Volume 272 — Federal Reporter

W. Anderson, Judge. Suit in equity by the Arkell Safety Bag Company against the Safe-pack Mills. Decree for defendant, and complainant appeals. The following is the opinion of Anderson, Circuit Judge, in the court below: The plaintiff’s counsel lias presented his client’s contentions with extraordinary ability, learning and grace.

<p>Appeal from the District Court of the United States for the Eastern Division of the Southern District of Ohio; John E. Sater, Judge.</p> <p>Suits by Ed. Slocum, trustee in bankruptcy of John Joy Halliday and Annie Joy Halliday, against the Delaware National Bank and others. From the decree the City National Bank, the Delaware National Bank, and Ruth Halliday and others separately appeal.</p>

Cross-Appeals from the District Court of the United States for the Western Division of the Southern District of Ohio; John W. Peck, Judge. Suit by the National Fireworks Distributing Company against the Edwards Manufacturing Company. From a decree for plaintiff for insufficient relief, both parties appeal.

<p>1. Witnesses @=>148 — Beneficiary can testify to conversation with insured in suit against company.</p> <p>Rev. Codes Mont. § 7891, cl. 4, as amended by Laws 1913, c. 41, making incompetent as witnesses parties to an action against any person or corporation as to the facts of direct transactions or oral communications between the proposed witness and the deceased, does not exclude the testimony of the beneficiary under an insurance policy, in an action to recover the amount of the policy, to a conversation with the insured before his death.</p> <p>2. Witnesses (§=3192 — Statute excluding “communications” of wife refers only to confidential communications.</p> <p>Rev. Codes Mont. § 7892, forbidding testimony by a wife without her husband’s consent as to any communication made by one to the other during the marriage, though not limited expressly to confidential communications, should be construed as applying only to such communications, since there is no public policy excluding such testimony further than necessary to guard the marital relation.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Communications.]</p> <p>3. Witnesses <^>192 — Communications by husband testified to by wife held not “confidential communications.”</p> <p>In an action on a life insurance policy brought by the wife of insured, in which the defense was suicide, testimony by the wife to conversations with her husband shortly before and immediately after the shooting, showing that the husband was not contemplating suicide and that the shooting was accidental, are not “confidential communications” and were not inadmissible under Rev. Codes Mont. § 7892.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Confidential Communication.]</p> <p>4. Insurance <§=^659(2) — Evidence shewing state of mind heM admissible to rebut defense of suicide. „ . .,</p> <p>„ . ., In an action on a life insurance policy, where the defense was suicide, evidence by a friend of insured as to the statements of insured showing absence of motive to commit suicide, and showing a reason for the purchase of the gun with which the wounds were inflicted, was admissible to rebut the defense.</p> <p>5. Evidence ¿§=473 — Testimony that a person appeared ignorant of operation of gun held not an opinion.</p> <p>In an action on a life insurance policy, where the defense was suicide, testimony by a witness who had sold to insured the gun with which the fatal Injury was inflicted, and who stated that insured did not know how t.o operate the pistol and related in detail the instructions he gave insured, that insured appeared to be wholly ignorant as to the operation of the gun, was not an expression of opinion, but merely an abbreviated way of relating the facts as he elsewhere had stated them.</p>

Bourquiu, Judge. Action by W. D. Ignatius, as trustee of the estate of J. R. Crites, bankrupt, against the Farmers’ State Bank of Havre, Mont. Judgment for defendant, and plaintiff brings error.

<p>In Error to the District Court of the United States for the New Orleans Division of the Eastern District of Louisiana; Rufus E. Eoster, Judge.</p> <p>Action by the C. D. Kenny Company against J. N. Pharr & Sons, Limited. Judgment for plaintiff, and defendant brings error.</p>

In Error lo the District Court of the United States for the Southern District of New York. Criminal prosecution by the United States against Albert H. Wiggins. Judgment of conviction, and defendant brings error. The plaintiff in error was the defendant below and is hereinafter referred to as the defendant.

<p>In Error to the District Court of the United States for the Eastern District of Virginia, at Norfolk; Edmund Waddill, Jr., Judge. _</p> <p>_ Separate actions by the United States against W. I,. Whitehurst, against W. E. Hudgins, and against N. M. Jones, which by consent were tried together. Judgments for the United States, and each defendant brings error.</p>

Action by Robert D. V. Carroll, trustee in bankruptcy of the Mac-donald & Kiley Company, against the Melville Shoe Corporation. Judgment for defendant, and plaintiff brings error. This is an action brought by the trastee in bankruptcy of the Macdonald & Kiley Company, a corporation organized under 1Jie laws of West Virginia, and having a place of business in the .city of Cincinnati, in the state of Ohio.

Action by Philip A. Warner against Gaston, Williams & Wigmore of Canada, Rimited. Judgment for plaintiff, and defendant brings error. The plaintiff in error was defendant below, and will be referred to hereinafter as defendant. The defendant in error was plaintiff below, and will be referred to hereinafter as plaintiff. The plaintiff is a citizen of the state of New York, residing in the Southern District there* of.

Cross-Appeals from the District Court of the United States for the Eastern District of Virginia, at Norfolk; Edmund Waddill, Jr., Judge. Eihel by the Standard Oil Company, owner of the steamship John D. Rockefeller, against the steamship Ealls City, with cross-libel by D. Davies, as master and claimant of the steamship Falls City, against the steamship John D. Rockefeller. From a decree'dismissing the libel and cross-libel (260 Fed. 982), both vessels appeal.

<p>1. Public lands &wkey;>183 — Evidence held to warrant finding that grant from the state was not proved.</p> <p>In ejectment, where plaintiff’s title depended on a grant from the state, the record of which did not bear the signature of the Governor, evidence held to warrant a finding that plaintiff had not sustained the burden of showing'the execution of the grant.</p> <p>2. Appeal and error <&wkey;1046(3) — Ruling as to burden of proof immaterial, when court found weight of evidence was against plaintiff.</p> <p>That the District Court erroneously imposed on plaintiff the burden of establishing the execution of a lost grant from the state by conclusive proof was immaterial, where the court explicitly found that the weight of evidence was against the inference that the grant was ever executed.</p> <p>3. Lost instruments <&wkey;23(3) — Degree of proof required stated.</p> <p>Evidence of the existence of an instrument conveying land alleged to be lost must not only be preponderant, but so strong and clear that the mind of the judge or jury rests with complete satisfaction on the conviction that the security of land titles will not be disturbed by a finding in favor of the existence of the alleged lost instrument.</p>

<p>1. Mines and minerals '&wkey;li5 — ’¡"¡amsiGsi for arbitration in lease held to apply to differences as to rent for renewal term, as affecting validity o£ renewal clause.</p> <p>Where an oil and gas lease gave lessee the right of renewal on expiration of the term “at an agreed rental and royalty not less than the annual rent and royalty as reserved by this lease,” and also provided that “all questions and differences arising under this lease” should be arbitrated as therein prescribed, the latter provision hold to apply to any difference which might arise as to the rent and royalty for the renewal term; and to remove any uncertainty as to such rent and royalty which might affect the validity of the renewal danse.</p> <p>2. Ejectment —Lessor without standing to maintain, ejectment against lessee.</p> <p>Where a lessee is in possession with right of renewal, and has given notice of liis election to exercise the right, the lessor cannot acquire a right of possession which will qualify him to maintain ejectment against the lessee by refusing to agree on the rental for the renewal term, or. to arbitrate the question as required by the lease.</p> <p>3. Landlord and tenant <&wkey;8i>(2) —Lessee should give notice of election to renew by end of term.</p> <p>A lessee should give notice of his election to renew under the terms of his lease before or at the termination of the original term, though such notice need not be a formal written or even oral communication; but any act, expression, or course of conduct indicating his election to renew is sufficient.</p>

<p>1. Navigable waters -Movement of rives’, wIiMi washed away Mamá, iicLJ not avulsion.</p> <p>A movement of the channel of a river during the course of nine years, whether resulting from a shift in the channel higher up, or from some other cause, which caved off and washed away the upper ends of two islands theretofore existing, was not an avulsion.</p> <p>2. Navigable waters ©=>44(11) — Eviáoaco faeM not to show Ians! was aecrctiom of Island within state, note which plaintiff elaiiiteil.</p> <p>In an action to quiet title to land lying on ihe east side of the main channel of the Mississippi river, but on the site of former islands which had admittedly been in Arkansas, evidence 7k<iUl not to sustain the contention of plaintiff, who purchased it at an Arkansas tax sale, that the land in controversy was an accretion of land originally on the Arkansas side of the main channel, or was a part of an island which itself was an accretion to one of the original islands, and therefore not to show it was in Arkansas.</p>

Dayton, Judge. In the matter of R. M. Smith & Co., bankrupt; the Union Trust & Deposit Company, trustee. John W. Farnsworth-, special receiver of the Smith-Chapman Lumber Company, appeals from an order of 'the District Court.

<p>1. Insurance «&wkey;58í>, 587 — Beneficiary without vested right, when right to change reserved, and not entitled to notice of change.</p> <p>One named as beneficiary in a life insurance policy, in which the right to elmnge the beneficiary is reserved, has no vested interest, and is not entitled to notice of change.</p> <p>t. Insurance ©=>587- — Insurer without discretion to refuse to indorse change of beneficiary.</p> <p>Under a life policy reserving the right to change the beneficiary, the change to fake effect only when indorsed by the company on the policy, the company has no discretion to refuse to indorse the change on the ¡policy, when insured has sent the policy to it with a request for the cnange.</p> <p>3. Insurance <&wkey;587-~Change of beneficiary treated as made, when insured has dene all that he could.</p> <p>Under a life policy reserving the right to change the beneficiary, effective only when indorsed by the company on the policy, equity, considering that as done which ought to be done, will treat the change as actually made when insured has done all that he could to meet the conditions for change required by the policy.</p> <p>4. Insurance <&wkey;587 — -Required conditions for indorsement ©£ change of beneficiary may be waived.</p> <p>Under a life policy reserving the right to change the beneficiary, er-fective when indorsed by the company on the policy, the insurer may waive performance of the conditions required for the indorsement of me change.</p> <p>5. Ins; .rauco <&wkey;587 — -Conditions of change of beneficiary fixed by contract, and cannot be changed.</p> <p>The power to change the beneficiary under a policy is a power of appointment, and the terms of its exercise are fixed by the contract between insurer and insured for the protection of both parties, and the court has no power to change the contract by changing such conditions.</p> <p>8. Insurance <&wkey;587 — Insured’s intended change of beneficiary held not effective.</p> <p>Under a life policy reserving to insured the right to change the beneficiary, effective when indorsed by the company on the policy, where in sured wrote an agent, asking ill at a change be made, effective immediately, but, on receiving proper blanks, delayed executing them, because in baggage that was in .storage, and, after executing the formal request for change, failed to forward it to the company, accompanied by the policy, though for over a month before his death the policy was at hand, the change was not effected, as insured must do all that he can to comply with the conditions of the policy before his intention will be effectuated by the courts.</p>

<p>In Error to the District Court of the United States for the Northern District of West Virginia, at Parkersburg; Alston G. Daytdn, Judge.</p> <p>Criminal prosecution by the United States against Benjamin H. England. Judgment of conviction, and defendant brings error.</p>

<p>Railroads <&wkey;4@0 (6) —Negligent irjnry in yards held epaectiom for jury.</p> <p>In an action for injury to plainüit while crossing the trades in a yard of defendant railroad company at night, with some 500 other workmen who were accustomed to cross the tracks both day and night in going to and from work, with the knowledge of defendant, where there was evidence tending to show that plaintiff was struck by a cab kicked along a crossover track without signal, control, or lights, the question of defendant’s negligence held properly submitted to the jury.</p>

<p>1. Bankruptcy @=>408(2) — Discharge held not barred by false oath in schedule as to nonownership of property.</p> <p>A bankrupt’s discharge was not barred on the ground that he made a false oath in his schedule, in that he denied ownership of certain lots, where a creditor, more than a year before the bankruptcy, had secured judgment against him, which became a lien upon, and for several times the value of, the lots, and within less than 20 days after the alleged false oath the same creditor got a tax title to the lots, and, more than two years before the alleged false oath, the bankrupt had executed a warranty deed to the lots, but it bad never been recorded.</p> <p>2. Bankruptcy <&wkey;407( 5) — Statement In note held not a false statement, barring discharge; “property.”</p> <p>Bankrupt’s discharge held not barred, on the ground he had obtained property on a materially false written statement, in violation of Bankruptcy Act, § 14h (Comp. St. § 0598), where he gave a creditor (who had previously had a judgment note by means of which a lien was obtained upon the bankrupt’s property, so that the creditor knew that liens could ho easily perfected by entering judgment on a lien note) a renewal judgment note on which was written the words, “being a lien on” certain lots, obtaining thereby an extension of time for the payment of an old debt; for, although this was obtaining “property,” within section 14b (3), the law is that the statement must have been intentionally and knowingly falsi', and coupled with an intent to deceive, and the creditor must have relied tliereon in parting with his property, and the fact is that the creditor did obtain judgment on the note, which became a lien on the lots more than a year before the bankruptcy.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Property.]</p>

<p>Appeal from the District Court of the United States for the District of Oregon; Charles E. Wolverton, Judge.</p> <p>Libel by Joseph Spiess against the Sommarstrom Shipbuilding Company and-others. From an order of dismissal as to the named defendant, libelant appeals.</p>

<p>In Error to the District Court of the United States for the Eastern District of Virginia, at Richmond.</p> <p>William H. Turner was convicted of murder in the first degree, and he brings error.</p>

<p>1. War <&wkey;33 — Prohibition Act has not become invalid by cessation of war powers.</p> <p>The War Prohibition Act had not, in November, 1920, when defendants were convicted thereunder, become invalid by reason of the cessation of the war powers of Congress, as the United States government is still officially at war.</p> <p>2. Criminal law <&wkey;15 — Repeal of criminal statute defeats prosecutions under it, unless contrary intent shown.</p> <p>As a general rule, the unqualified repeal of a criminal statute expresses the legislative will that acts which were offenses under it and were done while it was in force shall no longer be regarded as criminal or punished; but the rule does not apply when a later statute declares a contrary intention.</p> <p>3. War &wkey;>4 — Prohibition Act not repealed, as to offenses already committed, by National Prohibition Act.</p> <p>War Prohibition Act, § 1, par. 4, was not repealed, as to offenses'already committed, by the National Prohibition Act, in view of title 1, § 7, providing that its provisions shall not be construed to repeal any of the provisions of the War Prohibition Act, and title 2, § 35, providing that it shall not relieve any person from any liability already incurred under existing laws.</p>

McDowell, Judge. Alpha Burgner was convicted of removing and concealing a quantity ■of spirits upon which the tax imposed by law had not been paid, and she brings error.

<p>1 Bankruptcy <&wkey;262(3) — Court has implied power to order sale of property free from liens.</p> <p>The power of a bankruptcy court to order a sale of the bankrupt’s property free from liens is not expressly conferred, but is necessarily implied, as such salé is often necessary to the due execution of the power and duty to reduce the assets to money and distribute it to creditors.</p> <p>2. Bankruptcy &wkey;26S — Sale of mortgaged property free from Hens gives good title as against wife, renonnisug dower.</p> <p>A sale of a bankrupt’s mortgaged property free from liens under an order of the bankruptcy court gives the purchaser the same title as if the sale were made in any other court of equity to foreclose the mortgage or marshal the assets of an insolvent, and his title is good against the privies of the mortgagor and mortgagees, including the wife of the mortgagor, who has renounced her dower.</p> <p>3. Bankruptcy <&wkey;267 — Proceeds of sale free from Hen to be distributed as if mortgage foreclosed.</p> <p>On a sale of mortgaged property of a bankrupt free from liens, the proceeds come into the hands of the bankrupt court for distribution, and the same incidents attach to the surplus as if the mortgage had been formally foreclosed.</p> <p>4. Dower &wkey;>49(2) — Wife, renouncing, has no right in land or surplus on sale.</p> <p>Under the law of South Carolina, a wife, renouncing dower on a mortgage executed by the husband, has no right of dower, either in the land or in the surplus proceeds of a sale made to satisfy the mortgage.</p>

<p>Indictment and information &wkey;>69 — Poisons <&wkey;9 — Indictment charging sates of morphine in quantities and to persons unknown to grand jurors is sufficient.</p> <p>An indictment which charged that accused between two stated dates sold morphine to divers persons, both the exact quantities and the names of the recipients being unknown to the grand jurors, is sufficient against demurrer and motion to quash, on the ground that it failed to state the times and places and the persons to whom the drug was furnished.</p>

<p>In Admiralty. Libel by the Bashinsky Cotton Company against the-Sunset Lighterage Corporation, impleaded with Peter P. Terhune and others, copartners doing business as the Williams & Terhune Company.</p>

In Admiralty. Suit against the steamship Jungshoved, Funch, Edye & Co., charterers, with C. F. Harms & Co. and Alice B. Croasdale im-pleaded by charterer. Decree for libelants against all respondents. This proceeding was started by a number of libels in rem against the steamer Jungshoved, for failure to deliver 4,608 bags of green coffee in accordance with libelants’ bills of lading.

<p>In Equity. Suit by Elmer E. Dey, Jr., -trading as the Dey Lumber Company, against the Brenack Stevedoring Company, Incorporated. On motion by the Home Mortgage Investment Company and another to vacate temporary injunction.</p>

In Admiralty. Suit for collision by Jacob Rice, owner of the barge Mabel, against the Erie Railroad Company’s Barge No. 225, with the Hudson River Bluestone Company’s lighter Kingston and the Pennsylvania Railroad Company impleaded. Decree for libelant, against the Pennsylvania Railroad Company.

<p>Courts <&wkey;426 — United States &wkey;>125 — Suit against Emergency Fleet Corporation is on© against United States.</p> <p>The provision of Code of Daw D. O. 1911, § 607, that corporations organized thereunder shall “be capable of suing and being sued in any court of law or equity in the District,” is immaterial, as affecting the jurisdiction of claims over $10,000 of District Courts outside of District of Columbia in suits against the United States Shipping Board Emergency Fleet Corporation, organized under such Code.</p>

Criminal prosecution by the United States against George Senft. On motion of defendant for an order directing a preliminary hearing before a commissioner.

<p>At Taw. Action by Andrew Nelson against Francis S. Whitten. On demurrer to complaint.</p>

In Equity. Suit by the Marcus Brown Holding Company against Arnold Poliak and Edward Swann, District Attorney of the County of New York. This is a suit in equity brought by a landlord against his tenant and the district attorney of Now York to test the constitutionality of chapters 942, 943, 944, 945, 947, and 951 of the Laws of New York of 1920, constituting “Emergency Legislation” to remedy the housing situation arising during that year.

At Law. Action by the Lincoln Chemical Company against William H. Edwards, as Collector, etc., for refund of a part of the excess profits tax for 1917. Action by a taxpayer against the collector for refund of a part of the excess profits tax for 1917. The plaintiff, a domestic corporation, filed its return for 1917 and calculated its capital upon the basis of section 209 of the law of October 3, 1917 (Comp. St. 1918, Comp. St. Ann.

