Volume 273 — Federal Reporter

<p>Appeal from District Court of the United States for the Southern Division of the District of Idaho; Frank S. Dietrich, Judge.</p> <p>Suit by the Commonwealth Trust Company of Pittsburgh, as trustee, against Max Smith and Margaret Smith. From a decree dismissing the suit for failure to make other parties defendants, plaintiff appeals.</p> <p>This is a suit to foreclose a lien upon certain water rights and privileges and the real property to which they are appurtenant. It is necessary to understand the controlling issues presented by the pleadings for an intelligent solution of the problem involved. The bill of complaint proceeds upon facts which will be as briefly epitomized as is consistent with clarity:</p> <p>About August, 1907, the state of Idaho, through its state board of land commissioners, made application to the Secretary of the Interior, under what is known as the Carey Act (Comp. St. § 4685) and acts amendatory thereof, for a segregation from the public domain of approximately 127,707.29 acres of desert land situated in Twin Halls county, Idaho, which lands and other lands in the vicinity to the amount of about 150,000 acres the state represented could be irrigated and reclaimed from the surplus and unappropriated waters of Salmon river, by means of a storage reservoir with an available capacity of 180,000 acre feet, and requisite canals, ditches, laterals, etc. Prior to tht' making of such application, the state engineer and the state board determined and adjudged, in pursuance of state laws and regulations; that there was sufficient surplus and unappropriated water in Salmon river available for reclamation of said lands to the extent and degree required by the acts of Congress; and the Secretary of the Interior, having also determined that the supply of water was sufficient for the purposes desired, did, on the 10th day of April, 1908, segregate from the public domain and agree to donate, grant, and patent to the state the desert lands described in the application, in the aggregate mentioned and for the purposes as prayed, as contemplated by the acts of Congress and the laws of the state relating to such matters.</p> <p>About April 30, 1908, the Twin Halls-Salmon River Land & Water Company, herein to be called the construction company, entered into a contract with the state of Idaho, through its board of land commissioners, for the construction of the reservoir, and the necessary tunnels, ditches, etc., to complete the project. In entering into such contract, the construction company, upon the determination of the state and of the Secretary of the Interior that the flood and unappropriated waters of Salmon river available for the project were ample to reclaim the lands to the extent and degree required by the acts of Congress and the laws of the state, agreed to accept as its compensation for constructing the system the lien authorized by the acts of Congress to be created by the state on and against the Carey Act lands, and the lien authorized to be created by the laws of the state, and the consideration that should or ought to be paid under said acts and laws of the state by entry-men and owners of lands for an interest in the irrigation system and water rights. Under the contract it was determined and agreed that the actual cost of the irrigation works and structures would be the sum of $40 per acre when apportioned and distributed equally over the whole 150,000 acres proposed to be reclaimed, and a lien was created by the state in favor of the construction company for actual costs and necessary expenses of reclamation and reasonable interest thereon, estimated at $40 per acre, against each and every legal subdivision segregated from the public domain under the Carey Act pursuant to the state’s application. It was further provided in the contract that upon payment of $40 per acre or share in the irrigation system, together with interest thereon, the lien should be satisfied.</p> <p>It was further provided that a corporation to be known as the Salmon River Canal Company, Limited, herein to be called the operating company, should be organized to take over the management and operation of the irrigation system, which should be capitalized on the basis of one share of stock to each acre of land to be irrigated under the system, namely, 150,000 shares, and that there should be issued to entrymen or purchasers of the lands, as evidence of their respective shares or interests in the irrigation system, one share of stock for each acre entered or filed upon and susceptible of irrigation from the system, and that the water available therefrom and for distribution should Be distributed in accordance with the number of shares of stock held in the operating company by entrymen or owners under the system. Belying' upon the correctness of the determinations of the state and the Secretary of the Interior as to the sufficiency of the water supply available, and believing that they were final and binding, the construction company entered upon the work of construction, and thereafter built and constructed the irrigation works theretofore approved by the state, at an expense believed to be $3,500,-000. Such works, it is alleged, have been accepted and approved by the state as completed, and water has been available from the system for the irrigation of the lands described since April 12, 1911, at a point within one-half mile of the lands and premises.</p> <p>After the construction company had commenced the work of construction, the state demanded that the transfer of shares be limited, so as not to exceed 100,000 acres, and later 80,000 acres, and that the water supply be distributed over and made appurtenant to not more than that number of acres. Immediately after the execution of the contract, the state board of land commissioners gave public notice that the lands so segregated were open to settlement, and of ill? terms upon which land could be entered or title acquired, that the construction company was authorized to transfer and issue water rights, shares, or interests in the system to qualified entrymen, and that the lands could not be entered until the entryman had entered into a contract with the construction company for the transfer to him for use upon such lands of shares or interests in the works as contemplated by the contract between the construction company and the stale.</p> <p>The state board adopted and approved a form of contract to be used by the construction company for the transfer of shares or interests in the irrigation system to entrymen and owners of lands thereunder, and it was provided therein how the $-10 consideration and interest thereon to be paid for each share should be paid, with a further provision that if the purchaser made default in the payment of any installment of principal or interest, the construction company might declare the entire amount of the purchase price at once due and collectible, and proceed either at la.w or in equity to enforce any lien it might have upon the water rights, shares, or interests to be transferred under such contracts, and upon the land to which the same were appurtenant, and to enforce any other remedy it might have; it being asserted that under the contract the purchaser granted, assigned, and sot over, by way of mortgage or pledge to the construction company to secure the amounts due and to become due, the lands to which the water rights, shares, and interests were dedicated, and that the company was given a first and prior lien upon such lands, water rights, shares, and interests, and as additional security that the entryman agreed that shares of stock issued to him should be and were by the terms of the contract assigned to the construction company. The construction company used the form of contract approved by the state board, and all contracts, after execution, were submitted to and approved by such state board.</p> <p>rt is further asserted that, by virtue of the acts of Congress, the laws of the state, the contract between the construction company and the state, and the settlers’ contracts, the construction company became entitled to and possessed of a lien against the lands segregated from the public domain for the actual costs of constructing the irrigation system, and the necessary expenses of reclamation, and reasonable interest thereon, also of the lien created by the laws of the state in favor of companies constructing irrigation works, -and that the settlers’ contracts were intended to render more specific the lien created under the acts of Congress and the laws of the state, and the lien created thereby was intended to be supplementary to and not in lieu of the lien created by the federal and state laws.</p> <p>After the state had given notice, as previously stated, the construction company accepted applications for entry, and entered into settlers’ contracts and contracts with owners of other desert lands situated under the system, covering approximately 73,000 shares, all of which were approved by the state board; but thereafter, in the year 1916, the state board, in the exercise of its supervisory power over such matters, canceled and annulled entries aggregating approximately 13,000 acres, and thereafter reduced the acreage entitled to water and the number of outstanding shares or interests in the system to approximately 60,070.8, and declined to approve any further contracts, and the defendants in the suit and other owners of land under and shares of stock in the system have combined to reduce the acreage for which water shall be supplied, and have obtained an injunction in the ease of A. E. Caldwell and others against the construction company and others, prohibiting the company from selling or transferring any further shares in the irrigation system, and decreeing that the water supply available be distributed over not to exceed 60,070.8 acres; and plaintiff is advised that the state board, about March 13th, made an order that the water available for distribution should be made appurtenant to approximately 35,000 net irrigable acres, and jno more, and that the outstanding shares in the system in excess of that should be canceled or reduced accordingly, though no action for reduction has been taken or had. It is asserted that, by reason of the action of the state board and the injunction as aforesaid, the construction company is prevented from supplying water to or obtaining a lien upon more than 60,070.8 acres, and if the later order of the state board, made March 13, 1918. be legal and valid, the money expended by the construction company in the construction of the irrigation system can only be recovered through or by the enforcement of its lien against 35,000 acres; that, if the irrigable acreage is limited to 60,070.8 acres, the actual cost and necessary expense of reclamation and reasonable interest thereon will amount to not less than $60 per acre, and in the event the acreage be further reduced the cost per acre will be further increased.</p> <p>In pursuance of the notice published, as alleged, persons having the required qualifications made application to the construction company for the purchase of shares in.the irrigation system, under the'form of contract prescribed by the state board, and the construction company accordingly entered into contracts with such persons, which were approved by the state board. The entries were so made, and the entrymen, after having reclaimed and made settlement upon the lands so entered, made final proof of reclamation and settlement in the manner required by statute and the rules and regulations of the board, which was also accepted, allowed, and approved by the board.</p> <p>Plaintiff alleges that the entrymen, their successors and assigns, have failed to pay and discharge the liens thus created in favor of the construction company, and that because of such default plaintiff has elected to declare the whole amount, both principal and interest, remaining due and unpaid on such liens, as immediately due and payable, and claims a first and prior lien against the lands and water rights, shares, and interests appurtenant thereto for the actual costs and necessary expenses of reclamation and reasonable interest thereon.</p> <p>The complaint sets forth the specific demands against the defendants Max Smith and Margaret Smith, the subdivision of land against which the liens are claimed, and the amount thereof. Then it is further alleged that the amount due against each of said legal subdivisions should be increased by $20 per share for the number of shares dedicated or made appurtenant to said land, and in case it be determined that the number of shares or interests outstanding against the system should be restricted to less than 60,070.8 acres, then that the amount due on each of the shares and the amount of the lien should be increased proportionately, to the end that each acre of land entitled to water shall pay its proportionate'part of the actual cost of said works and the necessary expenses of reclamation as provided by the acts of Congress and the laws of the state of Idaho. The prayer proceeds as in the ordinary foreclosure.</p> <p>The answer of defendants admits in large measure the allegations of the complaint, but in many things enters denial, and in others puts the complainant upon proof, gome of the demands arc of matter that would appear to be vital to the controversy. For instance, the defendants deny that the irrigation works were accepted and approved by the state as completed prior to the commencement of this suit; deny that the entrymen, their successors, grantees, or assigns, have failed to discharge any liens created in favor of the construction company against said lands, or have failed to' pay any installments of principal or interest as the same became due, or at all, and in that connection allege that the construction company has failed to comply with the laws of the United States by furnishing an ample supply of water in a substantial ditch or canal to reclaim the particular tract or those particular tracts of land as required by the statute and involved in this action, or as required by the contract between the general government! and the state of Idaho and the contract between the state and the company; and deny that plaimiff is entitled to a first lien, or any lien at all, against the lands in the complaint described, or against the water rights, shares, or interests appurtenant thereto, under the acts of Congress, or the laws of the state, or the settlers’ contracts, or any lien at all for the actual costs and necessary expenses of reclamation, or reasonable interest thereon, or for any sum of money, or at all, until the construction company shall have actually furnished an amp'c supply of water in a substantial ditch or canal, or by artesian wells or reservoirs, to reclaim the lands, and then only a lien for the security of the payment of $40 per share per acre of land.</p> <p>By affirmative allegations, the answer reiterates the history of the construction of the irrigation works, and asserts that a fraud was practiced by the construction company and its promoters in acquiring the right, to the construction of tile works, and that the settlers were induced to enter into their contracts by misrepresentation and fraud, and in short challenges any recovery in behalf of the company or its assigns on account of the so-called liens.</p> <p>The pleadings being thus formulated, the court on motion of defendants directed that all contract holders or persons, claiming water rights or interests in lands under the segregation be brought in and made parties to the action; and, plaintiff having failed to comply with the order, the cause was dismissed, from which decree the plaintiff appeals.</p>

