Volume 270 — Federal Reporter

<p>In Error to the District Court of the United States for the District of New Mexico; Colin Neblett, Judge.</p> <p>Action by the United States against the Atchison, Topeka & Santa Fé Railway Company. Judgment for defendant, and the United States brings error.</p>

<p>1. Municipal corporations <S3=»648 — Adverse use of street for prescriptive period shows acceptance.</p> <p>Under statutes giving a city the usual broad powers of municipal corporations to establish, improve, and vacate streets, and imposing the duty to keep them open and in repair, and containing' no restriction requiring formal acceptance of a street created by prescriptive use, the continuous and adverse use by the public for the requisite time is sufficient to show acceptance of the street.</p> <p>2. Adverse possession <S=>8(4) — Title to railway right of way may he acquired.</p> <p>As a general rule, title may be by adverse possession to portions of a railway company’s right of way.</p> <p>3. Highways <^»4 — May be established by prescription on railway right of way.</p> <p>As a general rule, highways may be established by prescriptive use over or along the right of way of a railway company.</p> <p>4. Municipal corporations <§^817 (1) — General public use of street where injury occurred held to raise presumption that it was adverse.</p> <p>In an action for injuries sustained on a bridge on a road within the limits of a railway right of way, the general public use of the road as a highway for the prescriptive period, without anything to explain how it began, raised a presumption that it was adverse and under a claim of right, and cast the burden on the city to show that the right was permissive, so as to prevent the road from becoming a public street.</p>

<p>1. Specific performance <§=65 — Action for damages not adequate, and does not bar remedy.</p> <p>An action for damages for the breach of a contract to convey land does not afford ,as adequate a remedy as a suit for specific performance, and is no answer, to such a suit, as it does not place the parties in the same situation as before the agreement was made, and is not as prompt, complete, and efficient as a suit in equity.</p> <p>2. Specific performance <§=65 — May not be denied when consideration has beers paid, except for insuperable principle of law.</p> <p>Ju equity, tlie vendee of land under a contract of the vendor to convey to him is treated as the owner, and the vendor is deemed to siand seized of' the land in trust for the vendee, and when the entire purchase price has been paid the equity of the vendee is of the highest character, and specific performance may not be denied, unless forbidden by some insuperable rule of law or equity.</p> <p>3. Specific performance <§=29 (2) — Contract to convey part of tract to be selected by agent held sufficiently certain.</p> <p>A contract by one owning 6,320 aeres of oil and gas lands to convey 010 acres of the probable average value per acre of the remaining acreage, to be selected by a designated agent of the vendor, or, if he cannot act,- by some other competent geologist, is sufficiently certain to support specific performance, under the rules that what one agrees to do by another he agrees to do himself, and that that is certain which can be made certain.</p> <p>4. Specific performance <§=29 (2) — Contract requiring selection of land by third person enforceable.</p> <p>a comract Cor the sale of land of the probable value of the vendor’s remaining land, to be selected by a third party, may be enforced in equity by the selection of the land itself, or by appraisals or arbitrators, or a master which it may appoint.</p> <p>5. Specific performance <§=105 (1) — Attempted performance by defendant before time for performance held to authorize suit.</p> <p>Where a vendor agreed to convey 040 acres of the probable average’ value of its remaining land, when it had cleared its title, the land to be selected by a designated agent, but before it had cleared its title the agent selected land in bad faith of a much less probable value than that of the remaining acreage, which the purchaser refused to accept, a suit for specific performance was not prematurely brought, as the attempted performance compelled plaintiff lo proceed, or incur the danger of an estoppel.</p> <p>6. Vendor and purchaser <§=160 — Contract to convey land of average value of remaining land net performed by conveyance of land of substantially less value.</p> <p>An agreement to convey 640 acres of land of the probable average value of the vendor’s remaining acreage, to be selected by a designated agent, is not performed by the selection and conveyance of land of substantially less probable value than the average value of the remaining acreage, whether selected by the designated agent or by some other person.</p>

<p>In Error to the District Court of the United States for the District of Colorado; Robert E. Rewis, Judge.</p> <p>John A. Savage was convicted of using mails with intent to defraud, and he brings error.</p>

<p>1. Appeal and error “§=>187(2) — Objection to misjoinder of plaintiffs cannot be first made on appeal.</p> <p>In a suit for the specific performance of an option for the purchase of land, the objections that a subsequent purchaser from the optionees was improperly joined as plaintiff cannot be first raised on appeal, especially where the defendants asked affirmative relief against that plaintiff, as well as against the others.</p> <p>2. Principal and agent <@=>69 (1) — Agent making profit owes duty to disclose all facts to principal.</p> <p>An agent owes his principal the duty to communicate all facts coming to his knowledge in respect to the agency, to act with the utmost good faith, and not to use the subject-matter of the agency or information acquired therein to make a profit for himself without the knowledge and consent of the principal, and where the agent’s acts are questioned it is incumbent upon him to establish that he acted openly, fairly, and honestly.</p> <p>3. Specific performance “@=>121 (8) — One of several agents to sell property held not to have concealed facts in buying from principal.</p> <p>In a suit for specific performance of an option for the sale of land, evidence held not to show that one of the optionees, who was one of several agents for the sale of the land, concealed any fact within his knowledge from the owner, and therefore not to defeat the right to specific performance, especially where there was nothing to impeach the contract' as to the other optionees.</p> <p>4. Vendor and purchaser <@=>18(y2) — Optionees can contract for resale of property at profit.</p> <p>The holders of an option for the purchase of land, which was not assignable without consent of the owner, can contract without such consent for the.resale of the land at a profit, without defeating their right to specific performance of the option contract.</p> <p>5. Appeal and error “§=1054(1) — -Admission of irrelevant evidence in trial to court not prejudicial.</p> <p>In a suit for specific performance, tried to the court, the admission in evidence of a conversation, which was irrelevant, was not prejudicial.</p> <p>6. Specific performance “§=>120 — Expenditures by purchasers competent to determine equities.</p> <p>In a suit for specific performance of an option for sale of land, evidence as to expenditures made on the land by the optionees is relevant as to the equities of the ease, and is competent.</p>

<p>Appeals from the District Court of the United States for the Southern District of Mississippi; Edwin R. Holmes, Judge.</p> <p>Separate suits by Pearl River County, Miss., against the Wyatt Dumber Company and against the Edward Hines Dumber Company. Decrees for defendants (Robertson v. Hines, 267 Eed. 605). and complainant appeals.</p>

Criminal prosecution by the United States against Solomon Roth-man, Louis Cohen, and William Cohen. Judgment of conviction, and defendants bring error. The plaintiffs in error, who were, defendants below, will be hereinafter referred to as defendants. The defendants and one Jacob Weinberg were indicted on September 17, 1918, for unlawfully selling heroin and for conspiracy respecting such sale. They pleaded not guilty, and- were put on trial on July 21, 1919.

<p>1. Master and servant <&wkey;265 (8) —Falling of bucket moved by crane held not to create presumption of negligence.</p> <p>In an action for the death of an employé, caused by the fall of a heavy bucket moved by a crane, the falling of the bucket carried with it neither proof nor presumption of negligence in the adjustment of the hooks holding the bucket, where there was evidence of contact between the bucket and a pile of trench rails, which might have released the strain on the hooks and permitted them to slip.</p> <p>2. Master and servant <&wkey;278(l) — Negligence must be established with certainty.</p> <p>In an action under the Employers’ Liability Act (Comp. St. §§ 8657-8665) for death, the employer’s negligence is an affirmative fact to be established by plaintiff, and evidence that the employer may have been guilty of negligence is not sufficient.</p> <p>3. Master and servant <&wkey;291(3) — Instruction referring to things as almost touching, when evidence showed actual contact, held misleading.</p> <p>In an action for the death of an employé, caused by the fall of a heavy bucket being moved by a crane, where the evidence showed contact with a pile of trench rails, which may have relieved the strain on the hooks and permitted them to slip.off, the instructions should have called attention with particularity to this aspect of the case, and an instruction referring to the fact that the bucket “almost touched” the pile may have misled the jury.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in admiralty by the Seaboard Equipment Corporation against the steam tug Greenwich, the Redi Star Towing & Transportation Company, claimant, and the Builders’ Brick & Supply Company. Decree for respondents, and libelant appeals.</p>

Petition to Revise Order of the District Court of the United States-for the District of Colorado. - In the matter of Charles C. Edgington and Ida M. Edgington, bankrupts; French L. Taylor, trustee^ On petition by bankrupts to revise order of District Court.

Trip-pet, Judge, Suit by Ethel Hart against Joseph W. Cox. Decree for plaintiff, and defendant appeals. Appeal is taken from a decree whereby it was adjudged that the appellant herein held title in trust for the appellee to 160 acres of land. The land is situated in the Imperial Valley, in San Diego county, Cal., the lands whereof were originally surveyed in 1856. Settlement did not begin until nearly half a century later.

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Action at law by Andrew Clark, doing business as B. D. Clark & Son, against the National Importing & Trading Company, Incorporated. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from the District Court of the United States for the Territory of Hawaii; Horace W. Vaughan, Judge.</p> <p>Habeas corpus proceeding by Wong Dai against the United States. From an adverse judgment, the United States appeals.</p>

Appeals from the District Court of the United States for the Eastern District of New York. • Suits in admiralty by the C. F. Starita Company, Incorporated, one against the steamship Jobshaven, her engines, etc., claimed by Eam-bertus Coolen, and the other against the steamship Ijselhaven, her engines, etc., claimed by Tjerk Drajer. From decrees in favor of the libelant (259 Fed. 306), claimants appeal.

<p>1. Master and servant <&wkey;17 — Burden on railroad to show diligence to prevent excessive hours of service.</p> <p>Under Hours of Service Act (Comp. St. §§ 8677-8680), where a train has been delayed through casualty or unavoidable accident, it is the duty of the railroad company to exercise reasonable diligence to prevent excess hours of service by the train crew, and the burden of proving such diligence rests upon the company.</p> <p>2. Master and servant <&wkey;13 — Time of unavoidable delay not added to permitted hours of service.</p> <p>Hours of Service Act (Comp. St. §§ 8677-8680) does not authorize a railroad company to add the time during which a train is delayed through casualty or unavoidable accident to the 16 hours of the train crow permitted by the act.</p>

Action at law by Otto Smith and Boyd Doyle, partners as Smith & Doyle, against Christ Paris. Judgment for plaintiffs, and defendant brings error. This action was brought by the defendants in error for fraud and deceit, and was submitted to the jury by the District Judge as such action. The plaintiff in error attacks the sufficiency of the complaint, and upon the trial moved for a dismissal thereof, which was denied.

Suit in admiralty by Charles E. Conklin against the City of Norwalk. Decree for respondent, and libelant appeals. The respondent municipality maintains a drawbridge over the Norwalk river. It spans what is called (on the chart-submitted to us) the “10-foot channel,” which to the southerly of the bridge and within about 600 feet thereof is nowhere wider than 200 feet, and in its lower reaches considerably narrower.

<p>Appeal from the District Court of the United States for the Western District of Pennsylvania; W. H. Seward Thomson, Judge.</p> <p>Suit by the Sibley Soap Company against the American Steel Foundries. From a decree for plaintiff, defendant appeals.</p>

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Michael A. Di Preta was convicted of a violation of the Harrison Act, and brings error.</p>

<p>1. Negligence <&wkey;39 — Owner of artificial pool not liable for death of child while swimming, in absence of hidden peril.</p> <p>The degree of care required of one maintaining on his land an artificial pool of water for a useful purpose is no greater than that required of one through whose land flows a natural stream, and he is bound to no special care or precaution for the protection of children in the habit, of swimming therein, unless there is in the pool some peculiar danger in the nature of a hidden peril or trap for the unwary, of which ho has or ought to have knowledge.</p> <p>2. Negligence &wkey;>39 — Artificial pool, not containing hidden peril, not attractive nuisance.</p> <p>An artificial pool maintained by one on his own land for a useful purpose, and not containing any peculiar danger in the nature of a hidden peril or trap for the unwary, but in which children are in the habit of swimming, is not within the attractive nuisance doctrine.</p>

<p>1. Poisons <&wkey;9 — Proof of issuing' prescriptions not variance from charge oí selling narcotics..</p> <p>There is no variance between an indictment charging defendant with the unlawful sale of morphine sulphate, in violation of Harrison Anti-Narcotic Act, § 2 (Comp. St. § 3287h), and proof that as a practicing physician he issued prescriptions on which the morphine was sold.</p> <p>2. Criminal law <&wkey;1153(4) — Trial court’s discretion in permitting leading question not reViewable.</p> <p>A leading question may be permitted by a trial judge, and bis discretion therein is not assignable as error.</p> <p>3. Criminal law l&wkey;1169 (5) — Subsequent withdrawal held to have cured error in admission of testimony.</p> <p>Error, if any, in permitting a witness to answer a question whether the only way to stop a physician writing morphine prescriptions was to put the addicts where they could not get it, or to put the physician where he could not give it, was cured, where the court quickly thereafter corrected his ruling, and instructed the jury not to consider the testimony.</p> <p>4. Criminal law <&wkey;3'?l (1) —Proof of prescription for narcotics admissible to show intent.</p> <p>In a prosecution for unlawful sale of narcotics, where the evidence showed the sale was made by prescription,' proof that defendant had written numerous other prescriptions for narcotics is admissible to show intent, if properly limited to that issue.</p>

Petition to Revise Order from the District Court of the United States for the Middle District of Pennsylvania; Charles B. Witmer, Judge. Bankruptcy proceeding against the Mlt. Carmel Iron Works. On petition of John F. Wagner to revise an order restraining him from selling the bankrupt’s assets on execution.

<p>In Error to the District Court of the United States for the Second Division of the Northern District of California; Frank H. Rudkin, Judge.</p> <p>Action by the Cincinnati Distributing Company against the Sherwood & Sherwood Commercial Company. Judgment for defendant, and plaintiff brings error.</p>

Holmes, Judge.-' Suit by Robert Wilson, as trustee of the estate of Leo Lesser, bankrupt, against A. J. Simmons. From a decree dismissing the bill, the trusted appeals.

<p>1. Courts <&wkey;376 — State rule as to burden of proof of damage from breach of contract followed.</p> <p>In an action brought in the District Court for the District of New Jersey, the rule laid down by the Supreme Court of that state that, where an advertising -contract is broken by the advertiser, the damages are prima facie the compensation for the full term, and the burden is on defendant to show any mitigation of damages by reason of what might have been fearned from other advertisers, will be followed.</p> <p>2. Damages <&wkey;120(4) — On breach of advertising contract, difference in interest to be deducted from full compensation due under contract.</p> <p>On breach of an advertising contract by the advertiser, there should be deducted, from the compensation for the full term for which the advertisement was to run, the difference in interest between payments as they would periodically follow due under the contract and payment in advance by reason or the breach of contract.</p>

Foster, Judge. Paul Tacón was. convicted of unlawfully purchasing intoxicating liquors for transportation in interstate commerce, and he brings error.

Uibel by Edward Hugetz against the Compania Trasatlántica. Decree for respondent, and libelant appeals. Appeal from a decree in admiralty entered in the District Court for the Southern District of New York. Respondent operated a steamer or steamers between New York and Spanish ports. Libelant shipped on one of said steamers a box containing fountain pons of a value of several hundred dollars.

<p>Appeal from the District Court of the United States for the Eastern District of Louisiana; Rufus E. Foster, Judge.</p> <p>Action by Mrs. Addie Prohaska and others against the St. Paul Fire & Marine Insurance Company. From a decree for defendant (265 Fed. 430), plaintiffs appeal.</p>

<p>1. Judgment <3^588 — Bar not avoided by alleging additional ground of recovery.</p> <p>Where the cause of action is the same, the bar of a prior judgment is not avoided because in the second action a statute is relied on as an additional ground of recovery.</p> <p>2. Judgment —Conclusive as bar, though erroneous in form. ■</p> <p>Where it appears from the judgment roll that an action was disposed of in the trial court by granting a motion for directed verdict, the judgment is conclusive as a bar, although in form it dismissed the complaint on the merits.</p>

<p>Appeal and error <S=31097(1) — Decision on former appeal controls, if facts are the same.</p> <p>Where the facts are the same, the judgment on a former appeal has become the law of the case, and is controlling on a subsequent appeal.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge.</p> <p>Dibel by P. W. McAvoy, owner of the tug Pacific, against the Camden Shipbuilding Company. Decree dismissing the libel (266 Fed. 710), and libelant appeals.</p>

Three suits in equity by Stephen D. Baker and the Eairfacts Company, Incorporated, against the Hughes-Evans Company and W. R. Hughes, individually and doing business as W. R. Piughes & Co. Decrees for defendants, and complainants appeal. All the decrees appealed from were of dismissal, and all the suits 'in which they were entered were brought upon patents and claimed infringement. The first suit is upon patent 1,239,076, and design 50,291.

Cotteral, Judge. Suit in equity by the United States and others against the Brewer-Elliott Oil & Gas Company and others. Decree for complainants, and defendants appeal. About 1913 oil and gas were discovered in the bed of the Arkansas river north of the thread of the mam channel thereof, which was the south boundary of the lands of the Osage Tribe of Indians.

Cotteral, Judge. Suit in equity by the United States and others against the Commissioners of the Land Office of the State of Oklahoma and others. Decree for complainants, and defendants appeal.

Tuttle, Judge. Libel by the Grand Island Steamship Company, owner of the steamer Choctaw, against the Canada Steamship Lines, Limited, owner of the steamship Wahcondah. From a decree dividing damages, the libelant appeals. On July 12, 1915, the steamers Ohociaw and Wahcondah were in collision in a fog in Lake Huron, near Presque Isle. The Choctaw was sunk; the Wahcondah considerably, though not vitally, damaged.

<p>In Error to the District Court of the United States for the Western District of Kentucky; Walter Evans, Judge.</p> <p>Action by Paul Jones & Co. against T. Scott Mayes, Collector of Internal Revenue for the Eifth Collection District of Kentucky. Judgment for plaintiff (265 Fed. 365), and defendant brings error.</p>

In Error from the District Court of the United States for the Eastern Division of the Northern District of Ohio; D. C. Westenhavfer, Judge. Action by Kathryn McE. Smith, administratrix of George J. Smith, deceased, against the Erie Railroad Company, in which the Director General of Railroads and later Walker D. Hines, Agent under Designation of the President, were substituted as defendants. Judgment for plaintiff, and the last-named defendant brings error.

Killits, Judge. Suit by the State of Ohio, on the relation of Allen J. Seney, Prosecuting Attorney of Lucas County, Ohio, against Swift & Co. and another, begun in the state court, and removed by the named defendant into the United States District Court. From a decree dismissing the original petition, relator appeals. Stations 6.390-6402 of the Ohio General Code constitute what is known as the Valentine Anti-Trust Act. It was originally passed in 1898.

Appeals from the District Court of the United States for the Southern Division of the Southern District of California; Oscar A. Trippet, Judge. Suits by Paul E. Denivelle and the Los Angeles Lime Company against C. L. Nye and against E. Ceriat, individually and doing business under the firm name and style of E. Ceriat & Co. Decrees for. defendants, and plaintiffs appeal.

