336%b>, providing, relative to the excess profits tax, that all trades and businesses in which a partnership or corporation is engaged shall he treated as a single trade or business, etc., income of a partnership dealing in lumber derived from an isolated sale of timber land must be attributed to the business of dealing in lumber.</p> <p>2. Internal revenue ©==>7—Partnership having invested capital less than that fixed not entitled to complain of method of determining.</p> <p>Under Act Oct. 3, 1917, §§ 201, 209, 210 (Comp. St. 1918, Comp. St. Ann. Supp. 1918, §§ 6336%b, 6336%j, 6336%k), imposing an excess profits tax at different rates on partnerships having and those not having an invested capital, and providing a method of determination when the invested capital cannot be satisfactorily determined, a partnership which had invested capital, not nominal in amount, but less than the arbitrary or supposititious invested capital fixed under the sta,tute, could not complain of the method employed in fixing it; the tax being correspondingly diminished.</p> <p>3. Internal revenue ©=>7—Persons buying and selling lumber held not “brokers.”</p> <p>Partners buying lumber from manufacturers, reselling it to their own customers, and employing a large amount of capital, were not “brokers,” as respected liability for the excess profits tax, though they conducted the business personally with the existence of a small clerical office force.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Broker.]</p> <p>4. Statutes ©=5219—Departmental regulations aire aids to interpretation, but cannot change statute.</p> <p>While in doubtful eases departmental regulations may be aids in the construction and interpretation of taxing statutes, they can neither add to nor subtract from plain congressional enactments.</p> <p>5. Internal revenue ©^>7—Property of partners pledged as security for borrowed money is part of “invested capital.”</p> <p>Under Act Oct. 3, 1917, §§ 201, 209 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, J§ 6336%b, 6336%j), imposing excess profits taxes at different rates on partnerships having and those not having an invested capital, where a firm’s working capital was borrowed on notes of the firm, to secure which property of the individual partners was pledged, the property so pledged was a part of the “invested capital,” though by express provision of the statute invested capital does not include borrowed money.</p> <p>©=»For other cases see same topic & KEY-NUMBER in ail Key-Numbered Digests & Indexes</p>

<p>In Admiralty. Petition by the Canadian Pacific Railway Company, owner of the steamship Princess Sophia, for limitation of liability. On motion to require the production of certain documents, etc.</p>

<p>In Equity. Bill for injunction by Willard M. Lindsey against J. Weston Allen, Attorney General of Massachusetts, and others. Motion for injunction denied, and bill dismissed.</p>

In Admiralty, Eibel by the Undercliff Terminal & Warehouse Company against the ferryboat Gowanus, in which the City of New York was impleaded. Decree rendered for libelant, against both respondents.

<p>In Admiralty. Libel by M. & J. Tracy, Incorporated, against Marks Lissberger & Son, Incorporated. Decree rendered for libelant.</p>

<p>1. Towage ®==>11(10)—Tug liable for loss of tow.</p> <p>Owner of a tug held liable for loss of a barge in tow, where the master left port with three barges when storm signals were displayed, and on encountering weather no worse than should have been anticipated abandoned the barges and failed to take any action to save them after the storm had abated.</p> <p>2. Shipping <S=308—Tug owner not entitled to limitation of liability for lost tow.</p> <p>The owner of a tug, which failed to send assistance to barges for two days after being notified that the tng had cast them loose in Chesapeake Bay during a storm, held not entitled to limitation of liability for one which had sunk in the meantime.</p> <p>^=s>For other cases see same topic & K1ÍY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Sales ©=>219(3)—Party electing to treat coal obtained by fraud as sold cannot sue third party for conversion.</p> <p>Where coal was obtained from defendant by the D. Co. by fraud, and thereafter, with full knowledge, defendant brought suit against the D. Co., alleging an agreement of settlement and nonperformance thereof, and that the D. Co. was indebted to it in a sum including the value of such coal, and obtained a decree establishing the indebtedness of the D. Co., and giving it an equitable lien on proceeds of sales of such coal, it definitely and finally elected to treat the coal as sold to the D. Co., and could not sue a third party for conversion of the coal as its property.</p> <p>2. Injunction ©=>26(6)—Plaintiff held entitled to enjoin action at law, instead of presenting defense in such action.</p> <p>Where defendant, from whom the D. Co. obtained coal by fraud, had elected to freat the coal as sold to the D. Co., plaintiff could maintain a suit to enjoin defendant from suing plaintiff for conversion of the coal, instead of presenting such defense in the action at law; there being no real issue of fact, and the questions involved being purely legal.</p> <p><g=For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Bankruptcy. In the matter, of the Chinese Fur Importers, Incorporated, alleged bankrupt. On application for confirmation of a composition with creditors. Application denied, and an order for an entry of adjudication granted.

<p>Public lands <§=>109—Mortgagee of relinquished claim indispensable to suit against Secretary of the Interior by subsequent claimant.</p> <p>A mortgagee of a desert land entrywoman, who bad relinquished her claim, is an indispensable party to a suit by a subsequent homestead entryman to restrain the enforcement of the order of the Department of the Interior, sustaining proof essential to establish the desert claim offered by the mortgagee, since the object of the suit is to deprive the mortgagee of his interest in the property, which will not be done in equity without giving him an opportunity to be heard.</p> <p><S=»For oilier oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Petition by the Jaenecke Ault Company to cancel the registered trade-mark of the Ault & Wiborg Company. Erom an order directing the cancellation of the trade-mark, the registrant appeals.

Interference proceeding between Samuel P. Smurr, junior applicant, and Edward James, senior applicant. From the decision of the Commissioner of Patents, awarding priority of invention to the senior applicant, the junior applicant appeals.

<p>Appeal from the Commissioner of Patents.</p> <p>Application by Nathan M. Power for a patent for a locomotive stoker. From a decision of the Patent Office, rejecting two claims of the application, applicant appeals.</p>

<p>Patents <©=>108(1)—Priority in invention of process for joining fabric sections awarded to senior applicant notwithstanding prior decision.</p> <p>In an interference proceeding relating to claims for a process for joining sections of fabric, senior applicant held entitled to priority, notwithstanding a decision denying priority to him in an interference case relating to machines for carrying out the process as to claims containing an element first adopted by another.</p> <p><@5s>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Action by Abraham Burnstine, administrator of the estate of David Burnstine, deceased, against Fred Drew. Judgment for defendant and plaintiff appeals.</p>

Action by William Randolph Hearst against John Barton Payne and others, composing the United States Shipping Board. Prom a decree enjoining the defendants from selling certain vessels, defendants appeal.

<p>Appeal from the Commissioner of Patents.</p> <p>In the matter of the application of Ernest J. Eees for reissue of a patent with broadened claims. Application denied, and applicant appeals.</p>

In the matter of the application of William Schluderberg & Son for registration of a trade-mark. From a decision of the Patent Office, refusing registration, applicant appeals.

<p>1. Monopolies <§=12 (2)—“Trade” and “commerce” involve transfer of goods, persons, or intelligence.</p> <p>Within the Sherman Anti-Trust Act (Comp. St. §§ 8820-8823, 8827-8830), making unlawful restraint of trade or commerce among the several states, “trade,” which is defined as the exchange pf commodities or the buying and selling of commodities, and “commerce,” which means exchange of goods both trade and commerce involve the transfer of something, whether it be persons, commodities, or intelligence, from one place or person to another.</p> <p>[Fd. Note.—For other definitions, see Words and Phrases, First and Second Series, Commerce; Trade.]</p> <p>2. Monopolies <§=12 (2)—Baseball club is not engaged in “trade” or “commerce.”</p> <p>The business of giving exhibitions of baseball games for profit is not trade or commerce, within the meaning of the Sherman Anti-Trust Act (Comp. St. §§ 8820-8823, 8827-8830), and a corporation formed for the purpose of giving such exhibitions is not engaged in such trade or commerce, though as an incident thereto it transports the players and their paraphernalia from one state to another.</p> <p>3. Monopolies <§=12 (1)—Persons not engaged in commerce may be guilty of interfering with commerce.</p> <p>A baseball club, even though not engaged in interstate commerce, may be guilty of violating the Sherman Anti-Trust Act (Comp. St. §§ 8820-8823, 8827-8830), if it illegally interferes with the interstate features of the business of another club.</p> <p>4. Monopolies <®=12 (2)—Sherman Act prohibits only direct restraints of interstate commerce.</p> <p>The Sherman Anti-Trust Act (Comp. St. §§ 8820-8823, 8827-8830) does not apply, unless the effect of the act complained of on interstate commerce is direct, not merely indirect or incidental.</p> <p>5. Monopolies <3=12(1)—Reserve clause in baseball players’ contracts is not direct restraint of commerce.</p> <p>The reserve clause in baseball players’ contracts under the National Agreement was intended to protect the rights of clubs operating under that agreement to retain the services of sufficient players for their purposes, and its effect on the interstate commerce of a club outside the National Agreement was only indirect and incidental, so that it does not amount to a violation of the Sherman Anti-Trust Act (Comp. St. §§ 8820-8823, 8827-8830).</p> <p>On Motion for Rehearing.</p> <p>6. Appeal and error <§=1176 (1)—Defendants in error on request given final judgment against it, instead of new trial, to permit further appeal without delay.</p> <p>After a case has been reversed and remanded for new trial, a petition by defendant in error, plaintiff in the suit, stating it does not desire to present new testimony, but is willing to stand on the record made, and prefers a decision directing judgment against, it, so that it may appeal to the Supremo Court without further delay, should be granted.</p> <p><g=For other cases see same topic & KB3Y-NUMBER in all Key-Numbered Digests & indexes</p>