Dooling, Judge. Habeas corpus proceedings by Hee Fuk Yuen and Pang Hing against Edward White, as Commissioner of Immigration for the Port of San Francisco. From judgments sustaining demurrers to the petitions, and denying the writs, petitioners appeal

Cushman, Judge. Demuel.S. Fowler, Thomas Singer, and others were convicted of conspiracy, and the named defendants bring error. The plaintiffs in error, Lemuel S. Fowler and Thomas Singer, with 15 others, were indicted under three counts: Under count 1, for having conspired to commit an offense against the United States — that is, to violate section 1 of the Act of Congress approved February 13, 1913 (Comp.

<p>1. Conspiracy <$=>34 — Elements of conspiracy to forcibly prevent execution of laws.</p> <p>The offense of conspiracy “by force to prevent, hinder or delay the execution of any law of the United States” is not committed by concert in setting the law itself at defiance, but the purpose of the conspiracy must be forcible resistance to the authority of the United States while endeavoring to carry the law into execution.</p> <p><§5pFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>2. Conspiracy <§s»43 (5) — Allegations oí overt aets in imlMmait may lb© considered' as explanatory of charge.</p> <p>Whilo a charge of conspiracy cannot be aided by averments of acts done in furtherance of it, averments of overt acts in an indictment for conspiracy, not elements of the offense under tbe statute, may be looked to as explanatory of tbe charge.</p> <p>3. Conspiracy €=>43 ( 11) — Indictment for conspiracy by force to prevent ©xecidiua of laws off United States held inmiilleiient.</p> <p>An indictment under Criminal Code § 6 (Comp. St. § 10170), for conspiracy by force to prevent, binder, or delay tbe execution of laws of {be United States, hold insufficient to charge tbe offense defined by the statute.</p> <p>4. Ind'ktanena, and information <@=*130— Comssts in imciieisnBiit for conspiracy iiufer iEffiaKaat statutes hold property joined.</p> <p>Counts charging conspiracies under Criminal Code, § 37 (Comp. St. § 10201), under Espionage Act June 15, 1917, tit. 1, § 4 (Comp. St. 1918, Comp. St. Ann. Supp. 191Í), § 10212d), and under Lever Act Aug. 10, 1917, § 9 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3115%i), being for the same class of offenses, hold properly joined in one indictment, under Rev. St. 1024 (Comp. St. § 1690).</p> <p>5. ledirimcnt anti information <@=*125 (5 Jé) — Count not duplicitous for ehaiig'ing conspiracy to eoinmit different offenses.</p> <p>A count in an indictment for conspiracy is not duplicitous because it charges the object of the conspiracy to have been to commit more than one offense against the United States.</p> <p>6. Indictment arad imformatlon <t=>10 — That improper evidence was. presented to grand jury not ground for setting aside.</p> <p>An indictment cannot be sot aside on tbe ground that evidence unlawfully obtained was used before tlie grand jury unless it affirmatively appears that there was no lawful evidence presented on which it could have been based.</p> <p>1. Criminal Saw <@=*395 — Documents off association may he used1 as evidence against member.</p> <p>The constitutional protection of a defendant from the use as evidence against him of papers or documents unlawfully seized from his person or possession does not apply to papers or documents of an association off which he is a member, used in the perpetration of criminal offenses with which he is charged, and which were not taken from his possession, hut from that of the association.</p> <p>8. Criminal law €=>1140 — Hiding on demurrer not assignable as error.</p> <p>It is the general rule that the action of a trial court in overruling a motion to quash or demurrer to an indictment is not assignable as error.</p> <p>igkru'IBor otlHT eases see same topic & KKY-NUMBBK. in all Key-Numbered Digests & Indexes</p>