<p>1. Principal and agent <§==>84 — Agent forfeits right to compensation by fraud on principal.</p> <p>An agent must act with entire good faith and loyalty in all his dealings affecting the subject-matter of his agency, and if he is guilty of fraud on his principal in the transaction of the agency, he is not entitled to compensation for his services.</p> <p>2. Shipping @==>69 — Rule that fraud of agent defeats right to compensation ■ applies in maritime law.</p> <p>The rule of common-law agency, that fraud by the agent in the transaction of the agency defeats the agent’s right to compensation, applies in the maritime law.</p> <p>3. Shipping @=>69 — Master fraudulently injuring ship is guilty of “barratry,” forfeiting compensation.</p> <p>The master of a ship, who commits in his character of master an act for an unlawful or fraudulent purpose, to the injury 'of the owner of the ship, is guilty of the offense of “barratry,” for the commission of which the maritime law prescribes as a penalty the forfeiture of com-, pensation.</p> <p>[iEd. Note. — For other definitions, see Words and Phrases, Barratry (In Maritime Law).]</p> <p>4. Shipping @=>69 — Misconduct of master does not require forfeiture of all compensation.</p> <p>Under the maritime law, a forfeiture of the whole amount of the wages due an officer or seaman does not necessarily follow-in all cases of misconduct which involve a forfeiture, but the court may in some cases decree a partial forfeiture.</p> <p>5. Shipping @=>69 — Entire compensation of master forfeited for fraudulent acts.</p> <p>The master of a ship, who rendered fraudulent accounts to the owner, is guilty of criminal misconduct, in breach of his duty to the owner, which works a forfeiture of his entire compensation.</p>

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Criminal prosecution by the United States against Walter 'Johnson. Judgment of conviction, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the District of Porto Rico; Peter J. Plamilton, Judge.</p> <p>Action by Sofia Brennan y Grau and others against the Manufacturers’ Rife Insurance Company. Judgment for plaintiffs, and defendant brings error.</p>

<p>1. Courts &wkey;405(3) — Appeal authorized to Circuit Court of Appeals in all cases in which direct appeal to Supreme Court not authorized.</p> <p>Act March 3, 1891, §§ 5, 6 (Judicial Code, §§ 238, 128 OComp. St. §§ 1210, 1120]), provides for an appeal to the Circuit Courts of Appeals from final decisions of the District Courts in all cases other than those in which appeals and writs of error may be taken direct to the Supreme Court.</p> <p>2. Habeas corpus &wkey;>113 (3) — Appeal is matter of right, and may not be denied by court or Circuit Judge.</p> <p>Under Rev. St. § 763, and section 764, as amended by Act March 3, 1885, relative to appeals in habeas corpus cases, and Judicial Code, §§ 128, 238 (Comp. St. §§ 1120, 1215), relative to appeals to the Circuit Courts of Appeals, an appeal from an order dismissing a petition for a writ of ha-beas corpus is a matter of right, and may not be denied by the District Court or by a Circuit Judge on application for leave to appeal, under Judicial Code, § 132 (Comp. St. § 1124).</p> <p>3. Habeas corpus &wkey;113(l) — Renewable by appeal, and not by writ of error.</p> <p>Habeas corpus is a civil proceeding, reviewable by appeal, and not by writ of error.</p>

Action at law by Alfred A. Srere and another, partners, etc., against Mendel Gottesman and another, partners, etc. Judgment for defendants, and plaintiffs bring error.

<p>1. Shipping <&wkey;152 — Shipper may recover prepaid freight for nondelivery.</p> <p>If the goods shipped are not delivered, no freight is earned, and the shipper may recover the freight, if it was prepaid.</p> <p>2. Shipping <&wkey;152 — Carrier held to have rendered carriage after capture im- . possible.</p> <p>On a libel to recover prepaid freight because of the shipper’s failure to deliver the cárgo at the port of destination after capture of the vessel, where libelant had voluntarily accepted the cargo at the port in which the captured vessel was taken, and had sold it there for the full price at destination, thereby preventing the carrier from keeping his contract, if he had been able to do so, there can be no recovery of the freight.</p> <p>3. Shipping <&wkey;146 — Carrier held entitled to full freight after capture.</p> <p>A shipowner, who was prevented from keeping his contract of carriage after capture of the ship by the shipper’s sale of the cargo at the port of capture, is entitled to retain the entire freight prepaid for the voyage, not merely freight pro rata itineris.</p>

Petition to Revise and Appeal from the District Court of the United States for the Southern District of New York. In the matter of Charles B. Toole and others, bankrupts. On appeal from and petition to revise order of District Court by Logan. & Bryan.

<p>Bankruptcy &wkey;>318(2) — Shipping &wkey;>50 — Owner of scows chartered to bankrupt, who removed city rubbish, heldi entitled to damages from city for cost of unloading.</p> <p>Where, ou bankruptcy ol" firm having contract for disposing of street sweepings of city, city took possession of scows and plant of such firm under its contract, and ordered owner of certain scows, chartered to the bankrupt and loaded by it, to unload such scows at some other place than the plant of the bankrupt, the city was liable to such owner for the cost of such unloading, and the city, in proving its damages against the bankrupt, could not recover such cost; neither the bankrupt nor the owner of such scows being under any obligation to discharge the cargoes anywhere except at the bankrupt’s dumps.</p>

Libel by the New York & Cuba Mail Steamship Company against the Guayaquil & Quito Railroad Company to-recover damages for delay in loading and dead freight on shortage of cargo. .Decree for respondent, and libelant appeals.

Grubb, Judge. Action by J. R. Foley against the Standard Portland Cement Company to recover damages for personal injuries. Judgment for plaintiff, and defendant brings error.

<p>1. Seamen <&wkey;ll — Aet imposing hospital expenses of immigrant on vessel does does not apply to alien officer:</p> <p>Immigration Act, § 32 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4289141'), imposing on a vessel liability for hospital expenses of alien not entitled to admission, who is afflicted with a contagious disease and is temporarily admitted for treatment, does not make the vessel liable for medical treatment of an alien employed on board the vessel as mate.</p> <p>2. Seamen <&wkey;ll — American vessel held not liable for hospital expenses of alien mate.</p> <p>Immigration Act, § 35 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4289ÜSS), making it unlawful for a vessel carrying passengers from a foreign port to have employed on board one afflicted with contagious disease which could have been discovered before sailing, does not impose liability on a vessel of American register not engaged in carrying passengers for the hospital expenses of its alien mate, made necessary by a contagious disease which manifested itself after the vessel left Porto Rico for a United States port.</p> <p>3. Seamen <&wkey;20 — Hospital expenses voluntarily paid by vessel: cannot be deducted from wages.</p> <p>The amount paid by a vessel for the expense of treatment of its mate for a contagious disease contracted by his misconduct ashore, for which payments the vessel was not legally liable, and which were not made under compulsion, do not constitute a valid claim, which the vessel can set off against the mate’s claim for wages.</p>

<p>Intoxicating liquors <&wkey;23(>(ll) — Evidence establishing unlawful sale.</p> <p>Evidence held to sustain a conviction for unlawful sale of beer and wine.</p>

Holmes, Judge. George E. Moorehead and another were convicted of conspiracy, with five other persons, to steal goods which were parts of interstate-shipments, and they bring error.

'! for the First Division of the Northern District of California; Maurice T. Dooling, Judge. , Criminal prosecution by the United States against Edward John Marquette and others. From an order requiring the return to defendants of intoxicating liquor taken from them, the United States appeals.

<p>Appeal from the District Court of the United States for the Western District of New York.</p> <p>Suit in admiralty by the Standard Transportation Company against the Great Takes Towing Company. Decree for respondent, and libel-ant appeals.</p>

<p>Appeal from the District Court of the United States for the Soutli-•ern District of New York.</p> <p>Libel by Francis P. Garvan, Alien Property Custodian, against $25,000. par value, Canada Southern Railway Company 5% Bonds; Albert II. Wiggin and others, claimants. From the judgment, claimants appeal.</p>

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Criminal prosecution by the United States against John Voege. Judgment of conviction, and defendant brings error.</p>

<p>In Equity. Suit by the New Departure Manufacturing Company against the Rockwell-Drake Corporation and others.</p>

<p>Patents <&wkey;328 — No. 933,011, for belting, void for anticipation and lack of invention.</p> <p>Tbe Wooster patent, No. 933,011, for a woven cotton belting saturated with a solution of asphaltum, held, void for anticipation and lack of invention. ■</p>

<p>1. Master and servant <&wkey;124(4) — Failure to inspect borrowed hoisting rope negligence.</p> <p>An employer, working on a ship, is liable to his employs for negligent failure to inspect a hoisting rope furnished by the ship, which the employer directed the omployé to use, since he is bound to furnish safe in-strumentalities, whether they were owned or borrowed by him.</p> <p>2. Master and servant <&wkey;106(l) — Furnishing defective hoisting rope, borrowed from ship, held negligence.</p> <p>An employer, who directed his employs to use a boatswain’s chair furnished by the ship, the hoisting rope of which-was so old and frayed that it broke, held negligent.</p> <p>3. Master and servant <&wkey;218(4), 230(6) — Workman hoisted with defective rope held not chargeable with assumption of risk or contributory negligence.</p> <p>Evidence that a hoisting rope, which broke, causing injury to an inexperienced workman, was not so obviously defective that it was apparent it would not sustain his weight, held not to show that he assumed the risk or was contributorily negligent.</p> <p>4. Master and servant <&wkey;217 (13) — Risk of defective rope not assumed, unless danger is palpable.</p> <p>A servant assumes the risk of injury, because of a defective rope furnished by the master for his use, only if the danger was palpable and appreciated, or could have been appreciated by the prudent and reasonable exercise of the senses.</p> <p>5. Death &wkey;>95(4) — $2,300 awarded to aged parents for death of 24 year old son.</p> <p>Evidence that decedent, who was 24 years old, had furnished some support to his parents, and intended, after his marriage, to take charge of his father’s farm, held to authorize an award of $2,300 damages under Rev. St. Me. c. 92, §§ 9, 10, entitling the parents to a fair and just compensation for the death of a son, not exceeding $5,000, as that statute had been construed by the Supreme Court of the state.</p>

<p>1. Absentees <&wkey;5 — Contract for dissolution of German partnership by absence trustee invalid.</p> <p>Dnder German Civ. Code, §§ 1822, 1911, 1915, providing for appointment of a curator or absence trustee for a person who is absent and whose residence is unknown, or who is prevented from returning to care for his property affairs, that such curator shall be subject to the provisions rein ling to guardianship, and that a guardian requires ratification by the guardianship court of a contract for alienation of the ward’s property or business, such a curat,or for an absent member of a Gorman partnership, in the absence of specific authority from the guardianship court, held without power to contract for the- dissolution of the partnership and the disposition of the partner’s interest, and without power, even with such authorization, where such partner was a citizen or subject ot a foreign country.</p> <p>2. Partnership <&wkey;282 — Ratification oí dissolution contract cannot affect intervening rights.</p> <p>Ratification by an American partner in a German partnership of a-contract made without his authority or knowledge foy a dissolution of the partnership and a transfer to him of its property in the United States, to take effect on commencement of war between the United States and Germany, held not to relate back under German or American law, so as to affect rights acquired by the Alien Property Custodian by a seizure of such property prior to the ratification.</p> <p>3. Partnership &wkey;>288 — ffiksemy partnership having American business dissolved by war.</p> <p>A German partnership, providing for a branch of the business in the United States to be conducted by an American partner, held, under the law of the United States, dissolved by the declaration of war between the United States and Germany, so far as related to the American partner and the business conducted in the United States, although under the German law the war did not effect a dissolution.</p> <p>4. War <&wkey;12 — Alien Property Custodian not entitled to possession of property of enemy partnership having American partner.</p> <p>A German partnership had a branch of its business in the United States, .in charge or an American partner; other partners being German subjects. Eeld, that the partnership, as related to the American partner and business, was dissolved by the declaration of war, but that the American partner had an- equitable lien on the assets in the United States for the purpose of having them applied to payment of the firm debts and tne liquidation of his interest in the partnership, and that under Trading with the Enemy Act, § 8 (a), being Comp. St. 1918, Gomp. St. Ann. Supp. 1919, § 3115%dd, he was entitled to retain possession of the property and liquidate the business, being responsible to the Alien Property Custodian only for any surplus remaining which would be the property of the enemy partners.</p>

<p>Collision <§=>114 — Timo charterer may recover for loss of use of vessel.</p> <p>A time charterer under a government form of charter has a property interest in the vessel and may recover damages for a collision in which she is injured including liis damages for loss of use while she is being repaired.</p>

<p>Bankruptcy <&wkey;(58 — Alleged bankrupt held “person engaged chiefly in farming.”</p> <p>An alleged bankrupt, who for 20 years had resided on a farm of 300 acres, a part owned by him and a part by his wife, during each of which years he cultivated and pastured all or the greater part of the land, and raised cattle and hogs, which he fed and marketed, held a “person engaged chiefly in farming,” and under Bankruptcy Act, § 4 (Comp. St. § 9588), not subject to adjudication as an involuntary bankrupt, although he sometimes fed cattle which he bought and sometimes bought additional feed.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Farming.]</p>

<p>Bills and notes <®=’531 — Judgment on Mil payable in foreign currency computed on rate of exchange at time of judgment.</p> <p>A judgment on a bill of exchange, drawn in London and payable there in pounds sterling, which judgment must be expressed in United States money, is to be computed, not by the par of exchange as fixed under the acts of Congress (Comp. St. §§ 6536, 6537), but by the rate of exchange at the time judgment is entered, on the principle, that such sum is the equivalent of the obligation at that time.</p>

<p>1. Electricity <&wkey;ll — Consumer has right to day in court on determination oí indebtedness.</p> <p>An electric power consumer has a right to its day in court, to have the amount of its indebtedness to the power company, which was in dispute between them, determined before being compelled to pay the amount by the shutting off of its power.</p> <p>2. Electricity <&wkey;ll — Agreement to supply power pending determination of dispute is binding.</p> <p>An agreement by an electric power company to supply power during the pendency of any dispute over the correctness of its bills is binding on the power company pending the determination of the reasonableness of its published rates by the state Public Service Commission, on the power company being assured of the payment of the amount due it as soon as the sum is determined.</p> <p>3. Courts &wkey;>493 (3) — United States court has jurisdiction to restrain shutting off power pending determination of dispute as to rates.</p> <p>The United States District Court has jurisdiction of the subject-matter of the suit to restrain a power company from shutting off the power of a consumer pending determination by the state Public Service Commission of the reasonableness of its published rates, where it has jurisdiction of the cause and of the parties.</p> <p>4. Courts &wkey;>4i*3(l) — Concurrent jurisdiction of other tribunals, not yet exercised, does not deprive United States court of jurisdiction.</p> <p>The fact that other courts, or a state Public Service Commission, have likewise jurisdiction of the subject-matter of a suit, affords no ground for the United States District Court to refuse to grant the relief prayed, if no other tribunal has as yet exercised its jurisdiction.</p> <p>5. Electricity &wkey;>ll — Company cannot make itself sole judge of justice of charges.</p> <p>An electric power company, which had agreed not to shut off the power for nonpayment of disputed bills, cannot make itself the sole judge of the justice of its claims, by filing its rate schedules with the state Public Service Commission, which under the state law became the established rates until set aside by the commission, so as to defeat an injunction against the shutting off of the power for refusal to pay the scheduled rates without security for refund pending the decision of the Commission.</p> <p>6. Electricity <&wkey;ll — Construction of published regulation is judicial question.</p> <p>The meaning of the published rules and regulations filed with the state Public Service Commission by an electric power company must be judicially found.</p>

<p>At Law. Action by Emma Gilmore against Mary Osborne Gilmore, executrix. On trial to the court.</p>

<p>1. Bail <&wkey;?9(l) — Remission of penalty authorized after judgment on rule absolute; “whenever.”</p> <p>Under Rev. St. § 1020 (Comp. St. § 1684), providing that, when any recognizance in a criminal cause is forfeited, the court may in its discretion remit the whole or part of the penalty whenever it appears that there has been no willful default, etc., the penalty may be remitted after judgment on rule absolute, especially as the natural meaning of “whenever” is “at whatever time.”</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Whenever.]</p> <p>2. Bail <&wkey;'n (2) — Judgment on rule absolute for forfeiture only concludes absolute defenses.</p> <p>A judgment on a rule absolute forfeiting a recognizance in a criminal ease involves only absolute defenses, such as impossibility of performance, and only such defenses are concluded by the judgment.</p> <p>3. Bail '&wkey;h) (1) — Only penally, and not costs, may be remitted after forfeiture.</p> <p>Under Rev. St. § 1020 (Comp. St. § 1684), relative to the remission of the penalty incurred by forfeiture of a criminal recognizance, the penalty alone may be remitted, and the judgment must always stand as to the costs.</p> <p>4. Bail <&wkey;79(l) — Penalty may be remitted as to surety, though default by principal was willful.</p> <p>Under Rev. St. § 1020 (Comp. St. § 1684), authorizing the remission of the penalty on forfeiture of a criminal recognizance when there has been no willful default of the party, the penalty may bo remitted as to the sureties, who are free from willful fault, though the principal’s default was willful.</p> <p>5. Bail <&wkey;79 (1) — Statute as to remission of penalties should be liberally construed.</p> <p>Rev. St. § 1020 (Comp. St. § 1684), authorizing the remission of penalties incurred by forfeiture of criminal recognizances, is highly remedial, and ought to be liberally construed.</p> <p>6. Bail <&wkey;79(l) — Penalty remitted in part as to sureties, who recaptured principal, who gave new bond, which was also forfeited.</p> <p>Where the sureties on a criminal recognizance, after their principal’s default, recaptured him and delivered him to the deputy marshal, but he was again admitted to bail with another surety, and the new bond was also forfeited, and the sureties had not been diligent in applying for a remission of the penalty incurred by the forfeiture of the first recognizance, the penalty held, to be remitted, except to the extent of $100, on the payment of that amount, with costs.</p>

At Law. Action by George F. Benedict, as sole surviving trustee of the trusts created by the last will and testament of William Langley, deceased, against the United States and the City of New York, to recover for compensation claimed for property seized by the United States for an army base.

In Admiralty. Suits for collision by Anthony O’Boyle and by John Hildebrandt against the tug Hokendauqua, with the tug Henry Steers impleaded, and by the James McWilliams Blue Dine against the Henry Steers, with the Hokendauqua impleaded. Decrees against the Hoken-dauqua.

<p>Appeals from the District Court of the United States for the Southern District of New York.</p> <p>Suits in admiralty for collision by Anthony O’Boyle and by John Hildebrandt against the tug Hokendauqua, with the tug Henry Steers, impleaded. Decree against the Hokendauqua (270 Fed. 270), and it appeals.</p>

<p>In Bankruptcy. In the matter of the Plantations Company, bankrupt. ■ On review of an order of the referee.</p>

<p>1. Removal of causes <^36 — Evidence held not to show fraudulent joinder of railroad companies to prevent removal.</p> <p>In an action against a North Carolina and a South Carolina railroad company for injuries sustained on the road of the South Carolina company, facts held not to show that the joinder of the North Carolina company, which owned practically all of the South Carolina company’s stock, had the same officers and owned the rolling stock used on the South Carolina road, was for the fraudulent purpose of preventing removal to a United States court.</p> <p>2. Removal of causes <§=^107 (4) — On motion to remand for fraudulent join-der, court need) not determine liability, but only plaintiff’s belief as to liability.</p> <p>On a motion to remand an action against a domestic corporation and a -foreign corporation, removed from the state court on the ground that the domestic corporation was fraudulently joined, the court is not required to determine whether the domestic corporation is liable to plaintiff, but will remand, if it was joined as defendant in the honest belief on the part of plaintiff that it was liable, for which belief there was a reasonable basis.</p>

<p>At Law. Action by Leigh Ellis and others against the Atlanta, Birmingham & Atlantic Railway Company and another.</p>

Frank Phillips and others were indicted for violating the revenue laws and the National Prohibition Act, and for conspiracy to commit those offenses, and they demur to the indictment. This cause arises upon demurrer to some of the six counts in an indictment which charged as follows: (1) ITor possessing an illegal still (R. 8. § 3258 [Comp.

<p>In Admiralty. Separate libels by one Anderson and others and by one Jensen and another against the Superior.</p>

Joseph Powlowski and Michael Kaleda were separately indicted for violation of the National Prohibition Act, and they move to quash the indictments.