<p> (Syllabus by the Court.) </p> <p>1. Carriers <&wkey;!8(0) — No injunction granted against rales, unless case so clear court must say they deny just compensation.</p> <p>It is the function of the legislative and not of the judicial branch to make rates, and no injunction ought to be granted against the collection of rates established under legislative sanction, unless the case is so clear and free from doubt as to compel the court to say that the rates prescribed will necessarily have the effect to deny just compensation ror private' property taken for public use.</p> <p>•3. Corporations 0^383 — Regulation of public service corporations to be exercised with keen sense of justice and met with frank disclosures, and injunction not to relieve parties from these obligations.</p> <p>“Regulation of public service corporations is a delicate and dangerous function, and ought to be exercised with a keen sense of justice on the part of the regulating body, and met with frank disclosures on the part of the company to be regulated,” and the granting or refusal by the court of an injunction in no manner relieves either party to the controversy from the recognition of these obligations in their future dealings.</p> <p>3. Carriers <&wkey;12(5) — In fixing value of street railroad for rate base, adding HSVs per cent, to prerwar cost approved.</p> <p>In fixing the present value of a street railway company for the purpose of a rate base, the reproduction method should be applied reasonably, and as applied to the inflated values which have arisen since and because of the war it must appear that the level of prices is not transitory.</p> <p>The finding of the master, therefore, that the prices obtaining at the time of the valuation in 1920 were transitory, and not likely to continue thereafter, and that a price level of 33 Vs per cent, above the pre-war cost is a fair estimate in arriving at the rate basis, is approved.</p> <p>4. Carriers <&wkey;12(5) — Street railroad not entitled to brokerage allowance in determining value for a fair return.</p> <p>A street railroad company held not entitled to an allowance for brokerage in determining the value on which it is entitled to earn a fair return.</p> <p>5. Carriers <&wkey;12(5) — While street railroad valuedi as going concern for rate-fixing purposes, addition for development cost or cost of attaching business not allowable.</p> <p>While for the purpose of determining the value of the property of the street railway company for rate-fixing purposes the property should be-valued as a going concern, and due allowance made therefor, no allowance should be made for going concern value, in the sense of “development cost,” and where valuation has been made on the basis of a plant in full operation, with due allowance for reproduction cost and a.ll overhead expenses during consl ruction, including organization costs, an addition for development cost or cost of attaching business is not allowable.</p> <p>6. Carriers <&wkey;12 (5) — Past earnings not considered, where street railroad plant is fully valued on reproduction cost basis for fixing rates.</p> <p>The true rule in any ease where a plant is fully valued upon the cost of reproduction basis is that the allowance of any element for “development cost” cannot in a judicial procedure be reasonably sustained, for the reason that such a utility is entitled to a reasonable rate of return upon its plant from the day it goes into operation, and the court does not take into consideration at all whether the years of its past history have been lean or fat.</p> <p>7. Carriers <&wkey;12(5) — In determining income street railroad may earn on investment, income tax not deducted.</p> <p>In determining the income which a street railroad company is entitled to earn as a fair return on its investment, it is not entitled to deduct the amount of federal income tax imposed on it.</p> <p>8. Carriers <&wkey;12(5) — Maintenance requirements of street railroad fixed in light of past history as affected by present conditions, where increase since 1918 is 136 per cent.</p> <p>Where the evidence shows an increase in maintenance figures from $40,000 in 1918 before the rate controversy commenced to $92,000. or over 136 per cent., the actual maintenance charges must be regarded as too unreliable to he taken into account in fixing maintenance for the future, and maintenance requirements must be fixed in the light of the past history of the company, as affected by present conditions.</p> <p>9. Carriers <&wkey;12(5) — Street railroad fare ordinance held not so clearly confiscatory as to authorize injunction without permitting operation for' further period.</p> <p>Though it appeared from the report of the master and the findings of the court thereon that, under an ordinance fixing the rate of street ear fare for adults in the city of Galveston at 5 cents, the company had earned during the preceding year less than a fair return, to wit, 5 per cent, upon the fair value of its investment, since the reference to the master was only for advisory purposes, and additional evidence, taken after the coming in of his report, showed such a large and steady increase in operating returns as that, if they continued, the company’s earnings would be for the ensuing year approximately 8 per cent., held, that the ordinance is not so clearly confiscatory as to authorize the court to enjoin its enforcement without permitting its operation for a further period.</p> <p>On Motion for Rehearing.</p> <p>10. Carriers <&wkey;12(5) — Street railroad entitled to allowance for expense of grade raising in determining valuation for rate-fixing purposes.</p> <p>That portion of the former opinion denying grade raising reversed; it appearing on rehearing that this expense has not been reflected in any manner in the valuation of the property, and that the grade raising has added to the value of the property at least the amount of the expenditure.</p> <p>11. Carriers <&wkey;12(5) — In valuing street railroad plant for rate purposes, amount of overhead items arrived at by tailing percentage of appreciated physical property increases in same ratio.</p> <p>Though, in appreciating pre-war costs, .to arrive at reproduction value of the plant, overhead items should not as items be increased in value, yet, since the amount of them was arrived at by taking a percentage of the physical property, when that physical property is appreciated, the overheads must necessarily increase in the same ratio.</p> <p>12. Carriers <&wkey;12(5) — In arriving at depreciation annuity in determining street railroad rates, sum of overhead items excluded is basis.</p> <p>In arriving at depreciation annuity, only those items of the plant which are susceptible of annual depreciation should be taken into account; therefore the sum of all overhead items should be excluded from the sum taken as the basis for these amounts.</p> <p>13. Carriers &wkey;>12(5) — In determining street railroad rates, no increased allowance on maintenance account made for deferred maintenance.</p> <p>No increased allowance on maintenance account can properly be made for what is called by the company “deferred maintenance,” a condition of excessive maintenance requirements, due to the failure of the company to keep its property in a proper state of maintenance. Such deferred maintenance must either be made good by the company out of net earn-ingg, or the property should he revalued, with an additional deduction on account of the accrued depreciation due to this condition.</p>

In Admiralty. Suit for collision by Walker D. Hines, Director General of Railroads, operating the New York, Ontario & Western Railway, against the Cornell Steamboat Company and the barge Atlas No. 5. Decree for libelant against the Steamboat Company.

Suit in admiralty for collision by Walker D. Hines, Director General of Railroads, operating the New York, Ontario & Western Railway, against the Cornell Steamboat Company and the barge Atlas No. 5. Decree for libelant (272 Fed. 171) against the Cornell Steamboat Company, which appeals.

<p>On motion to settle form of decree and reargument. Decree for complainant.</p>

<p>1. Estoppel —Agreement need not be in writing to create equitable es-toppel.</p> <p>The rule of courts in Maine that an agreement between counsel will not be recognized, unless in writing, is limited to agreements relating to the conduct of a case in court, and lias no application to the question whether a party is estopped by such an agreement from maintaining a suit.</p> <p>2. Estoppel <©=5118 — By agreement between counsel not sustained by evidence.</p> <p>Evidence held insufficient to establish that a conversation between counsel in a suit for construction of a will, the object of which was to establish plaintiff’s title to certain laud under the will, amounted to an agreement that the land might be sold by the trustee under the will, and that plaintiff would took to the proceeds, which estopped him from maintaining an action, after obtaining a construction of the will in his favor, to recover the land from the vendee, who bought with knowledge of the pending suit.</p>

<p>Intoxicating liquors —Procedure for forfeiture of automobile, used for illegal transportation of liquor, stated.</p> <p>Under National Prohibition Act Oct. 28, 1919, tit. 2, § 26, when a person is arrested for the illegal transportation of liquor by means of an automobile, which is seized at the same time, it is not essential that an order of forfeiture or for the sale of the automobile should be made a part of the Judgment of conviction of the person arrested; but such order of sale may be made in an ancillary proceeding instituted by information or libel, allegipg the fact of conviction, in _ which proceeding all liens or claims against the property may be adjudicated.</p>

In Admiralty. Suit for collision by Jay S. Skehan, owner of the power boat Niagara V, against the barge Clingstone, with Frederick Semken and the B. Turecamo Contracting Company, Incorporated, im-pleaded. Decree for libelant against respondent Semken and the barge.

<p>1. Patents <@==>218(1) — License held to require 'payment of royalties only if licensee’s device infringed.</p> <p>A licensee, who agreed to pay royalties on instruments used by it embodying, or made or operating in accordance with, the inventions of the licensor, is required to pay royalties -only on devices which in effect infringe the licensor’s patent. )</p> <p>2. Patents <@==>328 — 781,001, claim 1, and 781,002, claim 3, for vapor amplifier, held not infringed. *</p> <p>The Hewitt patents, No. 781,091, claim 1, and No. 781,002, claim 3, for an apparatus and method of amplifying variable electrical currents by a gas or vapor conductor in the circuit, held not infringed by audion repeaters, which generated a new and stronger electrical current having rne same variations as the primary current, though the repeater used a bulb in which an infinitesimal quantity of air remained.</p> <p>3. Patents <@=>229, 234 — Presence of infinitesimal amount of air, performing no function, dbes not make audion a “vapor conductor.”</p> <p>Relative to infringement of an apparatus and a method, an audion bulb, in which the current passed from the filament to a plate, is not a vapor conductor, though an infinitesimal quantity of air was left in the bulb, which performed no function, but was merely left because it was not practical or economical to exhaust it.</p> <p>4. Patents <§ — >328—1,120,949, claims 1, 7, 11, 13, 18, 19, and 1,121,359, claims 2-4, for increasing resistance of electrodes, held not infringed.</p> <p>The Hewitt patents, No. 1,120,949, claims 1, 7, 11, 13, 18, 19, and No. 1,121,359, claims 2 to 4, for an apparatus and method for increasing resistance to starting a current at an electrode by inducing in the vapor around the electrode a higher charge than is induced solely by the application of current through the terminals, is not infringed by an audion repeater consisting of a bulb in which the current passed from the filament to a plate, though between the two was a charged grid acting merely to vary the amount of the currént, and not to prevent the starting or flow of an undesired current.</p>

<p>1. Admiralty <&wkey;20 — Injury to longshoreman loading goods on steamship was maritime.</p> <p>A longshoreman,' employed to load and store freight on the deck and in the hold of a steamship berthed at a dock, was engaged in maritime work, and his injury while so engaged was maritime.</p> <p>2. Admiralty <&wkey;2 — Action for injuries in maritime work may he maintained in common-law court.</p> <p>Under Judicial Code, § 24, subd. 3 (Comp. St. § 991[3]), giving the District Courts jurisdiction of admiralty and maritime causes, saving to suitors the right of a common-law remedy, where the common law is competent to give it, an action in personam may be maintained in a common-law court to recover for injuries sustained by a longshoreman while engaged in maritime work. .</p>

<p>1. Patents &wkey;>113(7) — Concurrent decisions as to reduction to practice and diligence not disturbed.</p> <p>Where the Examiner of Interferences, the Examiners in Chief, and the First Assistant Commissioner of Patents concurred in holding that, if a party was the first to conceive, he was the last to reduce to practice, and not diligent just before other parties became active, and the conclusion is not clearly wrong, it will not be disturbed; the question being one of fact.</p> <p>2. Patents &wkey;>113 (7) — Patent tribunals held regarded as in accord as to date of conception.</p> <p>Where the Examiner of Interferences and the First Assistant Commissioner of Patents concurred in denying a party to an interference any earlier date of conception than his. filing date, and though the Examiners in Chief gave him an earlier date, they held in another proceeding on substantially the same evidence that he must be confined to his filing date, the three tribunals must be regarded as in accord in limiting him to his filing date.</p> <p>3. Patents <&wkey;90(3) — Party held diligent when active personally or through others at all times.</p> <p>Where an invention concerning selector switches for automatic telephone systems was a complicated one, requiring many experiments to give it practical form, and an applicant was active either personally or through others from the time of his conception until his date of filing, there was no want of diligence on his part.</p>

<p>In Error to the District Court of the United States for the Western District of Oklahoma; John H. Cotteral, Judge.</p> <p>Action by Silvan Newburger and others, a copartnership doing business as Silvan Newburger & Co., against Seth Gettys and another, a partnership doing business as Gettys & Prescott. Judgment for plain'tiffs, and defendants bring error.</p>

In Error from the District Court of the United States for the South-' ■ern Division of the District of Idaho; Frank S. Dietrich, Judge. Action by J. A. Czizek against the Western Union Telegraph Company. Judgment for defendant, and plaintiff brings error.

Keller, Judge. Action at law by R. E. M. Bowling, an infant, by John W. Bowling, his next friend, against Walker D. Hines, Director General of Railroads. Judgment for plaintiff, and defendant brings error. This is an action at law for malicious prosecution, brought originally in the circuit court of Mercer county, W. Va., and removed for trial upon the petition of the defendant to the District .Court of the United States for the Southern District of West Virginia.

<p>In Error to the District Court of the United States for the Southern District of West Virginia, at Charleston; Benjamin E. Keller and Charles A. Woods, Judges.</p> <p>P. E'. Hunter was convicted of keeping and setting up a house of ill fame within five miles of a naval ordnance plant, and receiving persons into a hotel or rooming house for immoral purposes, and he brings error.</p>

Suit in equity by the Keystone Type Foundry against the Fastpress Company. Decree for defendant, and complainant appeals. In 1913 one Stonemetz was working over a printing press of his own devising, whereof the meritorious novelty, if any, resided in the normal placing oí the cylinder in relation to the bed and the means for producing operative conjunction between them. He had built several machines, kept them at Palmyra, N. Y., and intended to apply for a patent in time.

<p>Appeal from the District Court of the United States for the Owens-boro Division of the Western District of Kentucky; Walter Evans, Judge.__</p> <p>Suit in equity by the W. S. Vick Grocery Company against Clinton Griffith, Postmaster, and another. From an order granting a temporary injunction against defendants, they appeal.</p>

Involuntary proceedings in bankruptcy on the petition of the George H. McFadden Bros. Agency and others against the Standard Warehouse & Compress Company. From an adjudication of bankruptcy, the alleged bankrupt and others appeal.

<p>In Error to the District Court of the United States for the District of Minnesota; Page Morris, Judge.</p> <p>Action by the Minneapolis, St. Paul & Sauit St. Marie Railway Company against the Van Dusen Harrington Company to enforce payment of the demurrage charge. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Post office <&wkey;48(6) — Description in indictment of money stolen from post office, without specifying denominations, held sufficient.</p> <p>In an indictment for larceny from a post office, a description of tlie property taken as a stated amount of money, a more complete description of the kind and character of which was to the grand jurors unknown, said money being a portion of the money order funds of the Post Office Department, is a sufficient description of the money, where the postmaster knew the amount which was left in the safe, but had no means of knowing the denominations of the coins and bills.</p> <p>2. Criminal law &wkey;>TO4(3) — Admissions by one defendant render drasmssars-tial evidence charge unnecessary.</p> <p>A requested charge as to the effect of purely circumstantial evidence was properly refused, where there was evidence of damaging admissions by one of the defendants.</p> <p>3. Criminal law <&wkey;>1©8i!(ll, 14) —Argament, objection, and statement of court must be shown by record.</p> <p>An assignment of error to a statement of the court made on objection to the argument of the prosecuting attorney is not supported by the record, where neither the argument of the prosecuting attorney, an objection thereto, nor any ruling thereon appears in the record.'</p> <p>4. Criminal law t&wkey;Hl73(2) — Failure ío «¡targe admissions did not bind other defendants held harmless.</p> <p>Failure to charge in a proper case that admissions by one defendant out of the presence of the other two defendants are not binding on the other two was not prejudicial .error, where the court, in admitting the evidence, stated to the jury that it was not binding on the other two defendants.</p>

<p>In Error to the District Court of the United States for the Eastern District of Wisconsin.</p> <p>Action by Julius J. Goetz, as trustee in bankruptcy of the Stephenson Motor Truck Company, bankrupt, against Charles J. John. Judgment for plaintiff, and defendant brings error.</p>

On motion by the executrix of the named plaintiff in' error for the return of bonds deposited with the clerk in lieu of personal sureties, free from the clerk’s charge of 1 per cent, thereof.

<p>Bankruptcy <&wkey;4OT (5) —False property statement, negligently acaile, does not prevent discharge.</p> <p>The fact that the bankrupt made a statement of his property, which was admittedly false, in order to obtain credit, does not prevent discharge, where the District Court found on sufficient evidence that the statement was not fraudulently made, but was negligently made to one who had full knowledge of the bankrupt’s affairs, and who prepared the statement, which was signed by the bankrupt without reading it.</p>

<p>In Error to the District Court of the United States for the Northern District of Alabama; William I. Grubb, Judge.</p> <p>Action by Harris, Davis & Co. against John S. Curtis. Judgment for the plaintiff, and defendant brings error.</p>

Libel filed by the J. K. Armsby Company against the steamship Es-rom, her engines, etc., Actieselskabet Dampskibet Island, claimant. 'Decree for libelant (261 Fed. 624). Claimant appeals.

<p>Shipping <&=>149 — Ship raoi liable for freight prepaid charterers on goods takers' off by direction off captain.</p> <p>Prepaid freight on goods, put. on hoard a chartered steamship and taken off before the boat sailed by direction of the captain, is not recoverable by action in rem against the ship, where it was paid to the charterer’s agent and never received by the shipowner, and the shipowner never authorized the charterer’s agent to receive moneys in its behalf.</p>

Criminal prosecution by tlie United States against Porazzo Bros. On motions to punish for contempt and to impound liquors and books and papers.