<p>1. Limitation of actions <§=’180(5) — Demurrer that cause of action is barred by statute of limitations is sufficient.</p> <p>A demurrer to a complaint for the stated reason that the cause of action-was barred by the statute of limitations, without specifying the particular statute which was meant, is sufficient.</p> <p>2. Limitation of actions <§=>180(5) — Demurrer for insufficient facts is sufficient, where complaint shows bar of statute.</p> <p>A demurrer to a complaint for failure to state sufficient facts to constitute a cause of action is sufficient to raise the objection that the complaint shows on its face that no cause of action arose within the period of the statute of limitations.</p> <p><§rs>For other cases see same topic & KEY-NUMBER in all Key-Numhered Digests & Indexes</p> <p>3. Pleading <3=417 — Amended complaint, alleging subsequent cause of action, waived objection to ruling on demurrer that first cause was barred.</p> <p>Where, after demurrer to the original complaint was sustained on the ground that the cause of action therein stated was barred by limitations, plaintiff tiled an amended complaint, alleging a cause of action which arose on a subsequent date, he thereby admitted that his original cause of action was barred, and waived his right to contend that the demurrer was insufficient.</p> <p>4. Pleading <§=238 (1) — Second amended complaint, first alleging diversity of the citizenship, held properly rejected.</p> <p>Where plaintiff tendered a second amended complaint after the original complaint and the first amended complaint had been held bad on demurrer, and for the first time alleged diversity of citizenship between the parties as a ground of federal jurisdiction, which was contrary to the recital of plaintiff’s residence in verification of the original complaint, it was not an abuse of the trial court’s discretion to refuse leave to file the second amended complaint.</p> <p>5. Evidence <§=10 (4) — Court takes judicial notice of location of Mexican boundary line.</p> <p>The court takes judicial notice that Calexico, in the United States, and Mexicala, in Mexico, are really but one town; the international boundary line being at that point a street of the town.</p> <p><©=For other cases see samo topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the District of Nebraska; Joseph W. Woodrough, Judge.</p> <p>Criminal prosecution by the United States against C. O. Butts. Judgment of conviction, and defendant brings error.</p>

Petition to Revise and Appeal from Order of the District Court o£ the United States for the Northern District of New York. In the matter of John M. Cross, bankrupt. From a decree awarding judgment against the City Bank of Syracuse, now the City Bank Trust Company, for the total sums of money on deposit in the name of the bankrupt (265 Fed. 769), the Bank appeals.

Interpleader by the American Exchange National Bank against Francis P. Garvan as Alien Property Custodian and John Simon. From a decree directing the payment of the fund in controversy to defendant Simon, the Alien’ Property Custodian appeals.

<p>1. Libel and slander <@=>81 — Complaint held to show publication was within authority of unincorporated association.</p> <p>A complaint which alleged that the defendants were members of an unincorporated association of bankers, and that they were engaged in printing a book and pamphlet of their proceedings, and that in the tenth volume of such book was printed a defamatory letter concerning plaintiff, which was read by the secretary at a meeting of the association, sufficiently shows that the publication was within the scope and purpose of the association, so as to state a good cause of action against the members thereof for libel. ■</p> <p>2. Associations €=>16 — Members liable for libel by agent within scope of authority.</p> <p>The members of an unincorporated association are liable in their collective capacity for tort, and are answerable for damages for ’libel pub-. lished by their agent with their authority, while the agent is acting within the scope of his employment.</p> <p>3. Associations <@=>16 — Libel by agent need be only within general scope of employment.</p> <p>To hold the members of an unincorporated association liable for a defamatory article published by their agent, it is not necessary to show authority, expressed or implied, to the agent to publish the libel; but there must be some evidence from which authority might be implied on the part' of the agent to publish the article within the general scope of his employment.</p> <p><©=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>4. Label and slander <@=»86 (2) — Pleading <@^>364 (6) —Innuendo unnecessary, when words are libelous per se.</p> <p>If the defamatory words alleged are actionable por se, no innuendo is necessary, and the allegation by way of innuendo may be stricken from the complaint.</p> <p>5. Libel and slander <@=>86 (2) — Innuendo proper, where words have both innocent and defamatory meaning.</p> <p>Where the words used have two meanings, one of them harmless and the other defamatory-, the innuendo may properly point out injurious meaning.</p> <p>6. Libel and slander <@=»6(2) — “Oook” applied to'person is always defamatory.</p> <p>Though the words “crook” and “crooked” have two meanings, one oi which is harmless, they have no harmless meaning when they are applied to an individual or to human conduct, but where so applied they charge dishonesty, and are defamatory, within the common understanding of mankind.</p> <p>other casos see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Railroads <©=>303 (4) —Bridge reasonably safe sufficient.</p> <p>The law only requires that a highway bridge, with its approaches, over a railroad, should be constructed and maintained So as to be reasonably safe for the ordinary needs of travel.</p> <p>2. Railroads <©=>303 (4) — Bridge with curve and grade held sufficient.</p> <p>The fact that a highway bridge over a railroad track was constructed with a curve approximately a 60-foot arc of a circle having a circumference of 290 feet, and that it had a grade downward from the center approximately 3 per cent., does not authorize an inference that bridge was negligently constructed.</p> <p>3. Negligence <©=>136 (5) — Court determines whether facts from which negligence may be inferred have been established.</p> <p>A trial court has the duty to say whether any facts have been established by sufficient evidence from which negligence can be reasonably and legitimately inferred.</p> <p>4. Railroads <@=>303 (4) — Railing on approach to bridge need not be strong " enough to resist weight of automobile.</p> <p>A railroad is not required to construct and maintain a railing on an approach to a highway bridge over its tracks sufficiently strong to resist and hold back the pressing power of an automobile striking against -it, so that negligence cannot be inferred from the fact that the railing gave way when struck by plaintiff’s automobile.</p> <p><®^>Por other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Van Fleet, Judge. Action by the Sacramento-Stockton Steamship Company against the .¿Etna Insurance Company and others. Judgment for plaintiff, and defendants bring, error.

<p>Appeal from the Supreme Court of Porto Rico.</p> <p>Action by Amelia Marrero against Maria D. Pordham and another, to have plaintiff adjudged the acknowledged natural child of Charles Ml. Boerman, with the right to inherit a part of his estate. A judgment for plaintiff was affirmed by the Supreme Court of Porto Rico, and defendants appeal.</p>