<p>Patents <^==>113 (7)—Decision by both tribunals of Patent Office affirmed, unless clearly wrong.</p> <p>Where each of the tribunals of the Patent Office decided a question of fact in an interference proceedings in favor of the same party, the decision of the Commissioner must be affirmed, unless the court, after examining the record, can say the patent tribunals were clearly wrong.</p> <p><S=s>For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeals from the Supreme Court of the District of Columbia.</p> <p>Separate actions in ejectment by Thomas C. Whelan and others and by William T. Lynch against Mary J. Welch and others, which were submitted together. Judgment for defendants in each case, and plaintiffs appeal.</p>

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Assumpsit by William A. Smalley, as executor of T. S. Leach, deceased, against Francis Holley. Judgment for plaintiff, and defendant appeals. Reversed and remanded for a new trial.</p>

<p>Appeal from the Commissioner of Patents.</p> <p>Interference proceeding between Neis R. Olson and Joseph B. Pospeshil. From a decision of the Commissioner of Patents, granting priority to Pospeshil, Olson appeals.</p>

<p>Appeal from the Commissioner of Patents.</p> <p>Interference proceeding between Alfred J. Liebmann and another and Harold A. Newcomb. From a decision of the Commissioner of Patents, awarding priority of invention to Newcomb, Fiebmann and another appeal.</p>

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Suit by Harry Sherby and others against Louis Brownlow and another, Commissioners of the District of Columbia, to restrain defendants from proceeding with a street improvement. Prom a decree dismissing the bill, plaintiffs appeal.</p>

<p>Appeal from the Commissioner of Patents.</p> <p>Application by Clark T. Henderson for a patent. From a decision of the Commissioner of Patents, refusing to allow claims 1 to 5 of the application, applicant appeals.</p>

<p>Appeal from the Supreme Court of the 'District of Columbia.</p> <p>Suit by Powell T. Manning against the American Security & Trust Company and others, to enforce specific performance of an alleged oral contract for the purchase of real estate. From a decree dismissing the bill, plaintiff appeals.</p>

<p>1. Patents @>=108(2)—Claim of abandonment can be adjudicated in interference proceeding.</p> <p>While the question of patentability will not be considered by the Court of Appeals in an interference appeal, the question of abandonment by one applicant is always available as affecting his right to priority.</p> <p>2. Injunction @=>75—Conduct of interference proceeding by Commissioner of Patents cannot be controlled. -</p> <p>Under Eev. St. § 4904 (Comp. St. § 9449), providing for the declaration of an interference by the Commissioner of Patents, and the other statutes and rules having the force of statute, prescribing the procedure on interference, an injunction to restrain the Commissioner of Patents from further proceeding with an interference and to require the striking of certain orders made therein would control actions of executive officer in matters committed by law to bis discretion, and injunction will not issue for that purpose.</p> <p><®=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>3. Injunction <§=>75—Will not issue where there is adequate remedy by appeal in interference proceeding.</p> <p>An injunction to control the Commissioner of Patents in interference proceedings will not issue, where plaintiff’s claim is based on alleged abandonment by another party to the Interference, so that there is an adequate remedy at law by appeal in the interference proceeding</p> <p><©s»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Schools and sehool districts (5) —Teacher waives objection to ir» regularity in charges by going to trial.</p> <p>A public school teacher, who appeared with counsel and went to trial on written charges against him, thereby waived the objection that the charges were not countersigned by the snperintendent of schools, as required by rule oi: the board.</p> <p>2. Mandamus <©=>79—Will not issue to correct errors in school board’s proceeding within jurisdiction.</p> <p>A sehool board, in conducting a trial of a public school teacher on written charges for dismissal, is acting within the jurisdiction conferred on it by statute, and mandamus will not be granted to correct errors of the board, committed while acting within such jurisdiction.</p> <p><@=s>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Trade-marks and trade-names @=>44—Prior decision as to application for different mark held not res judicata.</p> <p>A judgment in a prior opposition to registration of a trade-mark involving the same parties, denying registration to a mark consisting simply of the portrait of a man and the word “Faribault” thereunder, is not res judicata of the applicant’s right to register a trade-mark consisting of the portrait of a man with the words “Jean Baptiste Faribault” beneath the picture; the picture and words being located in a circular field, with a representation of stalks of grain on either side of the portrait.</p> <p>2. Trade-marks and trade-names @=>43—Owner cannot oppose another mark having only geographical name in common.</p> <p>Where the only feature common to the trade-marks of applicant and opposer which might lead to confusion is a geographical name, which either party has a right to use, the opposition to the registration cannot be sustained.</p> <p><5=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Extradition @=>35—State’s agent without authority to change sheriff’s application for requisition.</p> <p>Where the sheriu's application to the Governor for a requisition on the authorities of the District of Columbia for an alleged fugitive from justice referred to the prisoner as “he,” instead of “she,” the state’s agent had no right to change the paper.</p> <p>2. Extradition @=>35—That sheriff’s application inadvertently used wrong gender in referring to prisoner held immaterial.</p> <p>Under the maxim, “Lex non curat de minimis,” the fact that a sheriff’s application to the Governor for a requisition on the authorities of the District of Columbia for “Anna Grow, alias Anna Grove,” stated that “ho is now a fugitive from the justice” of such state, was immaterial; the context showing that the use of the word “he” was inadvertent.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the Commissioner of Patents.</p> <p>Interference proceeding between Lee 'De Forest and Frank E. Miller to determine priority of invention. From a decision of the Commissioner of Patents, awarding priority to Miller, De Forest appeals.</p>

<p>Appeal from the Commissioner of Patents.</p> <p>Interference proceeding between William Steubing, Jr., and Daniel E. Plennessy. From the decision of the Commissioner of Patents, awarding priority to Hennessy, Steubing appeals.</p>

<p>Trade-marks and trade-names @==>43—Piano manufacturer can oppose registration of similar name for phonographs.</p> <p>Steinway & Sons, manufacturers of pianos, can successfully oppose the registration of the word “Steinola” as a trade-mark for phonographs.</p> <p><§=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Northern Division of the Western District of Washington; Jeremiah Neterer, Judge.</p> <p>Robert C. Farley was convicted of an offense, and he brings error. Reversed, and remanded for resentence.</p>