<p>1. Evidence <§=67 (3) —State of mind shown to exist presumed to have existed for reasonable time.</p> <p>The existence of a condition being shown, it will he presumed, in the absence of a showing to the contrary, to have theretofore existed for a reasonable time, and such rule applies where the state of mind of an individual is in question.</p> <p>2. Aliens <§=71%, New, vol. 7 Key-No, Series — Naturalized citizen’s criticism of war methods and refusal to believe stories concerning German soldiers held not disloyal.</p> <p>Criticism by a naturalized citizen of German birth of the “slam bang” methods of Americans in connection with the war, and his refusal to believe stories concerning German soldiers killing and mutilating children, held not necessarily disloyalty, requiring cancellation of the naturalization order and certificate.</p> <p>3. Treason <S=1 — Expressions of opinion indicating sympathy with enemy’s purposes not sufficient.</p> <p>To constitute treason, accused must in general he guilty of some act which has for its direct aim the furtherance of the hostile designs of the enemy while the state of war exists, indicating a want of loyalty, and mere expressions of opinion indicative of sympathy with the purpose of the enemy are not sufficient.</p> <p>4. Aliens <§=71%, New, vol. 7 Key-No. Series — Treason unnecessary to show disloyalty justifying cancellation of naturalization.</p> <p>It is not necessary that a naturalized citizen be shown to be guilty of treason, in order to show that he is not and has not been loyal, or attached to tlie country and its principles and devoted to its welfare, so as to justify the cancellation of his naturalization certificate.</p> <p>5. Aliens <§=71%, New, vol. 7 Key-No. Series — Letters and evidence held to show naturalized citizen’s sympathy with Germany.</p> <p>A letter, written by a naturalized citizen of German birth to his sister in Germany during the war, in which he criticized war methods, denied that there was any enthusiasm for the war, and by ironical expressions of pretended pity indicated contempt for the American people, and another letter, the date of which was not shown, in which he stated that England would have been defeated by the submarines, except for American friendship, and that he hoped some day Germany might repay America like with like, together with other evidence, held to show sympathy for Germany and disloyalty to this country, and to justify the reasonable conclusion that such state of feeling existed at the time of his naturalization.</p> <p>6. Aliens <§=71%, New, vol. 7 Key-No. Series — Failure to realize sympathy with native country does not prevent nondisclosure of feeling* constituí ing fraud.</p> <p>That an alien may not fully realize at the time of his naturalization that his desires are stronger for his native country than for his adopted country renders it none the less a legal fraud for him to fail to disclose his true, though latent, feeling in .the matter.</p>

<p>At Law. Action by the G. S. Johnson Company against the Nevada Packard Mines Company. On demurrer to complaint.</p>

<p>In Equity. Suit by the United States against the Western Union Telegraph Company. On motion for preliminary injunction.</p> <p>This is a suit in equity brought by the United States against the Western Union Telegraph Company to prevent it from making an alleged unauthorized cable connection between the shores of the United States and a foreign country. In July, 1919, the Western Telegraph Company, a British corporation, made a contract with the Western Union Telegraph Company whereby the former agreed to lay a submarine cable from Bara, in Brazil, or such other point on its existing east coast system as it might select, to Barbados. The Western Union likewise agreed to lay and maintain a submarine cable from Miami, Fla., or some adjacent point, to Barbados. The parties to the agreement likewise contracted to equip a joint station to be maintained at Barbados by the Western Union Telegraph Company and respectively to transmit messages over the resulting “through line” to such parts of South America and Europe as might be practicable. The agreement fixes through rates from Brazil, Argentina, Paraguay, Uruguay, Chile, Bolivia, and Peru to New York.</p> <p>In order to carry out this agreement, the British company constructed its line of cable from Brazil to Barbados, and the "Western Union caused tne cable ship Colonia to proceed to Miami, Fla., for the purpose of laying a cable from that point to Barbados, to connect with the British line. The Colonia was stopped oft' Miami by United States destroyers and warned not to lay her cable within three miles of Miami Beach. She thereupon proceeded to lay the cable from a point just outside the three-mile limit off Miami Beach, southward to Barbados. The end of this cable still lies in the sea three miles off Miami Beach, and the Naval Forces of the United States are standing by to prevent the connection of that cable with the shore. The Western Union having failed to land this cable, planned to splice into it a branch cable to connect at Cojimar, Cuba, with three cables which had been theretofore, and are now, being maintained and operated by the Western Union from Cojimar, Cuba, to Key West, Fla., for the purpose, as the United States contends, of thereby making a cable connection between Brazil and the shores of the United States.</p> <p>Two of the three cables operated by the Western Union from Key West to Cojimar were laid in 1886 and 1899, respectively, to replace cables theretofore laid. These cables, and the ones that they replaced, were laid, maintained, and operated without any presidential permit. The third cable was laid in the year 1917 under a presidential permit, which contained the following provision: “(5) That the consent hereby granted shall be subject to any future action of the President or of Congress, affirming, revoking, or modifying, wholly or in part, the said conditions and terms upon which the consent is given, and subject also to any conventions between the United States and Cuba applicable to said cable line.”</p> <p>The original cables, of which the first two were replacements, between Key West and Cojimar, Cuba, were laid by the predecessor in interest of the defendant pursuant to a Special Act of Congress, approved May 5, 1866 (14 Stat. 44), authorizing the laying of such cables between Florida and Cuba. The third cable between Key West and Cojimar, laid in 1917, is alleged by the defendant to have been authorized under the General Act of Congress of July 24, 1866 (Comp. St. §§ 10072-10077), with the approval also of the War Department under the Act of March 3,1899 (the River and Harbor Act [30 Stat. 1121]).</p> <p>The cable attempted to be laid between Barbados and Miami Beach is likewise said by the defendant to be authorized by the Act of Congress of July 24, 1866. The formal authorization of the Secretary of War has been signed, but is withheld because the Executive has refused his approval of the proposed connection involved.</p> <p>The interference by the government with the laying of the last-mentioned cable and with the splicing into it of a branch cable to connect at Cojimar, Cuba, with the present three cables that are landed at Key West, is justified upon the ground that the President disapproves of a connection between the linos of the defendant and those of the Western Telegraph Company, because that British company, by grant of the Brazilian government, has exclusive rights in the ports of Brazil at which it has established offices.</p> <p>The President has issued to the Western Union a modified permit covering the three Key West cables and containing a condition that the cables should not be used as a link in a line connecting the shores of the United States with a line enjoying an exclusive foreign monopoly. The Western Union has refused to accept mis modified permit.</p> <p>The Western Union heretofore brought a suit in the Supreme Court of the District of Columbia against the Secretary of State, the Secretary of War, and the Secretary of the Navy to enjoin them from interfering with its acts, and moved therein for an injunction pendente lite, which motion Judge Stafford has taken under advisement.</p> <p>As the United States was not a party to the suit brought in the District of Columbia, it could obtain no affirmative relief therein. This suit was accordingly brought.</p>

At Law. Separate actions by Hannah Sullivan, as assignee of the C. J. Sullivan Advertising Company, by the Charles A. Ramsay Company, by the William H. Rankin Company, and by Joseph D. McManus, against the Associated Billposters and 'Distributers of the United States and others, to recover treble damages under the Sherman Anti-Trust Act.

<p>1. Habeas corpus <&wkey;>51 — Joint petition improper.</p> <p>Joint petition of persons detained by an immigration inspector was improper, as no one of them bad any interest in the illegal restraint of tbe other.</p> <p>2. Aliens <&wkey;40 — Constitutional law <®=3255 — Deportation of alien in the country in violation of law not deprivation of liberty without due process.</p> <p>The deportation of an alien who is found in the country in violation of law (Act Peb. 5, 1917, § 19, as amended by Act Oct. 16, 1918 [Comp. St. Ann. Supp. 1919, S 4289iAb(l)]), or of the conditions prescribed by Congress, either as to his right to be admitted or his right to remain, is not a deprivation of liberty without due process of law.</p> <p>3. Aliens <&wkey;54 — Deportation order of immigration officials conclusive unless manifestly unfair or abuse of discretions</p> <p>Any alien complaining in court of proceedings for deportation or a deportation order must show that the officers conducting the proceedings were guilty of manifest unfairness or abused the discretion committed to them; otherwise the order of such executive officers, within the authority conferred by statute, is final and conclusive.</p> <p>4. Aliens @=>54 — Courts will not weigh evidence upon which immigration officers acted.</p> <p>The courts will not weigh the evidence upon which executive officers acted, so that, if there is any evidence substantially tending to support the ground upon which the order of deportation is based, the finding of such executive officers upon the evidence must be accepted as conclusive and binding upon the courts.</p> <p>5. Habeas corpus <£=>38 — liability to give hail not ground for writ.</p> <p>That petitioners, aliens ordered deported, are restrained of their liberty because of their inability to give bail while awaiting deportation, does not render their detention an illegal restraint of their liberty authorizing relief by habeas corpus.</p> <p>6. Babeas corpus @=>9a — Sight to writ depends upo© illegaiity ©£ present de-1 iention, not illegality oí original arrest or commitment.</p> <p>The right to habeas corpus depends upon the present illegal detention of petitioners, not their original illegal arrest or commitment, and if their present detention is legal, irregularities or even illegalities in their original arrest and commitment cannot be redressed by habeas corpus, but only in a different kind of proceeding, namely, an action for false arrest or false imprisonment.</p> <p>‘i. Arrest @=>65 — Arrest mot illegal because arresting officer did not have warrant in possession.</p> <p>Where warrant of arrest has been issued and instructions to act thereon have been received by the arresting officer, his arrest of the person named in the warrant is not unlawful because the arresting officer, at the time of arrest, does not have the warrant in his physical possession.</p> <p>8. Alteas @=>54 — Arresting officer ¡nay examino alies» arrested, and latter’s voluntary statements admissible against Mai; “involuntaiy statement.”</p> <p>An arresting officer may lawfully interrogate or examine the alien arrested with respect to the charge made against him, even though the alien is not then represented by counsel and is under* arrest, and has not been warned that his statement may he used against him, and whether his statements thus made may he given in evidence against him depends on their voluntary character, which is presumed, and they will be held “involuntary” only when shown to have been induced by threat, promise, or encouragement of hope or favor.</p> <p>8. Searches and seizures —Inadmissibility of evidence seized in violation oí unreasonable search and seizure provision must be raised by objection.</p> <p>To make available the constitutional provision that unreasonable searches and seizures without warrant render inadmissible evidence thus seized, an objection should be interposed.</p> <p>10. Aliens &wkey;>54 — Bule aa to right to counsel slated.</p> <p>As to the right of aliens in deportation proceeding to have benefit of counsel, the absence of counsel when they were being interrogated by the arresting officers is immaterial, nor does it make a hearing before an immigration inspector unfair or subject to review that the alien may not have had the benefit of counsel at the beginning of the proceeding; but it is sufficient if, during the hearing, he is advised of his rights and accorded counsel, and no part of the evidence previously taken or used against him is concealed or withheld from his counsel, and he is not thereby deprived of the privilege of bringing forward any explanatory or rebutting evidence.</p>

In Admiralty. Libel by 'David West Peters, suing on his own behalf and on behalf of himself and another, formerly partners trading as Peters & Co., now in liquidation, against Joseph B. Rohrman and another.

<p>In Equity. Suit for infringement of patents by the Miacon Concrete. Roller Company against the Brooks-Callaway Company. Decree rendered for complainant as to one patent, and for defendant as to the other.</p>

In Admiralty. Libel by the Tice Towing Company against the derrick barge Ronald J. Brown, to recover claims for salvage services rendered by two tugs owned by the claimant.

In Bankruptcy. In the matter of Arno R. Dautz, bankrupt. On petition by the bankrupt for review of the referee’s denial of the bankrupt’s claim for exemption.

In Bankruptcy. In the matter of William Harris, bankrupt. On petition by the Miners’ Bank of Wilkes-Barre for review of an order of the referee disallowing a portion of its claim.

<p>1. JuegiMsmt <§=668 (1) — Not conclusivo oh rights of monjfesicient, mot naitiotS in complaint, though made a party by court’s order.</p> <p>A judgment held not conclusive on the rights of a nonresident, made y. party by order of court and served with summons and copy of the complaint, but who did not appear, where he was not named in the coni' plaint, and it contained no allegations that ho was required to answer, or to give notice that his rights could be affected by the suit.</p> <p>2. Attorney and client <@=166(1) — Contract between joint attorneys for equal division of fees established.</p> <p>Evidence held to sustain a finding by the trial court that an agreement was made between plaintiff and defendant, as joint attorneys in a suit, for equal division of any fees which should be awarded to them in the suit.</p>

Dietrich, Judge. Suit in equity by A. E. Caldwell and others, in behalf of themselves and ail persons similarly situated, against the Twin Rails Salmon River I,and & Water Company and others. Decree for complainants, and defendants appeal.

<p>In Error to the District Court of the United States for the Eastern District of Pennsylvania; J. Whitaker Thompson, Judge.</p> <p>Action by M. Walter Farrell and others, trading as Weil, Farrell & Co., against the First National Bank of Philadelphia. Judgment for plaintiffs (263 Fed. 778), and defendant brings error.</p>

<p>1. Partnership &wkey;>204 — Process against firm recognized as entity need not be served on partners.</p> <p>Since a commercial partnership organized under Rev. Civ. Code La. art. 2825, is a legal entity, distinct from the partners composing it, process may be served on it by delivering the process at its place of business within .the state to an agent in charge thereof, who was not a partner, as permitted by Code Prac. La. art. 198, and though all the partners were nonresidents of the state.</p> <p>2. Evidence <£¡=271 (18) — Message by plaintiff, stating promise by defendant, inadmissible to show promise.</p> <p>In an action by an insurance broker for commission on a covering contract for war risk insurance, where it was the custom for a broker’s commission to be paid by the insurer, but he sought to show a special agreement by the defendant exporters to pay his commission, it was error to admit in evidence a message sent by the broker to the insurance company, in which he stated that the exporters had agreed to pay his commission, and the evidence was prejudicial, where the exporters denied making such agreement.</p> <p>3. Evidence &wkey;>139 — Proof that another exporter paid insurance broker’s commission inadmissible to show promise by defendant exporters.</p> <p>In an action by insurance brokers against exporters for commission on war risk insurance, where the evidence showed the custom was for such commission to be paid by the insurers, but plaintiff claimed a special promise by the exporters, it was error to admit in evidence testimony by another exporter that, under the same circumstances, he had paid the commission to the insurance broker.</p>

C. Westenhaver, Judge. Suit by the Youngstown Sheet & Tube Company against the Republic Iron & Steel Company, in which the Taylor-Wilson Manufacturing Company filed a cross-suit against the Youngstown Company. From an interlocutory decree for plaintiff, defendant appeals; and from a final decree dismissing the cross-bill, the plaintiff in the cross-suit áppeals.

Suit by Peter Cooper Hewitt against the American Telephone & Telegraph Company. From a decree dismissing the bill (272 Fed. 194), plaintiff appeals. Jurisdiction depends upon diversity of citizenship, and suit is brought to establish and declare Mr. Hewitt’s rights as against the American Company under an admitted written contract between the parties hereto.

<p>1. Criminal law <&wkey;619 — Indictments for conspiracy and substantive offense may be consolidated.</p> <p>Indictments for a statutory offense and for a conspiracy to commit such offense may properly be consolidated for trial under Comp. St. § 1690.</p> <p>2. Indictment and information <5=>125(20) — Neutrality laws <&wkey;5 — Indictment for organizing military expedition sufficient.</p> <p>An indictment under Criminal Code, § 13 (Comp. St. 3916, § 10177), for organizing a military enterprise against a friendly nation, held sufficient, and not subject to objection for duplicity because it charges different acts specified in the statute, but all tending to the same end.</p> <p>3. Neutrality laws &wkey;>5 — Acts preparatory to military enterprise against friendly power unlawful.</p> <p>To sustain an indictment under Criminal Code, § 13 (Comp. St. 1916, § 10177), charging that defentlants did “begin, set on foot, provide, or prepare the means for” a military expedition against a friendly power, it is not necessary that the acts of defendants should have progressed so far as the complete organization and sending of such expedition, or that it was to be wholly carried on from the United States, but it is sufficient if the plan was made and was to be directed from here, and that funds were collected in this country for carrying it out.</p> <p>4. Conspiracy —Evidence held admissible.</p> <p>On a 'trial for conspiracy, evidence tending to show the relations between defendants and the relation of some of them to acts in furtherance of the purpose of the alleged conspiracy held properly admitted.</p>

<p>' 1. Trover and conversion <&wkey;14 — Porto Rico Code held to give right of action.</p> <p>Civ. Code Porto Rico, § 1803, providing that a person who by an act or omission causes damage to another by his fault or negligence shall be obliged to repair the damage, gives a right of action for damages against one unlawfully converting another’s property, as complete as the common-law action of trover.</p> <p>2. Replevin <&wkey;l® — Porto Rico statutes beM to give right of aetiois only against party in possession.</p> <p>Oiv. Code Porto Etico, § 354, providing that the owner holds a right of action against the holder and possessor of a thing, and section 466, providing that any person who has lost any movable, or has been illegally deprived thereof, may recover it from the person in possession, give a right of action only against one in possession of the property sought to be recovered.</p> <p>3. Replevin <&wkey;10 — -Uffljfer Port® Rico statutes, plaintiff cannot recover value, unless defendant had possession when actios® was commenced.</p> <p>Under Oiv. Code Porto Rico, §§ 354, 460, giving a right of action for the possession of movables, Code Oiv. Proc. § 170, providing that plaintiff at the time of issuing the summons may claim delivery, and section 230, providing that judgment may be for the possession, or tile value in case delivery cannot bo had, and damages for detention, one suing for the delivery of goods or their value was not entitled, to recover the value of the goods, unless they were in defendant’s possession when the action was commenced and thereafter wrongfully parted with.</p> <p>4. Statutes &wkey;>222 — In construing1 Porto Rico statutes, analogies to be sought in Spanish law and not in cwuhmmj law.</p> <p>In construing statutes of Porto Rico, analogies are to be sought in the law of Spain and in the civil law, 'and not in the common law.</p> <p>5. Appeal and error <&wkey;l®47 (4) —-Trial <&wkey;67 — Refusal to admit additional cuuralativo evidence after plaintiff rested not unreasonable exercise of discretion, or prejudicial.</p> <p>In an action to recover goods or their value, defended on the ground that they had been destroyed by lire without defendant’s fault, the exclusion of testimony as to the removal of boxes front the burning building, after plaintiff had announced that he rested his case, held, not prejudicial, or so unreasonable an exercise of discretion as to constitute reversible error; the evidence being cumulative, and not assisting the jury to distinguish the boxes to which it related from others, or showing the value of the boxes.</p> <p>G. Appeal and error &wkey;>1058(l) — Exclusion of affidavit wired by subsequent admission.</p> <p>The exclusion of an affidavit offered to contradict a witness, if error, was cured, where the other party subsequently offered it, and it was admitted.</p>

<p>1. Courts &wkey;>101 — Application to enjoin municipal board from maintaining confiscatory rates need not be heard by three judges.</p> <p>An application for a preliminary injunction in a suit to enjoin a municipal board, authorized by the city charter and a city ordinance to regulate telephone rates, from maintaining or prescribing rates so low as to be confiscatory, in violation of Const. Amend. 14, is not one which, under Judicial Code, § 266 (Comp. St. § 1243), must be heard before three judges, of which one is a Supreme Court Justice or Circuit Court Judge; no attack being made on the constitutionality of any statute.</p> <p>2. Constitutional law <&wkey;129 — Telegraphs and telephones <&wkey;33(l) — Ordinance held not contract to charge confiscatory rates.</p> <p>An ordinance authorizing the merger of two telephone companies, and reserving to the city full power and authority to investigate and regulate tariff rates under the charter and regulatory powers of the city, did not reserve to the city the right to maintain, by refusal to change, a confiscatory rate, or create a contract on the part of the telephone company to charge the rates fixed by the city, if confiscatory.</p> <p>3. Telegraphs and telephones &wkey;33(l) — Schedule of rates, not disapproved, held effective.</p> <p>Under an ordinance permitting the merger of two telephone companies, limiting telephone rates chargeable prior to October 1, 1920, and providing for regulation thereafter by the city, and for the filing of proposed rates with the city secretary, to become effective in 30 days, if approved by the board of commissioners, or not acted on, unless the board extended the time for acting thereon for a period not exceeding 90 additional days, a schedule of rates to take effect October 1, 1920, filed in May, 1920, became effective on October 1, where the board did not act thereon within the 90 days’ extension of time for their consideration.</p> <p>4. Injunction <&wkey;158 — Power to fix rates held not affected by injunction.</p> <p>A preliminary injunction, enjoining the enforcement of telephone rates because confiscatory, pending the determination of just and reason- ■ able rates, does not prevent the city from exercising its charter power to prescribe just and reasonable rates.</p>

<p>1. Railroads '3=27» (1) — LiaM® only for willful or wanton injury to trespasser on train.</p> <p>A carrier is liable to a trespasser on its freight train only in case the acts of the train crew in forcing him off should be classified as willful or wanton, or were characterized by recklessness or indifference to his injury in a degree equivalent to wantonness.</p> <p>2. Railroads &wkey;>282( 11) — -Evidence of willful injury to trespasser on train held insufficient to go to jury.</p> <p>In an action for the death of a trespasser, who fell under a freight train while the crew was attempting to eject him, evidence that the train was moving only 10 miles an hour, at which speed men frequently mounted or dismounted, held to entitle defendant to a directed verdict on the ground it did not warrant an inference of willful or wanton injury.</p>

Rud-kin, Judge. ■ Action by J. E. Hample against E. H. Stanton. Judgment for ' plaintiff, and defendant brings error. Action at law to recover $21,926.67, with interest thereon from May 21, 1917, alleged to be due the plaintiff in a transaction involving the sale to Armour & Co., of Chicago, of 1,09614 shares of stock owned by the plaintiff in the E. H. Stanton Company, of Spokane, Wash.