<p>1. Principal and surety <©==>57 — Surety bond held procured by fraud.</p> <p>A transaction between defendant jobber and a debtor corporation, apparently insolvent, by which the debtor contracted to deliver a quantity ol’ bags to defendant for payment, falsely recited as received, and procured complainant surety company to guarantee delivery, whereby, if the bond was enforced, defendant would obtain payment of its debt, held fraudulent as to the surety company, and the bond subject to cancellation at its suit.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>2. Equity <§=>43 — Bill does not lie where adequate remedy at law exists.</p> <p>A bill in equity does not lie in any case where a plain, adequate, and complete remedy may be had at law.</p> <p>■3. Equity <§=>53 (1) — Objection to jurisdiction because of adequate remedy at law may be waived. '</p> <p>The right to object to the jurisdiction of a federal court of equity on the ground of adequate remedy at law may be waived.</p> <p>’4. Equity <§=>53 (1) — Objection to jurisdiction waived by counterclaim.</p> <p>In suit for cancellation of surety bond on ground that it was obtained by fraud, an objection in the answer to the jurisdiction in equity on the ground that complainant had an adequate remedy at law was waived by a counterclaim asking recovery on the bond, defendant insisting upon the counterclaim at the trial and offering proof to sustain it, although defendant moved for dismissal on the ground that equity had no jurisdiction in opposition to a motion for judgment on the pleadings, but did not renew" such motion during the trial until the court indicated its determination to decide in favor of the complainant.</p> <p>5. Courts <§=>347 — Jury <§=>13 (6) — Defendant, objecting to jurisdiction, need not plead counterclaim under equity rule.</p> <p>Under rule 30 of the new Equity Buies (201 Fed. v, 118 O. C. A. v), a defendant in an equity case is not obliged to plead a purely legal cause of action as a counterclaim and offer proof thereof in an action in equity, since any such requirement would be in conflict with Const. Ü. S. Amend. 7, preserving the right of trial by jury.</p> <p>6. Jury <§=>28(11) — Defendant, asserting cause of action at law by way of counterclaim, elects to proceed without jury.</p> <p>Where defendant in an equity case asserts a cause of action at law by way of counterclaim, he elects to proceed without a jury.</p> <p>■<gss>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Action by the Automobile Sundries Company against the Champion Spark Plug Company, for breach of a contract. Judgment for plaintiff, and defendant brings error.</p> <p>For convenience, we shall refer to the parties as plaintiff and defendant. The plaintiff is an Ohio corporation, and the defendant a New York corporation. Under date of July 15, 1913, a contract was entered into between the plaintiff and defendant. This contract provided that plaintiff be made and constituted the “sales agent and distributor” of the defendant, with exclusive and sole right to sell and distribute the products of the defendant, known as spark plugs, in the territory described as follows: “All foreign countries outside of the boundary limits of the United States, including dependencies and possessions of the United States of America, with the exception of the Dominion of Canada and British Columbia.” It provided as to the prices of “regular” Champion plugs, all types and sizes, “Champion X” and “Champion priming plugs.” No other plugs are referred to in the contract. It further provided: “The first party [defendant] agrees that during the life of this agreement it will not sell or cause any of its articles to be sold in the above-described territory, except through the second party [plaintiff], and to refer all inquiries concerning its product from the above-described territory that may be received by it through any source or by any means whatsoever to the second party [plaintiff] for attention.”</p> <p>It further provided that the plaintiff use its best efforts in promoting the sales of the products of the defendant and to cover the territory by “agents, traveling representatives, correspondents, and other methods at its command to increase the business in the products of the defendant,” and further “the first party [defendant] shall as far as able furnish the second party [plaintiff] promptly with such qualities of any of its products as the second party may require,” and “it shall not advance the prices on its product to the second party beyond those in effect on the date of the execution thereof, and shall give the second party at all times the benefit and advantage of its lowest published prices and discounts on its products, * * * shall furnish the second party from time to time with reasonable quantities of literature and cuts for circularizing and promoting the sale of its products eontemplated by this agreement, sueb literature to bear the name of the second party as the sole foreign distributor for the product of the first party,” and further “the second party [plaintiff] shall order not less than 100,000 Champion spark plugs of assorted sizes in lots of 200 or over, as its needs may require during the first year of the term of this agreement, and an increase of 33% per cent, each succeeding year over the preceding year during the term of this agreement, and, failing to do* so, Ihe first party [defendant] may, at its election at any time thereafter terminate this agreement by giving not less than 30 days’ notice in writing to the second party,” and further “it is further agreed that spark plugs furnished the second party at the special prices herein indicated, are for export only, * * * and the second party agrees to push the sale of Champion spark plugs in preference to any other makes, but does not agree not to soil any other plugs for which it may receive orders.”</p> <p>Claiming a breach of this contract, the plaintiff instituted this action upon a complaint which contains six causes of action, and demanded judgment for $353,000. The defendant interposed an answer which, in addition to affirmative defenses, set up a counterclaim and demanded judgment thereon for $130,000. It appears from the contract that the defendant had brands of spark plugs under the three specifications of “Champion.” The plaintiff, by the terms of the contract, was made the sales agent and distributor exclusively for foreign territory. It therefore had no right to enter the domestic market and sell the defendant’s product. But it is quite clearly established, and, indeed, admitted by the plaintiff, that, in violation of the terms of its contract, the plaintiff not only entered the domestic market and sold the defendant’s products, the Champion spark plugs, but did so at reduced prices. Charged with the breach of this obligation, the plaintiff at first made denial thereof, but subsequently admitted that it sold in the domestic market. This constituted a breach of the contract, and of itself would bo sufficient to defeat the plaintiff. It was contended below, and it is here, that, after entering the domestic market and selling plugs, the defendant accused the plaintiff thereof, and at a conference had at Toledo, Ohio, the defendant expressly waived this breach of the contract. This meeting took place on September 28, 1916. On the 25th of September, 1916, the defendant wrote a letter to the plaintiff, canceling the contract, giving as the reason that in violation of the contract the plaintiff had entered the domestic market, to the defendant’s damage. Mr. Waiters, the president of the plaintiff company, testified that lie and the vice president, on their way to this meeting from New York to Toledo, discussed the question of whether they would make a clean breast of their violation of the contract, but they determined not to do so. At this conference, Mr. Walters testified that, after the denial of having sold in the domestic market, it was agreed by the defendant to make deliveries of other plug.-! ordered, and that thereafter shipments were made and Hie business relations of the parties continued. Thereafter, it is clear, the plaintiff continued to sell in the domestic market, and further complaint was made in correspondence which ensued. A meeting was held on November 21, 1916, at a hotel in New York City, where the defendant was represented by its sales manager, and it was testified by plaintiff’s president that the sales manager said at this conference: “You want to stop writing those letters. * * * They’ll only get you in trouble, and we’ll start a clean slate now. Let bygones Sbe bygones. Everything will be fill right, but don’t sell any more plugs in the domestic field.” Later other shipments of plugs were made to the plaintiff. On February 5. 1917, the defendant gave final notice that it would no longer ship plugs to the plaintiff, and none were shipped after this date.</p> <p>The first cause of action seeks to recover $25,000 for an order given for plugs on July 28, 1916; the second cause of action seeks to recover §5,000 damages for a failure to supply an order for 100,000 plugs, which order was given on December 7, 1916; and the third cause of action seeks to recover damages for orders given between January 30, 1915, and August 4, 1916. The fifth and sixth causes of action are for loss of profits due to failure to carry out the terms of the contract, by which failure the plaintiff lost profits during the periods mentioned in the second amended complaint. It is apparent that no orders were received for spark plugs, and no orders were in existence or received by defendant for spark plugs, such as are mentioned in the third and fifth causes of action, at the time of making the contract. In September, 1914, the defendant bought out the business and took on new lines, buying out other manufacturers of spark plugs, to wit, the Jeffery De Witt Company, of Detroit, and the Star Specialty Company, of Chicago. The former manufactured the line known as the “J-D,” which were manufactured and marketed as such. The Star Specialty Company placed upon the market and sold the brands of plugs herein referred to as “Ajax” and “Star.” These lines were separately advertised and catalogued, and distinctly known and sold under such brands. There is no evidence to show that at the time of the making of the contract it was known or contemplated that the defendant would purchase either of these companies or handle their brands.</p> <p>The plaintiff contended upon the trial, and was1 permitted to offer proof to substantiate a loss of profit due to failure of the defendant to supply it with these brands for sale in foreign markets. There is some correspondence in the record, not amounting to an admission, as to exclusive agency for these new plugs. Damages were claimed for the failure of the defendant to give the exclusive foreign agency to the plaintiff. Defendant made sales of these brands to the Lodge Sparking Plug Company, of England, and of the Champion line to the Fiat Company and Luigi Berrardo, of Italy. Upon the trial a claim was made for damages on the theory that such sales breached the contract. It further appeared upon the trial that, in the case of these latter sales (Fiat and Berrardo) to the respective companies, a commission was paid to plaintiff after explanation, and which commission it- accepted with full knowledge of the facts. Upon the trial, and as sustaining a part of the third cause of action,' plaintiff claimed damages for the Champion plugs shipped into the foreign territory during the life of the contract by the -Ford .Motor Company. The Champion X plug, standard Ford equipment, was sold at a low price to thé Ford Company under the contract of 1911. Each ear which the Ford Company shipped contained four Champion spark plugs, and plugs were also sent to the service stations as service stock. It appears that the Ford Motor Company did not enter into the spark plug business; that is to say, it did not place spark plugs upon the market, but used them solely for the service of customers of the Ford car. There is no evidence that the defendant instigated or otherwise caused these extra shipments so sold to the Ford Motor Company. They were sold; only under the contract above referred to, and it further appears that there was no profit in such sale.</p> <p>In its counterclaim the defendant alleges that there were some open charges which the plaintiff has not paid in full, and that the plaintiff so appropriated spark plugs which were furnished as to deliver them under a different cost price than that intended by the parties under the terms of the contract. In addition thereto, it is claimed that the plaintiff registered a trade-mark under the name of “Champion” for the Argentine Republic, India, and the Union of South Africa.1 It is claimed that as a result thereof the defendant was unable to sell these products in these countries, and therefore the plaintiff has committed a breach of the contract, which gives rise to the claims set forth in the set-off and counterclaim.</p> <p>Judgment was rendered for the plaintiff. Defendant appeals.</p>

Suit by the Smith-Kline & French Company against the American Druggists Syndicate for infringement of a registered trade-mark and for unfair competition. Decree for plaintiff, and defendant appeals.