<p>In Admiralty. Suit by the Morse Dry Dock & Repair Company against the steamship Bella. On petition of Aymar Johnson, claimant, to set aside sale.</p>

<p>1. Bankruptcy <3=410 — Delay in bringing application to hearing held not to bar discharge.</p> <p>Tinder Bankruptcy Act, § 14a (Comp. St. § 9598), providing for application for discharge, and section 14b, imposing on the judge the duty to hear the application and proof, and to discharge the applicant unless he has committed some act therein specified, the fact that, from some unknown cause, the hearing was not held for 19 months after the application for discharge, does not authorize the judge to refuse to hear the application at all, or to refuse the discharge.</p> <p>t. Bankruptcy <3=410 — Kefusal oí discharge too heavy a penalty for mere delay.</p> <p>A bankruptcy case is one in equity, and the refusal of the discharge, m bankruptcy, the effect of which would bo to bar the discharge entirely, and to prevent the discharge of the debts therein filed in other bankruptcy proceedings, is too heavy a penalty to impose for mere delay in bringing an application for discharge on for hearing, in view of the fact that the extreme penalty for the negligence in failing to press an equity suit for trial, as fixed by equity rule 57 (198 Fed. xxxiv, llu O. O. A. xxxiv), is dismissal without prejudice.</p>

<p>1. Intoxicating liquors <&wkey;248 — Prohibition agents entitled to take possession of locked safe until it could be opened.</p> <p>Prohibition agents, holding a warrant to search for intoxicating liquors, were entitled to take a locked safe into their possession for a reasonable time until it could be opened, where defendant locked the safe and refused to open it.</p> <p>2. Criminal law <&wkey;100(3) — District Court may authorize filing of information, though proceedings commenced by commissioner.</p> <p>The District Court has power to permit an information for possessing intoxicating liquors for beverage purposes to bo filed, though the proceeding was commenced by a commissioner.</p> <p>3. Intoxicating liquors &wkey;>246 — National Prohibition Act does not restrict issuance of search warrant to property used in committing felony.</p> <p>The National Prohibition Act only refers to the Espionage Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 10212a-10212h) for the proceedings to be followed respecting the issuance of search warrants, and does not, by such reference, restrict the issuance of such a warrant to cases involving property used in committing a felony.</p>

<p>At Daw. Action by Otto Biesantz against Erancis P. Garvan, as Alien Property Custodian, etc.</p>

At I,aw. Action by M. R. Warner, by next friend, against the Liquid Carbonic Company. Judgment for plaintiff on a consent verdict, and defendant moves to retax the costs.

<p>At Law. Action by the American Cotton Oil Company against the •United States Shipping Board Emergency Fleet Corporation. On exception to tire jurisdiction of the court.</p>

<p>1. Collision <&wkey;69 — Anchored vessel not required to Mow fog whistles.</p> <p>A vessel at anchor in a fbg and ringing her Cog bell is not obliged to blow danger whistles, unless (here is some reason therefor.</p> <p>2. Collision <&wkey;71(2) — Moving vessel held solely at fault for collision with anchored lighter.</p> <p>Lighter at anchor in fog held to have rung her fog hell and maintained a lookout, which was all she was required to do, so that a tug, which was negligent in failing to hear the hell or in not coming to anchor during the fog, was solely at fault for a collision between the tow and the lighter.</p>

<p>In Equity. Suit by Paula Eovinger against Francis P. Garvan, Alien Property Custodian, and others.</p> <p>This is a hill in equity under section 9 of the Trading with the Enemy Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3115-(4e) by a citizen who claims a fund paid to the Alien Property Custodian. Roza Molnar, a citizen of Hungary resident in the United States on November 29, 1917, secured a policy of life insurance in Hie sum of 81,000 from the New York Bife •Insurance Company, payable in the event of her death to one Sandor Kamarony, her brother, likewise a citizen of that kingdom and therefore an alien. At that time Roza Molnar had been living for, some three years or more with the plaintiff, an American citizen. So far as appears, she had no relatives or friends in the United States and she was in bad health. She was, however, sporadically able to earn about $30 a month in household service, but was obliged for the larger part of the time to be idle. During these periods she lived with the plaintiff, and neither paid for her entertainment nor cop-tributed in the household work. The plaintiff was a married woman with three children, living with her husband in New York. She was friendly disposed to Roza Molnar, and allowed her to live in her family, at least in part, from motives of charity.</p> <p>About May, 1918, Roza Molnar met with an accident, which required some sort of surgical operation, and at her earnest request the plaintiff allowed the operation to take place at her home, rather than at a hospital.. She made a bad recovery, and continued sick until November 8, 1918,' when, developing pneumonia, upon her doctor’s orders she was taken to a hospital, where she died on November 12, 1918. During this period of six months the plaintiff nursed her at her house.</p> <p>The life insurance policy had the customary provision by which the insured could change the beneficiary at her pleasure by written notice given to the home office of the insurer, followed by an indorsement of the change upon the policy itself. This was never done, though Roza Molnar requested the collecting agent of the company to substitute the plaintiff, at one time during her sickness and after the accident. He put her off by suggesting that she might safely wait until she had recovered. On the day before her deai.li, Roza Molnar, while in the hospital, had a notary public called in, and in the presence of the plaintiff and her husband executed a document, drawn by the notary and witnessed by the notary and the husband, by which she bequeathed the policy and her money in bank ($25) to the plaintiff. This document is not asserted by the plaintiff to have effected a transfer of the insurance, but the policy was actually there, and Roza Molnar handed it to the plaintiff at the time..</p> <p>The plaintiff and her brother testified that Roza Molnar, during her sickness at numerous times not specified, had said that she meant on her death to- leave the plaintiff her insurance and all she had, because of the plaintiff’s great kindness in nursing and taking care of her. The brother’s version of a talk after the accident and before the operation was as follows: “Let me stay here with you and take care of me, and I will try (sic) whatever I have to •leave to you.” Again: “I will leave my New York Life insurance policy for $1,000 to you for keeping me and pursing me.” The plaintiff is said to have answered: “Dont worry; I will take care of you and nurse you just as good (sic) as if you would be (sic) my sister.”</p> <p>The Alien Property Custodian seized the interest of the beneficiary, Sandor Kamarony, under the Trading with the Enemy Act, and has therefore succeeded to his rights. The question arises as between the defendants so substituted and the plaintiff.</p>

In Equity. Suit by the Continental Candy Corporation against the California & Hawaiian Sugar Refining Company and others. On hearing on motion for injunction after temporary restraining order was issued. On May 14, 1920, plaintiff Candy Company entered into a contract with defendant Sugar Company for the purchase of 750 long tons of white Java sugar. The contract contained the following provisions: “1.

At Law. Action by James B. Blum and another, as executors of the last will and testament of Rosa Blum, deceased, against Justus S. War-dell, Collector of Internal Revenue for the First District of California. On demurrer to the complaint.

In Equity. Suit for injunction by J. H. Woods, sole trader, doing business under the name of the Northern Drug Company, against the City of Seattle and others.

<p>At Law. Action by Edgar T. Snipes, trustee in bankruptcy of Danser & Co., a Delaware corporation, against the Mutual Trust Company, a Pennsylvania corporation. On motion to take off non-.suit.</p>

<p>Courts &wkey;>489(12), 494 — Irregular proceedings outside condemnation suit may be set aside.</p> <p>Pending a suit in the federal court by the United States to condemn land for a military camp a representative of the government obtained a contract from a widow for the sale of a tract of the land owned by the estate of her deceased husband and through proceedings instituted by him in her name he secured his appointment as commissioner to convey the land, including the interests of the minor children, to the United States, which he did, receiving the agreed price, which he paid into court. Shortly after a guardian was appointed for the widow by the state court on a petition alleging her mental incapacity, and he filed a petition to set aside the order authorizing sale of the land, which proceeding was removed by the United States into the federal court. Held, that the condemnation suit vested that court with jurisdiction over all the parties; that, as the mental capacity of the widow when she signed the agreement was subject to doubt, and the price agreed on was materially less than the value fixed by appraisers, of which she was not informed, and as the proceedings in the state court were not in conformity with the state statutes, and the money was still undistributed, that court’s order would be set aside leaving the land to be acquired in the condemnation suit.</p>

At Law. Action by Rankin Gilmour & Co., Limited, against Byron R.- Newton, individually and as Collector of Customs of the Port of New York. On motion by defendant to compel plaintiff to elect on which of the five causes ol action set up in the complaint it will proceed, and for further relief.

<p>1. Time <&wkey;9 (1) — Declaration of intention still valid on seventh anniversary, but not afterwards.</p> <p>Under the law placing a limitation of seven years upon the life of a declaration of intention, as the law excludes parts of days, the declaration is valid and will support a petition for naturalization on its seventh-anniversary, but may not be extended beyond such anniversary.</p> <p>2. Aliens <&wkey;68 — Naturalization petition, to which certificate of arrival not attached, is a nullity.</p> <p>Under Act June 29, 1906, c. 3592, § 1 (Comp. St. § 963), as amended by Act March 4, 1913, § 3 (Comp. St. §§ 961, 962), requiring the Bureau of Immigration to keep a register of the arrival of aliens and issue a certificate thereof to the alien, and section 4, subd. 2, par. 4, of the act of 1906 (section 4352), requiring the certificate of arrival to be filed at the-time of filing a petition for naturalization, a petition to which such certificate is not attached is a nullity, though the certificate is being forwarded from Washington and a telegram stating that fact is attached, and cannot be validated or amended by subsequently attaching the certificate.</p> <p>3. Statutes <&wkey;219 — Construction by executive officers executing statute entitled to great consideration.</p> <p>While the construction of a statute is a judicial function, yet the construction placed on a statute by the officers whose duty it is to execute it is'1 entitled to great consideration, especially if such construction has been made by the highest officers in the executive department of the government.</p> <p>4. Aliens &wkey;>60 — Congress may prescribe terms and conditions of naturalization.</p> <p>Naturalization is a privilege, and not a right, and Congress has authority .under the Constitution to prescribe the terms and conditions upon which such privilege shall be granted.</p> <p>5. Aliens <&wkey;68 — Terms and conditions of naturalization must be strictly-construed and conformed to.</p> <p>The terms and • conditions specified and prescribed by Congress respecting the naturalization of aliens must be strictly construed and enforced, and aliens are bound to strictly meet and conform to such terms and conditions.</p>

<p>1. Patents &wkey;>328 — No. 986,455, claims 1 to 3, for furnace arch, held anticipated, but infringed if valid.</p> <p>Claims 1 to 3 of the Girtanner patent, No. 986,455, for a furnace arch consisting of a pair of I-beams, brackets supported thereby, with flanges on the lower edges, and tiles provided with grooves to receive such flanges, held anticipated; also held infringed, if valid.</p> <p>2. Patents <&wkey;178 — Claims for straight arch covers hipped arch.</p> <p>Though a patent for a furnace arch illustrated only a straight roofed arch, a hipped arch was within its range of protection where the construction of such arch involved only the use of a bracket having the angle of attachment modified by a mere difference in forging or by the use of shims.</p> <p>3. Patents <&wkey;237 — Parts performing same function held equivalents, though differing in shape and method of support.</p> <p>Where the tile hanger in defendant’s furnace arch performed precisely the same functions as the brackets in plaintiff’s arch, though differing in shape and the method of support, and mere mechanical skill was involved in making the change, the parts were equivalents.</p> <p>4. Patents <&wkey;3I4 — Infringement is question of fact.</p> <p>The matter of infringement, in its final analysis, is a question of fact.</p> <p>5. Patents <&wkey;39 — Use of I-beams instead of channel beams not patentable novelty.</p> <p>The use of I-beams instead of channel beams in the construction of fire arches constitutes no patentable novelty.</p> <p>6. Patents &wkey;>2t — Use of multiple piece tile hanger instead of single piece hanger not invention.</p> <p>The use of a multiple piece tile hanger in the construction of fire arches instead of a single piece hanger was not invention.</p>

<p>L Aliens <&wkey;53 — One employed in connection with disorderly house may fee deported after expiration of five years.</p> <p>Under Act Feb. 5, 1917, § 19 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4289%ij), providing that any alien employed by, in, or in connection with any house oí prostitution shall be deported, and that the provisions of that section, with the exceptions therein noted, shall be applicable, irrespective of the time of the alien’s entry into the United States, the five-year limitation on the deportation of certain classes of aliens does not apply to one employed by, in, or in connection with a house of prostitution.</p> <p>2. Aliens &wkey;>39 — Congress has inherent power to exclude or deport.</p> <p>Congress has the right to exclude or deport aliens, in its discretion, as an inherent right of sovereignty.</p> <p>3. Treaties <&wkey;ll — Later statute to be followed by courts in case of conflict.</p> <p>If an act of Congress and the stipulations of an earlier treaty are in irreconcilable conflict, it is the duty of the court to follow the last expression of the legislative branch, and leave the question of breach of the treaty to the executive branch of the government.</p> <p>4. Treaties <&wkey;ll — Immigration Act not in conflict with treaty with Japan.</p> <p>In view of article 2 of the Treaty with Japan of March 21, 1895, providing that the stipulations of. such treaty shall not affect the laws, ordinances, and regulations of either country regarding the immigration of laborers, there is no conflict between such treaty and Immigration Act Feb. 5, 1917.</p>

In Equity. Suit by the Edgar-Morgan Company against the Alfo-corn Milling Company and others for infringement of a common-law trade-mark.

<p>In Bankruptcy. In the matter of the estate of Allen McL,ean, bankrupt. On petition for review of an order of the referee sustaining a chattel mortgage, but charging the'mortgagee with credit sales made by the mortgagor thereunder.</p>

<p>Habeas Corpus. Application for the writ by Wu Kao.</p>

<p>1. Bankruptcy <&wkey;89(l) — Party can enter'“appearance” only by “pleading.”</p> <p>Under Bankruptcy Act, S3 8b (Comp. St. § 9002), fixing the time, for the bankrupt to appear and plead to the petition, and section 18e, requiring the judge to make adjudication or dismiss the petition if no pleadings are iiled the last day allowed, there can be no “appearance,” which is defined as coming into court as a party to a suit, without “pleading,” which is a written allegation of what is affirmed on one side and denied on the other.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Appearance; Pleading.]</p> <p>2. Courts «&wkey;34b — State practice docs not obtain as to bankruptcy.</p> <p>The state practice act does not obtain in bankruptcy proceedings.</p> <p>3. Bankruptcy &wkey;> 100(2) — Adjudication pro confess» not set aside, if tendered answer is insufficient.</p> <p>An adjudication in bankruptcy entered pro confesso will not be set aside on application of tlxe alleged bankrupt, in tbe exercise of the court’s discretion, where the answer tendered with the application is insufficient to controvert the act of bankruptcy alleged in the petition.</p> <p>4. Bankruptcy &wkey;>58 — ^‘Preference” held given by recorded bill of sale under previous indemnity contract.</p> <p>Under Hem. & Bal. Code Wash. § 0291, making a bill of sale invalid, where property remains in the seller’s possession, unless the hill of sale is recorded, a transfer by a contractor to his surety company was made by the bill of sale of his property recorded by the surety, not by the previous contract of indemnity, whereby he agreed to transfer such property to the surety, so that the transfer was a “preference,” under Bankruptcy Act, § GO (Comp. St. § 9644), if the bill of sale was recorded within four months of the filing of the petition and the contractor was then insolvent.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Preference.]</p>

<p>1. Aliens ,<&wkey;54 — Department’s findings conclusive, if sustained by any evidence.</p> <p>On habeas corpus by an alien, ordered deported by the Department of the Interior, the finding of the department is binding upon the court, if there is any competent evidence, however slight, to sustain it.</p> <p>2. Aliens &wkey;>54 — Representation by counsel during talcing of all evidence, except preliminary alien held sufficient.</p> <p>Where the alien was advised at conclusion of her first examination of her right to representation by counsel, and was thereafter represented at the hearing of all the evidence, and was permitted to give further testimony herself, and there is evidence to sustain the department’s findings; she is not entitled to release on habeas corpus.</p>

<p>Trade-marks and trade-names <&wkey;43 — Mark of applicant held similar to op-poser’s mark.</p> <p>The owner of a trade-mark, consisting of the figure of a Dutch woman with the words “Dutch Cleanser,” over it, which had become widely known as the fanciful name for the owner’s product, can successfully oppose the registration of a tradermark for goods of the same descriptive properties, consisting of the figure of a Dutch mother spanking a Dutch child, over which were the word “Beats the Dutch.”</p>

Suit by Herbert A. Church against Minnie B. Church to recover the custody of a child. From a decree dismissing the bill for want of jurisdiction, plaintiff appeals.

Action by Minnie B. Church against Herbert A. Church, to recover allowances awarded plaintiff by a state court for her support. From an order overruling defendant’s motion to quash the service, defendant appeals.

<p>1. Action <&wkey;6 — Execution of quitclaim deed held not to have made case moot.</p> <p>Where plaintiff sued his wife for specific performance of her ante-nuptial agreement to waive all claim to plaintiff’s property and to execute such conveyances as he might request, and alleged her refusal to execute a deed to an intervener, as a result of which refusal his negotiations for the sale of other real estate were discontinued, the execution by the wife of a quitclaim deed to the intervener did not render the case moot, so as to defeat the husband’s right to have the validity of the ante-nuptial agreement determined.</p> <p>2. Trial <&wkey;25(4) — Plaintiff, who has burden of proving fairness of agreement, i... has right to open and close.</p> <p>In a suit by the husband for the specific performance of his wife’s antenuptial agreement, where the defense was fraud, and the defendant, claimed the burden was on plaintiff to prove the perfect fairness of the agreement, plaintiff had the right to open and close.</p> <p>3. Appeal and error <&wkey;969 — Ruling as to right to open and close not reviewable.</p> <p>The ruling of a trial court on the question as to who should open and close a case is merely upon a matter of practice, not proper to be made the subject of exception or to be reviewed on appeal.</p> <p>4. Appeal and error <&wkey;1009(3) — Court’s finding on conflicting testimony reviewable only if manifestly wrong.</p> <p>In a suit for specific performance, the findings by the trial court, based upon conflicting evidence, all of which was given orally in his presence, will not be disturbed on appeal, unless they are clearly wrong.</p> <p>5. Husband and wife 4&wkey;34 — Evidence held to show antenuptial agreement was supported by consideration.</p> <p>In a suit by husband for specific performance of his wife’s antenuptial agreement to waive her claim to a share of his estate, evidence held sufficient to sustain the trial court’s findings that the agreement was based on a valuable consideration and fairly arrived at, so as to be valid.</p> <p>Robb, Associate Justice, dissenting.</p>

Dietrich, Judge. Suit by the Washington Water Power Company against Kootenai County and others. From a decree granting part of the relief claimed', plaintiff appeals.

<p>Appeal from the District Court of the United States for the Northern Division of the District of Idaho; Frank S. Dietrich, Judge.</p> <p>Suit by the Washington Water Power Company against Shoshone County and others. From a decree dismissing the complaint, complainant appeals.</p>

Bled-soe, Judge. Action by J. Herbert Knapp and another, as partners, against the Bullock Tractor Company. Judgment for the plaintiffs for part only of the amount claimed, and both parties bring error. Action in damages by Knapp & Black, partners, against Bullock Tractor Company for breach of a written contract made on March 10, 1915, between Knapp, called agent, and the Tractor Company, called the company.