Rudkin, Judge. Action by J. E. Hamilton against E. H. Stanton. Judgment for plaintiff, and defendant brings error. Action at law to recover $21,926.67, with interest thereon from May 21, 1917, alleged to be due the plaintiff in a transaction involving the sale to Armour & Co., of Chicago, of 1,096% shares of stock owned by the plaintiff in the E. H. Stanton Company, of Spokane, Wash.

Action at law by Abraham Slimmer and Lane G. Thomas, partners as Slimmer & Thomas, against Arthur A. Walters, Charles A. Dunbar, .and James H. Dunbar, partners as Walters & Dunbar. Judgment for plaintiffs, and defendants bring error. This is a writ of error sued out to reverse a judgment rendered against the plaintiffs in error, hereinafter called the defendants, for the sale value •of 74 head of steers, which they had sold for the account of John H. Jahn.

<p>1. Trial <&wkey;42G — Refusal to direct verdict cannot be complained of, when defendant afterwards ■ introduces testimony.</p> <p>Error cannot be assigned on the refusal to direct a verdict at the close of plaintiff’s testimony, where defendant introduced testimony after such refusal.</p> <p>2. Trial <&wkey;69 — Permitting reopening of testimony after motion to direct verdict held discretionary.</p> <p>Permitting plaintiff to reopen his testimony after defendant had moved for a directed verdict at the conclusion of plaintiff’s testimony was entirely in the discretion of the court, and not error, where defendant was not prejudiced.</p> <p>3. Commerce <&wkey;37(8) — Roadmaster, supervising keeping of track in repair, employed in “Interstate commerce.”</p> <p>Where a railway roadmaster, engaged in taking an inventory of materials on the property of the road, all of which was in one stale, was also engaged in supervising the keeping in repair of a track, engaged in interstate commerce, lie was employed in “interstate commerce.”</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.]</p> <p>4. Trial <&wkey;289(l) — Refusal of charge not error, when covered by charge given.</p> <p>The failure to give a requested charge, even if otherwise unobjectionable, was not error, where it was fully covered by the charge given.</p> <p>5. Appeal and error <&wkey;9‘n(3) — New trial <&wkey;6 — Grant rests in court’s discretion and cannot be assigned as error.</p> <p>The grant oí a new trial rests in the discretion of the court, and the overruling of a motion therefor cannot be assigned as error.</p>

<p>1. Courts c&wkey;279 — Jurisdiction of federai court must directly appear on face of bill.</p> <p>In federal procedure, it is essential that plaintiff’s right to institute the action and the jurisdiction of the court to hear it shall appear on the face of the bill by direct and positive averment.</p> <p>2. Appeal and error <&wkey;23 — Federal appellate court will raise question of jurisdiction on its own motion.</p> <p>A federal appellate court will of its own motion deny its jurisdiction and that of the court from which the record comes, unless jurisdiction affirmatively appears, though neither party raises the point in the argument.</p> <p>3. War <&wkey;12 — Action maintainable against Alien Property Custodian only by one mot enemy or ally of enemy.</p> <p>Under Trading with the Enemy Act, § 9 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3115%e), providing that any person not an enemy or ally of enemy claiming any interest in property transferred to the Alien Property Custodian, or to whom any debt may be owing from an enemy whose property is so transferred, may file a notice of his daim, and that if the claimant shall file such notice and make no application to the President, he may sue in equity in the District Court for the district in which he resides, and section 12 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3115%ff), providing that any claim of any enemy or ally of enemy shall be postponed until after the end of the war, only a person who is not an enemy or ally of enemy may sue under section 9.</p> <p>4. War <&wkey;15 — No jurisdiction of action against Alien Property Custodian. when bill does not show plaintiff is not enemy, etc.</p> <p>Federal courts have no jurisdiction of an action. against the Alien Property Custodian under Trading with' the Enemy Act, § 9 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3115 %e), to recover a debt due from an enemy whose property has been taken over by the custodian, where the bill does not allege that plaintiff is not an enemy or ally of enemy.</p>

<p>In Error to the District Court of the United States for the Eastern. District of Pennsylvania; J. Whitaker Thompson, Judge.</p> <p>Action by. the J. W. Ringrose Company against W. & J. Sloane. Judgment for defendant (266 Fed. 402), and plaintiff brings error.</p>

Foster, Judge. Suit by the Ottawa Banking & Trust Company, as trustee in bankruptcy of the Jefferson Land Company of Maine, against the Assessor and Collector of Taxes of Jefferson Parish, Da., and others. Decree for plaintiff, and defendant James D. Dacey appeals.

Wolverton, Judge. James P. Vaughn was convicted of interfering with and impeding the United States in the possession and use of certain property, and he brings error.

<p>In Error to the District Court of the United States for the Western District of Louisiana; G. Whitfield Jack, Judge.</p> <p>Action by the Texas Ranger Producing & Refining Company against E. T. Robinson to recover possession of a tract of land. Judgment for defendant, and plaintiff brings error.</p>

<p>Appeal from-the District Court of the United States for the Eastern District of Virginia, at Richmond; Edmund Waddill, Jr., Judge.</p> <p>Suit in Equity by Edward G. Temple against E. I. Du Pont de Ne-mours & Co. Decree for complainant, and defendant appeals.</p>

<p>On motion for rehearing.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Virginia, at Norfolk.</p> <p>Suit in admiralty by Charles Matson against the George Deary Construction Company. Decree for libelant, and respondent appeals.</p>

<p>Master and! servant <&wkey;62 — Eaients &wkey;>210 — Employer not vested with entire property right of employee’s invention or with anything more than'shop right.</p> <p>The fact that a patentee, at the time he made the invention, was employed by a manufacturing company as a draftsman, but under no contract to use bis inventive faculties for the benefit of the employer, held not to vest the employer with the entire property right of the invention and the patent monopoly thereof, or with anything more than a shop right to use the invention.</p>

<p>Bankruptcy <&wkey;417 (4) —Discharge granted without notice to creditors invalid.</p> <p>A discharge granted without notice to creditors is invalid, and a petition by creditors for its revocation is not subject to the limitation of one year prescribed by Bankruptcy Act, § 15 (Comp. St. § 9599), for the filing of a petition for revocation of a discharge on the ground of fraud.</p>

<p>Cross-Appeals from the District Court of the United States for the Southern Division of the Western District of Michigan; Clarence W. Sessions, Judge.</p> <p>Suit by Sarah A. Vrooman and others against the Dunkley Company for infringement of a patent. From a decree awarding damages for the infringement, both parties appeal.</p>

Cushman, Judge. Suit by Kathryn Struett, formerly Kathrine Smith, against Harry B. Hill. From a decree for defendant, plaintiff appeals.

<p>1. Corporations <S=>337 — Liability of directors and officers, when debts exceed capital stock, is strict! juris.</p> <p>Under Hurd’s Rev. St. Ill. 1915-16, e. 32, § 16, making the directors and officers of any stock corporation liable for the excess of its indebtedness above the capital stock when they assent thereto, the liability is like that of a surety, and therefore stricti juris.</p> <p>2. Corporations <@==>337 — Damages for breach of contract not an “indebtedness,” within statute as to liability of directors and officers.</p> <p>Damages from a breach of contract for the delivery of oil is not an “indebtedness,” within Hurd’s Rev. St. Ill. c. 32, § 16, making directors and officers of stock corporations liable for the excess of the indebtedness above the amount of the capital stock.</p> <p>[ICd. Note. — Dor other definitions, see Words and Phrases, First and Second Series, Indebted — Indebtedness.]</p>

<p>Bills and notes @=’94(2) — Compromise of claim sufficient consideration.</p> <p>A compromise and settlement of matters in dispute, after full and fair negotiation, is binding on the parties, and an acceptance given by one in execution of the settlement is not open to defense.</p>

<p>In Error to the District Court of the United States for the Western District of South Carolina, at Anderson.</p> <p>Criminal prosecution by the United States against C. E. Alexander. Judgment of conviction, and defendant brings error.</p>

<p>Mines and minerals >®=79(6) — Equity will relieve against forfeiture of lease, for failure to pay rent in time, where rental check in registered letter was delayed in mails.</p> <p>Equity will relieve against the forfeiture of an oil and gas lease for failure to pay the rental within the time specified to procure an extension of the time for drilling', where it appeared that the lessee in ample time mailed to the bams: where the rental was to be deposited a check sufficient to cover such rental, but the letter, which had been registered, was delayed in the mails and did not arrive until two days after the date specified for the payment, of which fact lessor had no knowledge until after the chock was received.</p>

In Equity. Suits by the Vermont Maple Syrup Company, Incorporated, against the F.. N. Johnson Maple Syrup Company and others, and by the F. N. Johnson Maple Syrup Company against the Vermont Maple Syrup Company, Incorporated. Heard on issues joined on bills and answers. Decree for the Johnson Company.

<p>1. Aliens <§=>54 — Jurisdiction without process ceases on admission of alien before appeal by dissenting board member.</p> <p>Under Immigration Act, § 19 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4289%jj)j and Immigration liu'es 17, 22, regulating appeals from the orders of the Board of Special Inquiry excluding or admitting an alien, the jurisdiction of the board over the alien ceases when the alien is actually admitted before an appeal is taken, which would stay the order oí admission, unless the alien is subsequently arrested on process, and any practice oí the board to the contrary is invalid.</p> <p>2. Aliens <3=54 — Volantaiy return oí immigrant does not render detention without process legal.</p> <p>Wnere an aiien, who had been admitted before an appeal was taken from tlie order of the Board of Special Inquiry, thereafter voluntarily returned on request of the board, such return did not render legal his subsequent detention by the board without process.</p>

<p>In Admiralty. Libel by Edward J. Reilly, as owner of the barge Good News, against Tuohy & Upton, Incorporated.</p>

Joe Kelih was indicted for violation of the National Prohibition Act. On motion hy defendant for the restoration of property as illegally and unlawfully seized.

Libel of Information in Forfeiture. Proceeding by the United Stales for the condemnation of one W. W. Shaw automobile taxi and 186 quarts of Penwick whisky. Order of condemnation and sale of both the whisky and the automobile entered.

<p>In Admiralty. Libel in personam by the Turney Transportation Company against the National Dredging & Lighterage Company. On final hearing.</p>

<p>Emma C. Bergdoll and others, Charles Braun and others, Charles Braun, Emma C. Bergdoll, and James E. Romig were convicted on five separate indictments of conspiracy to aid soldiers in military service in deserting. On motion for new trial.</p>

In Equity. Suit by the Bayer Company, Incorporated, against the United Drug Company. Decree for plaintiff for part only of the relief sought.

In Bankruptcy. In tire matter of Pauline H. Roth, bankrupt. On petition by the bankrupt to review and reverse an order of the referee allowing a claim of the Euclid Builders’ Supply Company as a general debt against the bankrupt’s estate.

<p>In Equity. Suit by the Metropolitan Sewing Machine Corporation against the American Perfect Binder Company and others. On application by the plaintiff to have the individual defendants adjudged in contempt of an injunction previously issued by consent.</p>

<p>In Bankruptcy. In the matter of the Monarch Oil Corporation, bankrupt. On exceptions to referee’s report, finding the court had jurisdiction to make adjudication.</p>

<p>In Bankruptcy. In the matter of the Devonian Mineral Spring Company, bankrupt. On petitions to set aside voluntary bankruptcy adjudication, and for an order transferring the proceeding.</p>

<p>In Equity. Suit by Daniel B. Luten against the Kansas City Bridge Company. On motion to dismiss.</p>

In.Equity. Separate suits by James A. Lowell and others, as trustees in bankruptcy of Charles Ponzi, against Edward Ashton, against Fred Broadbent, and against Nellie Broadbent. Decrees directed for plaintiffs.

<p>Admiralty <&wkey;2 — Removal of causes <^72 — Common-law action for personal injuries on vessel held properly brought in state court.</p> <p>For a personal injury sustained on board a vessel in port there exists a common-law remedy within the meaning of Judicial Code, § 24 (3), being. Comp. St. § 991 (3), and an action to recover for such injury brought in a state court, in which the amount sued for is less than $3,000, is not removable on the ground that the admiralty jurisdiction is exclusive.</p>

<p>In Admiralty. Libel by John F. Hurley, owner of the barge Broadway, against the steam tug Numatic.</p>

<p>In Admiralty. Libel by Cornelius Franco and another against the Seas Shipping Corporation, Incorporated.</p>

<p>1. Bankruptcy <&wkey;431(í) — Judgment for personal injury provable “debt.”</p> <p>A judgment on a claim for negligent personal injury is a “debt” from which a discharge in bankruptcy would be a release, within Bankruptcy Act, § 9 (Comp. St. § 9593), exempting a bankrupt from civil arrest on a dischargeable debt.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Debt.]</p> <p>2. Bankruptcy <&wkey;392 — Exemption from “arrest” includes release from imprisonment.</p> <p>The word “arrest,” as used in Bankruptcy Act, § 9 (Comp. St. § 9593), exempting a bankrupt from arrest on civil process, except in certain cases, includes “imprisonment.”</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Arrest.]</p> <p>3. Bankruptcy <&wkey;392 — Exemption of bankrupt from civil arrest is effective from adjudication.</p> <p>Bankruptcy Act, § 9 (Comp. St. § 9593), exempting a bankrupt from arrest on civil process on a dischargeable debt becomes effective at once on adjudication and entitles the bankrupt to discharge from imprisonment under a previous arrest on such a debt.</p>

<p>In Error to the District Court of the United States for the Eastern District of Missouri; John C. Pollock, Judge.</p> <p>Action by Clarence E. Wight against the United Autographic Register Company. Judgment for plaintiff, and defendant brings error.</p>

Sanford, Judge. H. E. Grayson and another were convicted of conspiracy to transport intoxicating liquors into a state where the sale therein was prohibited, and they bring error.

<p>Petition to Revise an Order of the District Court of the United States for the Southern Division of the Eastern District of Tennessee; Edward T. Sanford, judge.</p> <p>In the matter of voluntary proceedings in bankruptcy by the De Camp Glass Casket Company. The referee’s order overruling a motion to vacate the adjudication in bankruptcy was reversed by the District Judge, and the bankrupt and trustee in bankruptcy bring petition to revise.</p>

<p>Appeal from the District Court of the United States for the Southern District of Mississippi; Rufus E. Foster, Judge.</p> <p>Suit in Equity by the Burton Construction Company against Holmes County, Miss. From an order granting a preliminary injunction, defendant appeals.</p>

<p>1. Bankruptcy ©=’440 — Decision as to third person’s claim to property in trustee’s hands renewable by appeal, not by revision; “controversy arising in bankruptcy proceedings.”</p> <p>A decision of a bankruptcy court as to a third person’s claim against a trustee in bankruptcy as to property coming into the bankrupt’s hands was reviewable, as a “controversy arising in bankruptcy proceedings,” only by appeal under Bankruptcy Act, § 24a (Comp. St. § 9608), and, claimant having both appealed and petitioned to revise, the petition to revise will be dismissed, as the remedies by appeal and petition to revise under section 24b are mutually exclusive.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, Second Series, Controversy Arising in Bankruptcy Proceedings.]</p> <p>2. Usury (5) — Discount contract held governed by laivs of state of performance.</p> <p>A contract between a lumber and box company of Tennessee and a discount company, executed in Ohio, in which the discount company resided and did business, for the assignment to the discount company from time to time of notes and accounts due from the box company’s debtors for advances thereon by the discount company and for collection of the assigned accounts by the box company and the remittances of their proceeds to the discount company, was governed by the usury laws of Ohio, the place of performance.</p> <p>8. Sales <®=>6 — Transaction held pledge, and not sale, of accounts.</p> <p>A contract between a box company and a discount company, under which the discount company was to advance the box company a certain percentage of the box company’s accounts receivable, which account? the box company was to assign to the discount company, repurchasing accounts not paid at maturity, held a contract, not of purchase of the accounts, but of pledge thereof.</p> <p>4. Usury —Contract held usurious.</p> <p>Under a contract between a box company and a discount company, under which the discount company was to advance to the box company 80 per cent, of the value of accounts receivable, which were to be assigned by the box company to the discount company, the box company to collect the accounts and remit their proceeds to the discount company, and the discount company to charge 1 per cent, per month on the face value of the accounts until paid, that is, 15 per cent, per annum upop the amounts advanced, held, that the 9 per cent, thus reserved, in excess of the 6 per cent, authorized by the usury laws of the state of the contract. bore no reasonable relation to the character of services to be rendered, and that the contract was unenforceable as to interest above 6 per cent, per annum.</p> <p>5. Corporations CS=>661 (2) —^Foreign discount company’s noncorapliance with laws did not bar recovery of sums collected by borrower on assigned accounts receivable.</p> <p>Even though a foreign discount company was doing business in Tennessee, the fact that it had not complied with the laws of that state, in respect of conditions precedent to the right to do business in that state, did not forbid its recovery of sums collected by its borrower on accounts receivable of the borrower, assigned to the discount company as security for its discounting such accounts, which accounts the borrower was obligated to collect.</p> <p>6. Bankruptcy <©=184 (2) — Unrecorded assignment, good against creditors, good against trustee in bankruptcy.</p> <p>Where there are no statutes making record or registration of an assignment of accounts for security for a loan requisite to validity of the assignment against either assignor or assignor’s creditors, the situation is not changed by the intervention of bankruptcy.</p> <p>7. Bankruptcy <@=>184(2) — Courts <@=>367 — Interpretation by state court of general law not binding on federal courts, unless involving a rule of property having situs within the state.</p> <p>The holding of the Tennessee courts that notice to the debtor is necessary to the validity of an assignment of choses in action, being based on an interpretation of the general law, is not binding on the federal courts, unless it can be said to involve a rule of property having a situs within the state; and the mere fact that the debtors owing accounts receivable due the assignor lived in Tennessee did not give the accounts themselves a situs within the state, bringing them within the rule; but their situs was in Ohio, where the assignment was made, and where the assignor had contracted to pay the assignee, to whom the accounts had been pledged, the proceeds of the accounts as collected by the assignor, so that, no notice to the debtor being required by the general law, the assignment would be valid without such notice, as respects the trustee in bankruptcy of the assignor.</p> <p>8. Bankruptcy <2=214 — Proceeds of property must be traced to fasten lien thereon.</p> <p>Where bankrupt assignor received from debtors, whose debts or accounts had been assigned by him as security for money borrowed, certain lumber and an automobile truck in payment of such accounts, and his receiver in bankruptcy had used the lumber and proceeds of sale or the truck in operating the bankrupt’s business, the pledgee was not entitled to have its lien fasten upon the proceeds of judgments against such receiver, recovered by the trustee iu bankruptcy succeeding him, for misconduct of the business and misapplication of funds, although such judgments constituted practically the only remaining estate available for payment of the bankrupt’s obligations, where there was no showing that the recoveries were either wholly or in part (and, if in part, wliat part) on account of the receiver’s dissipation of the lumber and proceeds of sale of the truck, although as to an amount collected by the receiver on the pledged accounts and never paid to the pledgee-the situation would he different, as such funds never came into the- bankrupt’s hands and were.never part of his estate.</p>

<p>Conspiracy &wkey;>8‘3 — Conspiracy to defraud “military post exchange” mot one to defraud United States; “department of the government.”</p> <p>A military post exchange, which is a voluntary association of companies, detachments, or other army units at military posts, permitted, but not required, by a special regulation of the War Department for the purpose of conducting for the benefit of the members of such units what is in clfoet a co-operative store and place of entertainment, with then-own funds, and' for whose contracts and obligations the United States is not responsible, and in whose funds it has no interest, though its business is conducted by an officer detailed ior tbe purpose, held not a “department of the government,” and proof of a conspiracy to defraud a post exchange held not to sustain an indictment, under Criminal Code, § 37 (Comp. St. § 10201), for conspiracy to defraud the United States.</p> <p>Woods, Circuit Judge, dissenting.</p>

Lewis, Judge. Action by Melvin R. Lewin, as trustee in bankruptcy of the Weller Mining & Milling Company, against the Telluride Iron Works Company and another. Judgment for defendants on directed verdict, and plaintiff brings error.