Action by James J. Reap against Walker D. Hines, as Agent of the United States Railroad Administration'(Lehigh Valley Railroad Company), under the federal Employers’ Liability Act, to recover damages for personal injuries. There was a judgment of nonsuit, and plaintiff brings error.

<p>Appeal from the District Court of the United States for the Eastern Division of the District of Idaho; Frank S. Dietrich, Judge.</p> <p>Suit by the United States and another against C. S. Skeem and others. Decree for plaintiffs, and defendants^ appeal.</p>

<p>In Error to the District Court of the United States for the District of Massachusetts; James M. Morton, Judge.</p> <p>Action by the Rockhill Iron & Coal Company against the City of Taunton. Judgment for defendant (261 Fed. 234), and plaintiff brings error.</p>

- Action by the Pipe & Contractors’ Supply Company against the First National Bank of Litchfield for breach of contract of sale. Judgment for plaintiff (268 Fed. 138), and defendant brings error. The defendant below (hereinafter called the Bank) in July, 1918, owned and had in the vicinity of Litchfield, Conn., certain secondhand rails, pipe, engines, drills, etc., being machinery and appliances theretofore used in the construction or extension of a certain reservoir.

Pollack, Judge. Petition by David A. Henkes against J. H. McRae, commandant of the United States Disciplinary Barracks, Ft. Leavenworth, Kan., for writ of habeas corpus. From an order discharging petitioner, defendant appeals.

Youmans, Judge. Bill by the United States against Bessie Wildcat and others. The Black Panther Oil & Gas Company and others, Saber Jackson, D. A. McDougal and others, and W. E. McKinney, guardian of Mlartha Jackson, intervened. The suit was decided against the United States, and continued in separate suits by interveners against the original defendants. From decrees for defendants, the several interveners appealed.

<p>1. Banks and banking <S^>262 — National bank bound by acts of managing cashier within scope of cashier’s general authority.</p> <p>Vv’hore the cashier of a national bank and two subordinate employes, who were subject to discharge by Mm, constituted the acting board of directors, the remaining directors being nonresidents, the cashier having in fact absolute control and management of its affairs, his acts and knowledge were the acts and knowledge of the bank in dealings with third parties, and it was bound by all his acts as cashier which were within the general scope and power of a cashier.</p> <p>2. Banks and banking <S=»2S2 — Liability of national bank for bond's deposited held question for jury.</p> <p>The" cashier of defendant national bank, on behalf of himself and his father, the president, made an agreement for purchase of a controlling interest in plaintiff bank, which had a correspondent in the same city as defendant, with which it kept an account and also its certificates of deposit for P-60.000. The correspondent also held a much larger amount in securities and bonds for plaintiff for safe-keeping and collection. The day following the stock purcha.se defendant’s cashier, who for more than a year had been in full control of its business, over Ms signature as such cashier, wrote the cashier of plaintiff, requesting the transfer of plaintiff’s account, time deposits, securities, and bonds from its then correspondent to defendant, and when the transfer was made he receipted for the same as cashier of defendant, but made no entry on its books of tffo bonds so transferred, amounting to $97,000, and lator appropriated them and other funds to Ms own use and absconded. Held that proof of such facts was sufficient to require submission to the jury of the question of defendant's liability for the value of the bonds.</p> <p><®=>For other cases seo same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>3. Banks and banking <§=>262 — Want oí knowledge of transaction by other officers of national bank does not affect authority of cashier to bind bank.</p> <p>The fact that other officers of a national bank had no knowledge of the receipt of bonds on its behalf by its cashier for safe-keeping and collection, or the fact that the bank received no benefit because of the unlawful conversion of the bonds by the cashier to his own use, did not affect his authority to receive them for it, nor relieve it from liability to account for them.</p> <p><g^>Por other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Carriers <§=>211 — Duty of caretakers to care for stock at feed stations.</p> <p>Under the provision of Twenty-Eight Hour Law, § 2 (Comp. St. § 8652), that “animals so unloaded shall be properly fed and watered during such rest either by the owner or person having the custody thereof, or in case of his default in so doing then by the railroad * * *• at the reasonable expense of the owner or person in custody thereof,” where the carrier furnishes free transportation to caretakers for a shipment of stock, as- permitted by law, it is primarily their duty as matter of law to unload, care for, and reload the stock at rest stations, and the refusal of the caretakers to perform such duty or to assist therein is matter of defense in an action against the carrier for loss of stock alleged to have been due to the improper and unskillful manner in which the stock was handled and reloaded by its employes, especially where the bills of lading expressly provided that it should not be liable for any loss, damage, or delay due to the act or default of the shipper or his agents</p> <p>2. Carriers <3^228(3) — Evidence held incompetent in action for loss of stock.</p> <p>On an issue as to liability of a railroad company for loss and damage to stock in shipment, alleged to have been due to improper handling and delay in the transportation, evidence that another shipment a month later went through in two days’ less time and with much smaller loss, without showing the comparative condition of the cattle, the conditions under which the shipments were made, or whether the time made was usual or unusual, held incompetent, as introducing collateral and irrelevant issues.</p> <p><§37>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Mines and minerals @=>9 — Order withdrawing public lands held effective to prevent subsequent valid mineral entry.</p> <p>An order of the Interior Department withdrawing certain described public lands from settlement and entry, “or other form of appropriation,” held effective to prevent the subsequent location of a valid mineral claim on the lands, where its purpose was to withdraw them pending investigation of their value for oil and gas.</p> <p>2. Mines and minerals C=>7 — Trespasser liable for oil taken, without deduction for cost of production.</p> <p>A trespasser, who extrae!ed and sold oil from public land, claiming-under a mineral location made with knowledge that the land had been withdrawn by the Land Department from “Settlement and entry or other form of appropriation,” held liable, at law or in equity, for the value of the oil so taken, without deduction for the cost of its production.</p> <p>3. Mines and minerals <8=^7 — Advice of counsel held not to justify trespass.</p> <p>Whore a trespasser extracted and sold oil from public land, claiming under a mineral location made with knowledge of an order of the Interior Department withdrawing the land from any form of appropriation, and that the Land Department had construed such order as barring mineral locations, the fact that he sought and obtained an opinion from counsel giving a contrary construction to the order cannot justify the trespass as one made in good faith, so as to affect the measure of the trespasser’s liability.</p> <p>4. Public teds <3=»8-~Measure of recovery for trespass on public teds not governed by local laws.</p> <p>The measure of recovery by the United States for an alleged unlawful appropriation of public lands is not governed by local laws or decisions, but by general principles having uniform operation in all federal courts.</p> <p>5. Miañes and minerals <©=»7 — -Liability for trespass cannot be lessened by payment to cotrespasser.</p> <p>The liability of a trespasser for oil taken from public land cannot be lessened by the amount paid as royalty to a lessor, who was also a trespasser.</p> <p><@=»For otter casos seo same topic & KET-NUMBJ3B, in all Key-Numbered Digests & Indexes</p>

<p>Nos. 3541, 3543:</p> <p>Appeals from the District Court of the United States for the Western District of Louisiana.</p> <p>Nos. 3542, 3544-3547:</p> <p>Appeals and Cross-Appeals from the District Court of the United States for the Western District of Louisiana.</p> <p>Separate suits in equity by the United States against W. W. Green and others, against Henry Hunsicker and others, against thel Arkansas Natural Gas Company and others, against B. B. Norvell and others, against W. H. Matthews and others, against Dillard P. Eubank and others, and against Lydia Hanszen McMullen and others.</p>

_In Error to the District Court of the United States for the Southern District of West Virginia, at Huntington; Benjamin E. Keller, Judge. Action by George É. Estabrook and another, trustees of the Lincoln County Land Association, against Joseph D. Miller and others. Judgment for plaintiffs, and defendants bring error.