<p>Appeal from the District Court of the United States for the First Division of the Northern District of California; Frank H. Rudkin, Judge. _</p> <p>_ Suit in admiralty by the Olympian Dredging Company against the Southern Pacific Company and the California Pacific Railfoad Company. Decree for respondents, and libelant appeals.</p> <p>Libel in personam against the Southern Pacific Company and California Pacific Railroad Company filed by Olympian Dredging Company to recover damages arising out of a collision oJ: the dredger Thor with certain submerged piles in the Sacramento river. The allegations of the libel are that the piles were negligently left in the river by the respondents at the time of the removal of a certain railroad bridge.</p> <p>The District Court dismissed the libel on the ground that there was no liability, and from a decree entered in favor of the respondents appeal was taken. In brief the evidence showed these facts:</p> <p>In 1858 a wagon road bridge was built across the Sacramento river connecting the city of Sacramento with the county of Yolo in California. In 3S69 the California Pacific Railroad Company, respondent, obtained a franchise to run its railroad across the 1858 bridge. In 1878 the California Pacific Railroad Company built another bridge above the 1858 bridge, and the 1858 bridge was destroyed. Later, in 1896, the 1878 bridge was destroyed. In 1895 the California Pacific Railroad Company had permission from the War Department of the United States to build another bridge across the Sacramento river. In 1909 another bridge was built above the 1895 bridge. It will thus be observed that the 1858 and 1878 bridges were located above the present, or 1909, bridge, while the 1895 bridge was below the present bridge.</p> <p>About midnight of July 18, 1918, the dredger Thor, 120 feet long, 58 feet wide, drawing between 5 and 6 feet of water, was moving down the Sacramento river drifting with the current with the bow of the dredge upstream, and when about to enter, the draw of the present or 1909 bridge she struck upon one or more partially destroyed piles, and her hull was pierced and she sank, in about the center of the east draw channel of the 1909 bridge. The divers said that there was a bulge about 4 feet square in the upper floor inside of the hull underneath the hatch; that there was also a hole with a pile sticking up on the aft end of the port side on the Yolo county side; that there was also a hole in the rake where a pile from a cluster went through; that the tops of these piles were ragged as though they had been blasted off, not sawed off square; that some stuck up 4 or 5 feet higher than others; that they sawed off several feet of these piles in order to free the dredge. The depth of the water in the draw at the time of the collision was not less than 7 feet, and according to respondent’s diagram put in evidence the tallest pile of a certain cluster in the river was 4 feet 6 inches below zero on what is called the K street Sacramento gauge. But it is plain that there was not sufficient clearance for the dredge when the accident occurred.</p> <p>When the War Department gave a permit to the California Pacific Railroad Company to build the 1895 bridge, one of the conditions imposed was that the railroad company remove the piles constituting the structure of the 1878 bridge “to .a depth of 7 feet below the level of the lowest low water, being a reading of 7.5 feet on the Sacramento, Cal., K street gauge.” Accordingly some of the piles of the 1878 bridge were blown off by dynamite placed in the river bed against the piles, and some appeared to have been cut off several feet below the bed of the stream as it existed at that time. The bed of the river was lowered in 1893 by the construction of a jetty by the government on the Yolo side of the river just above the point where the accident occurred, and some dredging was done by, the government at a point below the place of the accident. Undoubtedly there has been a “scouring out” of the river for many years, and there was a material change in. the flow at the point of the 1878 bridge, so that the extreme low-water mark, as fixed by the Secretary of (War in the 'original permit, was in 1918 approximately 7 feet lower, although the depth of water was really not less. Obviously ’under such conditions piling which had been blown or cut off in 1895 below the mark prescribed by the War Department extended much higher above the low-water mark when the Thor was damaged.</p>

<p>1. Courts <£==>356 — Case tried de novo on appeal under federal equity rules.</p> <p>While proper consideration will be given to the findings below, an equity case is triable de novo upon appeal under tbe new equity rules, especially where the evidence is chiefly documentary and the oral testimony of witnesses largely uneontradicted.</p> <p>2. Corporations ©=>320 (14) — Minority stockholders’ relief confined to specific performance of contract. '</p> <p>Where a stockholder and director of a mining company acquired, with his own money, adjoining ore land which he leased to the company and offered to convey to it on being reimbursed for the purchase price, his title cannot be declared fraudulent on a bill by minority stockholders, and relief will be confined to decreeing specific performance of the conveyance.</p> <p>3. Corporations ©=’320(13) — Receiver not appointed for solvent mining company on complaint of minority stockholders.</p> <p>In a suit by minority stockholders, alleging that a defendant stockholder and director had fraudulently acquired adjoining ore land which he had leased to the company, evidence that no fraud had been practiced, that the company was solvent, etc., held not to authorize appointment of a receiver to liquidate the company’s affairs.</p> <p>4. Corporations ©=’320(11) — Evidence held to establish good faith of majority stockholder and director as to acquisition of property leased to company.</p> <p>In suit by minority stockholders, evidence that defendant majority stockholder and director had acquired adjoining ore lands which he had leased to the company and that he had publicly stated his willingness to convey such property to the company on being reimbursed for its purchase price, etc., held to establish that he had acted in good faith.</p> <p>5. Corporations ©=>320 (14) — In suit by minority stockholders, held that specific performance of contract by corporate director might be decreed.</p> <p>Where a director of a mining corporation acquired adjoining ore land Which he leased to the company and offered to convey to it on being reimbursed for the purchase price, a suit by minority stockholders seeking to establish a constructive trust on the property and for receivership proceedings need not be dismissed, but the court has discretionary power to decree specific performance of the conveyance, under Judicial Code, § 209 (Ooinp. St. § 1246), as amended by Act Feb. 26, 1919 (Comp. St. Ann. Supp. 1919, § 1246), authorizing judgment after examining the entire record without regard to technical errors.</p> <p>Gilbert, Circuit Judge, dissenting.</p>

<p>In Error to the District Court of the United States for the District of Nevada; Edward S. Farrington, Judge.</p> <p>. Action at law by Rose Bright and others against the Virginia & Gold Hill Water Company. Judgment for defendant, and plaintiffs bring error.</p> <p>This action was instituted by Rose Bright and others against the Virginia & Gold Hill Water Company, a corporation. There was a judgment for the defendant, on the refusal of the plaintiff to amend her complaint after de.murrer to an amended complaint was sustained. Upon review this court reversed the judgment of the District Court, with directions to overrule the demurrer, with leave to the defendant company to answer. Bright v. Virginia & Gold Hill Water Co., 234 Fed. 839, 148 C. C. A. 437. The complaint alleges that the defendant company was engaged in business in Nevada as a water company, impounding, ditching, fiuming, storing, and distributing water for the purposes of irrigation and domestic uses for pay; that for more than 30 years plaintiffs and their predecessors owned the land described in the complaint, and the water and water rights pertinent thereto; that for 40 years defendant, by ditclies, impounding waters, and use of tanks, bas diverted tbe waters of Marlette Lake, Nev., for mining, agricultural, and domestic uses, and permitted tbe water so appropriated to overflow along a natural channel to the lands belonging to Garavanto, and dug a ditch to convey the overflow away from the lands, but it gave way and damaged tbe lands; that Garavanto prepared to bring suit against the company for such injuries by overflow, whereupon Garavanto and tbe defendant company made an oral agreement, whereby Garavanto would permit the overflow waters to flow across his land, and defendant would have the right of way for the overflow waters for all the time that it would be engaged in furnishing water pursuant to articles of its incorporation, and that Garavanto and his successors would have the right to divert the waters and use the same, without charge or interference, to irrigate the lands to the extent in which the overflow water then and there ran as long as defendant was engaged in the business ol' its incorporation and carried on its- business as averred in the complaint; that in pursuance of the-agreement, and in consideration of the use of the water for irrigation, Garavanto waived his right of action for damages for the injuries he had sustained, and consented that the overflow waters from the works of the defendant' should run down the natural channel and ravine, and gave a riglit of way therefor through the lands; that in pursuance of the agreement Garavanto began to use the water, and irrigated 100 acres for 7 years, and planted crops and orchards, and increased the value of the land ; that he then sold the lands to one Raffetta, through whom by mesne conveyances the premises have become vested in fee in the plaintiffs in the present action, together with the right to use the water; that under the agreement, up to the year 1.913, plaintiffs and their predecessors and grantors have used the overflow water, and the same have overflowed by permission under the agreement. It is alleged that the lands are arid, and that with the consent of defendant the waters were used for 40 years in pursuant of the agreement; that in 1913 defendant cut off the water and ruined plaintiffs’ crops, all in violation of the agreement and to the damage of the plaintiffs.</p> <p>The defendant answered, denying the material allegations of the complaint, and putting in issue the existence of the alleged Garavanto contract, and the use and the right to the use of the water thereunder. Defendants also alleged a counterclaim for a balance on account as rental for water furnished by the defendant to plaintiffs, under an agreement or lease with plaintiffs, alleged to have been made about 10 years before 1913, and which called for delivery or let down from its works of 4 miner’s inches of water during the irrigating season of each year, in consideration of which plaintiffs and their predecessors in interest agreed to pay defendant a stipulated annual rental on the 1st of July each year, and that plaintiffs owed defendant rentals for the years 1911 and 1912; that in 1913 defendant failed to furnish water, because of failure to pay the sums past due. Defendant pleaded that plaintiffs are estopped from claiming right to have the water. The plaintiffs denied the existence of any contract for water, other than that heretofore referred to in the statement of the complaint, and denied that there had been any water furnished under any agreement, except as set forth in their complaint.</p> <p>The case was tried to a jury. Plaintiffs offered a witness to prove that one Overton, deceased, an officer of the defendant corporation, made the alleged Garavanto contract. The defendants objected to the testimony of such witness, on the ground that she could not testify concerning transactions had with a deceased officer of the defendant corporation. The court ruled that under the statute of Nevada such testimony was not competent and declined to receive it. After the ruling of the court plaintiffs obtained a continuance in order to prepare an amendment. When the ease was again called, counsel for plaintiffs said that they would propose no amendment, having reached the conclusion that they could proceed to trial without an amendment. Defendants objected to plaintiffs proceeding under any theory other than that which had been presented at the time the continuance was given, whereupon plaintiffs’ counsel announced that they were not proceeding under a new theory, but would prove the Garavanto contract, and that they intended to rely, not only upon that contract, but upon two other distinct grounds alleged in the complaint: - One, the legal duty of the defendant, a public service corporation, to furnish the water without a contract; the other, the contract called the “four-inch contract,” set up by the defendant, “not as a defense to this action, but merely as an estoppel against plaintiffs to rely upon the Garavanto contract.” At1 the close of plaintiffs’ evidence, and again at the close of all evidence, defendant moved for a directed verdict, on the ground that the evidence failed to support the claim set forth in the plaintiffs’ complaint. These motions were overruled, and after instructions a verdict was rendered for the defendant, and judgment was rendered accordingly. Plaintiffs then sued out writ of error.</p>

<p>In Error to the District Court of the United States for the Eastern District of Arkansas; Jacob Trieber, Judge.</p> <p>Bill Ketchum, Charles Weldon, and Chester Henderson were convicted of offenses, and they bring error.</p>

Appeal and Cross-Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois. Suit for infringement of patent and for an accounting by the Strom-berg Motor Devices Company against the Zenith Carburetor Company.

<p>1. Shipping <§=>132(3) — Excessive loss does not relieve burden of proving negligence. .</p> <p>. Where the bill of lading for a.shipment of oil in barrels contained the usual exceptions against liability for leakage or breakage, the fact that the leakage was 10 times that ordinarily to be expected is not of itself sufficient to establish a prima facie case of negligence against the carrier, but still leaves it incumbent upon libelant to show negligence overcoming the exception.</p> <p>2. Shipping <§=>132(5) — Evidence, held to show negligent stowage of oil in barrels.</p> <p>Evidence that when barrels of olive oil were properly stowed there was no direct pressure on the bilge and that the barrels in question were crushed at the bilge around the bunghole, though the vessel had encountered no unusual storms and her crew testified the cargo did not shift, held to show improper stowage of the oil.</p> <p>3. Shipping <§=>141(2)— Bad stowage is negligence.</p> <p>Bad stawage of a cargo of barrels of olive oil is negligence for which the shipper can recover notwithstanding an exception in the bill of lading against leakage or breakage.</p> <p>4. Shipping <§=>132(5) — Ship’s copy of bill of lading with admission of condition held incompetent.</p> <p>The contract of shipping'is the bill of lading delivered to the shipper, not that retained by the ship, so that a ship’s copy containing an admission of defective barrels written above the space for the master’s signature is incompetent where it was identified only by proof of the authenticity of the signature by the shipper’s agent who testified contrary to the admission.</p> <p>5. Evidence <§=>497(2) — Bill of lading as contract but not as receipt is within parol evidence rule.</p> <p>A bill of lading has a dual aspect; as a contract it is not to be varied by parol evidence, but as a receipt it is, like other receipts, subject to contradiction or explanation of proof of the facts.</p> <p>6. Interest <§=>53 — Interest disallowed during time healing was delayed.</p> <p>Where the hearing on appeal from a decree dismissing the libel was delayed at the suggestion of libelant for more than two years with no reason being given therefor, libelant will not be allowed, after reversal of the decree and award of damages, to recover interest on the damages during the period, the appeal was delayed.</p>

<p>1. Courts <§=>292 — Suit to protect trade-name within jurisdiction of federal court.</p> <p>A suit to protect complainant’s right to use an established trade-name or brand, alleged to be of the value of more than $3,000, held within the jurisdiction of a federal court.</p> <p>2. Injunction <@=»105(1) — May be granted to restrain criminal prosecutions.</p> <p>Equity may enjoin criminal prosecutions where a multiplicity of such prosecutions are threatened either under an invalid statute or which are not authorized by statute.</p> <p>3. Food <®=Aá, New, vol. 15 Key-No. Series — Baking powder an “article of food.”</p> <p>Baking powder held an “article of food,” witliin the meaning ofi Pure Pood and Drugs Act Ark. May 28, 1907 (Kirby & Castle’s Dig. § 6369 et seq.), making it an offense to misbrand “any article of food.”</p> <p>4. Food <®=15 — Criminal liability for violation of Arkansas Pure Food Act.</p> <p>Under Pure Pood and Drugs Act Ark. May 28, 1907 (Kirby & Castle’s Dig. § 6369 et seq.), tbe seller of a misbranded article of food is subject to criminal prosecution.</p> <p>5. Food <§=>1 — Scope of state legislation.</p> <p>Where a state law is not in conflict with tbe national Pood and Drugs Act- a broad latitude is allowed states in protecting tbeir citizens from adulterated or misbranded articles.</p> <p>6. Appeal and error <©==>895(3) — Admission of improper evidence in equity suit harmless error.</p> <p>Where an equity suit is heard, de novo in the appellate court the admission of improper evidence by the trial court is harmless error.</p> <p>7. Food <§=>15 — Test of misbranding is deception of purchasers.</p> <p>The purpose of a statute against misbranding of food articles is to prevent deception through a label or brand, and to ascertain whether a •given label would act deceptively, the attitude of the average buyer toward that product at the period the label is put out may be examined."</p> <p>8. Food <§=>15 — Baking powder held “misbranded.”</p> <p>Where complainant, manufacturer of “Price’s Cream Baking Powder,” had for many years advertised the fact that its product was made with cream of tartar, and contained no phosphate nor alum, claiming superiority and greater healthfulness on that ground, by which means it had acquired a high reputation for its product and a valuable good will, its continued use, after it had substituted phosphate for cream of tartar therein, of labels on its cans bearing the same name and having the same coloring, style of printing, and general appearance as those previously used, which would be accepted by the average purchaser accustomed to its product as denoting the same article, held a misbranding, although it truthfully stated the ingredients in an inconspicuous place on the back of the can; and although for a new and unknown product the label might not be objectionable.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Misbrand — Misbranding.]</p> <p>9. Food <§=>15 — Failure to effectively inform purchasers of change in article constitutes misbranding.</p> <p>If the manufacturer of a product or .article of established reputation makes a change in the article, and that change be of a character which would, considering all the attendant circumstances, naturally affect the attitude of purchasers of that article, fair dealing and the law require that such purchasers be effectively informed of that change.</p> <p>10. Words and phrases — “Baking powder.”</p> <p>“Baking powder” is a mixture in dry form of certain alkali and acid substances, combined with a filler; and when moistened and heated, as in baking dough, a chemical reaction occurs, which liberates carbonic gas, which “raises” or leavens bread.</p>

<p>In Error to the District Court of the United States for the District of Minnesota; Page Morris, Judge.</p> <p>Criminal prosecuti'on by tire United States against Albert Braden. Judgment of conviction, and defendant brings error.</p>

<p>1. Patents <&wkey;30(l) — Immaterial improvement not patentable.</p> <p>A patent for a purported invention, which made no useful contribution to the art and would not accomplish its purpose practically when applied in industry or was so negligible in its nature as to be wholly immaterial in results, is invalid.</p> <p>2. Patents <&wkey;328 — 853,409, claims 3 and 4, for improvements in cultivators, held not infringed.</p> <p>Houston patent, No. 853,409, claims 3 and 4, for an improvement in cultivators, if valid because the construction of the seat lever to permit vertical motion was an addition to the art, held not infringed by defendant’s machine constructed to prevent any more vertical motion than was permitted in the prior art.</p>

<p>1. Patents &wkey;>328 — 1,OS1?,814, claim 1, for vacuum tank for engines, mot infringed.</p> <p>Claim 1 of the Higginson & Arundel patent, No. 1,087,814, for a vacuum tank for automobile and other internal combustion engines, not being entitled to the broad construction given a patent proving to be a pioneer in the practical art, held not infringed by a tank in which the fuel supply is introduced directly into the top of the vacuum chamber without using a check or return valve in the supply pipe as in the patented device.</p> <p>2. Patents ,&wkey;53 — Anticipating device does not lack invention because not brought to highest degree of perfection or not successful commercially.</p> <p>A device described in a trade paper and relied on as anticipating a patent should be tested by the rules applicable to a patent, and does not lack invention merely because the inventor did not successfully bring his art to the highest degree of perfection, nor because without changes or additions thereto it could not be successful commercially.</p> <p>3. Patents <&wkey;328' — 1,134,457, claims 1, 2, 4, and a, and 1,132,273, claims 1 and 3, for engine vacuum tanks, held invalid, and claim 4 not infringed, if valid.</p> <p>Claims 1, 2, 4 and 5 of the Jay patent, No. 1,134,457, and claim 1 and 3 of the Jay patent, No. 1,132,273, for vacuum tanks for automobile and other internal combustion engines, held to involve no invention over the prior art; and claim 4 of the first-mentioned patent held not infringed, if valid.</p> <p>4. Patents &wkey;>328 — 1,132,273, claim 13, for engine vacuum tank, not sufrimged.</p> <p>Claim 33 of the Jay patent, No. 1,132,278, for a vacuum tank for internal combustion engines, held not infringed if valid.</p> <p>5. Patents <&wkey;>328 — 1,132,278, claims 9 and 14, for engine vacuum tank, held valid and infringed.</p> <p>Claims 9 and 14 of the Ja.y patent, No. 1,132,273, for a vacuum tank for internal combustion engines, containing means for alternately connecting the vacuum chamber with the exhaust means and with the atmosphere, and means controlling communication between the vacuum chamber and lower tank, adapted to be opened by. gravity flow, held valid and infringed.</p> <p>6. Patents &wkey;>20(l) — Combination of claims olti in the art may involve invention.</p> <p>That each element of a claim is old and in the same art does not necessarily preclude invention in the combination of such claims.</p>

<p>1. Courts <&wkey;'4(Hi(I) — Decision of Supreme Court of Porto Rico on question of procedure reversed only on clear showing of error.</p> <p>A decision of tbe Supreme Court of Porto Itieo should not be reversed on a question of procedure which is manifestly oue of purely local law, except on a clear showing of error.</p> <p>2. Executors and administrators &wkey;>130 (2) —Action of revindication not maintainable against assignee of rights and heirs by succession.</p> <p>The succession or estafe of a deceased person may not in Porto Rico, as an entity, maintain an action of revindication against the grantee or assignee of the rights of one or more of the heirs; at least, a decision of the Supremo Court of Porto Rico so holding is not so plainly erroneous as to warrant the circuit court of appeals in reversing it.</p> <p>3. Descent and distribution <&wkey;84 — Heir may make valid transfer before partition or liquidation.</p> <p>An heir before partition or liquidation of the ancestor’s estate may make a valid transfer or assignment of his undivided interest in tha estate.</p>

<p>1. Appeal and error <&wkey;989, 1022 (1) — Findings of referee held conclusive; only testimony in findings of referee considered.</p> <p>On appeal from a judgment entered on report of a referee, approved by the trial court, the referee’s findings of fact are conclusive, and the court cannot consider the testimony or exhibits, except in so far as included therein.</p> <p>2. Attorney and client &wkey;>133 — Attorney cannot recover, without contract, from recipient of benefits from services.</p> <p>One who had received benefits from services rendered by an attorney to his clients, but who had no contract for employment of the attorney, and made no request for the services, is not liable for the reasonable value of such services on quasi contract, which applies only to prevent unjust enrichment of one party at the expense of another.</p> <p>3. Appeal and error @=977 (5) —Refusal of new trial cannot be reviewed.</p> <p>The Circuit Court of Appeals cannot review the correctness of the refusal of the court below, to grant a new trial.</p> <p>4. Stipulations @=13 — Court may relieve party for inadvertence. .</p> <p>If injustice was done a party, .because of the limitation of his proofs by a stipulation made during the progress of the trial, the court has the power to, and will, relieve tlio parties therefrom.</p> <p>5. Stipulations @=13 — Party held not entitled to relief from stipulation.</p> <p>In an action by an attorney for compensation, where he made in his pleadings no claiin of express or implied contract for services prior to a stated date, a stipulation limiting the proof to services rendered subsequent to that date will not be set aside, after the referee found no contract for services was made, to enable the attorney to offer proof of services before that date.</p>

Suit by William Mitchell and others, as temporary administrators of Amos F. Eno, deceased, against the Des Moines & Ft. Dodge Railroad Company and another, to enjoin the transfer of railroad property, and for a compulsory declaration of dividends. Decree for defendants, and complainants appeal.