<p>1. Collision <@=>74—Libelant, for damages to barge, held not negligent.</p> <p>In a suit to recover for damages to a barge, due to a collision, while tied up to the guide wall of a dam in the Ohio river, circumstances held insufficient to establish negligence on the part of the libelant in overloading.</p> <p>2. Collision <@=>74—Evidence held not to show negligence in manner of mooring tug and tow.</p> <p>In a suit to recover for damages to barge by reason of a collision while moored to the guide wall of a dam in the Ohio river, evidence held insufficient to satisfy court, on appeal by defendant, that libelant was negligent in the place or manner of mooring its tug and barge, or in fastening the same together.</p> <p>3. Collision @=>70—Failure to prevent swamping of barge not sufficient to establish negligence in providing splashboards.</p> <p>Where a barge was sunk by collision while moored, that splashboards did not prevent it sinking did not establish negligence on the part of libelant in providing splashboards.</p> <p>4. Collision @=>16—Navigator liable for error of judgment.</p> <p>No man is infallible, and there are certain errors of judgment for which the law does not hold a navigator liable; but he is liable for an error of judgment which a careful and prudent navigator would not have made.</p> <p>@=>For other cases see same topic & KBY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>5. Collision <§=>22—“Inevitable accident” defined.</p> <p>The term “inevitable accident,” applied to collision cases, means an accident which both parties have endeavored to prevent by every means in their power, with due care and caution, and a proper display of nautical skill, and it is not an “inevitable accident” where a master proceeds carelessly, and afterwards circumstances arise when it is too late and impossible for him to do what is fit and proper to be done.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Inevitable Accident.]</p> <p>6. Collision <§=>74—Trial judge justified in conclusion that defendant was solely chargeable with accident.</p> <p>In a suit to recover for damages to a barge by reason of a collision while moored near a dam -in the Ohio river, trial judge held justified in his conclusion that defendant was solely chargeable with the accident and that it was not an inevitable accident.</p> <p>7. Collision <§=>140—Damages cannot exceed value of vessel and cargo in collision.</p> <p>In a suit for the recovery of damages to and detention of a barge, swamped in a collision, plaintiff cannot recover more than the value of the barge and cargo, although the cost of raising, docking, and repairing exceeded such amount.</p> <p>@=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Trade-marks and trade-names <§=>3 (2)—“Photoplay” is descriptive term.</p> <p>The word “Photoplay,” which was adopted by the judges in a contest as\the most descriptive single word to designate moving picture performances, is a descriptive term, which cannot be exclusively claimed as a trade-mark by a magazine devoted to moving picture productions.</p> <p>%. Trade-marks and trade-names <§=>71—Use of descriptive term having secondary meaning is unfair competition.</p> <p>Where a descriptive term, which cannot be claimed as a trade-mark, has acquired a secondary meaning as referring to the product of complainant, the us.e of that word by defendants with reference to a similar product is unfair competition, which may be enjoined. '</p> <p>3. Appeal and error <§=>1009(6)—Tidal judge’s findings, based on written testimony, not entitled to special weight.</p> <p>The rule that appellate courts will generally accept the facts found by the trial court, which is based on the better opportunity of the trial judge to pass upon the credibility of witnesses, whom he sees and hears, does not apply in a suit where the testimony was taken by deposition and was uncontradicted.</p> <p>4; Trade-marks and trade-names <§=>69—Intention unnecessary to establish unfair competition.</p> <p>In a suit to restrain unfair competition, complainant need not prove that defendant intended to pass off his goods as those of complainant; cue test being the commercial effect of the acts of defendant.</p> <p>5. Trade-marks and trade-names <§=>68—Test of unfair competition is deception of inexperienced public.</p> <p>Practices which would deceive the inexperienced public into confusing defendant’s goods with those of plaintiff are unfair competition, though experienced wholesalers and retailers were not deceived thereby.</p> <p>6. Trade-marks and trade-names <®=>70(3)—Use by defendant of title “Photo-Play Journal” held unfair competition.</p> <p>Where complainant had an established magazine, known as “Photo-play Magazine,” devoted to moving picture productions, the adoption by defendants of the name “Photo-Play Journal” for a similar magazine, which several witnesses testified had deceived them in mistaking defendant’s magazine for plaintiff’s, was unfair competition, and the further use of that name can be restrained.</p> <p><g=pFor other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Drains @=>20—Drainage district not “corporation,” with capacity to sue and be sued.</p> <p>Drainage districts, created under statutory authority by county boards for special tax purposes only, unless expressly made so by the statute, are not corporations, with capacity to sue and be sued.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Corporation.]</p> <p>2. Drains @=>49—Facts held not to change county’s liability on express contract in writing.</p> <p>That plaintiffs refused to remove rock material from a drainage ditch constructed by them under a written contract with defendant county, erroneously claiming that it was not within the contract, and that in an action to recover the contract price the county by counterclaim recovered the excess cost Of such removal by a subsequent contractor, held not to change the nature of the county’s liability to plaintiffs, which was on an express contract in writing, within Const. Mo. art. 4, § 48, and Rev. St. Mo. 1909, § 2778.</p> <p>3. Counties @=>225—Judgment against comity may specify fund from which payable.</p> <p>Where a county contracted for drainage work on behalf of a drainage district created by the county court as provided by statute, the land within which was to be subjected to special tax to pay for the work, and an action on the contract was brought against the county in a federal court, the judgment properly provided that it was to be paid from the fund raised by special assessment of benefits on the land within the drainage district.</p> <p>4. Drains @=>49—Liability of county on contract for drainage work held not affected by previous collection of tax levied for benefits.</p> <p>It is not an objection to a judgment against a county on a contract for drainage work to be paid from the fund raised by a special tax on the lands of the drainage district that the county has previously collected the tax levied for benefits assessed against the lands and expended the money, where, as by Laws Mo. 1913, p. 271, the state statute expressly provides for an additional assessment when necessary to pay valid obligations of the district.</p> <p>5. Drains @=>49—Refusal of certificate of engineer as to completion of work held not to prevent recovery by contractor.</p> <p>Under a contract with a county for drainage work requiring the contractor to obtain certificates from the engineer as to completion of the work in accordance with the contract and making his decision final, refusal of certificates by the engineer held not to prevent recovery by the contractor, where such refusal was not in the exercise of his own judgment, but in obedience to instructions of the county court.</p> <p>(@=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>6. Damages «5=^68—Plaintiff may not have interest on amount abated for his nonperformance.</p> <p>Where, in an action against a county on a contract for drainage work, it was determined that plaintiffs’ claim was subject to abatement because of work not done, and which was subsequently done by the county, plaintiffs held entitled to interest from the date of suit only on the amount of its Oaim less the cost to the county of such work, without regard to the time when such cost was expended.</p> <p>other cases seo same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Eastern District of Oklahoma; Joseph W. Woodrough, Judge.</p> <p>Action at law by the Nowata County Gas Company against the Henry Oil Company. Judgment for defendant, and plaintiff brings error.</p>

Suit by Rebecca Houghtailing, through Frederick E. Steere, her guardian, against Daniel De La Nux and others, for reformation of a deed. A decree for plaintiff was affirmed by the Supreme Court of the Territory of Hawaii, and defendants bring error. Rebecca Houghtailing, through her guardian, sued George F. De La Nux, Jr., and Daniel De La Nux, minors, her grandsons, for reformation of a deed.

<p>1. Equity ©=447 (4) —Newly discovered evidence not ground for relief on bill of review, if diligence is not shown.</p> <p>Where an irrigation company had been restrained by the United States from diverting water in violation of a limiting contract, alleged newly discovered evidence that a former irrigation officer had been informed of a mutual mistake in the contract involved before suit, and that he had conveyed such information to the Reclamation Service authorities, held not ground for relief on a bill of review, where diligence was not shown in discovering the evidence, and no fraud on the government’s part was established.</p> <p>2. Equity ©=447(4)—Relief for newly discovered evidence denied for lack of diligence.</p> <p>Where a bill in the nature of bill of review on ground of newly discovered evidence was not filed until 15 months after discovery of the evidence, and no effort was apparently made to discover it before the original suit, relief will be denied for want of diligence.</p> <p>3. Equity ©=446—Bill of review not authorized for fraud, because plaintiff failed to introduce evidence beneficial to defendant.</p> <p>A judgment in favor of the United States cannot be attacked on the ground of fraud by a bill of review, because a witness for the United States did not volunteer evidence beneficial to the other party.</p> <p><@=3For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Western District of New York.</p> <p>Separate actions by Christopher Sweeney and by Anna Sweeney against the Pullman Company to recover damages for personal injuries, loss of services, and medical and other expenses. Judgment for each plaintiff. Defendant brings error.</p>

<p>1. Insurance <@=>646(6)—Insurer has burden of proving vessel was unseaworthy.</p> <p>As between the owner and insurer, the burden of proving that a vessel was unseaworthy when It left port rests upon the insurer.</p> <p>2. Insurance <@=>668(10)—“Seaworthiness” of vessel a jury question.</p> <p>In action to recover insurance on a vessel damaged by storm, testimony by the vessel’s captain, its former owner, and the marine surveyor, held to make its “seaworthiness” at the time it left port a jury question, since that term is relative, and means capacity to resist the ordinary perils of the sea.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Seaworthy—Seaworthiness.]</p> <p>3. Insurance <@=>378 (1)—Knowledge of vessel’s unseaworthiness renders insurer liable despite warranty.</p> <p>An insurer, issuing a policy with knowledge of vessel’s unseaworthiness, cannot avoid liability by relying upon a warranty of seaworthiness contained in policy.</p> <p>4. Insurance <@=>542(1)—Substantial compliance with proof of loss provision sufficient.</p> <p>The object of proof of loss is to give the insurer information regarding the facts rendering it liable, and a substantial compliance with the terms of a marine policy is sufficient.</p> <p>5. Insurance <@=>542 (1)—Proof of loss of vessel sufficient.</p> <p>Where insurer was advised that the vessel had been seriously damaged, a copy of the survey sent, and later formal notice of the vessel’s abandonment, held, there was a sufficient compliance with the policy’s terms as to notification of loss, especially as liability was denied upon the ground of the vessel’s unseaworthiness.</p> <p>6. Insurance <@=>559(1)—Further proofs of loss waived by defense of vessel’s unseaworthiness.</p> <p>Further proofs of loss were waived, when the insurer denied liability on the ground of the vessel’s unseaworthiness.</p> <p><@E5>For other cases see. same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Indemnity <§^>9(2)—Covering fees and costs in resisting claims, held to cover fees in defending against loss by fire.</p> <p>An agreement by cotton compress company to protect a carrier against attorney’s fees and costs incurred in defending against claims for cotton for which bills of lading were issued while still in the compress company’s possession applies where the claim defended against was for loss of cotton destroyed by tire, though the preceding paragraph of the contract required compress company to pay for insurance taken out by the carrier against loss of such cotton by tire, since insurance taken out would not have covered the fees and costs.</p> <p><@=»For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

label by the Earn Eine Steamship Company against the Manatí Sugar Company, which brought in the Federal Sugar Refining Company. From a decree disallowing the claim of libelant, and allowing the claims of respondents only in part, all parties appeal.

Rose, Judge. Action by the Maryland Dredging & Contracting Company, for the use of the Maryland Casualty Company and Frank O. ¡Stromberg, against Walker D. Hines, Director General of Railroads, and another. Judgment for defendants on a directed verdict, and plaintiff brings error.