Appeals from the District Court of the United States for the Southern District of West Virginia, at Huntingon; Benjamin F. Keller, Judge. Suits by Alonzo Woodall and by T. J. Woodall against George L. Estabrook and another, trustees of the Lincoln County Land Association. From decrees for respondents in each case, complainants appeal.

Suit for injunction by the International Railway Company against George G. Davidson, individually and as Collector of Customs of the Port of Buffalo, and others. From a decree dismissing the bill for lack of equity (271 Fed. 313), plaintiff appeals.

<p>Appeal from the District Court of the United States for the Western District of New York.</p> <p>Suit by the Niagara Falls International Bridge Company and another against George G. Davidson, Jr., as Collector of Customs. From an order denying plaintiff’s motion for injunction pendente lite (271 Fed. 316), plaintiff appeals.</p>

Brown, Judge. Hyman Katz and others were convicted of conspiracy to steal from railroad cars goods which were being transported in interstate commerce, and they bring error.

Libels by the Morse Dry Dock & Repair Company against the steamer Nord Alexis; by Felix Mouton against the steam tug Arthur Kill, and by the Koninklijke West Indische Maildienst against the Nord Alexis and the Arthur Kill, tried together. From the degree, Mouton, owner of the Nord Alexis, alone appeals.

In Frror to the District Court of the United States for the Western District of Pennsylvania; Charles P. Orr, Judge. Action by Edward Kelley and wife against the West Braddock Bridge Company. Judgment for defendant on a directed verdict, and plaintiffs bring error.

<p>1. Shipping <@=108 — Shipper held not to have established damage caused by defendant’s refusal to furnish ships under agreement.</p> <p>In a suit for breach of contract to furnish ships to transport plaintiff’s coal into Mexico, plaintiffs proved no legally recoverable damages, where they did not show that they had bought any coal for shipment into Mexico, or had sold coal there for importation from the United States, and even if they had coal to ship they were bound to get other tonnage, and could recover of the shipowner only the difference between the contract price and the price they had paid.</p> <p>2. Shipping <@=108 — Contract to furnish ship for transporting coal held not a requirement contract.</p> <p>A contract whereby shippers agreed to send all their coal to Mexico by defendant’s ships, but did not bind themselves to ship any coal at all, and their shipments were so variable that no reasonable estimate of their tonnage requirements could be made, does not fall within the exception of the general rule that executory agreements must be for ascertained quantities, which applies in case of established business whose future requirements may be reasonably estimated.</p> <p>3. Estoppel <@=63 — Shipowner cannot attack contract after assigning another reason for nonperformance.</p> <p>A steamship company, which gave as the reason for refusing to furnish ships for transportation of coal to Mexico the unsettled conditions in Mexico, cannot, after suit for breach of contract is brought against it, defend on the ground that the contract was not a requirement contract, but a wish, will or want, contract, and therefore void.</p> <p>4. Shipping <@=108 — Previous breach by shipper is waived by assignment of another reason for refusal to furnish ships.</p> <p>A previous breach by shipper of a contract to ship ail its coal to Mexico by defendant’s steamers is waived, where defendant assigned as its sole reason for refusing to supply ships to the shipper the unsettled conditions in Mexico.</p> <p>5. Shipping *@=108 — Failure to ship any coal is not breach of requirement contract.</p> <p>A contract to ship all the coal required in plaintiff’s business by defendant’s vessels is not breached by the failure to ship any coal, if no shipments were needed in plaintiff’s business, and none were shipped ''through other parties.</p> <p><g=xpFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Master and servant <®=-361 — Director General of Railroads subject to state Workmen's! Compensation Law; “employer.”</p> <p>Under South Dakota Workmen’s Compensation Law, providing that all employers and employees, not engaged in interstate or foreign commerce, shall be bound by its provisions unless they affirmatively exempt themselves therefrom; that “employers” shall include the state, its municipal corporations, and other political subdivisions, and that all employers, except the state and such subdivisions, shall procure insurance, furnish aeeeptable proof of solvency or make a guaranty deposit, the Director General of Railroads, who by presidential order was made subject to “all statutes and orders of regulating commissions of the various states,” in operating lines in South Dakota and with respect to employees injured or killed in his service and not employed in interstate commerce, held subject to the provisions of such statute, being, as the representative of the federal government, like the state and its subdivisions, exempt from the requirement to procure insurance, give proof of solvency or make a deposit.</p> <p>QzaFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Employer.]</p>

Eibel by Ole Tolo against the steamship Hanna.Nielsen, of which B. Stolt-Nielson & Co., Incorporated, was claimant. From a decree granting libelant only an allowance for cure and maintenance (267 Fed. 729), libelant appeals. Libelant was an oiler on the Norwegian ship Nielsen. He arrived at Portland, Me., on the steamer as a regular member of the crew. At that port he demanded and received an increase in pay and signed articles accordingly.

<p>1. Internal revenue <3=38 — In suit to recover back payment, plaintiff has burden to show previous payment.</p> <p>In a suit to recover back taxes claimed to have been illegally collected, in that they had been previously paid, the burden of showing such previous payment rested on plaintiff.</p> <p>2. Internal revenue <3=22 — Collector not responsible for taxes paid deputy not assigned to particular portion of district.</p> <p>Under Act March 1, 1879, c. 125, § 2 (Comp. St. § 5849), providing that every deputy collector of internal revenue shall have the same authority ■as the. collector to collect taxes levied or assessed within the portion of the district assigned to him, etc., the collector was not responsible for taxes, even if paid to a deputy, where he was not the deputy assigned to the portion of the district in which the taxes were levied or assessed.</p> <p><@=»For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Collision <§=>102 — Both vessels, held at fault.</p> <p>Where vessels B. and O. collided when passing at night near nets laid in wartime for- interception of submarines, both held at fault; the B., outward bound, being on the wrong side of the channel and undertaking to pass on the starboard side of the O., coming in, without making sure that the O.’s two-blast signal was for the B., and not for a patrol boat stationed at the nets, and the O. being negligent, in that the lookout thereon had left his post, and its pilot and master failed to observe the B.’s course and signals with care, which would have disclosed that the B. and a pilot boat preceding the O. had passed starboard to starboard, and that the B.’s course indicated her understanding the O. had signaled a like passage.</p> <p><g=»For oilier oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>2. Collision <§=75 — Immediate stopping required, where signals not understood. .</p> <p>. When proper observation would show to the master or pilot of a vessel in proximity to another that his signals have been misunderstood, he should immediately stop and reverse, until he ascertains that his signals are understood and assented to.</p> <p><§=aFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Suit in Equity by William E. Ficklen and Fred J. Klein against J. Horace Harding. Decree for defendant, and complainants appeal. Suit is upon patent to Ficklen (application filed August 21,1909, issued June 2, 1914), No. 1,098,792, for a “street pavement.” Plaintiffs rely on claims 1, 2, 3, 6, and 7, of which the third claim describes the subject-matter with great particularity and is as follows: “3.