<p>1. Bankruptcy @=>440 — '“Proceedings in bankruptcy” and “controversies arising in bankruptcy proceedings” distinguished.</p> <p>As respects review by appeal or revision under the Bankruptcy Act (Comp. St. §§ 9585-9056), “proceedings in bankruptcy” relate to questions arising between the bankrupt and bis creditors, and “controversies arising in bankruptcy proceedings” are distinct and separable issues raised between intervening parties and involving substantial rights.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, Second Series, Controversy Arising in Bankruptcy Proceedings; First and Second Series, Bankruptcy Proceedings.]</p> <p>2. Bankruptcy <&wkey;449 — Denial of landlord’s claim leas» was forfeited by bankruptcy is appealable; “controversy arising in bankruptcy proceeding.” '</p> <p>The question whether the lease to bankrupt which contained a covenant against assigning or subletting was forfeited by the bankruptcy is a controversy arising in a bankruptcy proceeding reviewable on appeal under Bankruptcy Act, § 24a (Comp. St. § 9608), since the landlord claims title to property in possession of the trustee, and a distinct and separable issue is raised thereby, and it is immaterial that the question was raised by the landlord’s answer to the petition for confirmation of the sale of the lease instead of by petition filed by the landlord.</p> <p>3. Landlord and tenant &wkey;>7Si (2) — Covenant against assignment of lease not breached by bankruptcy.</p> <p>A covenant against assignment or subletting of a lease without the written consent of the lessor is not breached by an assignment by opera tion of law in the event of the bankruptcy of the lessee.</p> <p>4. Lamllca'd and tenant <&wkey;7®(l)— Covenants against assignments not favored.</p> <p>Covenants in a lease against assignment and underletting which have the force of conditions are not favored by the courts.</p> <p>5. Landlord and tenant <&wkey;104 — Lease can expressly provide for forfeiture by assignment by law.</p> <p>A covenant against an assignment of a lease can bo so drawn as to provide for forfeiture by an assignment by operation of law, but the court will not infer such provision.</p>

<p>In Error to the District Court of the United States for the Southern Division of the District of Idaho; Frank S. Dietrich, Judge.</p> <p>A cl ions at law by Edmund Seymour and others, as a committee representing bondholders, against the Emmett Irrigation District. Judgment for plaintiffs, and defendant brings error.</p> <p>' Actions at law to recover the interest represented by coupons on outstanding bonds of the plaintiff in error, the sum of which coupons amounts to $262,410 in case No. 3488, and $53,502 in case No. 3491, total $315,912.</p>

<p>1. Guaranty <&wkey;35 — Telegrams held to guarantee payment of draft not solvency of drawee.</p> <p>Telegrams from one bank to another, one of which guaranteed payment of a sight draft with bill of lading covering carload of tomatoes attached and was confirmed by a letter expressing trust that the receiving bank had accepted the guaranty and would allow the draft to come direct for collection, and the other of which telegrams stated the sender would honor sight draft with bill of lading attached covering order of tomatoes, were independent guaranties of payment of the sight draft to the receiving bank, not merely guaranties of the solvency of the drawee and of his payment of the draft in case the tomatoes conformed to order.</p> <p>2. Guaranty <&wkey;34 — Independen!. guarantor1 liable regardless of principal liability.</p> <p>One who guaranteed the performance of an obligation by a separate and independent contract is liable on his guaranty regardless of the liability of the principal on the guaranteed obligation, especially whore the obligation is a negotiable instrument and is guaranteed for the purpose of procuring its acceptance by a third person.</p> <p>3. Guaranty &wkey;>43 — Bank held not required to inspect produce before bono-r-ing guaranteed draft.</p> <p>A bank to which was presented a sight draft with bill of lading attached covering shipments of tomatoes already loaded was not .obliged to inspect 1he shipments to ascertain their conformity to contract, before paying the drafts in reliance on the guaranty of payment by another bank, and the guarantor bank is liable on the guaranty even though the, buyer of the tomatoes properly rejected them on arrival.</p> <p>4. Guaranty &wkey;>6 — Formal acceptance held unnecessary.</p> <p>Formal acceptance of a guaranty is unnecessary where it was made by telegram to insure payment of a sight draft with bill of lading attached covering a shipment of produce.</p>

Action by Frank G. Clark against the Pond Creek Mill & Elevator Company. Judgment for plaintiff, and defendant brings error. The suit was for breach of contracts for sale of flour. The first contract was for 1,009 barrels, and is evidenced by the following correspondence between defendant in error, Clark, a flour dealer at Chicago, and plaintiff in error, a milling company at Bond Creek, Okl.: Telegram.

<p>1. Patents &wkey;>319(l) — Profits which would have been made on sales prevented by infringement recoverable as damages.</p> <p>Where an infringer was an old customer of a patentee and it was fairly deducible that the patentee by reason of the infringement lost the sale of the machines sold by the infringer, the profits which would have been made on such sales were recoverable as damages.</p> <p>2. Patents «^319(1) — Profits which would have been made on sales of repair parts held recoverable as damages.</p> <p>Where repair parts supplied by an infringer for its infringing machines were essential parts of the patented machine which but for the infringement would have been supplied by tlie patentee, the profits the patentee would have derived from their sale were recoverable as damages.</p> <p>3. Jury >&wkey;13(9) — Statute authorizing recovery of damages in equity dees not violate Constitution as to jury trial.</p> <p>Rev. St. § 4921 (Comp. St. § 9467), authorizing courts of equity in patent suits to assess the damages from an infringement and to increase such damages as in actions of trespass upon the case does not violate Const.. Amend. 7, preserving the right of trial by jury in suits at common law where the value in controversy exceeds ¿20.</p>

<p>In Error to the District Court of the United States for the Southern District of Texas; Joseph C. Hutcheson, Judge.</p> <p>Action by the Kissel Motor Car Company against T. E. Walker and another. Judgment for defendants, and plaintiff brings error.</p>

<p>1. Eminent domain-t&wkey; 198(1) — Interference with existing telephone lines not to be decided before condemnation of right on railroad right of way.</p> <p>In proceedings under Laws Fla. 1903, e. 5211, authorizing condemnation for a telegraph or telephone line along a railroad right of way, provided the line shall be constructed so as not to interfere with the operation, of an existing telegraph or telephone line, the question whether the proposed telegraph line will interfere with an existing line owned by in-tervener, is not to be decided, in limine, where the pleadings and evidence-indicate that it could be so constructed álong the proposed line as not to-interfere with the existing line.</p> <p>2. Eminent domain <&wkey; 198(1) — Authorizing condemnation for telegraph line and requiring that it must not interfere with, existing lines held not error.</p> <p>In a proceeding to condemn the right to erect and operate a telegraph line along a railroad right of way, where the owner of an existing- line along such right of way intervened, claiming the erection of the proposed line and its operation with petitioners’ instruments would interfere with the operation of intervener’s telephone line, and praying that, if the right was granted, the judgment should require petitioner to operate its line with specified instruments, which would not interfere,' it was not error to enter judgment for condemnation which required the construction of the line so as not to interfere with an existing line.</p>

Orr, Judge. Bankruptcy proceeding against R. Nesto. From an order requiring the payment of the proceeds of certain property to the Connells-Yille Macaroni Company, A. C. Ellis, receiver, appeals.

<p>Appeal from the District Court of the United States for the Western Division of the Southern District of Ohio; Howard C. Hollister, Judge.</p> <p>Supplemental and ancillary bill by Ulrica D. Pierce, trustee under the will of Samuel F. Vinton, deceased, against John V. Dahlgren, Jr., and others. From an order of the District Court, the named defendant appeals.</p> <p>This is the second chapter of this appeal. After the first opinion herein-(263 Fed. 841) was filed, and before a mandate thereon was issued, the' parties stipulated that “the case may be decided by the court upon the present record, the appellees withdrawing their petition for rehearing, and appellant waiving the objection that the order of the District Court, entered January 23, 1915, for service under section 57 of the Judicial Code [Comp. St. § 1039], was not served upon him until after the date fixed by said order for him to-appear and plead,' and withdraws that ground of his motion, filed April 7, 1917, to set aside said service, and agrees that the court may consider and determine the appeal upon the record with the same effect as if said order had been served in time, as provided therein.” This stipulation was approved by the court.</p> <p>Some additional facts need to be stated to present clearly the questions of law now decided. Samuel IP. Vinton, the testator, died in May, 1862. He had lately been domiciled in Ohio, but was then domiciled in Washington, D. C. His will is dated the 31st day oí March, 1862. He owned real estate in Washington, D. 0., in Iowa, and in Ohio, but the larger part of his éstate is derived from Ohio land. His will in part provides as follows:</p> <p>“And I do hereby further constitute and appoint the said Charles B. Goddard the trustee of the estate, both real and personal, hereinafter devised and bequeathed to, him to hold the same for the uses and trusts hereinafter declared.</p> <p>“And I do hereby devise unto the said Charles B. Goddard, his heirs and assigns for the said uses and trusts hereinafter declared, all of the real estate wheresoever situated and not hereinbefore devised, which I now own, or may die seized and possessed of in law or equity.</p> <p>“And I do hereby further give and bequeath unto the said Charles B. Goddard, as such trustee, all of the railroad bonds, railroad, bank and other stocks and securities of which I may die possessed, or which may be purchased by said executor as above directed. * * *</p> <p>“It is my will and direction that the trustee, for the time being of said trust estate, shall manage and take care of all of said estate held in trust under any provision of this will, and collect and receive the rents, interest, dividends and income arising therefrom, and after paying out of the same all taxes, and necessary charges of managing and keeping the property in repair, including his own compensation to bo allowed yearly by the proper court as hereinafter provided, he shall dispose of the residue, or net annual income of said trust estate, in the manner, and for the purposes and uses following; that is to say, he shall during the joint lifetime of my said daughter, Sarah Madelaine Goddard, and her two children, Romaine Goddard and Vinton Goddard, annually, and if practicable, semiannually, or quarterly, pay one-third part of the whole of such net annual income to each of them for their maintenance and support.</p> <p>“But if my said daughter shall die leaving no issue by a future marriage, her said two children surviving, or if either of said two children shall die leaving no lawful issue the other child and my said daughter surviving, then in such case, the whole of said net annual income shall be thereafter equally divided between the two survivors during their joint lives; and if one of said two remaining survivors shall die leaving no lawful issue, then the whole of said net annual income shall thereafter be paid over to the sole survivor during his or her natural lifetime. But if said Vinton Goddard and Romaine Goddard, ox* either of them, shall die leaving lawful issue, then there shall be paid to such issue of him or her during the continuance of this trust, the share of said net annual income that would have been paid to their deceased parent if living. And if my said daughter shall die leaving lawful issue by a future marriage, said Romaine and Vinton Goddard, or either of them surviving her, then and in that case, the said net annual income shall be, during the continuance of said trust estate equally divided among all the children of my said daughter, share and share alike, the surviving children of my said daughter to take per capita in making the distribution of said income, and the issue of such children as may be deceased shall take per stirpes. My object in creaiing the trusts of this will being to provide usual support, during their several lives, for my said daughter, and her two children, Romaine Goddard and Vinton Goddard, I do hereby declare that so soon as my said daughter and her said two children shall have ail died, the trust estate hereinbefore created shall cease and determine; and the said trust property, both real and personal, is herein and hereby devised and bequeathed to, and shall then be conveyed and distributed to and among such of the lawful issue and descendants of my daughter, their heirs and assigns in fee. as would in law be entitled to the same, if I had lived until the death of my said daughter and of said Romaine and Vinton Goddard, and had myself died intestate. And it is my will and direction that the trustee, for the time being of said trust estate, shall, at the expiration of said trust, make, execute and deliver to the parties that may, under the last foregoing devise and bequest, be entitled thereto, all and every such transfers, assignments, conveyances in fee and other instruments in writing, as may be necessary and proper to carry into full effect the foregoing provision for the last and final disposition of said trust property, both real and personal.”</p> <p>Other provisions of the will do not aid in construing it and need not be quoted. Provision is made’ therein for the successive appointment of trustees. In the event of the refusal of Charles B. Goddard to accept the trust or to appoint a successor in the manner provided in the will, or in ease of his death without making stich appointment of another trustee, or his inability to act, it is provided that “the court within whose proper jurisdiction and •duty it may be to see that the trusts herein created are put into execution, •shall appoint a trustee and renew the appointment as often as need be.” Goddard having died without appointing another trustee, the original bill herein was filed pufiuant to this clause in the court below April 6, 1864. The trustees thus appointed by the court are by the will made subject to the court’s orders and directions, and are required to file annual reports with the court. It is further provided that, “before the court is called upon to approve the same, the trustee shall give to all the parties interested herein, due aiid reasonable notice in writing or such other mode of personal service as said court may direct, that he has placed said report on file of the court — that the same is open to inspection and that on the day specified in said notice, he will move the court to approve of and confirm said report.’’</p> <p>The testator left surviving him his widowed daughter, Sarah Madelaine Goddard, hereinafter referred to as Madelaine, and her two children, Romaine Goddard and Vinton Goddard. Madelaine in 1865 was remarried to Admiral John A. Dahlgren. Of this marriage were born three children, Eric B. Dahl-gren, Ulrica Dahlgren (now Pierce), and John V. Dahlgren. Vinton Goddard died unmarried and without issue in 1877. Madelaine died May 28, 1898. John V. Dahlgren died August 10, 1899, leaving surviving him John V. Dahl-gren, Jr., the appellant herein, who was born June 26, 1892. Romaine Goddard married Baron Gustav von Overbeck, and is still living, being the last survivor of the three persons living at the time of the testator’s death, during which the trust created by the will should continue.</p> <p>“The controversy on the merits involves the right of John V. Dahlgren, Jr., to participate in the distribution of income during the continuance of the trust. The several contentions on this proposition are sufiiciently stated in the opinion. When John V. Dahlgren, Sr., died, and the right of his son to participate in the income first arose, Evan J. Jones was trustee. His first report, filed May 22, 1900, shows payment of ¡52,044.49, a full share of the-net annual income, to Eric B. Dahlgren, guardian of John V. Dahlgren, Jr. Notices were given and accepted by Ulrica D. Pierce, Romaine von Over-beck, and Erie B. Dahlgren, both individually and as guardian of John V. Dahlgren, that this annual report had been placed on file and would stand for hearing on the 1st day of July, 1900, “or as soon thereafter as counsel can be heard.” On January 31i 1901, a decree was entered showing that a hearing was had on this report, and reciting that notices had been served on and acknowledged by the said beneficiaries, and ordering that the report be approved and confirmed. Jones made in all four annual reports similar in form, and of which like notices were given and upon which like hearings were had and orders of confirmation made. Martin E. Morris, his successor as trustee, who was appointed December 29, 1903, filed three annual reports with respect to which like proceedings were had. Ulrica D. Pierce, his successor and the present trustee, who was appointed January 21, 1907, has filed six annual reports and one special report with respect to which like proceedings were had. Nearly all of these reports show that a full, proportionate share of the income was paid to Eric B. Dahlgren as guardian of the appellant. Prior to October, 1910, royalties from coal lands in Ohio had accumulated in the hands of the trustee in the sum of $115,000. Upon application to the trustee, and after hearing, it was held and decreed that these royalties thus accumulated were income subject to distribution, and were in fact distributed in the same manner, after notice, to all the beneficiaries, and the special report showing this had been done was approved by a decree formally entered.</p> <p>The present trustee, Ulrica D. Pierce, filed, October 20, 1913, the supplemental bill reférred to in the former opinion. It is upon this bill that the present controversy has arisen. It raises for the first time any question of the right of John V. Dahlgren, Jr., to participate in the annual distribution of income. Briefly stated, the relief sought is a construction of the will, and particularly a determination as to whether or not the appellant had at any time, or has now, or will have at any time, any interest in or right to any part of the trust estate, and if the finding is that he has not, that his guardian may be required to pay back to the trustee for proper distribution the income previously paid to him. The appellant had then arrived at full age, but his guardian still had possession of all income previously received.</p>

Two actions by the Pressed Steel Car Company against the Union Pacific Railroad Company and against the Southern Pacific Company. Judgment for plaintiff for an insufficient amount (254 Ecd. 316), and it brings error.

Appeals from the District Court of the United States for the District of Massachusetts; James M. Morton, Jr., Judge. Cross-libels in admiralty by the Boston, Cape Cod & New York Canal Company against the Seaboard Transportation Company and by the Seaboard Transportation Company against the Boston, Cape Cod & New York Canal Company. Decree for the Transportation Company in each case, and the Canal Company appeals.

Rudkin, Judge. Suit by the Crossett Western Dumber Company against the American steamship Tampico, claimed by Sudden & Christenson, owners. From a decree for the libelant, claimants appeal. On April 15, 1915, the Pacific Coast Steamship Company, the owner of the steamship Tampico, chartered the vessel to the appellee.

<p>1. Patents <&wkey;16 — Invention not determined by extent of advance.</p> <p>Invention is not determined by the extent of advance which the inventor makes in the art.</p> <p>2. Patents <&wkey;328 — 1,029,328 and 1,034,748, for process for making plaster board and its product held to disclose invention.</p> <p>The XJtzman patents, No. 1,029,828, for a process for making plaster board, and No. 1,034,746, covering the product, held td disclose invention in turning over and sealing the edges of the bottom layer of paper.</p> <p>3. Patents <&wkey;328 — 1,929,328 and 1,034,746, for process for making plaster board and its product, held infringed.</p> <p>The Utzman patents, Nos. 1,029,328 and 1,034,746, covering process for making plaster board and the product thereof,- held infringed, although defendant did not use several layers of paper and plaster as described in the claim of the process patent.</p> <p>4. Patents <&wkey;151(l) — Product patent may be considered in considering scope of process patent.</p> <p>Where a process and product patent were the result of a division, the product patent may be examined to ascertain the scope of invention of the process patent and to define better the equivalents that may fairly be recognized.</p>

<p>Appeal from the District Court of the United States for the Eastern ‘District of Wisconsin.</p> <p>Suit by Frank A. Kradwell against Jennie Wustum and another. From a decree for complainant, defendants appeal.</p>

<p>In Error to the District Court of the United States for the District of Oregon; Robert S. Bean, Judge.</p> <p>Suit by the Warm Springs Irrigation District against thé Pacific Dive Stock Company to condemn property. Judgment fixing the value of the property at an insufficient amount, and defendant brings error.</p>

Bean, judge. Suit by the Pacific i,ive Stock Company against the Warm Springs Irrigation District and others. From a decree in favor of plaintiff, defendants appeal.

<p>1. Evidence <©=>43 (2) — -Judicial notice taken on demurrer of prior steps in case.</p> <p>On a consideration of a demurrer or exception, the court may talce judicial notice of the former steps taken in the case.</p> <p>2. Evidence <©=>43 (2) — Pleading 0=216(2) — -On exception on ground1 of limitations. judicial notice properly taken of prior proceedings.</p> <p>Where an exception to the petition raising the question of limitation showed that a petition in equity was filed June 23, 1912, and subpoena returned unserved on September 11, 1912, and no further attempt at service was had until January 31, 1918, and service was made February 15, 1918, the court, in passing on the exception, could take judicial notice of the entries of its officers, the date of the citation and summons, the returns of its officers, and the orders taken by plaintiff in respect to the service.</p> <p>3. Courts >@=>375 — State limitation law held to apply to action in federal court under Sherman Law.</p> <p>In a suit brought in a federal court sitting in Texas for injuries resulting from alleged violations of the Sherman Anti-Trust Act (Comp. St. §§ 8820-8823, 8827-8830), the Texas statute of limitations of four years, applicable to causes of action not otherwise specially provided for, applies.</p> <p>4. Limitation of actions <§=119 (3) - — Not suspended for more than six months by filing of suit, when service not made for years.</p> <p>Where a petition in equity for damages from alleged violations of the Sherman Anti-Trust Act (Comp. St. §§ 882(1-8823, 8827-8830) was filed, and a subpmna returned unserved in 1912, when the period of limitation had almost run, and no further attempt at service was made until 1918, when the case was transferred to the law side of the docket, though the service finally made was authorized by Clayton Act Oct. 15, 1914, the running of limitations was not stopped by the filing of the petition under the law of Texas.</p>

Foster, Judge. Action by the Mer Rouge State Bank against the Employers’ Liability Assurance Company, Limited, of London, England. Suit dismissed, after exception to the amended petition for no cause of action was sustained, and plaintiff brings error.