<p>1. Bankruptcy <§^467—Strong presumption sustains findings of referee concurred in by court.</p> <p>Where tbe District Court and tbe referee agree, their conclusion as Jo-facts -will be accepted by tbe Circuit Court of Appeals, unless justice requires a different conclusion.</p> <p>2. Bankruptcy <§=^267—Mortgage to ¡minor children held valid.</p> <p>In proceeding to determine right to proceeds of property sold free from lien of mortgages to bankrupt’s daughters, findings of a referee, concurred in by tbe District Court, that tbe mortgage was valid as securing funds of tbe daughters, for which be had been trustee for more than 10 years," held sustained by the evidence.</p> <p>@ss>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Index©»</p>

<p>1. Judgment <§=>942—In action on judgment of state court, it is assumed that party was properly substituted as plaintiff in state court, though record contains no specific order.</p> <p>In an action at law in a federal court of a district in one state on a judgment obtained in the court of another state, the judgment against the defendant as substituted plaintiff on a counterclaim in the state court must stand, although the judgment roll from the state court contains no specific order of substitution, as in the absence of proof to the contrary the recitals and decree must stand above unsubstantiated attack.</p> <p><@sz>For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>2. Trial €=>177—Both parties concluded by finding of court on joint request for finding.</p> <p>Action of the parties in praying the court for binding instructions in their favor, respectively, on a. matter involving a fact, was equivalent tc a joint request for a finding of fact by the court, and when the court, acting upon such request, directed the jury to find for one of the parties, both are concluded by its finding.</p> <p>®=»For other eases see same topic & KEY-NUMBER in ail Key-Numbored Digests & Indexes</p>

<p>In Error to the District Court of the United States for the District ■of New Jersey; J. Warren Davis, Judge.</p> <p>Action by Andrew Allen against Patrick Connelly. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal and error <§=^>215(1)—Instruction authorizing verdict of no cause of action, instead of nominal damages, held not reversible, in absence of objection.</p> <p>In an action against the seller of a ship for the cost of repairs necessary to make the ship conform to the warranty of seaworthiness, where the evidence showed that some of the repairs were necessary for that purpose, but that other repairs were in the nature of improvements, and furnished no basis for determining the proportion of the necessary repairs, or their cost, an instruction, not objected to at the trial, that if the evidence did not enable the jury to calculate the cost of the necessary repairs with reasonable certainty, the verdict should be no cause of action, does not reguire reversal, although plaintiff was entitled at least to nominal damages.</p> <p><§=»For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Action at law by Godfrey E- Cabot against the Sigmund Ullman Company. Judgment for- plaintiff, and defendant brings error.</p>

<p>Appeals from the District Court of the United States for the Eastern District of Virginia, at Norfolk; Edmund Wad dill, Jr., Judge.</p> <p>Petition by the People’s Navigation Company, Incorporated, and others for limitation of liability, opposed by A. E. Toxey and others. From a decree of the District Court (261 Fed. 797), denying the petition, both parties appeal.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Texas; W. Lee Estes, Judge.</p> <p>Involuntary petition in bankruptcy by W. H. Baker, Incorporated, and others, against the Monarch Wholesale Mercantile Company. From a judgment denying the adjudication and dismissing the petition, petitioners and intervening creditors appeal.</p>

<p>1. Bankruptcy <§=>372—Petition to reopen estate need not be formal, being' sufficient if showing estate was dosed before fully administered.</p> <p>Under Bankruptcy Act, § 2, subd. 8 (Comp. St. § 9586), the proceeding to reopen an estate need not be formal, and a petition is sufficient to support an order to reopen, if it' contains sufficient information to satisfy the court of the jurisdictional fact that the estate was closed before fully administered.</p> <p>2. Bankruptcy ®:::::>372—Where petition alleges assets of the bankrupt remato unadministered, court may reopen the proceedings.</p> <p>When a petition contains allegations of fact satisfying the conscience of the court, prima facie, that assets of the bankrupt remain unadministered, the court in the exercise of its discretion may reopen the proceedings.</p> <p>3. Bankruptcy <@^372—Order reopening the estate will be reversed only for abuse of discretion.</p> <p>An order reopening the estate of a bankrupt will be reversed only for an abuse of the discretion of the court; that is, where the court acts arbitrarily or without apparent reason and authority.</p> <p><£s»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by The Coco-Cola Bottling Company against The Coco-Cola Company. Hearing on motion by defendant to dismiss the bill and by the complainant for a temporary injunction. Motion to dismiss the bill denied, and decree for preliminary injunction ordered.</p>

<p>1. Commerce <S==>89—Claim for discrimination to be submitted to commission before action in court.</p> <p>A claim by a shipper for damages occasioned by carrier’s discrimination in absorbing in its rates switching charges from a pier used by the shipper’s competitors, but not those from the shipper’s pier, which had previously been held an unjust discrimination by the Interstate Commerce Commission, must be presented to the Commission before action thereon in the courts.</p> <p>2. Carriers <§^36—Discrimination in favor of competitors not sufficient evidence of damage.</p> <p>An order of the Interstate Commerce Commission, finding an unjust discrimination by the carrier in making a separate charge against a shipper for switching from the pier used by him, while absorbing such charge from piers used by his competitors, is not sufficient evidence to authorize recovery of damages by the shipper, since the measure of his damages is not the amount of the unjust discrimination, but the amount by which such discrimination had injured him.</p> <p>i§=AFor other eases see sam'e topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Julius De Large and another pleaded guilty, the named defendant to an indictment for having in possession an unregistered still, and the other defendant to an indictment for making a mash for distilling liquor in a place pot an authorized distillery, and they apply for a revision of the sentence, on the ground that the statutes defining those offenses were superseded by the Volstead Act.

<p>1. Maritime liens @=>30—Maintainable, though person in apparent authority did not have authority to bind vessel.</p> <p>Under Act June 23, 1910 (Comp. St. §§ 7783-7787), a claimant may now maintain a maritime lien, though the person on whose apparent authority the supplies were furnished did not have authority to hind the vessel, if the claimant did not know, and could not with reasonable diligence have found out, such lack of authority.</p> <p>2. Maritime liens @=>17—Statute to be strictly construed, but not so as to defeat purpose.</p> <p>As Act June 23, 1910 (Comp. St. §§ 7783-7787), relative to maritime liens, results in'the possibility that one person may be called upon to-pay the debt of another, it must be strictly construed; hut it must not be given such a construction as to defeat its main purpose, which is to enable those in charge of a vessel to obtain all necessary supplies.</p> <p>3. Maritime liens @=>30—Claimant must know supplies reasonably necessary, and that person ordering las apparent authority.</p> <p>One claiming a maritime lien for supplies furnished a vessel under Act June 23, 1910 (Comp. St. §§ 7783-7787), is bound to know that the supplies are in fact for the vessel, and in fact reach it, and are such as are ordinarily required on board a vessel, and thus reasonably necessary, and must at his peril make sure that the person ordering them has actual or apparent authority to bind the vessel.</p> <p>4. Maritime liens @=>23—Supplies are “necessaries,” if within reasonable requirement of particular ship.</p> <p>When supplies are furnished to a ship on the order of one in apparent authority, whatever comes within the reasonable requirements of the particular ship are “necessaries,” for which a maritime lien may be had under Act June 23, 1910 (Comp. St. §§ 7783-7787).</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Necessaries.]</p> <p><§r5>For other cases see same .topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Equity. Bill by Max W. Stohr, suing in his own behalf as a stockholder in Stohr & Sons, Incorporated, and in behalf of all others similarly situated, against James N. Wallace and others. On final hearing.

<p>1. Principal and agent ‘§^190(1)—Party claiming to fe© unffiselogeS principa! oí party to contract must prove agency.</p> <p>One suing for breach of warranty on a sale of goods to a third party as the undisclosed principal of such third party must prove the agency.</p> <p>2. Principal and agent <8=::>M3(2)—Undisclosed principal cannot recover, if circumstances preclude substitution for agent.</p> <p>An undisclosed principal cannot recover on a contract made with its agent, if the nature of the contract and the circumstances surrounding it are such as to preclude the principal from substituting itself in place of the agent.</p> <p><@z=»For other casos see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>3. Corporations <§=>432 (12)—Evidence held to show buyer of goods for plaintiff was not acting as its agent.</p> <p>Evidence held to show that one of plaintiff's stockholders, in buying goods from defendant for its usé, which were delivered to it, after defendant had refused to soil them to plaintiff because its credit was not satisfactory, did not act as agent for plaintiff.</p> <p>4. Contracts <§=>186 (1) —Person cannot be put into contractual relation with another, with whom he refuses to deal.</p> <p>In private affairs, everybody has a right to choose with whom he will contract, and one person cannot be put into contractual relations with another, with whom he has refused to deal by any arrangement or understanding between the other party to a contract and a third person.</p> <p>5. Principal and agent <§=>143(2)—Undisclosed principal cannot substitute itself for agent, when personal qualities or responsibilities involved.</p> <p>In executory contracts involving personal qualities or responsibility, an undisclosed principal cannot substitute himself for his agent without the assent of the other party to the contract.</p> <p>6. Corporations <§=>431—Undisclosed principal held not entitled to recover, where other party had refused to deal with it oa credit.</p> <p>Assuming that one of plaintiff’s stockholders, in buying goods to be manufactured by defendant on 60 days’ credit, was the agent of plaintiff, as his undisclosed principal, plaintiff could not recover on the contract, where defendant had declined to sell to plaintiff, because its credit was not satisfactory.</p> <p><gx^>Por other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Bankruptcy. In the matter of William Griffith Wilson, bankrupt. On specifications in opposition to discharge in bankruptcy.</p>