<p>In Error to the District Court of the United States for the Western District of Virginia, at Big Stone Gap; Henry C. McDowell, Judge.</p> <p>Action by Lou Frazier, as administrator of James L. Frazier, deceased, against the Interstate Railroad Company. Judgment for defendant</p> <p>on a directed verdict, and plaintiff brings error.</p>

<p>Appeal from the District Court of the United States for the Southern 'Division of the Northern District of California, Second Division; William H. Sawtelle, Judge.</p> <p>•Suit by the Regal Drug Corporation against Justus S. Wardell, United States Collector of Internal Revenue for the First District of California. From a decree dismissing the -bill, plaintiff appeals.</p>

<p>Criminal prosecution by the United States against Oscar C. Freid'ericks and others. On demurrer to indictment.</p>

<p>Internal revenue <S=»19 (1) —Tax on shares of corporation as transferred held proper.</p> <p>Where plaintiff corporation, in furtherance of a consolidation, transferred assets to the li. corporation, in consideration of issuance by tbe It. Corporation of a certain number of shares of its stock to shareholders in plaintiff corporation, and such stock was issued and properly stamped, a further stamp tax, as in effect on a transfer from the plaintiff to its shareholders, was properly charged against plaintiff under Revenue Act 1918, subd. 4, Schedule A (Comp. St. Ann. Supp. 1919, § 6318p), taxing “right to subscribe for or to receive such shares.”</p> <p>©=aFor other oases see same topic & KEY-NTJMBKU in all Key-Numbered Digests & Indexes</p>

In Admiralty. Suit by Middleton & Co., for themselves and as agents for the Teikoku Menkwa Kabushiki Kaisha, a Japanese corporation, against the United States. On motion to dismiss libel for want of jurisdiction.

<p>In Equity. Suit by William L. Silvey and others, against the Commissioners of Montgomery County, Ohio, and others. On application for temporary injunction.</p>

<p>In the matter of the petition of Easurk Emsen Charr for naturalization.</p>

<p>1. Shipping <§=>38 — Breach of bunkering provision by owner does not entitle charterer to cancel.</p> <p>Under the rule that when mutual covenants go only to a part, where the breach may be paid for in damages, they cannot be pleaded as a condition precedent, the breach by an owner of a provision in a charter-party for the transportation of a cargo of coal giving the charterer the right to bunker the vessel does not authorize the charterer to cancel the charter party, but merely entitles it to recover damages for the breach of that provision.</p> <p>2. Shipping <§=>58 (3) — Charterer can recover for breach of bunkering clause loss on coal and expenses of preparing it for ship.</p> <p>A charterer can recover from the vessel owner, as damages for breach of the clause in the charter party giving the charterer the right to bunker the vessel, not only the difference between the market price of the coal which the vessel would necessarily have had to put in her bunkers for the voyage and the market price at time of resale of such coal, but also any expenses in preparing the coal for delivery to the ship which would not add to its market value on resale.</p> <p>3. Shipping <§=>58 (2) — Evidence held not to show breach by owner of bunkering agreement.</p> <p>On a libel for cancellation of a charter party, in which the charterer filed a cross-libel for breach of the bunkering clause by the owner, evidence of written communications and telephone conversations between the agents of the parties heM to show that, after the vessel had been bunkered through a misunderstanding of the charter provisions, the owner offered to purchase the bunker coal from the charterer or to discharge that in the vessel’s bunkers, and to take on that of the charterer before the time for cancellation of the charter party, so that there was no breach of the bunkering agreement.</p> <p>^s»For other casos see same topic & KISY-NUMBER. in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by the Hillsboro Coal Company and Rice Miller against 'Edward C. Knotts, United States District Attorney for the Southern District of Illinois, and others. On motion by complainants for preliminary injunction, and by defendants to dismiss bill.</p>

In Admiralty. Libel in personam by Peter H. Crowell against the United States for collision with libelant’s vessel by the steamer Laramie, owned by the United States Shipping Board. Decree finding the Laramie solely in fault, and referring the case to an assessor to state damages.

<p>1. Master and servant <S=5129(6) — Causal connection between injury and violation of Safety Appliance Act essential.</p> <p>While the Safety Appliance Acts (Comp. St. § 8006 et seq.) are intended for the protection oí all employes, and not solely to prevent the necessity for men to go between the ends of cars to make uneouplings, to render a railroad company liable for injury to an employe thereunder, there must be a causal connection in a legal sense between the violation of the act and the injury.</p> <p>2. Master and servant @=>111(1%), 247(5) — Injury by cars without coupler required by federal act held not actionable.</p> <p>A car made defective by loss of a coupler was second of a number of cars standing on a storage track used solely for crippled cars, collected thereon for removal to the repair shop. It was necessary to improvise couplings before the ears could be moved, and plaintiff’s intestate was an inspector in charge of such work. With an assistant he went between the first and second ears to shorten a chain coupling made by others, without first putting out a blue flag, as expressly required by the rules of the company, and while there the cars were driven together by another car kicked on the track, and by reason of the absence of the coupler he was killed. Held, that the railroad company was not liable under Safety Appliance Act, § 4 (Comp. St. § 8621), because (1) it was not “using, hauling, or permitting to be used or hauled on its line” the defective car at the time of the injury; and (2) the defective condition of the car was not the proximate cause of the injury, which was the negligence of deceased in failing to put out the warning flag.</p> <p>@=»Eor other eases see same topic & KEY-NUMBEK in all Key-Numbered Digests & Indexes</p>

<p>Salvage <9=^34 — Award to master for salvage service at sea.</p> <p>Libelant, master of the steamship Lake Ellenorah, in ballast and worth $900,000, in answer to a wireless call went to the assistance of the Avondale, a vessel of the same owner, 100 miles distant in the North Atlantic, and found her wholly disabled, including her steering gear. Tlie Avondale, with cargo, was worth nearly $2,000,000, and was then some 500 miles from St. Johns,- Newfoundland, which was the nearest port. The time was November and the weather was foggy, with high winds and heavy seas, and the Avondale was in great danger of total loss. Libelant, with some dissent on the part of his officers, because the Lake Ellenorah was not equipped for such work, undertook to tow her to St. Johns, and succeeded in doing so in safety after six days, during which both vessels and crews were in considerable danger. Libelant had sole responsibility for the operation, and remained on duty almost continuously. Held that, but for the common ownership of the vessels, a salvage allowance to the Lake Ellenorah and crew of $300,000 would have been no more than reasonable, and that an award of $3,000 to libelant for his services was a just, though moderate, allowance.</p> <p><§=aJTor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by David Morgan, trustee, against the Clear Lake Irrigation & Lumber Company and others. Decree for defendants, with order granting an injunction on the counterclaim of defendant Wapinitia Irrigation Company against defendant Joseph R. Keep.</p>

Proceeding by the United States against Anthony Sylvester for the forfeiture of a truck used in the illegal transportation of liquor. The Commercial Investment Trust filed a petition, reclaiming the truck as an assignee of the conditional seller thereof.

<p>1. Trusts <@=358 (1) — Sufficient; to trace trust funds into deposit of agent, appropriated by bank to his personal debt.</p> <p>In tracing trust money, misappropriated by a bank, with the connivance of a depositor, in payment of his private debt to the bank, it is sufficient if the trust funds can be sufficiently traced to be reflected in the deposit, and it is not essential that the identical money be located.</p> <p>2. Trusts <§=356 (2) — Bank held liable for trust funds applied to depositor’s indebtedness.</p> <p>A depositor of defendant bank was a shipper of produce, in part of that bought by him, and in part as agent for others, and in making shipments he deposited drafts on consignees, which were accepted by defendant as cash and credited to his account. He had small capital, and in the course of an unfavorable season became indebted to defendant in the sum of $15,000. During the next season, when he was making large shipments, known by defendant to be in large part on commission for plaintiffs and others, but depositing the drafts in the usual way to his own credit, defendant obtained from him a number of checks, and from time to time, as his account warranted, applied! such checks in payment of his indebtedness. Held that, so far as drafts for shipments owned by plaintiffs could be traced into the deposit so withdrawn, defendant was liable therefor.</p> <p>3. Estoppel <§=88 (1) — Attempted settlement with agent for funds misappropriated held not an estoppel to follow the funds.</p> <p>Where a bank in which an agent had deposited funds of his principals to his own credit, with knowledge of their trust character, had procured their application in payment of a debt of the agent, the owners of the funds held not estopped to.maintain a suit against the bank by taking notes of the agent, with personal security, for part of the amount, pursuant to an agreement for settlement made without knowledge by them that the bank had received the money, and which was not carried through, so as to constitute an accord and satisfaction.</p> <p>4. Subrogation <§=10 (1) — Trustee ex maleficio is not entitled to subrogation.</p> <p>A trustee ex maleficio held not entitled in equity to be subrogated to securities held by complainants for their own protection.</p> <p><g==>For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Admiralty. Suit for collision by Thomas J. Scully against the steam tugs North America and W. S. Taylor, claimed by the Atlantic Coast Transportation Company, with the tugs Scully and Mercury .impleaded. Decree against the North America and the Scully, each for half damages.