<p>1. Waters and water courses <&wkey;263 — Cause of flooding of land on irrigation canal held question for jury.</p> <p>Evidence that the flooding of a part of plaintiff’s farm, which rendered it unfit for cultivation during a number of seasons, was caused by seepage from an irrigation canal maintained by defendant, held, sufficient to require submission of the question to the jury.</p> <p>2. Waters and water courses <&wkey;260 — Owner liable for injury caused by negligent operation of irrigation canal.</p> <p>The owner of an irrigation canal is liable for injury caused to the lands of another through its negligent failure to so maintain, operate, and use its canal as to prevent such injury.</p> <p>3. Eminent domain <&wkey;112 — Operator of irrigation canal under state authority liable for incidental damage to private property.</p> <p>Under Const. Neb. art. 1, § 21, providing that private property shall not be taken or damaged for public use .without just compensation, the owner of an irrigation canal, though constructed under1 authority from the state for a public service, and maintained and operated in a lawful and careful manner, is liable for damage caused to the land of another as a necessary effect of such operation.</p> <p>4. Limitation of actions &wkey;>55(7) — Limitation does not run against action for damage to land until injury appears.</p> <p>Limitation does not begin to run against an action for damage to land, Caused by seepage from a canal which does not run through such land, until the land is visibly affected to its injury.</p> <p>5. Waters and water courses ®=3260 — Irrigation district liable for injury to private property.</p> <p>An irrigation district organized under authority of a state statute, in constructing and operating an irrigation system for its own private benefit, is not exercising a governmental function, and is not exempt from liability for injury to private property.</p>

<p>In Error to the District Court of the United States for the District of Nebraska; Thomas C. Munger, Judge.</p> <p>Action at law by the Gordon Fireproof Warehouse & Van Company against Walker D. Hines, Director General of Railroads. Judgment for defendant, and plaintiff brings error.</p>

<p>L Principal an4 surety &wkey;117 — Motives or results do not justify payments before contract time.</p> <p>The surety on a bond securing a contract for the construction of a railroad roadbed has an equity in reserved percentages of the contract price, and a right to expect and demand that no payments will be made prior to the time specified in the contract, and good motives and beneficial results do not justify payments in violation of the contract.</p> <p>2. Principal and surely @=55 — -Surety company’s vice president held authorized to consent «.© payments before agreed time of payment.</p> <p>Where a company, contracting to construct a railroad roadbed, had financial troubles from the beginning of the work, and the corporate surety’s vice president and representatives of the railway company had numerous conferences and conversations among themselves and with representatives of the construction company, for the purpose of enabling it to complete the contract, at all of which it was assumed that the vice president represented the surety company, without any intimation by him that he had no authority to do so, and, without referring the question to the home office, he suggested the advisability of canceling the contract, and stated that his company did not want to take it over, he had authority to consent to payments to the contractor before the time specified in the contract.</p> <p>3. Principal and surety @=162(3) — Instruction submitting question whether payments to - principal were with surety’s knowledge and acquiescence not erroneous.</p> <p>Where the surety on a bond given to secure a contract for the construction of a railroad roadbed co-operated in all that was done to encourage the contractor to solve its financial troubles and keep on the job, and when it was apparent that the contract would not be completed told the railway company to cancel the contract and send its bill to his company, an instruction submitting tbe question whether payments to the contractor before the contract time for payment was with his “knowledge and acquiescence,” instead of “consent,” was not erroneous.</p>

<p>Original petition for mandamus by the United States of America, on relation of the Tongue & Yellowstone River Irrigation District and others, against the United States District Court for the District of Montana and Hon. George Ml Bourquin.</p> <p>The relators filed a petition in this court for a writ of mandamus to the Judge of the District Court of Montana, with directions to correct the entry of a judgment made upon the mandate of this court, so as to comply with said mandate as sent down in the case of Tongue & Yellowstone River Irr. Dist. v. Jordan, 208 Fed. 261. The case which we there heard on appeal was a suit brought in 1918 for the rescission of a contract entered into November 4, 1914, by which Jordan, the plaintiff, agreed to sell to the irrigation district a certain dam, dam site, canal, irrigation system, and right of way, together with water rights, for the sum of $195,000, payable in cash, or, at the option of the district, in its bonds in that amount. The contract was to be performed on or before February 25, 1915. On the hearing of the cause in the District Court, the plaintiff waived his right to rescind, and consented to specific performance. It was accordingly decreed that the contract whereby the plaintiff sold to the district the irrigation plant and water right for the sum. of $195,000, “to be paid in the 30-year coupon bonds of said irrigation district, with annual interest at 6 per cent, per annum, be specifically performed by tbe parties, but in tlie modified terms hereinafter set forth.” It was further decreed that the plaintiff be released from making further alterations or Repairs upon the plant, and that in lieu thei’eof the district retain out of the amount owing on the purchase price the sum of $25,000; that in payment for the plant the district should deliver its bonds aggregating $195,000, with the original coupons providing for interest thereon at 6 per cent, per annum attached, but that before delivery the district might detach therefrom or indorse the coupons attached to said bonds as follows:' “(a) Indorse said coupons so as to show that no interest accrued on said bonds to June 30, 1915, the date of their approval by the District Court, (b) Said irrigation district may detach from said bonds a sufficient number of the first maturing coupons thereon to equal the sum of $25,000, the sum allowed for the completion of the repairs and improvements upon said plant as above approved, (e) Said irrigation district may detach from said coupons nest maturing on said bonds the sum of $14,626.71, being, the net sum received by plaintiff from the landowners of said district for the use of said irrigation plant since June 30, 1915. * * * If the exact amounts of the credit herein specified cannot be made up in coupons to be so detached, the next lesser amount in such coupons shall be taken, and a proper indorsement of payment as of that date made on a sufficient number of the next maturing coupons to make up said entire credits. The remaining past-due coupons, if any, upon said bonds, shall be an immediate obligation of said district to plaintiff.”</p> <p>On appeal to this court the decree was affirmed, this court saying: “We are of the opinion that the court below was right in providing by its decree for the detaching from the bonds required to be delivered in payment for the property a sufficient number of the coupons thereof first maturing to equal the sum of $25,000, for the completion of the repairs and improvement of the plant referred to, and to cover the net sum so received by the seller of the property for the use of the water by the landowners subsequent to June 30, 1915.” The petition for mandamus alleges that on June 2,1920, after the mandate of this court was filed in the court below, the relators deposited with the clerk of that court 195 bonds of the district, of the face value of $1,000 each, with certain coupons attached, of the value of $60 each, and served upon the attorneys for Jordan notice of their compliance with the decree, and thereafter moved the court to approve their action as a compliance with the decree, but that on July 28, 1920, the court ordered that the relators be permitted to detach from the bonds deposited by them only such number of interest coupons as with interest added from the maturity of said coupons would equal the amounts awarded to the relators by said decree, and that thereafter, upon their motion for a rehearing, the court declined to modify the order so made. The relators prayed that a writ of mandamus issue to the Judge of said District Court directing that the order of July 28, 1920, be modified in so far as the same requires that the relators detach only such number of the interest coupons attached to the $195,000 worth of the bonds of said district as; with interest added from the dates of the maturity of said coupons, would equal the amounts awarded to the relators by said decree, to wit, $25,000, and N$14,626.71, and to order said District Court to permit rela-tors to comply with said decree by detaching from said bonds a sufficient number of said coupons to equal at their face value the said amounts.</p> <p>An order to show cause why said petition should not be granted was issued to the Judge of the District Court, and he made return thereon, setting forth that the question whether or not the coupons representing the annual interest on said bonds should bear interest after their respective maturities was not before that court at the trial of said action, nor before this court on the appeal, and that said question came before the respondent as an original one, and as an original question was decided by him, in the order made on July 28, 1920.</p>

<p>In Error to the District Court of the United States for the Western District of Tennessee; John E. McCall, Judge.</p> <p>Action for slander by James Sloan against the Buckeye Cotton Oil Company. Judgment for the plaintiff, and defendant brings error.</p>

<p>1. Sales í&wkey;71 (1) —Parties held to have construed contract for coal to give buyer right to cumulate deficiencies in amounts ordered from month to month.</p> <p>Correspondence between the parties held to have given a contract for 60,000 tons of coal, to be shipped in monthly installments, a practical construction that plaintiff buyer had the right to cumulate deficiencies in the amounts ordered from month to month, so that, notwithstanding buyer’s failure to order the full amount of the monthly installments during the earlier months of the year, it had the right to have the undelivered remainder of the 60,000 tons delivered during the remaining months of the contract.</p> <p>2. Sales ,&wkey;85(2) — Car shortages are “contingencies of transportation” and “causes beyond control” in coal contract.</p> <p>Car shortages were “contingencies of transportation,” as well as “causes beyond the control” of defendant seller of coal, under a contract excusing delivery on such contingencies, and plaintiff buyer’s contention that such exception applied only in case defendant could not get cars enough to make shipments it had agreed to make to plaintiff alone, irrespective of its obligations to other customers, was' untenable, for, even in the absence of custom, it would be defendant’s duty to apportion available cars among existing customers of coal, although evidence of such a custom would be admissible.</p> <p>3. Sales <&wkey;172 — Seller’s right to prorate shipments in case of car shortage depends on good faith.</p> <p>Under a contract for a year’s coal supply to be shipped in monthly installments, defendant seller’s right to prorate shipments in case of car shortage depended on its exercise of good faith and reasonable care to avoid taking contracts in such amount as it might reasonably expect would interfere with its securing sufficient cars to fill plaintiff buyer’s contract, on the making of honest effort and the use of reasonable diligence to secure sufficient cars to fill the contract, and on its distribution of cars obtained so that plaintiff would get its fair share, and from the fact that defendant would normally be entitled to apportion its available cars on the basis of each day’s contract requirements, it would not necessarily follow that plaintiff had no right to complain of the making of new contracts, where the market was rising and there was a ear shortage.</p> <p>4. Appeal and error '©=3-1170 (9) — Sales 1&wkey;418(l) — Instruction as to defense of car shortage in action for failure to deliver coal held reversible error.</p> <p>In buyer’s action for damages for failure to deliver coal bought, one of the defenses being ear shortage, where, following an instruction that, if defendant seller, for the purpose of getting a higher price for coal, used available cars to deliver spot coal to parties with whom it had no contracts when coal was due and not delivered tb plaintiff, such practice would be unfair, the court instructed, “Plaintiff would be entitled to all cars so used until the contract amount then due had been delivered to plaintiff, * * * and not merely its proportionate share of them. Defendant cannot urge as a defense that parties with whom it had contracts were entitled to such ears unless they were so used by the defendant”— such latter instruction was error, as plaintiff was entitled to only its fair share of the cars so diverted, and was not entitled to damages for failure to receive cars which others should have received; and such instruction held prejudicial and reversible error, notwithstanding Judicial Code, § 269, as amended by Act Feb. 26, 1919 (Comp. St. Ann. Supp. 1919, § 1246), as to technical errors.</p>

<p>Appeal from the District Court of the United States for the Northern District of Ohio; D. C. Wcsienhaver, Judge.</p> <p>Libel by the United Fuel & Supply Company against the Steamer Perseus; the Interlake Steamship Company, claimant. From a decree dismissing the libel, libelant appeals.</p>

<p>1. Landlord and tenant <&wkey;44(2) — Intention of pasties determines whether covenants run with the land.</p> <p>Regardless of whether St. 32 Hen. VIII, c. 34, was adopted as part of the common law of the state, the question whether a covenant in a lease runs with the land or is merely a personal covenant is dependent on the intent to be inferred from the language of the instrument with the aid of settled rules of construction and in the light of the attendant circumstances.</p> <p>2. Landlord and tenant' <&wkey;95 — Provision- for surrender of lease on payment of stated sum held to run with land.</p> <p>A provision in a lease whereby the lessee agreed to surrender possession in case of a bona fide sale of the premises on payment to it of a stated sum, depending on the balance of the term yet to run, which was manifestly inserted to facilitate the sale of the premises, and was not of a personal character, since its enforcement would depend on desire of the purchaser, not of the lessor, runs with the land and may be enforced by a grantee on making a second sale.</p> <p>3. Landlord and tenant t&wkey;95 — Provision for surrender of lease on sale of property held contingent limitation.</p> <p>A provision in a lease that the lessee would surrender possession on the payment of a stated sum in case of a bonn fide sale of the premises imposes a contingent limitation upon the terms which can be enforced by proceedings to recover possession and does not limit the lessor or his purchaser to a recovery of damages.</p> <p>4. Specific performance ‘<&wkey;58 — Provision for payment of liquidated damages ordinarily does not defeat obligation of purchaser to perform.</p> <p>A provision in a contract for the sale of real property that the purchaser shall deposit a sum which shall be forfeited to the vendor as liquidated damages in case of the purchaser’s failure to perform his contract ordinarily does not give the purchaser the option to refuse to perform on payment of the money or defeat a suit against him by the vendor for specific performance.</p> <p>5. Landlord and tenant <&wkey;95 — Purchaser held to have elected to take property, so as to make transaction bona fide sale.</p> <p>One who had signed a contract for the purchase of leased premises on condition that possession could be secured from the tenant under the terms of the lease, and who thereafter joined with the lessor in a suit to cancel the lease and recover possession of the property, thereby elected to take the property, if he had previously an option to refuse to take it, so that the transaction became a bona fide sale, within the provision of the lease requiring' the lessee to surrender possession of the property in that event.</p>

Appeals from the District Court of the United States for the District of Massachusetts; James M. Morton, Jr., Judge. In the matter of the bankruptcy of the National Piano Company. From an order of the District Court allowing the claim of Frederick M. Kilmer, as trustee, against Charles H. Keith, trustee in bankruptcy, both parties appeal.

Morton, Jr., Judge. In the matter of the bankruptcy of the National Piano Company. From a decree denying the claim of Alice F. Kilmer against Charles H. Keith, as trustee in bankruptcy, the claimant appeals.

<p>In Error to the District Court of the Canal Zone; John W. Hanan, Judge.</p> <p>Action by James Rock against the Panama Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the District Court of the Canal Zone; John W. Hanan, Judge.</p> <p>Action by Camila Castilla against the Panama Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Sales ©=81(1) — Contract held to bind seller to make shipment, but not delivery, within certain time.</p> <p>Where a contract for the sale of goods, manifestly made with reference to special war conditions, fixed the time for shipment of the goods from a foreign country, but contained a provision, “No arrival, no sale,” the seller did not undertake to make delivery, but merely agreed to ship the goods on the date specified, and the buyer cannot reject the goods for delay in delivery.</p> <p>2. Sales <&wkey;267 — Contract held to take away right to reject for breach of implied warranty.</p> <p>In a contract for the sale of goods to be imported, which was manifestly made in view of war conditions, a stipulation for claims for defect of quality, but providing that in no event could goods be rejected after arrival, stipulated against the law of implied warranty that the goods were merchantable, and required the buyer to 'accept the goods in any event and adjust his claim for damages after acceptance.</p> <p>3. Sales &wkey;>85(l) — Contract held to preclude rejection for shortage in delivery.</p> <p>In a contract for the sale of goods to be imported, manifestly made with reference to war conditions, a stipulation that goods lost were not to be replaced by the plaintiff refers to the loss of any part of a consignment, as well as to the loss of the whole of it, and deprives the buyer of his right under the law merchant- to reject the entire consignment for a shortage.</p>

<p>1. Corporations <&wkey;320(4) — Stockholder not entitled to maintain suit against-director for benefit of corporation, unless corporation so entitled.</p> <p>A stockholder could not maintain a suit for the benefit of the corporations against a director to compel him to pay for stock issued in payment of property, or for less than its par value, unless the corporation would have been entitled to maintain a suit.</p> <p>2. Corporations <&wkey;320(7) — Stockholder's bill on behalf of corporation against director to compel payment for stock held1 to state no cause of action.</p> <p>' Under Comp. St. Idaho 1919, § 4728, providing that no corporation shall issue stock except for money, property, labor, or services, etc., and section 4752, providing that the judgment of the directors as to the value of labor, services, or property shall be conclusive, in the absence of fraud, a stockholder’s bill on behalf of the corporation against a director alleging that the directors issued stock to themselves in payment for property of no value to the corporation and other stock for 25 cents on the dollar of the par value stated no case of action, the absence of any allegation tending to show fraud.</p>

<p>Appeal from the District Court of the United States for the Southern Division o£ the District of Idaho; Drank S. Dietrich, Judge.</p> <p>Suit by H. C. Anderson against M. F. Albert and another. From a judgment for defendants, plaintiff appeals.</p>

<p>Appeal from the District Court of the United States for the Western Division of the Southern District of Ohio; John W. Peck, Judge.</p> <p>Suit by the Westinghouse Electric & Manufacturing Company against the Formica Insulation Company for infringement of patents. From a decree dismissing the bill (270 Fed. 632), plaintiff appeals.</p>

<p>1. Appeal and error <®=>662(2) — Recitals of record conclusive as to date of judgment.</p> <p>For the purpose of determining whether or not a writ of error was sued out in time, the recitals of the record as to the date of the judgment are conclusive on the appellate' court.</p> <p>2. Principal and agent <©=>103 (7) — Agent held authorized to make contract; “quote.”</p> <p>A letter written by defendant in New York to plaintiff in Panama, in reply to one from plaintiff inquiring prices for oil delivered in . Panama; referring plaintiff to an agent as “our representative in Panama, * * * who will quote you from time to time if desired,” held sufficient to establish the authority of the agent to bind defendant by a contract for the sale of oil to plaintiff, entered into in good faith, for, taken in connection with the letter inquiring as to prices, the authority to “quote” was equivalent to authority to fix prices.</p>

Libel by the S. A. Companhia Oeral Commercial Do Rio De Janeiro against the schooner St. Johns N. F., of which the St. Johns N. F. Shipping Corporation was claimant. Decree for libelant, and claimant appeals. The libel sets forth that on a day certain the General Commercial Company, limited, shipped on the St. Johns,' then at New York, 800 barrels of rosin, to be transported to.