<p>Albert C. Krumm, Jr., trading as A. C. Krumm & Son, was charged by information with violating the Food and Drugs Act, and he demurs to the information.</p>

<p>Collision 0=395 (3) —BKrtieised ship held solely at fault for collision with tow.</p> <p>A. ship passing out through the Cut-Off Channel at night which was the burdened vessel, held solely at fault for collision with a barge in a tow of five barges; the evidence not sustaining the ship’s claim that the tow was extending diagonally across the channel, which would have made it a fault for the tug to give assent to the passing signal.</p> <p><gs&For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>One Mooney and others were convicted of conspiring to steal property belonging to the United States. On motion by defendant Rosenberg for a new trial.</p>

<p>In Bankruptcy. In the matter of the Orona Manufacturing Company, bankrupt. Petition by the trustee for review of an order by the referee directing him to pay into court dividends unclaimed by creditors.</p>

<p>1. Appeal aiíái erar ‘§==>105© (1) —Testimony that plaiei.®, swing for false arrest, was always sane, ¡heM net prejiicKeial, In view of eifoeir evifeM».</p> <p>In an action for false arrest and imprisonment, where plaintiff had been charged with being insane, and where a witness, who had known plaintiff intimately during the year in which he was arrested for insanity, testified without objection that during that period lie was of sound mind, further testimony by the witness that plaintiff was always of sound mind was not prejudicial to defendant,</p> <p>2. Trial <&=29í>(2) —©fejeetMa 4» irasfamKtioa “as siaafflng by itself” msmSiieieiri, when© whole cEm’ge was correct.</p> <p>In an action for false arrest and imprisonment, where the court at plaintiffs request had charged that the jury could infer malice from want of probable cause;’ an objection to that instruction “as standing by itself,” but finding no other fault with it, presents no question for review, where the court on his own motion had charged fully with respect to the same matter, to the satisfaction of defendant.</p> <p>8. Falso imprisennasitó <§=>4—MaCice ¡¡nay be inferred! irons: wairt ®f cams©.</p> <p>In an action for falso arrest and imprisonment, the jury may infer malice from the fact that there was no probable cause for plaintiff’s arrest, though want of probable cause does not establish malice.</p> <p>4. Appeal a-ml erro© €s»l®33(3)—Ketlcate in habeas ««íhís jtidgi&'isBtí, EisM favorable 4© «lafeuiífeni: in false taprisosuMejit action,</p> <p>In an action for false arrest and imprisonment, recitals in a judgment on halloas corpus proceedings, introduced to prove plaintiff’s release from arrest, that the warrant on which plaintiff was arrested was void and affidavit of lunacy insufficient, because not accompanied by a physician's certificate, tended to show plaintiff was released because of defect?, in the proceedings, not for want of probable cause, and wore therefore favorable, and not prejudicial, to defendant.</p> <p>©s»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Trade-masks and trade-names <8=43—Portable broMmgs manufacturer may have same trade-mark as building material manufacturer.</p> <p>Portable buildings, ready-cut frame buildings, and knockdown frame buildings do not possess the same descriptive properties as building construction materials, such as roofing pitch, roofing compounds, paints, and other products, so that a manufacturer of the portable buildings can have registered as a trade-mark a mark similar to that used by the manufacturer of the building materials.</p> <p>2. Trade-marks am# trade-names <3=44—Enumeration of uses substantially excludes other rases.</p> <p>An applicant for a trade-mark, who enumerates the articles to which the mark is to be applied as knockdown frame buildings, portable buildings, and ready-cut buildings, substantially complies with the opposer’s request that the applicant state that no claim is made to the mark in connection with building materials similar to opposer’s.</p> <p>other cases see same topic & KEY-NUMBICR in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Isaiah Smith was convicted of murder in the second degree, and he appeals.</p>

<p>Appeal from the Commissioner of Patents.</p> <p>Interference proceeding between Daniel Benson Replogle and James B. Kirby, as assignee of Shujei Noguchi. From a decision of the Commissioner of Patents, awarding priority to Noguchi, Replogle appeals.</p>

<p>Patents ©=>113(8)—Senior party awarded priority on two counts on which interference was dissolved.</p> <p>Where the Commissioner of Patents awarded priority of invention to R. as to two counts of an interference, but dissolved it as to other counts, holding two of said counts not patentable over the issue of another interference to which R. was a party and in which priority of invention was decided against him. Hold that, where both interferences were appealed, and R. was successful in both cases, he was entitled to an award of priority on said two counts, as well as on the others.</p> <p><§E5>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1., Intoxicating liquors <@=>236 (5), 255—©sly small quantity of seised liquors can toe retained, and Is as complete evidence as «satire amount.</p> <p>■Where a large quantity of whisky was taken from the possession of one who was subsequently charged with unlawfully importing tbe whisky into the District, a small quantity of the whisky is as complete evidence of the offense as the entire quantity seized, so that only such small quantity can be retained by the officers for use as evidence in the prosecution.</p> <p>S„ Intoxicating liquors <@=>256—’WfeE&er maimer of Misare makes liquor inadmissible as evidence cannot be dotramimed on replevin.</p> <p>In an action to replevy a quantity of whisky seized from plaintiff’s possession, which the defendants petitioned to retain for use os evidence against plaintiff, the question of whether the manner of seizure was such that the liquor could not be used as evidence is not to be determined, but will be left for determination by the trial court, when the liquor is offered in evidence.</p> <p><@=>For other casos see same topic & KEiT-NUMBER in all Key-Numbered. Digests & Indexes</p>

<p>1. Patents '§^00(5)—Foreign patent, disclosing interference claim, told constructive reduction to practice.</p> <p>An application for a foreign patent, which discloses the invention in issue in an interference proceeding and contains a claim broad enough to include the issue, is a constructive reduction to practice of the-invention in issue, though there was no claim of the specific device of the issue.</p> <p>2. Patents "S^BO (5)—Application ivithin limited time after foreign application is effective on date of foreign application.</p> <p>Where an inventor filed his application for a United States patent within the time limited by Key. St. § 4887 (Oomp. St. § 9431), after his application for a foreign patent was filed, the United States application hals the same effect as if it had been filed on the date the foreign application was filed.</p> <p><§^pFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Proceeding by Frances F. Forst, as guardian, for the sale of real estate. From an order dismissing the petition'of Louis A. Everett, that his bid be accepted and the property conveyed to him, and directing the conveyance to another, petitioner appeals.

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Mandamus by the United States, on the relation of W. T. Mosier and another, against John Barton Payne, Secretary of the Interior. From a judgment granting the writ, defendant appeals.</p>

Ejectment by Frank H. Walker and another against Cornelius Ford and another. Judgment for defendants on a directed verdict, and plaintiffs appeal.

<p>Patents >©=’108(2)—Counts in interference must be given broadest possible interpretation.</p> <p>It is the universal rule in interference cases that the counts shall be given the broadest interpretation of -which they are susceptible, so that the first inventor is entitled to priority over the objection that the counts contained limitations not found in his disclosure, where the disclosure was -sufficient, if the counts were broadly construed.</p> <p><Q^>For other eases see same topic & KBY-NUAÍBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the Commissioner of Patents.</p> <p>Interference proceeding between Edward P. Doyle and Charles H. Tomlin-son. Prom a decision awarding priority of invention to Tomlinson, Doyle appeals.</p>