District Court of the United States for the Eastern District of New York. Ribel in admiralty by Robert Eorsyth and another against the steam tug John E. Berwind, her engines, etc., claimed by the Pennsylvania Railroad Company. . From a decree for libelants, claimant appeals.

<p>Carriers ©=>238 — Person entering sleeping ear only to use lavatory is not a “passenger” of sleeping car company.</p> <p>A passenger in an ordinary coach, who entered a lavatory in a sleeping ear with the conductor’s consent solely for the purpose of using the lavatory, did not become thereby a passenger of the sleeping ear company, since she was not seeking transportation in the sleeping car.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Passenger.)</p>

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

<p>Trade-marks and trade-names ®=>8a(l) — Dishonest business methods bar equitable relief against infringement.</p> <p>A complainant who made and sold an article under a trade-mark held barred from relief in equity against infringement and unfair competition by its own conduct in falsely representing to the trade that its article was protected by patent, and defendant hold barred from cross-relief by its grossly dishonest business methods.</p>

Habeas corpus by Leon Morrell against Percy A, Baker, as Superintendent of Immigration Station, to review an order for the deportation of the petitioner. From an order dismissing the writ, the petitioner appeals.

Separate criminal prosecutions by the United States against Arthur Kraus and others, against the Joseph Ajello Company, Incorporated, and others, and against Nathan Bornstein and others. On petitions by defendants in each case for the return of papers claimed to have been illegally seized.

<p>1. Injunction <&wkey;85(2) — May test validity of penal Haws.</p> <p>The validity of penal laws may be tested by injunction.</p> <p>2. Commerce <&wkey;40(2) — Sale of frames held interstate commerce, not subject to license.</p> <p>Where a nonresident corporation, through its agent, took orders for portraits to be enlarged at stated prices and to be delivered in frames, which'the customer might purchase at a reasonable price, fixed by the portrait company, or might refuse to purchase, the purchase of the frames was a part of the transaction, and a city ordinance requiring a license for the transaction of such business was invalid, as imposing a burden on interstate commerce.</p>

<p>Criminal prosecution by the United States against Emil H. Keidanz. On demurrer to indictment.</p>

<p>In Equity. Suit by the Nye Tool and Machine Works against the Crown Die & Tool Company. On motion to dismiss bill.</p>

<p>Libel for Forfeiture. Suit by the United States against one bay horse and other property.</p>

<p>Witnesses <&wkey;29 — Mileage allowable from actual residence.</p> <p>In the federal courts in actions at law, mileage is allowable to a witness from his actual place of residence.</p>

<p>In Equity. Suit the I. T. S. Rubber Company against the Essex Rubber Company. On defendant’s motion to dismiss.</p>

In Admiralty. Suits by the French Republic against the schooner Jane Palmer and against the schooner Singleton Palmer; the France & Canada Steamship Corporation, claimant and cross-libelant. On exceptions to answer and cross-libel.

In Equity. Suit by the United States against the Sloan Shipyards Corporation and others. On motion of three of the four defendants to dismiss the complaint.

<p>1. Shipping <@==>189 — -“General average” does not apply where necessity for sacrifice was caused by negligence.</p> <p>The doctrine of general average under which the loss caused by a sacrifice made for the common benefit of all should be borne ratably by all does not apply when the necessity for the sacrifice was caused by the negligence of the master or crew.</p> <p>[Ed. Note. — For other .definitions, see Words and Phrases, First and Second Series, General Average.]</p> <p>2. Shipping <@=’190 — Stranding of vessel held caused by negligence.</p> <p>The stranding of a vessel which necessitated the jettison of part of the cargo and of property belonging to the vessel held due to the negligence of the master in navigating the vessel, which was admittedly ten miles off her course in the vicinity of known reefs, either because the master gave a wrong course or because he did not make the proper allowance for the set and strength of the known currents.</p> <p>3. Shipping <@=>140 — Owners cannot contract against liability for negligence-.</p> <p>Before the Harter Act shipowners could not contract to relieve themselves of liability for the negligence of the master or crew, which in law is their negligence.</p> <p>4. Shipping <§=>189 — Harter Act does not entitle ship to general average for loss resulting from negligence.</p> <p>The Harter Act (Comp. St. §§ 8029-8035), which exempted vessels from liability for losses due to errors of navigation, merely relieved them from liability, but did not entitled them to general average contribution for losses made necessary by errors of navigation.</p> <p>5. Shipping <@=>189 — Ship cannot invoke general average as defense pro • tanto to loss by jettison.</p> <p>In the absence of a stipulation in the charter party entitling the ship to general average contribution for losses made necessary by errors in navigation, which stipulation is authorized under the Harter Act (Oomp. St. §§ 8029-8035), the vessel cannot, on a libel for part of the cargo jettisoned because of the stranding of the vessel resulting from errors in navigation, interpose the right to general average as a defense pro tanto.</p> <p>Sur Motion for Reargument.</p> <p>6. Shipping <@=>138 — Canse of loss held jettison not negligent stranding.</p> <p>The cause of the loss of part of the cargo which was thrown overboard to lighten the vessel after she liad stranded because of errors in navigation was the act of jettison, not the error in navigation which occasioned the necessity for it, so that the relief of the Harter Act (Comp. St. §§ 8029=8035) against liability for loss caused by errors in navigation does not apply.</p> <p>1. Shipping Full loss of cargo recoverable where proximate cause was jettisoning occasioned by error in navigation.</p> <p>The owner of a cargo can recover from the vessel the full value of the portion lost by jettison made necessary by errors of navigation if the charter contained no stipulation entitling the vessel to general average "contribution.</p>

<p>In Bankruptcy. In the matter of the estate of Boniface J. Kalk, bankrupt. On application to set aside an order by tire referee restraining Mary A. Hughes, a judgment creditor, from issuing execution against the wages and earnings of the bankrupt.</p>

<p>1. Patents &wkey;328 — 1,167,742 and 1,167,743, for noiseless gear, void for lack of invention.</p> <p>The Conrad patents, No. 1,167,742 and No. 1,167,743, for a noiseless gear, the material of which is a composition of bakelite and fiber, known as “Bakelite Micarta,” of which Conrad was not the inventor, held void for lack of invention.</p> <p>2. Patents <&wkey;61 — Prior application considered on question of invention.</p> <p>In determining whether a patent discloses invention, an application filed before that on which the patent was issued, but on which patent was not issued until later, may be considered.</p> <p>3. Patents &wkey;>21 — Substitution of materials not necessarily invention.</p> <p>Substitution of one material for another, which does not involve change of method nor develop novelty of use, even though it may result in a superior article, is not necessarily invention.</p>

<p>At Law. Action by the Astoria Marine Works against the United States Shipping Board Emergency Fleet Corporation. On motion to remand to state court and demurrer to complaint.</p>

<p>Martin Holt was charged by information with importing, transporting, and having intoxicating liquor in his possession. On special plea alleging a previous conviction in the state court for the same acts.</p>

<p>In Equity. Suit by Frederick Y. Robertson against Francis P. Garvan, as Alien Property Custodian, and others.</p>

<p>In Equity. Suit for infringement of patent by the United Shoe Machinery Company against the E. Q. White Shoe Company.</p>

In Bankruptcy. In the matter of the estate of Julius E. Bonk, doing business as the Eagle Drug Store, bankrupt. On petition by Augustus W. Shank to review an order of the referee denying priority to petitioner’s claim against the bankrupt.

<p>Bankruptcy ©=>186(4) — Security given not voidable, creditor not having reasonable canse to believe that transfer would be preference.</p> <p>The faking of security by a creditor, when it was known to both that the debtor was then insolvent in the sense of the Bankruptcy Act (Comp. St. §§ 9585-9656), but in the honest belief and with a reasonable prospect that some of Ins assets, worthless for the moment, would, if he wore allowed to continuo his business, realize enough to pay his debts in full, hold not the giving or faking of a preference, voidable under Bankruptcy Act, § CO (Comp. St. § 9644) ; the creditor not having reasonable cause to believe that the transfer would effect a preference.</p>

<p>Habeas Corpus. Application by Daniel Finegan for a writ to inquire into bis detention.</p>

<p>1. Maritime liens <&wkey;25 — Repairs may include improvements.</p> <p>Work done on a vessel while afloat, although temporarily withdrawn from service, in making repairs and also enlarging and improving her carrying capacity, to fit her for intended future use, held of maritime character, and within the provision of Act June 23, 1910, e. 373 (Comp. St. §§ 7783-7787), giving a lien for repairs and necessaries.</p> <p>2. Maritime liens &wkey;>56 — Estoppel to deny liability or amount.</p> <p>An account admitted or paid in part may be collected under an admiralty lien, even if there might be also a claim at law or in personam, on the doctrine of estoppel to deny liability or amount.</p> <p>3. Maritime liens <&wkey;17 — Statute floes not enlarge maritime law.</p> <p>Act June 23, 1910, c. 373 (Comp. St. §§ 7783-7787), does not change, by enlarging or diminishing, the classes of work for which liens are given from those recognized under the general maritime law.</p>

<p>1. Judgment <&wkey;720 — Findings in former suit between same partios heM conclusive.</p> <p>In an action by the owners of a patent to recover royalties provided in a contract, findings in previous litigation between the same parties that defendant had discontinued the use of the patented process prior to a certain date, and that the process defendant was then using was not covered by the patent, are conclusive.</p> <p>2. Patents <&wkey;218(l) — Use of part’ of plant, iiioragh an infringement, held net to require payment of process royalties.</p> <p>The use by defendant, who had contracted to pay plaintiffs royalties on glycerine produced by plaintiffs patented process from waste soap lyes, of part of the'apparatus they obtained from plaintiffs in connection with a different process for obtaining glycerine from a different substance, does not subject defendant to liability for the royalties, even though the use of the apparatus may be an infringement of plaintiffs’ apparatus patent.</p>

<p>In Bankruptcy. In the matter of the Drexel Hill Motor Company, bankrupt. On review of order of referee.</p>

<p>1. Bankruptcy &wkey;>303(3) — Creditor held not shown to have known preference would result from security.</p> <p>In a suit by a trustee in bankruptcy against a creditor, evidence that, the creditor, when he took security, knew that the debtor was embarrassed for cash to pay her debts, and knew the extent of her assets, consisting of equities in real estate, without evidence of the value of those equities, held insufficient to show that the creditor knew that a preference would result.</p> <p>3'. Bankruptcy (3) — Price at sale under hammer not evidence ©f value oí real estate equities.</p> <p>The fact that equities in real estate owned by the bankrupt produced little or nothing when sold under the hammer is not proof that they were of no value, so as to charge a creditor, who took security with knowledge of the existence of those assets, with notice a preference would thereby result.</p> <p>3. Bankruptcy ■&wkey;168(3) — Knowledge preference might result is insufficient.</p> <p>Under the Bankruptcy Act (Comp. St. §§ 9J585-i)0i>0), requiring belief by tlie creditor that a preference will result to make a conveyance void as a preference, belief that a preference might result from the transfer is insufficient.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit by Malcolm Sumner, as trustee in bankruptcy, etc., against Benjamin Parr. Decree for defendant, and plaintiff appeals.</p>

<p>In Equity. Suit by the Chipman Chemical Engineering Company, Incorporated, against the Reade Manufacturing Company.</p>

<p>At Taw. Action by the Delaware, Tackawanna & Western Railway Company against the Johnson-Brown Company.</p>

<p>Prosecution by the United States against John Burns. On petition of defendant for return of an automobile.</p>

<p>At Law. Action by W. H. Lawrence against Justus S. Wardell, Collector of Internal Revenue for the First District of California.</p>

Interference proceedings in the Patent Office between Edward A. Halbleib and Vincent Bendix and another, between Edward A. Hal-bleib and Vincent Bendix and others, between Frank Conrad and Vincent Bendix and another, between Frank Conrad and Vincent Bendix and others, and between Joseph Bijur and Vincent Bendix and others, with three proceedings between Joseph Bijur and Vincent Bendix. From a decision awarding priority of invention to Bendix, the other parties appeal.

<p>Appeal from the Commissioner of Patents.</p> <p>Application by the Imperial Cotto Sales Company for registration of a trade-marlc, opposed by the N. K. Fairbanks Company. From a decision of the Commissioner of Patents, sustaining the opposition and refusing registration, the applicant appeals.</p>

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Suit for partition by Elizabeth C. Prall against Jennie M. Prall and others, in which Charles V. Irnlay, as committee of Elizabeth C. Prall, and Robert H. McNeill and others, as substituted trustees, were substituted as complainants. From a decree dismissing the petition of Gladys E. Lavagnino to establish an interest and to vacate prior proceedings, and directing a sale of the property for partition, the petitioner and defendants appeal.</p>

<p>1. Patents <&wkey;J13C?) — Concurrent actios oí patent ofiiclals not disturbed.</p> <p>In so far as the Examiner of Interferences, the Examiners in Chief and the Commissioner of Patents were in accord in an interference proceeding, their judgment, when apparently sound, will not be disturbed.</p> <p>3. Patents <¡^90(6) — Application held not reduction oí invention subsequently claimed to prassie®.</p> <p>Where an earlier application by a party to an interference proceeding did not constitute a constructive reduction to practice, if it disclosed that a certain lever was fulerumed on another lever, and it was so specified in the claims and specifications, the claim of priority denied, though it was contended that the drawings showed that the claims and specifications were incorrect.</p> <p>3. Patents <&wkey;80 (6) — Drawing must be certain and conclusivo to constitute reduction to practice, when contrary to specification.</p> <p>To base a holding of a constructive reduction to practice on a drawing in an earlier application, in the face of a positive contrary statement in. the specification, the drawing should be certain and conclusive.</p>

Interference proceeding between Herman F. Ball and Henry G. Barnhurst, administrator of the estate of Plenry R. Barnhurst, deceased, and others. From a decision of the Commissioner of Patents, awarding priority to Barnhurst and others, Ball appeals.

<p>Appeal from.the Commissioner of Patents.</p> <p>Application by James L. Coffield for a patent for improvement on clothes wringers. From a decision of the Commissioner of Patents, rejecting two claims, the applicant appeals.</p>

<p>I. Patents <&wkey;9(H5) — Last applicant must show prior reduction to practice or diligence from time prior to adverse party’s proceedings.</p> <p>An applicant for a patent, who was first to conceive the invention, but the last to file, to establish priority, must prove an actual reduction to practice prior to that of the other party, or show diligence on his part from the time just prior to that when the other party entered the field down to his own date of filing.</p> <p>2. Patents &wkey;“90(S) — Invention not ¡¡reduced to practice by making model out of clay.</p> <p>An invention relating to caps for tlie outside end of conduits through which electric wires are led into buildings was not reduced to practice by malting a model out of ordinary molding clay, which would have broken or disintegrated if any attempt had been made to use it.</p> <p>3. Patents <&wkey;80(4) — Applicant held not to have used diligence, so as to give priority over one filing earlier.</p> <p>An applicant for a patent, who was first to conceive, and who gave directions for the preparation of an application in July, 1916, executed it June 5, 1916, and filed it August 29, 1916, did not use diligence, entitling him to priority over one filing earlier, where, his excuse for the delay in executing the application was futile, and there, was no attempt to explain the subsequent delay in filing the application.</p>

Interference proceeding between James A. Speed and Charles H. Kirby. From a decision of the Commissioner of Patents, awarding one of the three counts in issue to Speed and the other two counts to Kirby, both parties appeal.

Proceeding in the Patent Glace by Anna M. Skene for cancellation of the registration of a trade-mark by the Marin ello Company. From a derision denying the petition, the petitioner appeals.

<p>Patents <&wkey;C2 — Party not continuing experiments until he saw adversary’s device held properly denied priority for abandonment.</p> <p>A parly to an interference proceeding, who, after making experiments not amounting to a reduction to practice, did nothing more for 3*4 years, until lie was spurred into activity by seeing the other party’s device, though during such time he was actively engaged iu prosecuting applications for patents on similar devices, was properly denied priority, on the ground that his experiment was abandoned, though he had been inadvertently granted a patent while the other party’s application was pending.</p>

<p>Patents <&wkey;138 (1), 144 — Determination whether delay in seeldng reissue was excusable is within Conunissicner’s discretion.</p> <p>A determination whether the delay of more than three years after the issuance of the patent in seeking a reissue with broader claims was excusable is one largely within the discretion of the Commissioner, and will not be disturbed on appeal, unless manifest error has been committed.</p>

Til Error to the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge. Action at law by the Keystone Structural Company against the Link-Belt Company, judgment for defendant, and plaintiff brings error.

Petition to Superintend and Revise and Appeal from the District Court of the United States for the Eastern Division of the Southern District of Georgia; Beverly D. Evans, Judge. In the matter of the Yaryan Rosin & Turpentine Company, bankrupt. On appeal from and petition to revise an order allowing counsel fees to Max Isaac.

<p>In Error to the'District Court of the United States for the Eastern District of Missouri; John C. Pollock, Judge.</p> <p>Action at law by Benjamin Gratz ¿gainst James S. McKee and others. Judgment for defendants, and plaintiff brings error.</p>

<p>1. Judgment >§=>665- — Conctosiveneus o£ findings not affected because there were other parties in earlier suit.</p> <p>In a suit between fraternal beneficiary corporations, the conclusiveness of findings made in an earlier suit to which plaintiff and defendant were parties was not affected because subordinate branches or lodges were joined as plaintiff and defendants in the earlier suit.</p> <p>2. Judgment ©=>714(2) —Findings held conclusive in similar suit, though canse of action was different.</p> <p>The findings in a suit by a fraternal beneficiary corporation to enjoin the use of a similar name by another in the state of Connecticut, as to priority in the use of such name, and -complainant’s succession to the lights of a voluntary association first using it, were conclusive in a subsequent suit to restrain defendant from using such name anywhere in the United States.</p> <p>3. Corporations ©=>49 (2) — Evidence SisKS to warrant finding of plaintiff's prior uso of corporate nareie.</p> <p>In a suit by one fraternal beneficiary corporation to enjoin another from using the same name, evidence held to warrant a finding that the name was first used by a voluntary association to whose rights complainant had succeeded.</p> <p>4. Corporations <©=>49 (2) — Fraternal corporations entitled to sue to enjoin uso of name by others; “charitable eo. Miration’'; “eleemosynary corporation.”</p> <p>Fraternal beneficiary corporations organized and carried on for the mutual benefit of their members, and not for profit, and having no capital stock, but collecting assessment out of which payments are made upon the death or disability of members to designated beneficiaries, are not charitable or eleemosynary corporal ions and are entitled to have the use of the same or a similar name by another enjoined whether or not the law of unfair competition applies to charitable or eleemosynary corporations.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, Second Series, Charitable Corporation; First and Second Series, Eleemosynary.]</p> <p>5. Corporations ©=49(2) — Right t® enjoin use of name by another may fee asserted in any state where corporation dess business.</p> <p>That an incorporated fraternal order was organized and incorporated in Connecticut does not restrain its right to protection against the use of its name by another order to such state and its right to protection may be asserted under proper conditions in any state in which it is permitted to conduct its business.</p> <p>6. Corporations ©=49(2)- — Fraternal society adopting another's name not entitled to use it because first incorporated.</p> <p>A fraternal order adopüng the same name used by a voluntary association acquired no additional right to the use of the name because it was incorporated before the incorporation of such association.</p> <p>7. Trade-marks and trade-names ©=>21 — Right ordinarily depends on priority of appropriation.</p> <p>In the absence of exceptional circumstances, the exclusive right to a trade-name or trade-mark is founded upon priority of appropriation.</p> <p>8. Equity <3=>87 — Rights may be lost by laches.</p> <p>A right may be, waived or lost by failure to assert it at a proper time.</p> <p>9. Equity <@=>71 (1) — Laches not measured by days or months.</p> <p>The doctrine of estoppel by laches is not one which can be measured in days and months as though it were a statute of limitations.</p> <p>10. Equity <@=>80 — Laches not defense in case of fraud.</p> <p>In cases of fraud the defense of laches does not appeal to the conscience of the chancellor.</p> <p>11. Corporations <@=>49(2) — Fraternal corporation held not to have lost rights to protection of name by laches.</p> <p>An incorporated fraternal order held not to have lost its right to protection against the use of its name by another similar order by delay in asking relief.</p> <p>12. Corporations <@=>49 (2) — Bight of fraternal corporation to enjoin use of name not affected by large number of branches organized by defendant.</p> <p>Where defendant, a fraternal order, adopted the same name as a voluntary association to whose rights complainant had succeeded, the large number of branches organized by defendant or the fact that it had more branches than complainant did not defeat complainant’s right to an injunction against the use of the name, as the branches had no rights or equities superior to those of the organization of which they were a part.</p>

<p>In Error to the District Court of the United States for the Middle District of Pennsylvania; Charles B. Witmer, Judge.</p> <p>Action at law by Edward F. Murray against the Shipman Koal Company. Judgment for defendant, and plaintiff brings error.</p>

Holmes, Judge. Suit by Robert E. Townes against Evelyn Pope Townes, as guardian of Charlie Townes, a minor, and individually, to set aside a contract for the sale of land. Decree for complainant, and defendant guardian appeals.