<p>In Error to the District Court of the United States for the Southern District of Ohio; John W. Peck, Judge.</p> <p>Action by the Baltimore & Ohio Southwestern Railroad against W. H. Settle and another, partners as W. H. Settle & Co. Judgment for defendants, and plaintiff brings error.</p>

Petition to Review and Revise an Order of the District Court of the (United States for the Eastern Division of the Northern District of Illinois. In the matter of the estate of Edward B. Eeigh, bankrupt.

<p>Indians <®=>38(4) — Variance not fatal in prosecution for introducing liquor into Indian country.</p> <p>In a prosecution for introducing liquor into that part of the state of Oklahoma that was formerly Indian Territory, the particular county into which it was introduced is not an element of the offense, and a variance between allegation and proof in that respect, where it does not affect the jurisdiction or venue, is not fatal, unless it is shown that it was prejudicial to defendant in presenting his defense.</p>

<p>Commerce Action to recover overcharge within jurisdiction ȣ courf.</p> <p>A direct action in court may be maintained against a railroad company to recover overcharges on shipments, where no question is made as to tariff schedules or rules requiring administrative action by the Interstate Commerce Commission, but the only issue is one of tact as to whether or not defendant furnished a service that entitled it to the higher rate charged.</p>

<p>In Error to the District Court of the United States for the Western District of Missouri; Arba S. Van Valkenburgh, Judge.</p> <p>Action at law by the Butler Motor Company against the Atchison, Topeka & Santa Fé Railway Company. Judgment for defendant, and plaintiff brings error.</p>

Woodrough, Judge. Suit in Equity by the United States, as trustee for Rose Wolf Setter, against Hiram Chase and wife. From an order granting a preliminary injunction, defendants appeal.

<p>Appeal from the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge.</p> <p>Suit for infringement of a patent by Arthur E. Paige against Andrew V. Brown and others. Decree for defendants (260 Fed. 955), and plaintiff appeals.</p>

<p>Patents <§=>328 — 878,147 and 971,300, for «ranter protecting devices, hold void for lack of invention.</p> <p>■ The Monette patents, No. 878,147 and No. 971,300, for counter protecting devices, held void for lack of invention.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Illinois.'</p> <p>Suit in equity against the Cincinnati, Indianapolis & Western Railroad Company, Frank H. T. Potter, and others. From the decree, defendant Potter appeals.</p>

<p>Petition by Arthur M. Miegel for admission to citizenship.</p>

<p>Petition by Harry Rubin for admission to citizenship.</p>

<p>1. United States ®^>87 (2) —Kent of derrick or lighter used to transport stones recoverable on contractor’s bond.</p> <p>The rent of a derrick or lighter used in transporting stones for use in the performance of a government contract is recoverable on a bond given by 'the contractor to secure payment for labor and material.</p> <p>2. United States <3=’67(2) — Hire of derrick hoister chartered for use on two contracts held recoverable on contractor’s bond.</p> <p>Where a derrick hoister was chartered by the month to be used successively on two government contracts, only one of which was covered by a bond, and, for a later period, by the day, and all due under the original charter had been paid, and the amount claimed was for days upon which it was actually used on the contract covered by the bond, the unpaid balance of the hire was recoverable on the bond.</p>

<p>1. Courts <5=358 — In construing will, federal court must put itself in attitude of state courts as to public charities.</p> <p>Tlie United States District Court, in construing a will which attempts to create a public charity, must put itself in the attitude of the courts of that state, which strongly favor public trusts for charitable uses, and liberally construe deeds and wills in which the maker evinces a charitable purpose, so as never to defeat a manifest charitable intent, unless clearly contrary to statute.</p> <p>2. Charities «5=21(4) — Gift for founding college for women held sufficiently certain.</p> <p>A direction in a will that the residuary estate bo devoted to founding and maintaining a school or college for the higher education of women and girls, which sliall be nonsectarian, but Christian, and directing the selection of trustees by the elders of a church, by the Governor of the state, and by the mayor of the city, sufficiently designates the purpose to create a public charity.</p> <p>3. Charities @=»47 — Chancellors can appoint trustees, when donees o£ power refuse.</p> <p>If the persons designated by a will to appoint the trustees for a college to be founded and maintained under the will should refuse to act, the state chancellors, under the judicial cy pres power, could select a board of the kind intended by testator.</p> <p>4. Charities <®=^21(4) — Class of haBefidaries of college held identified.</p> <p>In a gift to be used in founding and maintaining a college for the higher education of women, though the beneficiaries are indefinite, which is the essential characteristic in distinguishing a public trust from a private one, they are so positively identified by class that any arbitrary selection of pupils by the board of trustees could be restrained in a suit by the Attorney General in the interest of the people.</p> <p>5. Perpetuities <§=^4 (15) — Devise io trustees, to be conveyed to college founded Sater, held not illegal restraint of alienation.</p> <p>Where a testator gave his property to trustees for his wife during her widowhood, and thereafter to be used in founding and maintaining a college under the control of 10 trustees to be appointed after the termination of the wife’s interest, the legal title vested in the testamentary trustee at once, subject to the private trust during widowhood, and thereafter to the public trust, so that the gift does not violate Burns’ Ann. St. Ind. 1914, §§ 3998, 9723, providing that the absolute power of alienation shall not be suspended longer than during lives in being at the creation of the estate.</p>

<p>L Aliens @=7134, New, vol. 7 Key-No. Series — Naturalization certificate on qualified testimony as to fitness is “illegally procured.”</p> <p>Under Naturalization Act, § 4 (Comp. St. § 4352), requiring the witnesses for the applicant to state that he is a person of good moral character and requiring the court to be satisfied he is in every way qualified to be a citizen, and section 7 (section 4363), denying naturalization to members of an organization opposed to government, a certificate of naturalization based on the testimonyof witnesses who qualified their opinion as to the fitness of petitioner because of his connection during the war with a strihe instigated'by the I. W. W., is “illegally procured,” though the witnesses testified to his good character except for that fact, and the state court found that petitioner was not at fault in that regard, since the statute clearly requires unqualified testimony to 'good character.</p> <p>2. Aliens @=7134, New, vol. 7 Key-No. Series — Change of witnesses’ opinion after certificate may be based on hearsay.</p> <p>The fact that the change of opinion concerning the' character of petitioner for naturalization in the minds of his witnesses occurred after they had made their affidavits to his good character and was founded in part upon hearsay is immaterial, since reputation can only be established by hearsay, and such change of opinion prevents the naturalization of petitioner.</p> <p>3. Aliens @=>7134, New, vol. 7 Key-No. Series — Naturalization is “illegally procured” where part of inquiry is not in open court.</p> <p>A naturalization certificate is illegally procured where it appears that part of the inquiry by the judge upon which it was issued was made by him, and not in open court.</p> <p>4. Aliens @=713£, New, vol. 7 Key-No. Series — Naturalization certificate may be canceled on qualification by witnesses of opinion of fitness.</p> <p>Under Naturalization Act, § 15 (Comp. St. § 4374), authorizing a suit to cancel a naturalization certificate, illegally procured, the certificate should be canceled where it appeared that it was issued by'the state court upon the testimony of witnesses who qualified their opinion as to the fitness of petitioner for citizenship, though the government was represented" at the naturalization hearing and contested the naturalization on that ground, and the court found that the qualification was not based on fact.</p>

<p>In Equity. Suit by Morris Ravitz and others against Ellwood Hamilton, Collector of Internal Revenue. On motion by defendant to dismiss bill and motion by complainants for injunction.</p>

<p>In Admiralty. Suit by David West Peters against Lewis B. Taulane and others. Decree for respondents.</p>

<p>In Equity. Suit by the New York Life Insurance Company against Benjamin Wertheimer and others. Decree for complainant.</p>

In Equity. Suit by the National Tube Company and others against the United States and others. On motion for preliminary injunction, suspending order of Interstate Commerce Commission. Suit under Commerce Court Act (36 Stat. 539) and Urgent Deficiencies Act October 22, 1913 (38 Stat. 219), to enjoin, set aside, annul, or suspend order of Interstate Commerce Commission, July 11, 1918 (50 Interst. Com.

<p>Habeas Corpus. Petition for discharge from custody by Paul Kallas against the United States. On demurrer to the petition.</p>

In Equity. Suit by Arthur B. Price, trustee, against the Bryan & Central Texas Interurban Railway Company. On motion by Sam Wex-ler for leave to file a supplemental bill against J. G. Minkert, County Attorney for Brazos County, Tex.

<p>In Equity. Separate suits by the Lehigh Valley Railroad Company, by the Lehigh & Hudson River Railroad Company, by the New York, Ontario & Western Railway Company, by the Erie Railroad Company, by the New Jersey & New York Railroad Company, by the Delaware, Lackawanna & Western Railroad Company, and by the Delaware & Hudson Company, railroad carriers, against the Public Service Commission, Second District, of the State of New York, and others. Suit by the State of New York and another against the United States and the members of the Interstate Commerce Commission. On motions by complainants in first-named suits for preliminary injunctions, and motion by defendants in the last-named suit to dismiss bill.</p> <p>Nos. 288-294, inclusive, are separate actions by the several carriers to enjoin the defendants from interfering with the carriers in their compliance with order of the Interstate Commerce Commission, which directed the carriers to increase intrastate passenger fares within the state of New York to the level of interstate passenger fares between the same points, gee Ex parte 74, Increased Rates 1920, 58 Interst. Com. Com’n R. 220 ; 59 Interst. Com. Oom’n R. 290. Hearing! on motions of carriers for temporary injunctions. Motions granted, and decrees for preliminary injunctions ordered.</p> <p>No. 295 is a suit under the Commerce Court Act (36 gtat. 539), and Urgent Deficiencies Act Oct. 22, 1918 (38 Stat. 219), to enjoin, set aside, annul, or suspend order of Interstate Commerce Commission, 59 Interst. Com. Com’n R. 290. Hearing on motion of plaintiffs for preliminary injunction, and on motions of defendants to dismiss. Motion for preliminary injunction denied. Motions to dismiss sustained, and suit dismissed on final decree. '</p> <p>These several actions, instituted by the railroad companies, are for an injunction seeking to restrain the Public Service Commission of the Second District of the state of New York, the Attorney General of the state of New York, and counsel for the Public Service Commission for the Second District, from commencing any suit or proceeding to enforce the provisions of the laws of the state of New York (chapters 48, 49, of the Consolidated Laws of 1910; section 57 of the Railroad Law; sections 24, 56, 57, of the Public Service Commission Law) against said plaintiffs by reason of anything done or omitted to be done by the plaintiffs under the authority of an order of the Interstate Commerce Commission, or doing any act which would prevent or tend to prevent the plaintiffs or their agents from charging or collecting the intrastate rates, fares, and charges established by the Interstate Commerce Commission in the state of New York. They seek an injunction pending the hearing and determination of the plaintiffs’ application for an interlocutory injunction.</p> <p>The state of New York and the Attorney General of the state seek an injunction restraining the Interstate Commerce Commission from enforcing an order made fixing said rates and charges, and seek to have it determined that the order of the Interstate Commerce Commission is wholly null and void and unconstitutional and illegal, and ask for “writs of mandamus, certiorari, and prohibition as warranted by the principles and usages of law.” They seek to restrain the defendants and their agents from bringing any suit, action, or prosecution against the railroads to compel the enforcement, operation, and execution of the findings and orders of the Interstate Commerce Commission referred to, and finally they seek injunctive relief. Each of these applications opposed.</p> <p>In Cases Nos. 288-294, inclusive:</p> <p>In Case No. 295:</p>

In Equity. Suit by The City of New York against the United States and the members of the Interstate Commerce Commission, in which State of New York and others intervened. On motion by complainant for preliminary injunction. Suit u'nder the Commerce Court Act (36 Stat. 539), and Urgent Deficiencies Act Oct. 22, 1913 (38 Stat. 219), to enjoin, set aside, annul, or suspend an order of the Interstate Commerce Commission (59 Interst. Com.

<p>In Equity. Suit by Charles Stindt and another against G. Henry Stetson. .Verdict for plaintiffs, and defendant moves for a new trial.</p>

In Equity. Suit by the Union Steam Pump Company against the Manton-Gaulin Manufacturing Company to restrain defendant from instituting further suits against plaintiff’s customers for infringement of a patent. On motion to dismiss the bill.

At law. Action by the Edward G. Budd Manufacturing Company against the .¿Etna Casualty & Surety Company. There was a directed verdict for defendant, and plaintiff moves for a new trial..

In Admiralty. Suit for collision by Thomas J. Scully, owner of the barge Scully, against the steam tug Howard C. Moore, with the tug Moser impleaded. Decree for libelant against the Moore.

<p>In Admiralty. Libel by Henry W. Adams and others against the United States.</p>

<p>Salvage <&wkey;10 — Tug awarded salvage for service in preventing spread of fire.</p> <p>A tug held entitled to a salvage award in a small amount from the city for service in preventing the spread of fire by removing from a crowded slip a boat which lay next to a burning rubbish scow; such award not including the service rendered to the moved boat, which was otherwise compensated.</p>

<p>-Citizens <&wkey;7 — Marriage does not confer citizenship on alien prostitute.</p> <p>An alien prostitute, excluded from entry into the United States by Immigration Act Feb. 5,1917, § 3 (Comp. St. 1918, Comp. St. Ann. Snpp. 1919, § 428914b), by express provision of section 19 of the act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4289%.ii), does not, by her marriage to an American citizen after her illegal entry, become a citizen or change her status as an alien, subject to deportation under said section.</p>

Original petition by the United States against Lucius J. M. Malmin, Judge of the District Court of the Virgin Islands, for mandamus to require the respondent to return to the Islands and resume the duties of his pffice.

Wolverton, Judge. Libel by the Pacific Export Dumber Company against the steamship Saigon Marti, of which the Osaka Shosen Kaisha was claimant. Decree for libelant (267 Eed. 881), and the claimant and the United States Eidelity & Guaranty Company, as surety, appeal.

<p>1. Admiralty <©=»50 — Intervention not denied for noncompliance with rales of procedure.</p> <p>A right to intervene in a libel in which a fund was attached is not to bo denied, where the intervener showed a right to be heard on his Claim to a portion of the fund, though he did not comply, in his motion for intervention, with the requirements of admiralty rule 34 (2G7 Fed. xv), relating to procedure for intervention.</p> <p>3. Admiralty Interreiaer held entitled to litigatO daña to altaetai firad.</p> <p>Where libelant had attached as the funds of a foreign underwriter a sum of money in the hands of the underwriter’s agent, the claim by intervener, supported by the testimony of the agent, that the fund was paid by the underwriter to the agent to apply pro tanto on all losses sustained by the various shippers on the same vessel, including the libel-ant and intervener, establishes the right of the intervener to have determined his claim to a portion of the fund attached.</p> <p>3. Attachment <§=^>63- — Foreign attachment against insurer cannot bo sustained, whore v&it&ey was paid to agents for benefit of insured!.</p> <p>Where a foreign marine insurer had paid a sum of money to its domestic agent to be applied pro rata to the payment of the losses sustained by several shippers on a certain vessel, the fund belonged to the shippers, and not to the insurer, so that an attachment thereof as the fund of the insurer cannot be sustained.</p>

Suit by Philip E. Wright against the Seaboard Steel & Manganese Corporation, in which Stanton S. Freeman was appointed receiver of the defendant. From a judgment denying the receiver’s motion for an order requiring the Merchants’ National Bank of the City of New York to turn over certain moneys, the receiver appeals.

Appeals from the District Court of the United States for the Eastern District of Wisconsin. Suits in Equity by the Hinde & Dauch Paper Company and another and by the Kieckhefer Eo& Company against the Hummel & Downing Company. Decrees for complainants, and defendant appeals.