<p>1. NegMgsne® <S=»93(2)*—©I Menü or w3£® dia^geaSil® to (to other.</p> <p>Where a husband and wife, riding in a vehicle driven by the husband, were engaged in a joint enterprise, the negligence of either was chargeable to the other under the law of Pennsylvania.</p> <p>2. KailrcasSs <8=»327 (8)—©nwcirar awstift eoatfoae to look and Mate».</p> <p>Under the law of Pennsylvania, one crossing a railroad track must continue to look and listen after he is committed to the crossing.</p> <p>3. Essili’oads <3=»350(16)—©©asfeiE&n; ©" tcsttaoniy as to “ieoldmg” SieM tor ¡¡¡ray.</p> <p>Where plaintiff testified that, when his wife screamed while they wore crossing a railroad track, he locked to the north and then to the south, his testimony on cross-examination that he “wasn’t really looking for a train” was not conclusive that he did not look while crossing, as its meaning was doubtful, and the jury was justified in concluding that he meant he was not really expecting a train,.</p> <p>4. 6sSMs 'So»35-ií(í3)---€o’rírí!b>jitory rjegiigeme® cipnieelioia fei levy.</p> <p>Where there is any evidence on the subject from which the fact of due care during the crossing may be found, the question whether plaintiffs exercised due care while crossing a railroad is for the jury.</p> <p>5. Railroads ®=>3K0(23)—-Evifciee IkM to ¡make ipaestiau for jury as to view ©Maisis.fi by aMgMÍEg'.</p> <p>In an action for injuries sustained at a railroad crossing, where plaintiffs, when they stopped before Crossing, had a view of the track for 140 to 208 feet, evidence hold to make a question for the jury whether there was a clear prospect from any point to which one of them might have walked by alighting and going ahead of the vehicle.</p> <p>6. Kaslroails <£^>327 (8)—Travel®? ieubé utap, look, and lisien si pjfoee itee siiclu aefes ara effective.</p> <p>Under the law of Pennsylvania, it is the duty of parties crossing a railroad track to stop, look, and listen at a place where stopping, looking, and listening would be effective.</p> <p>7. Railroads <8s»35®(23)—CcasMIratoiy seglitgeBce, Ik, failing to aiilgM and go tM to look, kM Qnegtiou tor Joy.</p> <p>Where plaintiffs stopped before crossing a railroad track at a point where they could see the track for 140 to 208 feet, and there was evidence that there was no other available stopping place before crossing, and that the best view was there obtainable without alighting, and it was not shown without contra diction that there was a clear prospect from any point to which one of them might have walked by alighting and going ahead of the vehicle, the court properly refused to rule as a matter of law that one of them should have gone forward.</p> <p><g=»E'or other cases soo same topic & Kisy-NUMBER in all Key-Numbered Digests & Indexes</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>Action by the Gulf & Interstate Railway Company of Texas against A. S. Walker, Collector of Internal Revenue, Third District of Texas. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Baraks ami banking <@=248 (2)—Comptroller can1 conclusively assess stoeklieMers’ lability!</p> <p>The Comptroller of the Currency can order an assessment upon the shares of an insolvent national bank, which is conclusive upon the shareholders, and enforce payment thereof through a receiver of his appointment.</p> <p>2. Baraks amá banking <@=25© (1)—Suit for fractional part of stoekM.&ir’s liability is in eqKify.</p> <p>A suit to enforce a fractional part of a shareholder’s liability on assessment to pay the debts of an insolvent national bank, though based on the statute, is in equity.</p> <p>iJSseFor other oases see same topic & KBY-NUMBI5R in all Key-Numbered Digests & Indexes</p> <p>3. Banks and! banking ©==>248 (6)—Estate liable for stock held by it whan insolvency occurred.</p> <p>Under Rev. St. § 5Í51, superseded by Act Dec. 23, 1913, § 23, the estate of a deceased shareholder in a national bank is liable on the stock held by it, though insolvency of the bank occurs and assessment on the policy is- made after his death.</p> <p>4. Courts <8=»375—State limitation statutes apply to suits to enforce national. bank stockholder's liability.</p> <p>Id the absence of federal provisions, state statutes of limitation apply to suits brought to enforce payments on assessment against the stockholders of an insolvent national bank.</p> <p>5. Executors and administrators @^282—Personally liable for settling estate without paying statutory liability.</p> <p>An executor, who settles an estate without making provision for or disposing of a liability imposed thereon by statute, may in a proper action seasonably brought be held personally liable for devastavit.</p> <p>6. Equity <S=’427(1)—Relief must conform to bill.</p> <p>The relief granted in equity must conform to the case made by the bill.</p> <p>7. Equity <§=>427 (3) —Persona! decree not authorized in suit against executor as representative.</p> <p>A bill charging the defendant with liability only as executor of an estate does not authorize a decree against him personally, though he is personally liable, and though the bill contains a prayer for general relief, since such prayer does not vary the rule against relief inconsistent with the case made by the bill.</p> <p>8. Limitation of actions <®=»127 (17)-—Recovery on supplemental bill stating new cans® of action is barred.</p> <p>When a supplemental bill in equity to hold an executor personally liable for devastavit states a new cause of action, that action is subject to the operation of an applicable statute of limitations.</p> <p><©3»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes-</p>

<p>Carriers ©^SS—Cannot recover for switching done under agreement alleged to be illegal as rebate, in violation of Interstate Commerce Acts.</p> <p>An interstate railroad company cannot recover for switching done in the yards of a smelter plant, under an agreement and understanding that, as provided in its tariff schedules duly published and filed with the Interstate Commerce Commission, such switching was a part of the transportation and should be free, as absorbed in freight charges, on an allegation that such provision of its tariff schedules was illegal and ■ void, as in effect granting a rebate, in violation of the Interstate Commerce Acts.</p> <p><g=s>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Action at law by the National Publishing Company against the International Paper Company. Judgment for defendant, and plaintiff brings error.

of Connecticut. Action by the United States against the New York, New Haven & Hartford Railroad Company. Judgment for the United States, and -defendant brings error. This suit is. brought by the government to recover for excise taxes for the taxable years ending December 31, 1909, 1910, 1911, and 1912. The taxes were levied pursuant to section 38 of the act of Congress approved August 5, 1909 (36 Stat. 112).

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Action at law by the McClintic-Marshall Company against Patrick McGovern and Charles E. Perrin. Judgment for plaintiff, and defendants bring error.</p>

Appeals from the District Court of the United States for the Southern District of New York. Separate suits in admiralty for collision by Augustus S. Meeker, by G. Malcolm Knox, by Harold Haas, by Charles Haas, as executor of Henry Haas, deceased, and by Augustus S. Meeker, as administrator of Mary Agnes Meeker, against the steamship Lafayette; the Compagnie Generale Transatlantique, claimant. Decrees for libelants, and claimant appeals.

<p>Equity @=>65(2)—Inequitable conduct bar to relief.</p> <p>When about 20 years of age complainant contracted her services as a motion picture actress to defendants for a term, including options for renewals, of some 4 years. A few months later, while still under 21, representing herself free to do so, she made contracts with another for her services covering the same time. Held that, whether or not as matter of law she might avoid her contracts with defendants on the ground of her minority, her conduct was such that a court of equity would grant her no relief against them.</p> <p>4¡zs>For otter cases see same topic & KEY-NUMBER In all Key-Numbered Digests & Indexes</p>

Holmes, Judge. Suit by the Finkbine Lumber Company against the Gulf & Ship Island Railroad Company to recover from the Railroad Company the agreed or reasonable charges for switching services rendered by the Lumber Company. From a decree dismissing the bill, complainant appeals.

Foster, Judge. Suit by Andrew D. White against the New Orleans- Lake Shore Land Company, the Hibernia Bank & Trust Company, and others. Judgment for plaintiff against the Land Company, but not against the Bank & Trust Company, and plaintiff brings error.

Sibley, Judge. Suit by the Consolidated Textile Corporation against James D. Dickey and others. From a decree dismissing the bill for want of necessary parties (266 Fed. 587), complainant appeals. Motion to dismiss the appeal denied, decree reversed, and cause remanded.

Orr, Judge. In the matter of the bankruptcy of the Apollo Electric Steel Company; J. J. Goldsmith, trustee. From an order affirming an order of the referee disallowing his claim, Thomas Heyward, Jr., appeals. Or - der reversed, with direction to allow claim.

<p>Appeal from the District Court of the United States for the District of Maine; Clarence Hale, Judge.</p> <p>Suit in admiralty by Furniss, Withy & Co., Limited, against a tug claimed by the Central Wharf Towboat Company. Decree for libel-ant (The Pejepscot, 217 Fed. 150), and claimant appeals.</p>

Suit by Alejandro Franeeschi and others against Mario Mercado e Hijos-, From a decree of the Supreme Court of Porto Rico reversing a decree of the'District Court in favor of plaintiffs, they appeal. Held: the judge is required to set a new day therefor until it is held.

Eibels by Mary F. Doherty, owner of the barge Hercules, and by Mary F. Doherty and William Doherty, against the Pennsylvania Railroad Company. Decrees for libelants (261 Fed. 529), and respondent appeals.