Suit in equity by the Hawaiian Pineapple Company, Rimited, against Masamari Saito and Ribby, McNeill & Ribby, of Honolulu, Rimited. From a decree of the Supreme Court of Hawaii, reversing a decree of the circuit court in its favor, complainant appeals.

Action at law by Wladyslawa Krysiak, administratrix of the Estate of Adam Krysiak, against the Pennsylvania Railroad Company and Walker D. Plines, Director General of Railroads. Judgment for defendants, and plaintiff brings, error.

<p>1. Courts ‘S^>42@ — Jurisdiction of suits to recover additional compensation for property requisitioned for war purposes not repealed.</p> <p>The provision of Act Aug. 10, 1911, § 10 (Comp. St. 1918, Comp. St. Ann, Supp. 1919, § 3115%ii), conferring on the District Courts jurisdiction of suits by owners of property requisitioned thereunder to recover additional compensation, was not repealed by Act March 2, 1919, c. 94 (Comp. St. Ann. Supp. 1919, §§ 311514/1^-311514/1 r,e).</p> <p>t. Courts <S^>426 — Jury <§=^18- — District Court has jurisdiction of claim for additional compensation for property requisitioned, regardless of amount in controversy, and plaintiff has right to jury trial.</p> <p>In a suit in a District Court under Act Aug. 10, 1917, § 10 (Compv St. 1918, Comp. St. Ann. Supp. 1919, § 3U5!4ii), to recover additional compensation for property requisitioned for war purposes, the court has jurisdiction, regardless of the amount involved, and the plaintiff in such suit is entitled to trial by jury as in ordinary actions at law.</p>

<p>Appeal from the District Court of the United States for the First Division of the Northern District of California; Frank H. Rudkin, Judge.</p> <p>Habeas corpus by Chan Wy Shcung against Edward White, Commissioner of Immigration, Port of San Francisco. From a judgment awarding the writ, defendant appeals.</p>

<p>Appeal from the District Court of the United States for the District of Kansas.</p> <p>Habeas corpus by Joseph Davis against August V. Anderson, Warden. From a judgment refusing the writ petitioner appeals.</p>

Farrington, Judge. Action at law by Sophia Martinez, administratrix of the Estate of Carlos L. Martinez, deceased, against the Southern Pacific Company. Judgment for plaintiff, and defendant brings error.

<p>In Error to the District Court of the United States for the Western District of Pennsylvania; Charles P. Orr, Judge.</p> <p>Action at law by Joseph B. Kearney against the Demonstration Plantation Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from the District Court of the United States for the District of New jersey; Charles P. Lynch, Judge.</p> <p>Suit in equity by the A. Mecky Company against the George W. Travers Company. Decree for complainant, and defendant appeals.</p>

<p>Partnership ‘@=>197 — Action may be maintained by person doing business under another name.</p> <p>Rev. St. La. § 26(58, providing that “no person shall transact business in the name of a partner not interested in his firm, and when the designation ‘and company,’ or Co.,’ is used, it shall represent an actual partner or partners,” held not to preclude a person doing business under the name of a “company” from maintaining an action, where it is found as a fact that credit was not given him in the belief that he had, a partner, to prevent which is the purpose of the statute as construed by the Supreme Court of the state.</p>

Bodine, Judge. In the matter of the Standard Aero Corporation of New York, alleged bankrupt. Charles H. Reonard, petitioner. Bankrupt appeals from and petitions for revision of an order of adjudication.

Petition for Revision of Proceedings of the District Court of the United States for the District of New Jersey, in Bankruptcy; Charles F. Dynch, Judge. In the matter of the Standard Aero Corporation of New York, alleged bankrupt. On petition by bankrupt to revise orders of the District Court.

<p>In Admiralty. Cross-libels by the Gloucester Ferry ¡Company, owner of the steam ferryboat Peerless, against the steam tug Senator Penrose and the lighter Reading, and by the Baltimore & Philadelphia Steamboat Company, owner of the steam tug Senator Penrose and of the lighter Reading, against the steam ferryboat Peerless. On trial hearing on libel, cross-libel, and proofs.</p>

<p>1. Constitutional law <@=>77 — Intoxicating liquors <©=>134 — National Prohibition Act cannot bo extended by regulations.</p> <p>National Prohibition Act, tit. 2, § 1, which defines “liquor” and “intoxicating liquor,” “provided that the foregoing definition shall not extend to dealeoliolized wine nor to any beverage or liquid produced by the process by which beer, ale, porter or wine is produced if it contains less than one-half of 1 per centum of alcohol by volume and is made as prescribed in section 37 of this title and is otherwise denominated than as beer, ale or porter,” determines the scope of the act, and a beverage within the proviso is not within the purview of the act and cannot be brought within it by any “regulation” of the Commissioner of Internal Revenue therein authorized.</p> <p>2. Constitutional law <®=>77 — Regulations under National Prohibition Act invalid as beyond authority of executive department.</p> <p>A decision or regulation of the Commissioner of Internal Revenue, approved by the Secretary of the Treasury, purporting to be made under authority of the National Prohibition Act, prohibiting the, use of the words “Lager Bock or Stout” on labels for cereal beverages otherwise not within the act, hold unauthorized and not enforceable as an attempt to amend and enlarge the act not within the power of an executive department.</p>

<p>Removal of causes @=»103 — Failure of defendant to plead after removal ground for remand.</p> <p>Under Judicial Code, § 29 (Comp. St. § 1011), the tiling of a plea, answer, or demurrer by tlio removing defendant within 80 days after the tiling of the transcript is a part of the removal procedure, and on a failure to so plead within the time the court may, in the exercise of a legal discretion, grant a motion to remand.</p>

<p>In Equity. Suit by the St. Louis Union Trust Company against the Missouri & North Arkansas Railroad Company. On petition of receiver for instructions.</p>

In Admiralty. Suit for collision by the Booth Fisheries Company of Delaware and others against the Japanese steamer Mexico Maru, Osaka Shoshen Kabushiki Kaisha, claimant, and the City of Seattle, inter-vener, with cross-libel by claimant.

<p>1. Constitutional law <@=>135 — Contracts by public service corporations not inviolable.</p> <p>Contracts made by public service corporations, because of tbe interest of tbe public therein, are not to be classed with those personal and private contracts, the impairment of which is forbidden by constitutional provisions, and such contracts are not inviolable where, directly or indirectly, they affect rates to be charged (.he public, which on the one hand may not be made unreasonably high and on the other must be such as to afford the owners of the property a fair return on its fair value.</p> <p>i. Public Service Commission New, vol. 12A Key-No. Series — Court , will not order receivers to pay license taxes in advance of state commission's determination of validity.</p> <p>In view of Pennsylvania Public Service Act of 1913, creating a state Public Service Commission (Pa. St. 1920, §§ 18057-18214), and which as construed by the courts of the state vests such commission with power over rates and rate contracts, whether made before or after its passage by a public service corporation, a federal court having possession by its receivers of an extensive street railway system serving a large number of municipalities, many of which, under ordinance contracts granting franchises, have imposed license taxes on the. company, will not order its receiver^ to pay such taxes in advance of a determination by the Public Service Commission of their reasonableness and validity.</p> <p>3: Judgment ©=»738 — Not conclusive against public as to facts not controverted.</p> <p>. The judgment in an action which involved rights of the public will not be held to create an estoppel against the public as to a fact which was assumed because no evidence was offered in regard thereto.</p>

<p>1. Searches and seizures @=>7 — Waiver of objection to search.</p> <p>Consent of the owner that a person announcing himself a prohibition agent showing a badge and demanding the right might search premises held not a waiver of constitutional right to protection against unreasonable search.</p> <p>2. Searches and seizures <§=>7 — Garage within protection of Constitution.</p> <p>The constitutional immunity from unreasonable searches and seizures held to extend to a garage on the premises of his residence and used by the owner personally and in part rented to others.</p> <p>3. Intoxicating liquors <^=257 — Unlawful search mot made lawful by result.</p> <p>A search for' liquor, which was unlawful when it began, does not become lawful because liquor is found.</p> <p>4. Intoxicating liquors '@=>249 — Search of private garage without warrant unlawful.</p> <p>Entry by a prohibition agent without a warrant or consent of the owner into a private garage to search for liquor is unlawful.</p> <p>5. Criminal law @=>395 — Intoxicating liquors @=>25® — Liquor obtained through , unlawful search cannot be used as evidence, but must be returned when petition filed before trial.</p> <p>Liquor found and seized by a prohibition agent through an unlawful search of a private garage cannot be used as evidence to convict the owner of the garage of an offense, or for the forfeiture of his property if petition for its return is piesented to the court before trial, and the fact that city police officers aided in the search is immaterial.</p> <p>6. Intoxicating liquors <§=>250 — Essentials to forfeiture of vehicle.</p> <p>Forfeiture of an automobile; under National Prohibition Act Oct. 28, 1919, tit. 2, § 26, must be in strict pursuance to the terms of the statute, and the following elements are essential: (1) That an officer of the law discover some person in the act of illegally transporting liquor in the vehicle; (2) the seizure of the liquor so transported or possessed; (3) the seizure of the vehicle and arrest of the person; (4) that tne officer proceed against the person and retain the vehicle, unless redelivered to the owner on giving bond; (5) conviction of the person and order of sale of the vehicle; (6) distribution of the proceeds.</p> <p>7. Intoxicating liquors @=>249 — Automobile seized without warrant held not subject to forfeiture.</p> <p>The finding and seizure by a prohibition agent of an automobile standing in a private garage with liquor in it, on an illegal search without warrant, held not to authorize forfeiture of the automobile under National Prohibition Act Oct. 28, 1919, tit. 2, § 26.</p>

In Equity. Suit by G. Ricordi & Co., Incorporated, against tire Columbia Graphophone Company. On motion to confirm x'eport of special master.

At Law. Action by Dora E. Quereau, executrix of Wilson R. Quereau, deceased, against the Lehigh Valley Railroad Company. On motion by defendant to set aside verdict and for new trial.

<p>1. Highways <&wkey;122 — Statute as to special road tax repealed by implication by later statute.</p> <p>Acts N. C. 1913, c. 603, creating the board of road commissioners of Yancey county, to be a body corporate to have general authority over all the roads in the county, with power to construct and maintain roads, make contracts, and issue bonds to the amount of $150,000, held to repeal Acts N. C. 1907, c. 193, requiring the commissioners of Yancey county to levy a special tax annually, to be set apart as a sp.ecial road fund.</p> <p>2. Highways <&wkey;91 — County not liable for indebtedness of abolished road board in excess of statutory limit.</p> <p>Under Acts N. C. 1913, c. 603, creating a board of road commissioners of Yancey county, to have full charge of construction of all roads in the county, with authority to borrow money and issue bonds not to exceed $150,000, in amount, which act was repealed and the board abolished by Acts N. C. 1917, c. 113, the county of Yancey held not liable for indebtedness created by the board during its existence in excess of $150,000.</p> <p>3. Highways <&wkey;Bl — Duly of county to apply fund pro rata on claims against abolished board.</p> <p>Where the board of road commissioners of a county, which was a separate corporation, advanced money for the use of the county as a temporary loan, on the abolition of such board leaving unpaid obligations it was the duty of the county commissioners to apply the money due the board pro1 rata on all claims against it of which the commissioners had notice.</p> <p>4. Highways <&wkey;01 — Under statute validating indebtedness county held liable for indebtedness of abolished road board; “necessary expenses.”</p> <p>Under Act N. 'C. Aug'. 20, 1920, c. 3, which, as amended by Act Jan. 14, 1921, provides that “all indebtedness now outstanding incurred by a county or municipality for necessary expenses is hereby validated,” Yancey county held liable for an indebtedness incurred by its board of road commissioners, subsequently abolished, for labor and materials used in construction of public roads of the county, which under the decisions of the Supreme Court of the state was a necessary county expense.</p> <p>[Ed. Note. — For other definitions, see Words and 1’hrases, First and Second Series, Necessary Expenses.]</p>

In Equity. Suit by the Mohawk Oil Company against Mrs. Eula S. Eayne. On motion to dismiss, and on application for injunction. Plaintiff, assignee of certain oil leases from Herndon and Baines to Dun-son and associates, which it in turn had transferred to the Tex-la-homa Oil Corporation, brings this suit .to have annulled two certain judgments of the state court, affecting said leases, and to enjoin the defendant herein from enforcing same.

<p>1. Mines and minerals 4&wkey;?8(l) — Holder of lease not chargeable with failure to develop where third party developed under contract with both parties.</p> <p>Where the holders of oil leases covering tlie same land joined in a contract with a third party permitting liim to develop the property and bold the proceeds until the termination of litigation between the lessees, the bolder o£ the later lease could not be charged with a failure to develop the lands, and it was wholly immaterial which party took the initiative in making such contract.</p> <p>2. Champerty and maintenance >&wkey;>ñ (2) — Oil lease given pending suit to annul earlier leases not “litigious right.”</p> <p>Under Giv. Code La. art. 3556, § 18, and article 2653, relative to litigious-rights, and article 2652, authorizing the party against whom a litigious right is transferred to release himself by paying the price of the transfer' with interest, an oil lease made by the owner of land while a suit was pending to annul an earlier lease was not a. “litigious right” which the earlier lessee could purchase by paying the amount paid with interest.</p> <p>[vEd. Note. — For other definitions, see Words and Phrases, Litigious Right.]</p> <p>3. Champerty and maintenance <&wkey;i5(2) — No right “litigious” unless involved in litigation.</p> <p>Under the law of Louisiana, oo right is “litigious” unless it is actually involved in the litigation.</p> <p>4. Champerty and maintenance <&wkey;6(4) — Offer to purchase alleged litigious right does not inure to one claiming under the offerer.</p> <p>Where the holder of an oil lease offered to pay the holder of a subsequent lease the amount paid by him for the lease with interest on the theory that it was a litigious right within Civ. Code La. art. 2652, the offer did not inure to the benefit of one subsequently purchasing the earlier lease from the party making the offer.</p> <p>5. Champerty and maintenance <&wkey;6(5) — Right to purchase litigious right must be exercised without undue delay.</p> <p>Under Civ. Codé La. art. 2652, relative to the right of one against whom a litigious right is transferred to relieve himself by paying the price of the transfer with interest, he must in due time and without unnecessary delay elect to exercise the right or option conferred.</p> <p>'6. Champerty and maintenance <&wkey;( (5) — Right to purchase litigious right not lost by agreement between parties and a third person.</p> <p>Where the holders of oil leases covering the same property entered into an agreement with a third person for the development of the property, the proceeds to be held until the termination of litigation, and the agreement provided that it was made without prejudice to the rights of eitner party under their respective leases, any right which the holder of the earlier lease had to purchase the other’s lease as a litigious right under Civ. Code La. art. 2652, was thereby preserved.</p> <p>7. Champerty and maintenance &wkey;>6(5) — Earlier lessee not entitled to purchase subsequent lease as-litigious right after discovery of oil and accumulation of large profits.</p> <p>Where parties holding oil leases on the same land entered into an agreement with a third party for the development of the land, the proceeds to be held until the termination of litigation and the holder of the earlier lease made no offer to buy out the subsequent lessee until oil had been discovered, and profits exceeding 83,000 had accumulated, it was too late to attempt to purchase the subsequent lease as a litigious right under Civ. Code La. art. 2652.</p>

<p>1. Collision @=49 — Evidence held not to show fault of steamer colliding with fishing vessel.</p> <p>Evidence held insufficient to establish the fault of a steamer for collision with a fishing vessel at sea at night, in changing her course, but rather that it resulted from an admitted change of course by the fishing vessel made under misapprehension of the course of the steamer.</p> <p>2. Collision <&wkey;77 — Wrong position of lookout not contributing fault.</p> <p>The fact that the lookout on a steamer was stationed on the bridge instead of forward held not a fault contributing to a collision where each vessel seasonably discovered the other and kept her under continuous observation.</p>

<p>At Daw. Action by Flora Branch against the Farmers’ Fife Insurance Company. Trial to the court.</p>

<p>In Admiralty. Suit for collision by the Wilmington Steamboat Company, owner of the steamer Philadelphia, against Walker D. Hines, Director General of Railroads.</p>

Morris S. Rachmil and others were indicted for attempting to evade the income tax imposed by Act Feb. 24. 3 910. On plea in bar and motion to quash, filed by defendant Bloom.

In Bankruptcy. In the matter of Joseph D.' Tanory, bankrupt. On petition by Frank Cavallo for order requiring receiver to pay rent, and cross-claim by recéiver.

<p>United States <S=>125 — Emergency Meet Corporation not subject to suit for tort of agent.</p> <p>The United States Shipping Board Emergency Fleet Corporation, as a corporation organized for governmental purposes, held not subject to suit for a tort committed by an agent.</p>

<p>In Admiralty. Suit by the Erie Railroad Company against the Boston, Cape Cod & New York Canal Company. On motion by li-belant to discontinue.</p>

<p>1. Patents 0=>1<)5(2) — Interference claims to be read in light of application from which taken.</p> <p>So far as the issue claims in an interference proceeding are taken from one of tlie parties, they must be read in the light of his application. „ -</p> <p>2. Patents <S»108(2) — "Gripper,” as us.ed in interference claims, defined.</p> <p>A “gripper,” as used in issue claims in an interference proceeding involving sheet-feeding mechanism for printing presses, is a device which takes hold of or grips, and indicates something capable of a clamping action, and a party who has nothing of this character is not entitled to the claims calling for grippers.</p>

<p>Appeal from a Decision of the Commissioner of Patents.</p> <p>Interference proceeding in the Patent Office between Ward B. Story and Charles P. Cottrell. From a decision awarding priority to Cottrell, Story appeals.</p>

<p>Appeal from the Commissioner of Patents.</p> <p>Interference proceeding between Nelson C. Massey and another and I lerman De Witt Ridge. From a decision of the Commissioner of Patents, awarding a priority to Ridge, Massey and another appeal.</p>

Petition by the Curtis Publishing Company against the Federal Trade Commission to review an order of the Commission requiring petitioner to desist from certain practices found by the Commission to be unfair competition.

Petition to Superintend and Revise Decree in Bankruptcy of and Appeal from life District Court of the United States for the District of Oregon; Robert S. Bean, Judge. In the matter of the Eilers Music House, bankrupt; H. W. Sitton, trustee. On appeal and petition to revise by the Oregon Eilers Music Plouse. Petition to revise dismissed.