<p>Appeal from the District Court of the United States for the Eastern District of New York.</p> <p>Suit in equity by Albert V. Danks, administrator, against Hamilton A. Gordon and others. Decree for complainant, and defendants appeal.</p> <p>This cause comes here on appeal from the United States District Court for the Eastern District of New York. This is a suit in equity for an injunction and an accounting.</p> <p>It does not appear when this suit was commenced and the original bill of complaint does not appear in the record. An amended bill of complaint was apparently filed on July 0, 1916.</p> <p>It appears that the complainant is the administrator with the will annexed of Hart I’. Danks, who died on November 10, 1903; that on December 10, 1903, letters of administration were issued to Albertha N. Danks Builder as sole executrix; that after her death and on July 1, 1910, letters of administration with the will annexed were granted, to the complainant.</p> <p>The complaint alleges the infringement of certain exclusive rights in 29 songs and musical compositions, the title to which is alleged to be in the estate of the complainant’s'testator.</p> <p>The bill alleges that at the time of his death Danks was the owner, composer, and proprietor of certain copyrighted songs set to music. It states that several years prior to his death Danks had entered into an arrangement with Hamilton S. Gordon who was engaged in the business of publishing and selling music and songs. It was agreed that Gordon should print, publish, and sell the copyrighted songs the music of which was written by Danks paying to the latter royalties therefor. After the death of Danks his executrix and daughter Albertha N. Danks Builder continued the arrangement with Gordon and received royalties from him. After her death and the appointment of complainant as administrator with the will annexed, he continued the agreement with Gordon for the publication of the songs and musical compositions until Gordon’s death on June 1,1914. Then complainant continued the agreement with the Estate of Gordon until June 1, 1918, since which time the defendants have made no further payments on account of royalties claimed to-be due to the estate of Hart P. Danks.</p> <p>The suit was originally begun against Elizabeth Adair Gordon, individually and as administratrix of the estate of her husband, Hamilton S. Gordon, deceased, and her four sons, together with Harriet P. Danks, the widow of Hart P. Danks, and their two children.</p> <p>Every one in the Danks and Gordon families was before the court. The action was delayed for more than a year by the failure of defendants to file-answers to the interrogatories, and then further by the death of the defendant Elizabeth Adair Gordon. Then by stipulation and order the action was continued against Hamilton A. Gordon as administrator with the will annexed of the estate of his father, and as administrator of the estate of his mother..</p> <p>The bill alleges that on April 10, 1916, the plaintiff as administrator with the will annexed of the estate of Hart P. Danks caused a written notice to-be served upon the defendants Gordon revoking the license or permission given to them to print, publish, or sell the songs or musical publications belonging to the Danks estate, and informing them that any subsequent publication or sale would be deemed an infringement. And it states that the defendants Gordon have failed, neglected, and refused to comply with any of the aforesaid demands. An injunction and an accounting are prayed. It also made demand for the delivery to the complainant as such administrator of all property, then in possession or under their control, belonging to the estate of Hart P. Danks, deceased, including all the plates of the songs, and others, set to music, and mentioned in the notice. It also demanded a full and complete statement and account of the number of copies of said musical compositions and each of them, printed, published, and sold by them, together-with the names and addresses of the printers thereof; and demand was made upon them for an examination of their books containing entries relating to the-printing, publication, and sale of said musical compositions.</p>

<p>Appeal from the District Court of the United States for the Eastern District of New York.</p> <p>In the matter of the Franklin Brewing Company, bankrupt. Henry Doscher and others, executors of the will of Claus Doscher, deceased, appeal from an order of the District Court.</p>

<p>Appeal from the District Court of the United States for the Southern Division of die Western District of Michigan; Clarence W. Sessions, Judge.</p> <p>Action by August J. Oehring against the Fox Typewriter Company and others. From a judgment for defendants, plaintiff appeals.</p> <p>The Fox! Typewriter Company was a Michigan corporation, which had been originally engaged in the manufacture of woodworking machinery and tools, and later added the making of typewriters. It was not successful, was largely indebted to the local banks, its management was not satisfactory to the creditors, and representatives of the banks became directors, and took over the power of control. As representing this controlling interest, Mr. Duffy was made president, and thereafter was in active charge of matters of general policy, though not of operations. The business continuing to be unsatisfactory, the company accepted an offer from Mr. Fox, whereby it sold to him the machinery and tool business and all assets peculiar thereto, leaving with the company the plant and the typewritter business. After some further delay, there did not seem to be a sufficient promise in this business to satisfy the creditors, it was determined to liquidate, and some machinery was sold: Thereupon Stokoe and Franks, who were employes of the company, respectively, in the manufacture and sales division, and who had no substantial stock interest (though Stokoe was secretary and a director), undertook to promote a new company to buy the assets and make further efforts to conduct a successful typewriter business. The debts of the company, as carried on its books, were about $44,000. There was also a recognized contingent liability upon a bond, which turned out to be about $2,000. The debts will therefore, for convenience, be spoken of as $46,000 (and by that sum, as hereafter used, we intend to describe the amount of the book debts plus the contingent liability as it was later paid).</p> <p>Stokoe and Franks procured from the management an option to sell to them the entire plant and the typewriter business and assets for this §46,000, and succeeded in finding, among the old stockholders and their families, subscribers to make up this amount. Opportunity to subscribe was given to all old stockholders, but only a minor fraction accepted, and these subscribed in such amounts as each one wished, and without regard to the amount of his holdings of the old stock. Pursuant to that option, the company later conveyed all these assets to a trustee, who, in turn, conveyed them to a new corporation formed by these subscribers, receiving therefrom a fund of $44,000, which was disbursed in full payment of the book debts. Subscribers paid cash, and received no benefit from their- old stock holdings, except the opportunity to subscribe to the new company, and there 'was no connection between their old and their new stock holdings, save as the old investment and loss furnished motive for the new investment in the hope of retrieving the loss. These transactions occupied a part of the summer of 1915, and the new company was completed and started business in October, 1915.</p> <p>In 1914, the District Court, in the Southern District of New York, had granted a decree in favor of Oehring against the Typewriter Company, finding that it had infringed Oehring’s patent upon a multiple drill. This infringement pertained to the machinery branch, and did not involve the typewriter business, save as both belonged to the same company. The decree was the usual one for injunction and accounting, and the defendant, not having thought best to appeal at that stage, had submitted to the injunction, and an accounting had proceeded rather desultorily. The company was advised, and Stokoe and Franks understood, that there was no reason to anticipate any substantial recovery of damages. In the sale to the new company and the provision for paying the debts, this contingent liability to Oehring was ignored. Stokoe and Franks and the attorney for the company, active with them in the new corporation, do not undertake to say that it was actually .forgotten, but only that they thought it was of no substance or consequence; they say the suit was to recover profits, and there had been none, and that they did in good faith consider it negligible seems to be demonstrated from the fact that although plainly, if it was a liability, it was against the branch of the business sold to Fox, yet it was not assumed by him, and no one seems to have thought of it in that connection.</p> <p>In September, 1916, the master, before whom the accounting had been pending, made a report showing substantial profits; this was confirmed by the District Court, and later affirmed by the Second Circuit Court of Appeals, whereby there resulted a final judgment in that District Court, in favor of Oehring and against the old typewriter company, under date of May 8, 1918, for ¡511,882.90, with interest from February 24, 1917. An execution having been returned unsatisfied, Oehring filed this bill in the court below against 1lie new typewriter company. It was in the usual form of a creditor’s bill, and its theory was that the transfer of assets from the old company to the new was invalid as against Oehring for actual fraud or constructive fraud, or both, and that the assets so transferred remained the equitable property of the old company, subject, in equity, to Oehring’s execution. The bill also presented the theory that the new company had become liable for this debt of the old company. The court below held that there was no fraud or invalidity in the transfer from the old company to the new, and dismissed the bill.</p>

<p>1. Appeal and error <&wkey;1010(l) — -Special finding's', sustained by substantial evidence, are conclusive.</p> <p>Special findings of fact by the court, under Rev. St. § 700 (Comp. St. § 1668), when sustained by substantial evidence, are conclusive in error proceedings.</p> <p>2. Ejectment <&wkey;9(3) —Plaintiff must recover on strength of its own title.</p> <p>If plaintiff, in action to recover possession of real estate, fails to establish right and title in itself, it must fail, regardless of whether defendant has any title or right to possession.</p> <p>3. Ejectment O^od) —Evidence held to sustain judgment for defendant in action by government t© recover possession of harbor property.</p> <p>In action by the United States to recover possession of a strip of land used as a pier, evidence held to support findings for defendant.</p> <p>4. Appeal and error &wkey;>850(2) — Additional facts mot found cannot be con-síílcFcd»</p> <p>In reviewing finding's of fact by the court under Rev. St. § 700 (Comp. St. § 1668), additional facts not found by the trial court cannot be considered.</p> <p>5. Appeal and error <&wkey;859 (2) —Mixed finding of fact and law conclusive as finding of fact.</p> <p>A finding, in action by the government to recover possession of land used as a pier, that the government had abandoned the pier, is a mixed finding of fact and law, that is binding upon review as a finding of fact only, where there is evidence on which the facts involved therein could be made, if such facts sustain the legal conclusion which is necessarily a part of the finding.</p> <p>6. United States &wkey;>58 — May abandon; pier in harbor without act ©i Congress.</p> <p>Where the government has appropriated a strip of land in a harbor, and taken possession thereof and erected a pier thereon in aid of navigation, the government’s failure and neglect to keep the pier in repair is evidence that will sustain a finding that the government had, in a legal sense, abandoned the property; for the rule, under Const, art. 4, § 3, that the government cannot abandon its property without an act of Congress to that effect, applies to land the title to which has been acquired or originally vested in the government, but not to property in which the government by virtue of its dominant right appropriates a mere easement for purposes more or less temporary in nature.</p> <p>7. Eminent domain <&wkey;3(10) — Tailing submerged Sand for government pier Eot an exercise of power of eminent domain.</p> <p>The appropriation of a submerged strip of land on which to construct a government pier held not a taking of private property for public use for permanent purposes, but ratber the mere lawful exercise of a governmental power for the common good.-</p> <p>8. Navigable waters t&wkey;14(l) — Government may change harbor lines.</p> <p>The right of the government to establish harbor lines is not exhausted by one exercise of the power, but it may change these lines as often as it deems necessary, in order to protect navigation from obstruction.</p> <p>9. United States &wkey;>58 — Evidence showing abandonment by government of pier strio in harbor.</p> <p>In action by the government to recover possession of a strip of submerged land in a harbor, used for pier purposes, evidence that defendant dock company, before commencing the construction of a concrete dock on the strip, made application to the War Department for permission to encroach upon the harbor line at points indicated on a map accompanying the application, which showed the proposed construction, and that the government, although thereby fully informed of the proposed construction, made no objection, and made no claim to the property, but stood by while the defendant made large expenditures for the concrete dock, held material to the question of abandonment by the government of the strip, and, in connection with other evidence, to support finding of such abandonment.</p>

<p>1. Patents <2=167(1) — Claims must be read with specifications to determine scope.</p> <p>Notwithstanding the presumption that broader claims were intended to cover equivalent forms of construction, where other and narrower claims fully covered the construction described in the specifications, the broad claims must be read with the description of the invention, in order to determine the scope and effect that should be given to them.</p> <p>2. Patents <2=245 — Old element cannot be considered equivalent of new element, on which claim of novelty is based.</p> <p>Where the patentees claimed that the novelty of their invention was based on an entirely new form of loose connection between the draft bar of a truck trailer and the wheels, they cannot, in an infringement suit, assert that a loose connection, which was old in the automobile art, is an equivalent of their new connection.</p> <p>3. Patents <2=328 — 1,117,944, claims 1, 2, and 11, for trailer trucks, held not infringed.</p> <p>The Eccard & Smith patent, No. 1,117,944, claims 1, 2, and 11 for a trailer truck, the novel element in which was a loose connection specifically described in the specifications, held not infringed by a trailer in which the loose connection was the drag link and ball joint sockets, which were old in the art.</p> <p>4. Patents <2=245 — Substitution of old element in combination held substantial, not colorable, change.</p> <p>The substitution for the particular form of loose connection described in a patent for trailer trucks, which kept the wheels always in alignment, of the drag link and ball joint socket connection, which was old in the art, and which permitted independent motion of the wheels, which resulted in objectionable side sway of the vehicle, held a substantial change in the combination, and not a mere colorable substitution of an equivalent.</p> <p>5. Patents <2=311 — Unfair competition, pleaded as aggravation of infringiement, not considered, in absence of infringement.</p> <p>Allegations of unfair competition, which were pleaded, not as an independent ground for relief, but as matters of aggravation in a suit for infringement of a patent, need not be considered, where the proof showed that defendant did not infringe plaintiff’s patent.</p>

<p>Appeal from the Supreme Court of the Territory of Hawaii.</p> <p>Proceeding by the Territory of Hawaii to register and confirm its title to the Ahupuaa of Kioloku, in the District of Kau, Island and County of Plawaii, Territory of Hawaii, opposed by the Hutchinson Sugar Plantation Company. Judgment of dismissal was affirmed by the Supreme Court of the Territory, and the Territory appeals.</p>

Dooling, Judge. Deportation proceeding by the United States against Doo Fook. An order of the Commissioner of Immigration for the deportation of appellant was affirmed by the District Court, and the alien appeals.

Appeals from the District Court, of the United States for the Southern District of Texas; Joseph C. Hutcheson, Jr., Judge.

Action by William J. Crittenden against Dora Widrevitz, adminis-tratrix of Saul Widrevitz, deceased, for conversion of bonds. Judgment for defendant, and plaintiff brings error.

Booth, Judge. In the matter of Cameron & Co., bankrupts. On appeal by Mary T Cameron from the order of adjudication. On motion of the National Surety Company of New York and others to dismiss appeal.

<p>Sales —Buyer held not chargeable with breach of contract authorizing rescission by seller.</p> <p>A contract by defendant to furnish fans and other building equipment to plaintiff required it to he shipped to plaintiff and delivered f. o. b. cars at a designated station in Pittsburgh; that a detailed duplicate memorandum of each shipment should bo mailed to plaintiff one day before shipment and provided for payments ten days after each delivery. Held, that shipment of a carload of the equipment by defendant from Chicago to Pittsburgh, consigned to its own order, subject to _ freight charges and without notice to plaintiff, followed by a letter sis days later to plaintiff at its New York office, advising of the shipment and the making of a draft fon the same, with bill of lading indorsed in blank attached, was not in compliance with the contract, and that plaintiff’s refusal to pay the draft presented in New York, while offering to make payment as soon as the shipment was duly delivered, was not a breach of the contract, which justified its rescission by defendant.</p>

Libel by Lionel Emerson and others against the bark Hougomont, of which John MacDonald was claimant. From a decree dismissing the libel, libelants appeal. The Hougomont is a British vessel, and arrived at a pier in New York harbor on 27th December, 1917. The libel was filed by 11 seamen on 8th January, 1918. Two more intervened as eolibelants by petition filed 17th January, 1918. Suit is under section 4 of the Seamen’s. Act of March 4, 1915 (38 Stat. 1165 [Comp.

<p>Shipping &wkey;58(2) — Evidence held not to show capsizing of barge was caused by improper method of loading.</p> <p>On a libel by the owner of a barge against the charterer, who brought in the stevedore who was loading the barge, evidence held not to sustain the libelant’s contention that the capsizing of the barge was due to its being loaded in a careless and improper manner, which was contradicted by the disinterested testimony in the case, but to support rather a belief that the capsizing was due to the springing of a sudden leak, as found by the District Judge, who heard the testimony in open court.</p>

<p>1. Chattel mortgages <&=585 — New York law does not cover mortgages of intangibles.</p> <p>The New York law regulating chattel mortgages, as respects recording, etc., applies, not to personal property generally, but to chattels.</p> <p>2. Chattel mortgages <&wkey;97, 197(1) — Belay in refiling invalidates as to creditors, subsequent as well as prior to refiling.</p> <p>The failure to refile a chattel mortgage during one year, as required by the New York statute, invalidates the mortgage as to all creditors, both those whose claims accrued after, as well as before, the refiling.</p> <p>3. Copyrights <&wkey;41, 42 — Can be mortgaged only under federal law.</p> <p>Copyrights can be mortgaged only under the federal Copyright Law.</p> <p>4. Chattel mortgages <&wkey;188(l) — Provision authorizing sale of mortgaged property invalidates as against creditors.</p> <p>A provision in a mortgage covering chattels and the good will and trade-marks, authorizing the company to sell the mortgaged property which it no longer needed in its business, except the trade-marks and copyrights, made the mortgage fraudulent as a matter of law, and void in toto as to creditors.</p> <p>5. Good will <§=^5 — Trade-marks and trade-names <&wkey;>33 — Good will and trade-marks cannot be mortgaged, separate from the business and franchise.</p> <p>Since the good will and trade-marks of a company are property which cannot be owned in gross, and therefore cannot be sold apart from the franchise and business of the company, a chattel mortgage covering the good will and trade-marks, but not the franchise and business, of the corporation, is invalid.</p> <p>6. Bankruptcy @=»262(3) — Court lias discretion to sell mortgaged property free of the mortgage.</p> <p>It is within the discretion of the District Court to order the property of the bankrupt sold free of the mortgage covering it.</p>

Rudkin, Judge. I,'bel by T. S. Vincent and others against the United States and the Pacific Mail Steamship Company, to recover the penalty of double wages for wrongful refusal of discharge as seamen. From a decree for libelants, with certain deductions, both parties appeal. The appellants and the appellees appeal from the decision of the court below.

<p>Appeal from the District Court of the United States for the Eastern District of Virginia, at Norfolk; Edmund Waddill, Jr., Judge.</p> <p>Action by Fred E. Jones, doing business as the Fred E. Jones Dredging Company, against the Chesapeake & Ohio Railway Company. From a decree for plaintiff, defendant appeals.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit by the United States against the Western Union Telegraph Company for an injunction and other relief. A motion for a preliminary injunction was denied (272 Fed. 311), and complainant appeals.</p>

' Suit by Harper Bros, and Henry I,. Wallace against Marc Klaw and Abraham Erlanger. From a décree for defendants, plaintiffs appeal. On motion to resettle an order denying a motion for leave to fxle a bill of review, or to apply to the District Court for such leave.