<p>1. Master and servant <®=>180(1), 234 (1) —Federal Employers’ Liability Act abrogates fellow-servant doctrine, but saves defense of assumption of risk.</p> <p>Tbe federal Employers’ Liability Act (Comp. St. §§ 8657-8665) abrogates tbe common-law fellow-servant doctrine, by placing the negligence of a coemployé on the same basis as tbe negligence of employer; but it saves tbe defense of assumption of risk in cases other than those where tbe violation of a statute enacted for tbe safety of employés may contribute to the injury.</p> <p>2. Master and servant @=>13'( (4)—Engineer required to use ordinary care to stop on discovering emplcyé’s peril.</p> <p>Under tbe federal Employers’ Liability Act (Comp. St. §§ 8657-8665), if an engineer of a train discovered an employe on the track in a position of peril, it was incumbent on him to exercise ordinary care to stop bis train and. prevent the accident.</p> <p>3. Master and servant <@=32£S (31) —Evidence of engineer’s negligence as to flagman sitting on track held insufficient to go to jury.</p> <p>In an action for death of a flagman, struck by a train drawn by an engine with tbe tender first, held, that the court properly refused to submit tbe case to tbe jury on tbe ground of plaintiff’s failure to sustain tl^e burden of proof of establishing negligence, in that tbe engineer should have seen tbe deceased, who was sitting on tbe track apparently unconscious of danger.</p> <p>(gxx^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Customs and usages <§==>7—Trade usage held reasonable and legal.'</p> <p>A usage in tbe business or trade of mining and selling coal of apportioning tbe coal pro rata among buyers wben sufficient ears cannot be obtained to ship all that has been sold complies with the requirements of reasonableness, legality, etc.</p> <p>2. Customs and usages @=»12(1)—Party’s knowledge of particular trade usage immaterial.</p> <p>That a buyer of coal knew of a trade usage in tbe business or trade of mining and selling coal to apportion coal among buyers pro rata, wben sufficient cars could not be obtained to deliver all contracted for, was immaterial.</p> <p>3. Customs and usages <0=>1—Usage to apportion coal among buyer’s pro rata held not established custom, but trade usage.</p> <p>A so:called custom in tbe business or trade of mining and selling coal to apportion coal pro rata among buyers wben sufficient cars could not be obtained to deliver all contracted for is not an established custom, but a trade usage.</p> <p>4. Customs and usages '®=1—Custom is part of common law, and usage is the law of the case.</p> <p>A lawful custom is itself part of tbe common law, while a lawful usage proved and shown to affect both parties is tbe law of their case.</p> <p>5. • Contracts '§=^152—Parties may employ words and phrases in particular sens©.</p> <p>Tbe individual parties to a transaction may employ words or whole phrases in a particular sense, irrespective of their ordinary sense.</p> <p>6. Customs and usages ‘§=21—Question is one of fact as to whether words were used in special sense.</p> <p>When tbe parties to a contract are claimed to have contracted with reference to a trade usage, there is only a question of fact as to whether tbe parties were using words in a special mutual sense.</p> <p>7. Customs and usages <S=:319 (2)—Ambiguity with respect to number, quantity, etc., unnecessary to admit evidence of usage.</p> <p>With respect to number, quantity, amount, or measurement, ambiguity in tbe language of a contract is not necessary to let in evidence-of usage.</p> <p>8. Customs and usages <§==>21—Notice on letter heads held to make incorporation of usage a question for the jury.</p> <p>Where a contract for tbe sale of coal was made by telephone and confirmed by letter, and the buyer’s letter bead bore a notice that all agreements were contingent upon delays of carriers and tbe seller’s that contracts were subject to car supply, it was a question for tbe jury whether tbe parties intended to incorporate a trade custom to apportion coal among contract buyers pro rata, wben sufficient cars could not be obtained for delivery of tbe full amount sold.</p> <p>9. Sales <®=388—Notice on letter head not part of contract as matter of law.</p> <p>■Where a contract for tbe sale of coal was made by letter, notices on tbe letter beads of tbe parties that agreements were contingent upon delays of carriers and subject to car supply were not, as matter of law, incorporated in and made part of tbe contract.</p> <p>10. Customs and usages <§=>12(1)—Evidence of acquiescence held admissible on question of whether usage was part of contract.</p> <p>On tbe question of whether tbe parties to a sale of coal intended to contract subject to a usage in the trade to apportion coal pro rata among buyers, when sufficient cars could not be obtained, evidence that the buyer had acted as if in acquiescence to the custom was admissible, as showing the practical interpretation of the contract.</p> <p><&zz>]?or other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Whitaker Thompson, Judge. Proceeding by J. Howard. Reber, as receiver of the National Corporation, and as receiver of the Bartram Hotel Company, against the Merchants’ Warehouse Company. From an order adjudging the Warehouse Company in contempt (263 Fed. 250), it appeals.

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Henry Morris and another were convicted of using the mails in a scheme to defraud, and they bring error.</p>

<p>1. Habeas corpus —Recommitments under lawful sentence held legal.</p> <p>Where a prisoner had applied for habeas corpus, claiming his sentence to be illegal, and had been, by the court to which he applied, twice committed to different jails for specified terms, which were within the term of the original sentence, and the original sentence was in fact lawful, the subsequent commitments were only recommitments under that sentence, and were lawful.</p> <p>3. Criminal law <@=>1216(1)—Prisoner entitled to commutation for time served in county jail under sentence to penitentiary.</p> <p>The time spent by a prisoner in a county jail under commitments by the District Court, to which he had applied for habeas corpus, charging his sentence to the penitentiary to bo illegal, entitles him to such commutation of time as he would have earned by serving unbroken his full form in the penitentiary.</p> <p>^saFor oilier casos seo same topic & KEY-NUMBER in all Key-Numbered Digeste & Indexes</p>

<p>Salvage <@=>51—Award of $3,000 for extinguishing fire on dredge sustained.</p> <p>Where all the witnesses were examined in open court, and the issue was purely one of fact, on which the testimony was sharply conflicting, an award of $6,000 as salvage to a tug for extinguishing a fire on a dredge, which was amply sustained by libelant’s proof, will be affirmed.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal and error <§=>1194(2)—Keftisa! to enjoin proceedings contemplated on affiananee of former denial of injunction held proper.</p> <p>Where, on former appeal, the denial of an injunction to restrain further proceedings in the state court for dissolution of a corporation was affirmed, the court below properly refused thereafter to enjoin further proceedings in the state court, which had been contemplated at the time of the former appeal, though the particular steps sought to be restrained were not then before the court.</p> <p>otber oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Habeas Corpus. Application by S. C. Crooksbank for writ to secure release from custody of city marshal. Demurrer to petition sustained, and petitioner remanded to custody.</p>

<p>1. Judgment <&=»7©1—OtockhoMers ceiaelüiíieü by judgment against corporation.</p> <p>A corporation represents its stockholders in litigation in which it is engaged, so that a judgment for or against the corporation is as conclusive against its stockholders as against itself.</p> <p>2. Judgment <£s^>l5'13 (S> ■—Conelosive between parties as to all matters that ceuM have boas litigated.</p> <p>A judgment is conclusive in a subsequent action between the same parties on the same canso of action, in the absence of fraud or collusion in the conduct of the action on which it is founded, not only as to every defense that defendant made in that action, but also as to every defense that it might ha ve made.</p> <p>^s>For other cases sec same topic & KEY-NUMBER in all Key-Nnmhored Digests & Indexes</p> <p>3. Judgment <@=386 (7)—Right to íyvqííI must be diligently pursued.</p> <p>The right to avoid a judgment or decree of the court for fraud is conditioned on diligence in discovering the fraud, and in presenting the proof of it to the proper tribunal and asking for relief.</p> <p>4. Judgment €=386(7)—Stockholders held not diligent in seeking, to avoid judgment against corporation.</p> <p>Where a judgment was rendered against the crporation on a guaranty of the bonds of another corporation, and the opinion on which the judgment was based was published, as was also the opinion of the Circuit Court of Appeals affirming the judgment, and, after certiorari had been denied by the Supreme Court, property was sold to satisfy the judgment, and judgments were obtained thereon :in other jurisdictions, and property seized for sale therein, a petition by the stockholders of defendant corporation for leave to intervene in proceedings for the sale under a subsequent judgment, more than three years after the original judgment, and to delay the sale until they could intervene in the original proceeding and attack the judgment for fraud, shows such want of diligence by petitioner as to bar the right to relief against the original judgment, and therefore the sale will not he further postponed.</p> <p>5. Notice «@=6—Leading to inquiry is notice of facts inquiry would show.</p> <p>Notice of facts which would incite a person of ordinary prudence to an inquiry under similar circumstances is notice of all the facts which a reasonably diligent inquiry would develop.</p> <p>6. Railroads <§=25—Stockholders’ petition held not to show fraud in guaranty of bonds of another company.</p> <p>A petition by a stockholder of a railroad corporation, attacking for fraud a judgment against the corporation on its guaranty of the bonds of another railroad company, which showed that the latter railroad was constructed for the benefit of the defendant corporation, which owned most of its stock, and which would thereby obtain an outlet to the Pacific Coast, not only fails to show fraud, but shows that there was no fraud in the guaranty.</p> <p>7. Corporations <§=318—Interlocking directorates not fraud per se.</p> <p>Interlocking directorates of different corporations are not fraudulent per se, but are denounced only when used to accomplish a fraudulent end.</p> <p>8. Corporations <@=211 (6)—Petition of stockholders held not to show fraud in conduct of defense by corporation.</p> <p>A petition by stockholders to have a sale of corporation’s property under judgment against it delayed until the stockholders could investigate suspected fraud by the corporation in failing to present a defense held not to show grounds for suspecting the fraud.</p> <p>©=»For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Internal revenue <§=>28—Statute prohibiting injunction of tax collection is to prevent delay in obtaining revenue.</p> <p>The object of Rev. St. § 3224 (Comp. St. § 5947), prohibiting a suit to restrain the assessment or collection of any tax, is that the government shall not be delayed or interfered with in the collection of its revenues.</p> <p>2. Internal revenue <@=>45—Specific “penalties” on dealers imposed by Prohibition Act are not “tax.”</p> <p>The exactions from liquor dealers by National Prohibition Act, § 35, In addition to double the amount of the previous tax on such dealers, are “penalties,” since they are so named, are for the purpose of punishment, and are embodied in a penal statute, and not a “tax,” which is defined as an enforced contribution for the payment of public expenses.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Penalty; Tax—Taxation.]</p> <p><gsoFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>3. Internal revenue <§=45—Penalty for nonpayment of tax is not a tax.</p> <p>The 25 per cent., or 50 per cent., added under Rev. St. § 3176 (Comp. St. § 5899), for nonpayment of internal revenue taxes, is a penalty, rather than a tax, even when the principal amount was itself clearly a tax.</p> <p>4. Internal revenue <@=45—Penalties under National Prohibition Act cannot be collected by distraint.</p> <p>Under Rev. St. § 3213 (Comp. St. § 5937), authorizing suit to collect a penalty, which procedure is recognized by National Prohibition Act, § 35, and, under Rev. St. § 3187 (Comp. St. § 5909), authorizing distraint to collect taxes, but not penalties in general, the penalties imposed by National Prohibition Act, § 35, on liquor dealers, in addition to double the existing revenue tax, should be collected either by criminal prosecution or by suit, but not by distraint.</p> <p>5. Internal revenue <§=45—Exaction of former tax from illegal liquor dealers is penalty.</p> <p>Under National Prohibition Act, § 35, subjecting dealers in liquor for prohibited purposes to the special taxes prescribed by Rev. St. § 3244 (Comp. St. § 5971), in double the amount therein prescribed, the character of the special taxes was thereby changed from taxes, strictly so called, for the production of revenue, to penalties.</p> <p>6. Internal revenue <§=45—Intention to collect revenue from crime not im- - púted to Congress.</p> <p>An intention to derive revenue from taxes on crime must not be,imputed to Congress, if it can be avoided.</p> <p>7. Internal revenue <§=45—Illegal collection of exactions under Prohibition Act can be enjoined; “proceeding for the collection of a tax.”</p> <p>Since all of the exactions from illegal dealers in prohibited liquors under Prohibition Act, § 35, are penalties, and not strictly taxes for the purpose of revenue, distraint for collection thereof is not a proceeding for the collection of a tax, the restraining of which is prohibited by Rev. St. § 3224 (Comp. St. § 5947).</p> <p>8. Internal revenue <§=45—Exactions under Prohibition Act cannot be collected by distraint.</p> <p>Since, before the adoption of the Eighteenth Amendment, the collector of internal revenue could distrain to collect only taxes and certain penalties expressly authorized by Rev. St. §§ 3176, 3187 (Comp. St. §§ 5899, 5909), and National Prohibition Act, § 28, merely confers on the Commissioner of Internal Revenue, for the enforcement thereof, the powers conferred by law for the enforcement of existing laws relating to the manufacture and sale of intoxicating liquors, the exactions from dealers in prohibited liquors, prescribed by National Prohibition Act, § 35, which are penalties, cannot be collected by distraint, especially since the preliminary steps provided by Rev. St. § 3172 (Comp. St. § 5895), and the notice and demand required by section 3184 (section 5906) are not suitable as procedure for the collection of such penalties, and a civil suit may be maintained to recover them under the regulations of the Internal Revenue Department.</p> <p>9. Constitutional law <§=303—Collection of penalties by distraint violates due process of law.</p> <p>The collection by distraint of the penalties imposed by National Prohibition Act, § 35, on dealers illegally- selling intoxicating liquor, which is made a crime by section 29 of the act, would not be due process of law.</p> <p>10. Internal revenue <§=45—Plaintiffs held entitled to preliminary injunctions against distraint for penalties.</p> <p>Bills alleging that the collector of internal revenue was threatening distraint of plaintiffs’ property to enforce collection of the penalties prescribed by National Prohibition Act, § 35, that plaintiffs cannot pay the amounts demanded, and that seizure and sale would ruin their business, entitle the plaintiffs to preliminary injunctions, since Rev. St. § 3224 (Comp. St. § 5947), does not bar such relief, the remedies provided by sections 3225 and 3226 (Comp. St. §§ 5948, 5949) have no application, and the remedy at law by payment oí the exactions and suit, for recovery is not adequate.</p> <p><g^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>Í1. Internal revenue @=»45—Under War-Time Prohibition Act special taxes could not be collected by distraint.</p> <p>The War-Time. Prohibition Act (Comp,. "St. Ann. Supp. 1919, §§ 811511/i:>i~31151Vi2h), making sales of intoxicating liquor for beverages unlawful and prescribing penalties tlierefor, either suspended Rev. St. §5) 3178, 3244 (Comp. St. §§ 5899, 5971), and Act Feb. 24, 1919, § 1001 (Comp. St. Ann. Supp. 1919, § 5080o), for the payment of special taxes on retail liquor dealers, or changed the character of the exactions provided in those sections from special taxes to penalties, and in either event those exactions could not be collected by distraint.</p> <p>12. Courts <S=»35l}6—Demurrers cam be considered as motions t® distmics.</p> <p>Though demurrers in equity have been abolished by new equity rule 29, demurrers interposed can be considered as motions to dismiss.</p> <p><gx=>For other eases see same topic & KHY-NUj-VIBUH. in all Key-Numbered Digests & Indexes</p>