<p>1. Costs <©=>'199 — Not required to be taxed during term when judgment was rendered.</p> <p>Where judgment was for the amount of the verdict “and costs,” no amount being specified, in the absence of any statute or rule of court, there is no requirement that the costs shall be taxed during the term at which the judgment was rendered.</p> <p>2. Appeal and érror <§=87 (10) — Order denying for want of power allowance of costs reviewable.</p> <p>An order, made after judgment, denying a motion of plaintiff for allowance of costs or expenses, when based on want of power in the court to make the allowance, held reviewable.</p> <p>3. Attachment <2=193 — Expense of keeping attached property taxable as costs.</p> <p>Where coal when attached was in barges owned by plaintiff and was kept in them by the marshal until sold, plaintiff was entitled to have the reasonable rental value of the barges during such time taxed as costs, or to have it allowed as an expense incurred by the marshal on distribution of the fund produced by the sale, and a motion for such allowance is timely, if made at any time before distribution.</p> <p>4. Judgment <§=>735 — Not conclusive of matter not in issue.</p> <p>A judgment for damages for breach of a contract for carriage of coal by plaintiff, in which he used a number of barges, held not to include the value of the use of the barges by the marshal for storage of property attached in the action.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Michigan; Arthur J. Tuttle, Judge.</p> <p>Suit in equity by the Gear Grinding Machine Company against the Studebaker Corporation. Decree for defendant, and complainant appeals.</p>

<p>In Error to the District Court of the United States for the Western District of Louisiana; George Whitfield Jack, Judge.</p> <p>Action at law by James W. Atkins against E. C. Garrett. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Attachment —Action for tort is “action for recovery of money.”</p> <p>Under Bums’ Ann. St. Ind. 1914, § 947, authorizing attachments in “actions for the recovery of money,” an attachment is authorized in tort actions for damages.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Action for Recovery of Money.]</p> <p>2. Damages <3=^42 — Cost of redredging and additional cost of more expensive method of doing work held proximate result of interruption of work.</p> <p>Where defendants wrongfully interrupted plaintiff’s dredging operations, and the trenches dredged filled up to some extent, and the delay also carried the work later into the fall season, and necessitated the use of a more expensive method of doing the work, the cost of clearing out or redredging the excavations, and of the more expensive mode of con-strucuon, were damages proximately resulting from the tortious act.</p> <p>3. Judgment '3=>S27 — Conclusive in favor of contractor employed by party whose lights were adjudicated.</p> <p>A judgment in favor of the M. Co. against defendants, adjudging (hat the M. Co., under a grant from defendants, had a lawful right to lay pipes at a particular point in the bed of a lake, was conclusive, in favor of a contractor employed by the M. Co. to do the work, that defendants’ interference with the work was wrongful.</p> <p>4. Torts <3^27 — Evidence as to negotiations for settlement and abandonment thereof held immaterial.</p> <p>Where defendants wrongfully interrupted plaintiffs’ dredging operations, and, after resumption of the dredging, again interfered with tno work, evidence, in an action for damages, that the work was resumed in pursuance of negotiations for a settlement with the party employing plaintiff to do the work, and that the second interference was because or the abandonment of such negotiations, was properly excluded as immaterial.</p>

<p>In Error to the District Court of the United States for the Northern Division of the Western District of Washington; Edward E. Cush-man, Judge:</p> <p>Action by Estelle R. Blum against the United States Fidelity & Guaranty Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Customs duties &wkey;>62 — Statute requiring manifests to state cargo were to aid in collection of duties.</p> <p>Rev. St. §§ 2806-2809 (Comp. St. §§ 5503-5306), requiring merchandise brought in to be included in manifest, and imposing a penalty for violation, were designed to enable the government to collect the duties on dutiable articles coming into this country from foreign ports.</p> <p>2. Customs duties >&wkey;129 — “Merchandise” “capable of being imported” includes only lawful imports; “chattels;” “capable.”</p> <p>Within Rev. St. § 2760 (Comp. St. § 5462), defining “merchandise,” as used in that title, as including goods, wares, and chattels of every description, capable of being transported, merchandise means any movable object of trade or traffic, “chattels,” which may include every species of property less than freehold, obviously only refers to chattels 'personal, which include all things movable, and “capable” means fit, or adapted, or possessing legal capacity for, so that the phrase “capable of being imported” refers only to things which may be lawfully imported.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Capable; Chattel; Merchandise.]</p> <p>3. Statutes <&wkey;188 — Words given common meaning, unless limited by context.</p> <p>Words of common use are to be understood in their natural, plain, ordinary, and genuine signification, as applied to the subject-matter of the enactment, unless such meaning is limited by the context.</p> <p>4. Customs duties &wkey;>129 — Master not liable for penalty for omitting smoning opium from manifest; “merchandise.”</p> <p>Under Comp. St. §§ 8800, 8801, prohibiting the importation of opium prepared for smoking, such opium is not “merchandise,” as defined by Rev. St. § 2766 (Comp. St. § 5462), since it cannot be lawfully imported, and therefore the master of a vessel is not liable for the penalty imposed by Rev. St. § 2809 (Comp. St. § 5506), on merchandise brought into the country without being shown on the vessel’s manifest; the words “brought into,” as used in section 2809, not having the effect of enlarging the definition of merchandise, contained in section 2766.</p> <p>5. Statutes <&wkey;224 — Meaning of words and phrases not fixed by use in unrelated statutes.</p> <p>The signification of words and phrases is not to he fixed by their use in totally unrelated statutes.</p> <p>6. Customs duties <&wkey;129 — Opium statute held not to change construction of merchandise in customs laws.</p> <p>Comp. St. § 8801f, subjecting a vessel which brings in opium not included in its manifest to the penalty imposed by Rev. St. § 2809 (Comp. St. § 5506), on the vessel and the master for merchandise brought in without being included in the manifest, does not enlarge the construction of the word “merchandise,” as used in the Revised Statutes section, so as to include opium prepared for smoking, which could not be lawfully imported, within the Revised Statutes section.</p> <p>7. Customs duties' <=>129 — Statute extending penalty to vessel held not to extend it to master.</p> <p>Comp. St. § 880.1. t, subjecting a vessel which brought in opium prepared for smoking, which was not included in its manifest, to the penalty imposed by Rev. St. § 2809 (Comp. St. § 5508), on the vessel and the master for merchandise brought in without being included in the manifest, did not make the master of a vessel, which brought in such smoking opium, liable for the penalty.</p> <p>Hunt, Circuit Judge, dissenting.</p>

<p>Shipping <&wkey;104 — Vessel not liable on contract of charterer.</p> <p>A steamship, under a time charter, which was not a demise, and whose master, as required by the charter party, on request of the charterer, signed bills of lading; for a shipment received at a stated rate of freight, held bound only by the contract expressed in such bills, and n'ot liable to the shipper for the difference between the rate named 'therein and the rate previously agreed upon between the shipper and charterer.</p>

<p>Bankruptcy >&wkey;188(2) — Property held under conditional sale contract passes to trustee.</p> <p>Under the law of Pennsylvania and Bankruptcy Act, § 47a (2), as amended by Act June 25, 1910 (Comp. St. § 9631), which vests a trustee with all the rights of a creditor holding a lien by legal or equitable proceedings, property held by a bankrupt under a conditional sale contract, and passing into the hands of his receiver, cannot be reclaimed by tbe seller.</p>

<p>1. Attorney and client <&wkey;03 — Attorneys hold in privity with plaintiff, whose agent was member of syndicate employing them.</p> <p>Where plaintiff’s agent procured an option for the purchase of land, and attorneys were employed by a syndicate of prospective purchasers, of which plaintiff, through the agent, was a member, to give an opinion as to the title, the attorneys were in privily w'ith plaintiff, and under the fiduciary relation to it of attorneys to a client.</p> <p>2. Fraud >&wkey;13(l) — Representation may be fraudulent, though having basis of truth; “fraudulent representation.”</p> <p>A representation made with fraudulent intent is fraudulent, where its implications are false, and made with intent to deceive, though there bo a basis of truth underlying it.</p> <p>r,Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Fraudulent Representation.]</p> <p>3. Attorney and client <&wkey;114 — Opinion of attorneys as to title of land held fraudulent.</p> <p>An opinion furnished prospective purchasers of land by attorneys held fraudulent, in the specific false statements as to the attorneys’ opinion respecting the title, in the false inference intended to be thereby conveyed, and in essential matters concealed and withheld, which it was their duty to disclose.</p> <p>4. Vendor and purchaser <&wkey;43(l) — Purchaser held not to have affirmed contract induced by fraud.</p> <p>Where plaintiff purchased land, taking the deed in the name of its agent in reliance on a fraudulent opinion as to the title, given by attorneys in collusion with the vendor, and subsequently took a substituted deed to itself, and executed a note and mortgage for the balance of the purchase price, but at the time thought there would be only a comparatively slight deficiency in acreage, the execution of the papers and acceptance of the new deed did not constitute an affirmance of the original purchase with knowledge of the fraud.</p> <p>5. Vender and purchaser <&wkey;113 — Purchaser entitled to rescind, when vendor cannot give title to material portion.</p> <p>Where the false representation inducing the purchase of land relates to the quantity, and the vendor is unable to convey title to a material portion, constituting the principal inducement to the purchase, this is such injury as entitles the purchaser to rescind.</p> <p>6. Vendor and purchaser <&wkey;>37 (3)-- -False opinion of attorneys in collusion with vendors held representation of fact; “trade talk.”</p> <p>Where attorneys in collusion with a vendor gave a prospective purchaser an opinion as to the title to the land, which .was fraudulent and not their real opinion, such opinion was not mere “trade talk,” but a representation of fact, and constituted ground for rescission.</p> <p>7. Corporations <&wkey;661(2) — Foreign corporation, doing business without complying with statute, is entitled to sue to rescind contracts.</p> <p>Assuming that a foreign corporation was carrying on business in Ken-tuelcy, and that its failure to comply with Ky. St. § 571, prevented it from enforcing a contract for the purchase of land, it might nevertheless sue to rescind the contract for fraud.</p> <p>8. Corporations <&wkey;661(2) — Foreign corporation’s right to sue for rescission not defeated by prayer for alternative relief.</p> <p>The right of a foreign corporation, doing business in Kentucky without compliance with Ky. St. § 571, to sue for resc sson'of a contract on the ground of fraud, is not defeated by a prayer for reformation as alternative relief.</p> <p>9. Vendor and purchaser <&wkey;341 (5) —Purchaser on rescission entitled to recover payment to third person as commission.</p> <p>On rescission of a contract for the purchase of land for fraud, the purchaser was entitled to recover the amount paid by it, including an amount paid to a third person on behalf of the vendor as a commission.</p> <p>10. Vendor ana purchaser &wkey;341((>) — Purchaser, on rescission, entitled to recover payment from vendor and attorneys participating in fraud.</p> <p>Where plaintiff’s purchase of land was induced by the joint fraud of the'vendor and attorneys giving a fraudulent; opinion as to the title, plaintiff was entitled to a decree for the amount paid against all of them on a rescission of the contract.</p> <p>11. Vendor and purchaser <&wkey;341 (5)- — Allowance of interest on rescission by purchaser is discretionary.</p> <p>On rescission of a contract to purchase land by the purchaser, the allowance of interest on the amount paid is discretionary.</p> <p>13. Vendor and purchaser <&wkey;341(6) — On rescission for fraud, interest allowed against parties receiving price.</p> <p>On rescission of a contract to purchase land for fraud of the vendors and attorneys in collusion with them, interest would be allowed against each of the defendants on the amount received and retained by them.</p> <p>13. Vendor and purchaser @=341(5) — On rescission for fraud, purchaser entitled to recover expenditures on account of purchase, but not other expenditures.</p> <p>On rescission of a contract to purchase land for fraud, the purchaser is entitled to recover expenditures on account of the purchase before discovery of the fraud, but not expenditures in investigations prior to the purchase or expenses incident to the suit for rescission.</p> <p>14. Conspiracy <&wkey;16 — Suit to rescind for fraud held not barred by statute applicable to conspiracy.</p> <p>A suit to rescind a contract to purchase land on the ground of fraud of •the vendor and attorneys employed to give an opinion as to the title is not barred by Ky. St. § 2516, requiring actions for conspiracy to bo commenced within one year, which relates only to the technical common-law writ of conspiracy.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Conspiracy.]</p> <p>15. Vendor and purchaser <&wkey;337 — On rescission for fraud, purchaser held entitled to lien to secure repayment.</p> <p>On rescission of a contract to purchase land, the purchaser is entitled to a lien on the land to secure repayment of the purchase price and payment of expenses, which he may be entitled to recover, and to have a decree of saie to enforce such lien.</p> <p>16. Appeal and error <§=>278 — Exceptions not brought to court’s attention by agreement dispensing with specific exception.</p> <p>Exceptions to the testimony in a suit in equity are not properly brought before the court by an agreement that exceptions noted at the taking of tlie testimony shall be considered by the court without specific exception thereafter, as the court cannot be required to search the record for exceptions.</p>

<p>Salvage <©=23 — Shipping <&wkey;51 — ‘Charterer liable for breaking' away of lighter and for salvage.</p> <p>A subeliarlerer of a derrick lighter, which moored her at a dock from which she broke away during a storm of which warning had been given several hours before, suffering damage to herself and cargo, and doing damage to another vessel, hold primarily liable for such damage and for salvage services rendered to her and her cargo.</p>

<p>1. Collision <&wkey;122 — Evidence to establish.</p> <p>The doctrine of res ipsa loquitur cannot be invoked to establish that an injury to a vessel was caused by collision with another, and the liability inferred, unless there is evidence of some injury inflicted.</p> <p>2. Collision <&wkey;74 — Evidence to establish.</p> <p>Evidence, though directly in conflict, held sufficient to, establish that a steamship, in passing out of a slip, came in contact with a barge lying outside another at a pier, and her liability for the sinking of the barge, which followed almost immediately afterward, in the absence of any Other cause shown.</p>

At law. Action by the Gulf, Colorado & Santa Fé Railway Company and another against the Cities Service Company and another. On motion to strike out parts of declaration.

In Admiralty. Suit by the National Interocean Corporation and others, against the Emmons Coal Mining Corporation and others. On exceptions to amended libel and rule on respondents to answer.

<p>1. War <&wkey;12 — Proceeding to enforce delivery of property to Alien Property Custodian.</p> <p>Under Trading with the Enemy Act, § 17 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3115%i), a District Court may proceed on the petition oí the Alien Property Custodian to compel delivery of property alleged to belong to an alien enemy, and a formal bill in equity is not required.</p> <p>2. War <&wkey;12 — Proceeding to enforce delivery of property to Alien Property Custodian.</p> <p>Section 7c of the statute (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3115%d[c]) makes mandatory delivery of property to the Alien Property Custodian on‘his demand and in a proceeding to enforce such demand his determination under authority delegated by the President, cannot be controverted.</p> <p>3. War <&wkey;12 — Proceeding to enforce delivery of property to Alien Property Custodian.</p> <p>So long as the Alien Property Custodian is exercising his powers under the authority of Congress, a court, in a proceeding to enforce his demand for delivery of property, cannot take into consideration the fact of the Armistice or that peace with Germany has been signed by other nations,</p>

<p>1. Shipping <&wkey;209(l) — Filing answer, asking limitation of liability, makes respondent party for all purposes.</p> <p>Where the charterer of a barge in which he had undertaken to carry a cargo for libelant voluntarily filed an answer, claiming limitation of liability, and a crpss-libel in a suit in rem for damage to the cargo, his dismissal without leave of his cross-libel did not have the effect of withdrawing his appearance as a respondent for all purposes of the suit.</p> <p>2. Shipping <&wkey;208 — Charterer of barge held not entitled to limitation of liability.</p> <p>The charterer of a barge, which was old and worth not to exceed $550, who contracted to carry a cargo worth $70,000 from New York to Baltimore, and personally sighed the bills of lading and superintended its loading into the barge, held not entitled to a limitation of liability for damage to the cargo, resulting from the unseaworthiness of the barge for such service and the improper loading and covering of the cargo.</p> <p>3. Evidence <&wkey;355(7) — Ex parte survey found among papers of deceased surveyor not admissible in evidence.</p> <p>A writing found among the papers of a deceased surveyor, purporting to be a survey of a vessel made at the request of one only of the parties to a suit, held not admissible in evidence.</p>

<p>1. Corporations 1&wkey;573 (1) — Reorganization plan must be fair to all stockholders.</p> <p>A transfer of the assets of a corporation to a new corporation, as a part of a reorganization' plan by which the stockholders of the old company are to have an interest in the new one, will be set aside as fraudulent, unless all stockholders of the same class are allowed to participate on equally favorable terms.</p> <p>2. Corporations t&wkey;5i‘3 (1) —Reorganization ñ audulent in law.</p> <p>A pian of reorganization adopted by a corporation held fraudulent, where holders of common stock who owned no preferred stock wore permitted to exchange their stock, share for share, for that of the new company, but those who also owned preferred stock were required, as a condition to such exchange, to exchange their preferred stock for that of the new company, paying in cash a sum equal to its par value, or in effect to buy an equal number of shares of the new preferred stock.</p>

<p>In Admiralty. Suit by P. E. Richards, as liquidator of the Steamship Tregenna Company, Limited, owner of the steamship Mavisbrook,. against the steamship Carolinian. On exceptions to libel.</p>

<p>Patents &wkey;>113(7) — Decision oí three Office tribunals that party could' make claims is followed, unless palpably wrong.</p> <p>Where the three tribunals of the Patent Office concurred in holding that the senior party was entitled to make the claims corresponding to the counts, the Commissioner’s decision will be affirmed, unless such conclusion was palpably wrong.</p>

<p>Appeal from a Decision of the Commissioner of Patents.</p> <p>Interference proceeding in the Patent Office between Elmyr A. Laughlin, junior party, and Vincent J. Burry, senior party. From a decision in favor of the senior party, the junior party appeals.</p>

<p>1. District of Columbia <&wkey;19 — Ordinance restricting business buildings held in conflict with zoning act.</p> <p>The ordinance of the Commissioners of District of Columbia restricting the erection of business buildings in residence blocks, even if authorized by Act June 14, 1878, empowering them to make building regulations, was in direct conflict with Act March 1, 1920, creating a zoning commission, to adopt regulations specifying, among other things, the purposes for which buildings and premises in the several areas might be used, and repealing all laws in conflict therewith.</p> <p>2. District of Columbia <&wkey;19 — Commissioners’ authority to enforce regulations of zoning cojianissson does not authorize ordmauce restricting business buildings.</p> <p>Zoning Act, § 10, authorizing the Commissioners of the District to enforce the act and the regulations of the zoning commission, and providing that nothing therein shall limit the authority of the Commissioners to make municipal regulations not inconsistent therewith, does not authorize the Commissioners to adopt an ordinance restricting the erection of business buildings in certain blocks.</p> <p>3. District of Columbia &wkey;>19 — Building regulation repealed by Zoning Act before time for commission to act.</p> <p>The Zoning Act, which repealed inconsistent acts in prsesenti, operated immediately to deprive the Commissioners of the District of jurisdiction to enact building regulations in conflict with the jurisdiction conferred upon the zoning commission, so that such regulation was invalid, though the six months’ period within which the zoning commission was required to act had not expired at the time of adoption of the Commissioners’ regulation.</p>

<p>Appeal from the Supremo Court of the District of Columbia.</p> <p>Mandamus by W. Walton Edwards against Louis Brownlow and others. From a judgment refusing the writ, petitioner appeals.</p>

<p>1. Trade-marks and trade-names &wkey;>43 — Picture of negro held to infringe bust picture of negress.</p> <p>The owner of the well-known trade-mark for Aunt Jemima’s pancake flour, consisting of a bust picture of a smiling negress with a handkerchief wrapped about her head and shoulders, can oppose an application for registration of a mark for similar goods, consisting of the word “Sambo,” with the representation of a negro having a white cap and wearing a long apron, since, even though the products were called for by the name, the similarity of tlio pictures might deceive purchasers.</p> <p>2. Trade-marks and trade-names <&wkey;43 — Adoption of similar mark implies intention to take advantage of reputation.</p> <p>Where a new manufacturer adopts as his trade-mark a representation similar to that of an existing well-known trade-mark of a manufacturer of the same class of goods in the same vicinity, the only inference possible is that of gaining advantage from the wide reputation of the established manufacturer.</p> <p>3. Trade-marks and trade-names <&wkey;44 — Doubts resolved in favor of opposer.</p> <p>In determining an opposition to registration of a trade-mark, doubts will be resolved in favor of the opposer.</p> <p>Smyth, Chief Justice, dissenting.</p>