<p>In Error to the District Court of the United States for the District of Kansas; Frank A. Youmans, Judge.</p> <p>Action by George Gartner against Eliza J. Hays and others. Judgment for the plaintiff for only a small portion of the amount claimed, and plaintiff brings error.</p>

<p>In Error to District Court of the United States for the Western District of Pennsylvania; Charles P. Orr, Judge.</p> <p>Action by Daniel E. Repine against the Pennsylvania Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal and error &wkey;110 — Refusal of new trial cannot be reviewed on writ of error.</p> <p>An order of the trial court refusing to grant a motion for a new trial cannot be reviewed on writ of error.</p>

<p>1. Bankruptcy ©=228 — In absence of evidence, refereefe findings must be accepted, unless report shows them to be wrong.</p> <p>Where the evidence before the referee is not reported, the referee’s findings must be accepted, unless they appear on Ms report to be clearly wrong.</p> <p>2. Bankruptcy ©=228 — Disapproval by referee of nomination of trustee confirmed, unless no fact consistent with report justifies it.</p> <p>Where the evidence before the referee is not reported, the referee’s action in refusing to appoint as trustee the person first elected by the creditors, because he did not reside at the place where the bankrupt did business, must be confirmed, if on any state of facts consistent witli the report the referee had power to disapprove on the ground stated.</p> <p>3. Bankruptcy ©=120- — Keferee’s refusal to appoint trustee,. because not a resident, confirmed.</p> <p>The refusal of the referee to appoint as trustee the person first elected by the creditors, because that person did not reside at the place of the bankrupt’s business, will be confirmed, where the evidence was not reported, and the referee’s report did not show whether the duties of the trustee would be such as to require some one who would be in daily contact with the business.</p> <p>4. Bankruptcy <&wkey;228 — Judgment of referee on administrative matters entitled to weight.</p> <p>On purely administrative matters, such as the appointment of a trustee in bankruptcy, the judgment of the referee is entitled to great weight, and it is not to be assumed that he disregarded the votes of the creditors, without strong reason for so doing.</p> <p>5. Bankruptcy ©=22 — Trial court will not hold general order made by Supreme Court invalid.</p> <p>A court of first instance will not consider the objection that General Order in Bankruptcy No. 12 (89 Fed. vli, 32 O. O. A. xvi) goes beyond the Bankruptcy Act (Comp. St. §§ 9585-9056), and is invalid in so far as it gives the referee power to pass on the competency of the person elected by the creditors as trustee, but that question must be decided by the Supreme Court, by wlfich the general orders were made.</p>

<p>In Equity. Suit by the McLeod Tire Corporation against the B. E. Goodrich Company.</p>

<p>Application by Jerry W. Farlow for habeas corpus.</p>

<p>In Equity. Bill by Joseph Connelly against Bertram Gardner, as Collector of Internal Revenue, to restrain the collection oí a sum assessed against plaintiff under the National Prohibition Act.</p>

<p>1. Sales &wkey;>416(2) — Evidence of market value of sheep held admissible to show damages for breach of conlraet.</p> <p>Under R.ev. Codes Mont. §§ 6050 and 6082, prescribing the measure of damages for breach of a contract for sale of personal property, evidence that the fair market value of sheep of the kind specified in the contract at the time the sheep should have been delivered was $1 per head more than the contract price was competent.</p> <p>2. Sales &wkey;>4!8(15) — Ascertained profits lost by breach of contract may be recovered.</p> <p>Where a buyer of sheep had made a contract to resell them at $1 per head more than he was to pay for them, he can recover in an action for breach o£ the contract of sale the loss of the profits he would have made on the resale, which was a fixed and certain sum, definitely ascertained, though he could not recover profits which wore a mere matter of speculation.</p> <p>3. New trial <&wkey;97 — Instruction on burden of proof held not to entitle defendant to grant for surprise, where no exception was taken.</p> <p>In an action for breach of contract for tlie delivery of sheep, defendant is not entitled to new trial, on the ground that the court’s instruction that the burden was on him to prove that tlie sheep he tendered were of the age called for by the contract was a surprise to him, because plaintiff had assumed the burden of proof at the trial, where he dicl not except to the instruction at the time for that reason, and in his motion for new trial nothing was said about having been taken by surprise or at a disadvantage by the instruction, and no showing was made that he could have produced additional evidence to maintain his case, if he had known the burden was on him.</p> <p>4. Sales &wkey;542! — Instruction on “burden of proof” of delivery held correct.</p> <p>In an action for breach of a contract for the sale of sheep, an instruction that plaintiff need only prove he had a contract and that the sheep were not delivered, and that the burden was then on defendant to satisfy the jury that the sheep tendered conformed to the contract, and then defined the burden of proof as the preponderance of the proof, the greater weight of the testimony, was not erroneous; the first paragraph of the instruction referring’ to “burden of proof” in the sense of the duty of the party who has the affirmative of an issue to establish it prima facie, and the latter part relating to its meaning as the duty of a party to establish the,existence of a fact by evidence which preponderates in its favor.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Burden of Proof.]</p> <p>5. Appeal and error &wkey;>301 — Instruction requiring defendant to satisfy jury held not to require reversal, where not objected to in motion for new trial.</p> <p>An instruction that the burden was on defendant to satisfy the jury that the affirmative defense was true, followed by a correct definition of the burden of proof, does not require reversal as imposing on defendant the duty to establish the defense beyond doubt, where no objection to the use of the word “satisfy” was made at the time or in the motion for new trial.</p>

Petition by Stephen A. Machcinski to determine and enforce an attorney’s lien on a judgment against the Lehigh Valley Railroad Company. The District Judge ordered the petition dismissed, and petitioner brings error and appeals.

Hamilton, Judge. Suit by the Porto Rico Railway, Light & Power Company against Manuel Camuñas and others for an injunction against the enforcement of the Porto Rican Workmen’s Compensation Act. From an order denying a motion to dismiss the bill, and granting an injunction pen-dente lite, the defendants appeal.

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Action by the Becker Milling Machine Company against the Baltimore & Ohio Chicago Terminal Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Petition to Revise an Order of the District Court of the United States for the Eastern Division of the Northern District of Ohio; D. C. Wes-tenhaver, Judge.</p> <p>In the matter of the National Artificial'Silk Company, bankrupt. Petition by James L. Stuart and another to revise an order of the District Court approving the compromise with the stockholders of the bankrupt corporation.</p>

<p>1. Appeal ansi error &wkey;>173(6) — That corporate contract was ultra vires cannot be first raised on appeal.</p> <p>Where the claim that the contract, in furtherance of which the defendant corporation gave the notes in suit, was beyond the powers of the corporations, was not raised in the answer, or presented or ruled upon by the trial court, though the answer expressly alleged that such contract was made, error cannot be predicated on the failure of the trial court to sustain a defense to the note because the contract was beyond the powers of the corporation.</p> <p>2. Corporations !&wkey;4o5 — -Lender’s knowledge that money was to be used for unauthorized purpose does not defeat recovery on note.</p> <p>Where a corporation had the general power to borrow money and to promise to pay indebtedness, it cannot defeat recovery on a note executed by it by the plea that tlie money borrowed on tlie note was used by it In furtherance of an ultra vires contract, even though the lender of the money knew that it was to be so used, since the lender owed no duty to defendant to supervise the disposition of tlie money loaned to it.</p> <p>3. Contracts, <&wkey;102 — Recovery not defeated by intention to do unlawful act, not part of consideration or of performance of agreement.</p> <p>One who has received the benefits of a complete performance of a contract, which was neither malum in se nor malum prohibitum, cannot successfully defend an action for the payment of Ills indebtedness accrued thereon, on the ground that either lie or another intended to- do some unlawful act, which was no part of tlie consideration nor of the performance of the agreement.</p> <p>4. Appeal and error &wkey;1056(5) — Exclusion of evidence insufficient to sustain defense on trial to court, not prejudicial to defendant.</p> <p>On a trial to tlie court, the exclusion of evidence offered on behalf of defendant, which, if admitted, would not have been sufficient, when taken with the evidence received, to have warranted a finding of the court for defendant, was not prejudicial to defendant.</p> <p>5. Estoppel <&wkey;114 — Need not be specially pleaded, when based on note on which recovery is sought.</p> <p>Plaintiff can rely on estoppel of defendant to assert that the execution and delivery of the note in suit was beyond its corporate powers, without specially pleading such estoppel, where the estoppel relied on was based on the note, which the plaintiff pleaded and proved, and on other evidence, which the defendant introduced.</p> <p>6. Corporations &wkey;>450 — Notes exceeding debt limit not a delictum, so that corporation could defeat recovery thereon on plea that payee was in pari de-licto with it.</p> <p>The execution by a corporation of notes which made its outstanding indebtedness exceed the amount authorized by its charter does not involve any delictum or moral turpitude, so that the corporation cannot defeat recovery on such notes on the plea that the payee was in pari delicto with it.</p> <p>7. Corporations <&wkey;450 — Notes exceeding debt limit not invalid, in absence of statute.</p> <p>The fact that notes given by a corporation for money loaned to it made its indebtedness exceed the amount authorized by its charter does not render the notes invalid, in the absence of a statute imposing such penalty.</p> <p>8. Corporations <&wkey;45fi — Notes in excess of debt limit are voidable, and binding after consideration was paid.</p> <p>A contract by a corporation to borrow money in excess of the debt limit authorized by its charter is voidable, and not void; and where it has been fully performed, by the lending of money to the corporation and the execution of notes therefor, the corporation cannot refuse payment of the notes.</p> <p>9. Evidence <&wkey;402 — Parol evidence is inadmissible to show agreement that absolute notes' were payable only from sales of land.</p> <p>In an action on notes executed by a corporation for money loaned to it, parol evidence is inadmissible to show that the notes, which on their face were payable absolutely, were to be paid only from the proceeds of sales of the corporation’s lands.</p>

<p>In Error to the District Court of the United States for the Western District of Arkansas; Frank A. Youmans, Judge.</p> <p>Action by Charles B. Thorn and others against Fred Browne. Judgment for plaintiffs, and defendant brings error.</p>

<p>Appeal from the District Court of the United States for the Western, District of Pennsylvania; Charles P. Orr, Judge.</p> <p>Petition by Gilbert E. Zehner, receiver of the Eaber Engineering & Construction Company, bankrupt, against the Southern Surety Company. Decree for defendant, and petitioner appeals.</p>

<p>1. Trade-marks and tradte-names <&wkey;80)é, New, vol. ÍÍA Key-No. Series — Trade Commission earn only prevent unfair competition.</p> <p>Tlio Federal Trade Commission is authorized by Act Sept. 26, 1914, § 5 (Comp. St. § 8S30o), only to Inquire into unfair methods of competition in Interstate and foreign commerce, if so doing will be of interest to the public, and to issue an order requiring a person or corporation employing unfair methods to desist from doing so, but is not made a censor of commercial morals generally.</p> <p>:2. Trade-marks and trade-names New, vol, 8A Key-No. Series— Misbranding which deceives only consumers is not unfair competition^ within Trade Commission's jurisdiction.</p> <p>The practice by an underwear manufacturer of branding its products as wool, merino, etc., when in fact they were composed only partly of wool or merino, which was shown to be in conformity to the universal custom among manufacturers of such articles, and not to deceive the trade, though it did mislead some customers, is not unfair competition, within the Trade Commission Act (Comp. St. §§ 8836a-8830k), so that the Trade Commission cannot order the manufacturer to desist from such practices.</p>

<p>1. Banks aná hanking <&wkey;S3B4 — State statute held not to make superintendent of banks quasi assignee of bank’s assets.</p> <p>Laws Tenn. 1913, c. 20, § 10. requiring the chancery court, on taking jurisdiction of any bank, to appoint the state superintendent of hanks as receiver to wind up its affairs under the direction of the court, does not vest the title of the bank in the receiver, or make him a quasi assignee of the bank, or anything more than a chancery receiver.</p> <p>2. Banks and banking <&wkey;17 (A) — Receiver, who is quasi assignee of bank’s assets, may sue anywhere.</p> <p>A receiver of a bank, who is by statute made a quasi assignee of the bank’s assets and vested with the title thereto, could sue to recover the assets anywhere.</p> <p>3. Banks and banking <&wkey;’63'?4 — Superintendent, appointed chancery receiver of bank, cannot sue outside jurisdiction of the court which appointed him.</p> <p>Where tlie state superintendent of banks was appointed receiver of a bank by a court of chancery under a state statute, which did not make him a quasi assignee of the bank or vest title to its assets in him, he cannot bring suit outside of the jurisdiction of the court which appointed him.</p>

<p>In Error to the District Court of the United States for the District of Colorado; Robert E. Lewis, Judge.</p> <p>Action by Bosworth-Chanute & Co., a Delaware corporation, against the Town of Brighton, a municipal corporation of Colorado. Judgment for defendant, and plaintiff brings error.</p>

<p>In Error to the District Court of the United States for the First Division of the Northern District of California; Frank S. Dietrich, Judge.</p> <p>Albert Young and another were convicted of maintaining a public nuisance by keeping intoxicating liquor for sale, and the named defendant brings error.</p>

<p>1. Internal revenue —Receiver's compensation, determined at end of term, “income” for that year.</p> <p>Where a receiver, by order of the court, was paid a sum monthly for his services, with liberty to apply for additional compensation at the end of the receivership, such final allowance, made at the end of five years, held “income” for the then current year, within Revenue Act 191S, § 213 (a), being Comp. St. Ann. Supp. 1919, § 6336%ff (a), and not distributable for income tax purposes through the preceding years of service.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, .First and Second Series, Income.]'</p> <p>2. Receivers <&wkey;199 — Nube pro tunc entry, changing terms of order for compensation, unauthorized.</p> <p>Where, on termination of a receivership, a final order allowing compensation to the receiver was made, a nunc pro tunc entry, made more - than a year afterward, on an ex parte application by the receiver, changing the terms of such order, without any claim of mistake or error in the original order, held unauthorized and ineffective as against the United States to affect the income tax due from the.receiver on such allowance.</p>

<p>Chattel mortgages <&wkey;63 — Affidavit debt was owing to mortgagee, who loaned it on behalf of others, held true.</p> <p>Where 10 individuals contributed a sum of money, which was delivered to a bank cashier to be loaned to the bankrupt, and the cashier, in making the loan, took a note payable to himself, secured by a chattel mortgage, the affidavit of the mortgagor and mortgagee, as required by G. L. Vt. 2788, that the mortgage was to secure a just debt due and owing from the mortgagor to the mortgagee, was true, since the mortgagee was the only one authorized at law to collect the debt, and the fact that the contributors could have sought equitable relief to compel him to pay the amount recovered to them did not make the debt owing to them, and therefore the mortgage was valid and enforceable.</p>

Petition to Revise Order of the District Court of the United States for the Eastern District of New York. In the matter of Edwin B. Havens and another, doing business as E. B. Havens & Co., individually and as copartners, bankrupts. Petition by William W. Niles to revise an order perpetually restraining petitioner from issuing execution on a judgment rendered by the state court against the bankrupt.

<p>1. Appeal awl error 0=»1108 — Courts <®=^280 — DooM as to jmisdidion should he settled by iPfjmry before farther action in case.</p> <p>In an action removed to the United States District Court by defendant, where, after tlio trial, but before final argument and decision, defendant filed a verified motion to remand the canse to the state court, alleging that it had just ascertained plaintiff was a citizen of the same state as defendant, with evidential details, to which plaintiff filed only an unverified response, there was sufficient doubt as to the District Court’s jurisdiction raised to require it to hear evidence as to plaintiff’s citizenship before rendering judgment for plaintiff, and on writ of error to such judgment the cause will bo remanded to the District. Court to investigate the question of jurisdiction.</p> <p>2. Courts @^83, 37(1) — Jurisdiction of lower federal courts casmot be conferred by consemt or estoppel.</p> <p>The jurisdiction of the inferior courts of the United States rests wholly on the acts of Congress, and cannot be conferred by consent of the parties, or by their omission to contest it or by estoppel.</p>

<p>In Admiralty. Libel by Blamberg Bros., a corporation, against the United States.</p>

<p>Application of Philip Rome for a writ of habeas corpus against Clarence T. Marsh, Commandant at Ft. Banks.</p>

<p>1. Indictment and' information <8=»137 (1) —Motion to quasii indictment proper, where conviction is impossible in law.</p> <p>In a prosecution for crime, where the defendants had filed a plea of former acquittal in addition to their plea of not guilty, a motion to quash the indictment is proper, if it clearly appears that, as a matter of law, there can be no conviction.</p> <p>2. Criminal law <S=»294 — Pica of former acquittal establishes, identity of acts, in alísense of denial.</p> <p>A pica of former acquittal on a charge of conspiracy, interposed to an indictment for larceny which shows an identity of persons, time, circumstances, articles, and conduct, establishes the identity of the act charged as the larceny with the overt acts charged in the conspiracy indictment, in the absence of a sworn unequivocal denial by the government that the acts charged are the same.</p> <p>3. Criminal law <@=3-00 (6) — Acquittal of conspiracy bars prosecution for acts-alleged! as- overt acts.</p> <p>An acquittal of conspiracy, in which the alleged overt acts were the taking of certain whisky from a shipment in interstate commerce, is a bar to a subsequent prosecution for the stealing of that whisky.</p>

<p>In Bankruptcy. In the matter of the Locust Building Company, Incorporated, Bankrupt. On motion to vacate stay of proceeding for foreclosure of a third mortgage.</p>

<p>Sales '§=^85 (2) — Law mailing performance of contract at the time specified impossible discharges both parties under contract provisions.</p> <p>Contracts for the sale of rubber, to be delivered during stated months, made during war time, when government regulations respecting importation and sale of rubber were anticipated, contained a provision that “this contract is subject to all the rules and regulations imposed by the . United States government.’’ Held that, where such regulations were ' made, which rendered performance by either party impossible at the times fixed for deliveries, the effect was not merely to suspend the contracts, but that both parties were discharged from any obligation thereunder, and that neither could demand or enforce delivery after such regulations were withdrawn.</p>

<p>At Law. Action by Milos M. Gopcevic against the California Packing Corporation, begun in the state court, and removed by the defendant to the United States District Court. On motion to remand to the state court.</p>

<p>1. Master and servant '8=>13?(1) — Stevedores injury held actionable.</p> <p>A contracting stevedore helü liable for injury to an employe by the dumping' of a bucket of ballast while being raised through a hatch, caused by the catching of a slack wire fall on the dumping latch, where the apparatus was being used in a dangerous manner and without warning to the workmen below.</p> <p>2. Master and servant (1) — Following eastern not conclusivo evidence of ordinary care.</p> <p>While custom may be shown as bearing on the question of ordinary care, the tact that apparatus or appliances used were those used in general is not conclusive, and such evidence must further be considered in connection with the circumstances of the particular case.</p>

<p>In Bankruptcy. In the matter of P. PI. Saunders & Co., bankrupts. On claim of the Farmers’ & Merchants’ Bank of Marion, S. C.</p>

<p>In Equity. Suit by Fred P. Violette against James A. Walsh, as. Collector of Internal Revenue.</p>

<p>Bills and notes <@=>493 (2), 497 (2) — Payment of value for note to another than maker does not change burden of proof as to lack of consideration, unauthorized diversion, or bona fide purchase.</p> <p>The' mere fact that the note in suit passed to the plaintiff bank without payment by the bank to the maker of the value of the note, does not put the bank to proof that the maker received a consideration for the execution of the note, or that the person to whom the bank paid the value of the note had authority from the maker to receive the money, or that the bank was a bona fide holder.</p>

<p>Bankruptcy <&wkey;377 — Practice—Composition—Referee may adjourn meetings-of creditors for compositions from time to time.</p> <p>Under the Bankruptcy Act (Comp. St. §§ 9585-9656), General Orders, and the rules in bankruptcy of the District Court, the referee may in his discretion adjourn from time to time meetings of creditors in composition proceedings, before as well as after adjudication; and where a meeting was on April 12tli lie did not err in refusing return on April 20th at request of majority of dissenting creditors, and in proceeding to allow further claims until Hay 12th, when a majority of creditors assented to the offer of composition.</p>

<p>Appeal from a Decision of the Commissioner of Patents. Interference proceeding between Charles F. Wasserfallen and Chester E. Strifler. From a decision for Strifler, Wasserfallen appeals.</p>

<p>Appeal from the District Court of the United States for the Southern Division of the Eastern District of Michigan: Arthur J. Tuttle, Judge.</p>

<p>Appeal from the District Court of the United States for (he Southern District of Iowa.</p>

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Ohio; D. C. Westenhaver, Judge.</p>

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Ohio; D. C. Westenhaver, Judge.</p>

<p>In Error to the District Court of the United States for the Southern District of Alabama; Robert T. Ervin, Judge. Action by the United States against Abraham H. Harris. Judgment for the United States, and Harris brings error.</p>

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

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

<p>In Error to the District Court of the United States for the Western Division of the Southern District of Ohio; John W. Peck; Judge.</p>

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

<p>Appeal from tlie District Court of the United States for the District of Connecticut. Suit by James J. O’Brien against Waller D. Dasher and others. From a judgment for defendants, plaintiff appeals, and defendants move to dismiss the appeal.</p>

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

<p>Petition to Revi.se an Order of the District Court of the United States for the Southern Division of the Eastern District of Tennessee; Edward T. Sanford, Judge.</p>

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

<p>In Error to the District Court of the United States for the Eastern District of New York. Action by Catherine Ryan against the ¿Etna Life Insurance Company of Hartford, Conn. Judgment for defendant, and plaintiff brings error.</p>