In Bankruptcy. Involuntary petition in bankruptcy against Lawrence E. Stell, alleged bankrupt. On application by petitioning creditors for' an order authorizing the examination of the alleged bankrupt as a witness. Petition denied without prejudice.

<p>1. Constitutional law @=>45—Courts cannot declare tax on unlawful liquor dealer was punishment.</p> <p>The courts cannot declare that the provision of the Volstead Act directing the assessment, levy, and collection of an excise tax as a tax upon those engaged in the occupation or business of dealing in intoxicating liquors, which is made unlawful by the act, was not in fact a tax, but was a punishment for the unlawful act, so that its collection violated the due process of law provision of the Constitution.</p> <p>2. Constitutional law @=>38—Purpose or effect of legislation within congressional powers does not make it unconstitutional.</p> <p>Where the enactment of a statute was within the powers granted to Congress, the fact that its purpose or effect was to accomplish some result which Congress could not directly accomplish, does not invalidate the act, so that the tax on liquor dealers levied by the Volstead Act is not unconstitutional, though intended to aid in enforcing prohibition.</p> <p><g=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes "</p>

<p>1. Divorce 29 (1)—Suspicion of adultery not sufficient proof.</p> <p>Proof to sustain the charge of adultery against the wife must be clear and satisfactory; strong suspicion or circumstance of suspicion not being sufficient.</p> <p>2. Divorce (19)—Evidence held insufficient to show wife’s adultery.</p> <p>In a suit for divorce, evidence of improper acts with a man not her husband held insufficient to establish adultery by the wife, though tending to create a strong suspicion thereof.</p> <p>3. Divorce <2^229—Evidence held to show wife not entitled to further alimony.</p> <p>Where the wife’s adultery was not sufficiently established to entitle the husband to .the divorce, but it was shown slie had been guilty of indiscretions with another man and that she left her husband, though he offered to overlook her conduct, held, the husband was entitled to be relieved from further payments of alimony under a prior order of the court.</p> <p><3=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Action by John C. Heald and others, committee of the person and estate of Eugene Peters, against the District of Columbia, for the repayment of a tax. From a judgment sustaining a demurrer to the declaration, plaintiffs appeal.

<p>Appeal from the Supreme Court of the District of. Columbia.</p> <p>Action for libel by Charles W. Fitts against Charles P. Davis. From a judgment sustaining a demurrer to the declaration, plaintiff appeals.</p>

<p>Appeal from tbe Commissioner of Patents. Interference proceeding between Bloyd G. Copeman and William E. Emerson. From a decision of tbe Commissioner of Patents, awarding priority of invention to Emerson, Copeman appeals.</p>

In the matter of the application of Harry A. Kuhn for á patent. From a decision of the Commissioner of Patents, refusing six claims, the applicant appeals.

<p>Appeal from the Commissioner of Patents. Application by C. Edward Murray, Jr., for a patent for improvements in the construction of rubber tires. From a decision of the Commissioner of Patents, rejecting the application for lack of novelty, the applicant appeals.</p>

In the matter of the application of Maximilian Charles Sehweinert and another for the patent of a tire valve. From a decision of the Commissioner of Patents, refusing to grant the patent, applicants appeal.

Killits, Judge. Interpleader between Carrie F. Barnhart and Orville F. Barnhart and others to determine the right to the proceeds of an insurance policy. Decree awarding the proceeds to Carrie F. Barnhart, and Orville F. Barnhart and others appeal.

<p>Appeal from the District Court of the United States for the Southern District of New York. Libel by the Berwind-White Coal Mining Company against the Pennsylvania Railroad Company. Decree for respondent, and libelant appeals.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York. Suit in equity by Bonnie-B Company, Incorporated, against Julien Giguet and the F. W. Woolworth Company. Decree for defendants, and plaintiff appeals.</p>

<p>Appeal from the District Court of the United States for the Eastern District of New York. Suit in admiralty by Walter Clyde against the ferryboat Brooklyn; the Union Ferry Company of New York & Brooklyn, claimant. Decree for respondent, and libelant appeals.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York. Bill by the Commercial Pacific Cable Company against the Philippine National Bank. From a decree granting an injunction (263 Fed. 218), defendant appeals.</p>

<p>Appeal from the District Court of the United States for the Eastern District of New York. Suit in admiralty by Albert H. Hastorf against the Leonhard Michael Brewing Company. Decree for respondent, and libelant appeals.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Pennsylvania; Thompson, Judge. Suit for injunction by the Viscose Company against Walker D. Hines, Director General of Railroads, and others. Decree for complainant, and defendants appeal. Reversed, in conformity to answer by the Supreme Court to certified question whether the District Court had jurisdiction, which question the Supreme Court answered in the negative. 254 U. S. -, 41 Sup. Ct. 151, 65 L. Ed. -.</p>

<p>Petition to Revise Order of the District Court of the United States for the Southern District of New York. In the matter of Samuel Trachmand and others, copartners, etc., alleged bankrupts. Petition by Edward J. Ryan to revise an order of the District Court.</p>