<p>1. Costs <§=42 (2) — Courts <§=85 (3) — Court rule governing offer of decree to avoid cost must be construed with federal statute authorizing docket fee.</p> <p>The rule of the District Court authorizing an offer to permit entry of decree, and providing that after such offer is made no costs shall be taxed against respondent, unless a decree for a larger amount than was included in the offer is rendered, must be construed in the light of the federal statute fixing the costs, and requires the payment, not only of costs then accrued, but also the necessary costs for filing the tender and entering the final decree thereon.</p> <p>2. Admiralty <§=124 — Decision of controversy not necessary to taxing proc- ¿or’g ffiss</p> <p>Under Rev. St. § 824 (Comp. St. § 1378), authorizing a docket fee for attorney, solicitor, or proctor on a trial before a jury, before referees, or on a final hearing in equity or admiralty, it is not essential to the allowance of such docket fee that a controversy has been submitted or decided; but it is sufficient if some question of law or fact involved in or leading to the final disposition actually made of the case has been submitted or presented to the consideration of the court, whether it is a disputed state of facts or an agreed statement of facts.</p> <p>3. Admiralty <§=>88 — Libelant can take final decree after claim is paid! into court.</p> <p>When the respondent pays into court the amount claimed by libelant in ' an admiralty suit, with costs accrued to date, the libelant is not required to dismiss his libel, but may ask for the entry of final decree on the admission of liability contained in the payment into court.</p> <p>jgp^For other cases see same topic & KEY-NUMBER in .all ifej-Numbered Digests & Indexes</p> <p>4. Admiralty <ss=>125 — Proctor’s fee can be taxed on decree after payment into court.</p> <p>Since the proctor’s docket fee can be taxed when the decree for libelant is rendered pro confesso and the final decree entered thereon, it can also be taxed against a respondent who admitted liability only by paying the amount of the claim into court, with the costs then accrued.</p> <p>5. Admiralty <§=>124 — Libel for wages held properly filed under honest belief master would make an erroneous deduction.</p> <p>A libel to recover the wages of a sailor, who had been sent to a hospital for treatment, where the sailor honestly believed, from a misunderstanding of the statement by the owner, that the owner intended to deduct from his wages the hospital bill, was not merely yexatious, and the libel-ant is entitled to recover his proctor’s docket fee.</p> <p>4©^>For other cases see same topic & KEY-NUMBEit in all Key-Numbered Digests & Indexes</p>

In Equity. Suit by the Belt Eine Railway Corporation against Charles D. Newton, as Attorney General of the State of New York, and others, to restrain the enforcement of an order of the Public Service Commission of New York.

<p>1. Ietordecting liquors <3=^255 — Believing vcMde, used in illegal transportation, from forfeiture, is discretionary with court; “good cause.”</p> <p>Under National Prohibition Act, tit. 2, § 26, providing that, on conviction of a defendant of illegal transportation of liquor the court shall order the sale of the vehicle used, and seized, “unless good cause to the contrary is shown by the owner.” what constitutes “good cause” rests in the discretion of the court, which should be reasonably convinced, from the facts and circumstances shown, that Justice will be better served by a refusal to enforce the forfeiture.</p> <p>For other eases see same topio & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Good Cause.]</p> <p>2. Intoxicating liquors <3==>255 — Good cause not shown for refusing to forfeit automobile used in illegal transportation.</p> <p>Intervener contracted to sell an automobile to defendant and others, to be paid for in monthly installments, retaining title and the right to retake possession on any default. Defendant was arrested for illegal transportation of liquor in the car, which was seized, but returned to him on giving bond. Eight months afterwards he pleaded guilty and was fined, and surrendered the car, which was ordered sold. In the meantime intervener, though it knew the facts, and though payments were in default, took no steps to retake possession of the car, and its president testified that, while he did not know of defendant’s intention to use it in violation of law, he probably would have sold it if he had known, relying on the insurance. Beld, that “good cause” for relieving the ear from forfeiture was not shown.</p> <p><g=oFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Intoxicating liquors ©=»249 — Police judge, as “magistrate,” may issue search warrant for liquor unlawfully possessed.</p> <p>Under Rem. & Bal. Code Wash. §§ 744, 7520, 7521, enacted pursuant to the authority given by Const, art. 4, § 12, to create inferior courts and define their jurisdiction, which created municipal courts presided over by a justice of the peace, who was designated as police judge, and proscribed the jurisdiction of such courts, the police judge is a “magistrate” who can issue a search warrant to seize intoxicating liquors, under section 6278, which must be construed with Rem. Code 1915, § 6262 — 11, authorizing search warrants by the justices of the peace.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Serios, Magistrate.]</p> <p>2. Intoxicating liquors <S=3240 — -Sheriff, marshal, and constable are “peace officers.”</p> <p>A, sheriff or his deputy, a constable, marshal, or policeman of a city, or conservator of the peace, are “peace officers,” to whom a search warrant to search premises for intoxicating liquors may be issued, under Rem. Code, Wash. 1915, § 6262 — 11.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Peace Officer.]</p> <p>3. Intoxicating liquors «S^IO (2) — City may regulate possession not inconsistent with national or s*ate laws.</p> <p>A city lias power to rpguiaie the possession of Intoxicating liquors in a manner not in conflict with the National Prohibition Act or the laws of the state, and may authorize the search of a private dwelling for liquors unlawfully possessed, where not prohibited by the state laws, though National Prohibition Act, § 25, provides that no search warrant shall issue thereunder to search any private dwelling.</p> <p>t@3»For other cases see same topic <& KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>4. Criminal law '§=>394 — Liquors seized under valid police judge warrant may be used as evidence in federal courts.</p> <p>Intoxicating liquors legally seized in defendant’s dwelling under a search warrant issued by a police judge may be used in evidence in a prosecution in a federal court for violation of the National Prohibition Act, though a search of the dwelling would not have been permitted under section 25 of that act, since the purpose of section 25 was not to establish a special rule of evidence, but to define probable cause for a search.</p> <p>Qzab'or other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

At Law. Ten cases by the Public Service Corporation of New Jersey and others against Herman C. H. Herold and three cases by the same plaintiffs against Isaac Moffett. On motions for judgment on the pleadings. Judgment for defendants.

In Admiralty. Separate libels by the Commonwealth Fisheries Company against the steamer Albatross, and by the Albatross Company against the steam trawler Alden A. Mills, to recover damages for injuries resulting from a collision between the two vessels.

<p>Shipping <3=»178 — Railroad strike, which only partially interrupted transportation, held not to excuse charterer’s delay in furnishing, cargo.</p> <p>A charterer of a vessel to carry a cargo of coal, who was excused by the charter party from demurrage for delay occasioned by strikes, is liable for delay in furnishing the cargo for the vessel, notwithstanding a strike on the railroads which were to transport the coal, where that strike was only partial, and did not prevent the railroads from hauling more coal to the port than had ever been done before, so that the delay was caused by the unusual conditions in the coal industry, which were known to both parties at the time the charter party was made.</p> <p>other eases see samo topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Shipping <@=52 — Government restrictions on transportation of coal for export held not to excuse charterer’s failure to furnish cargo.</p> <p>An order of the Interstate Commerce Commission forbidding transportation of coal for export without a special permit, made for the purpose of insuring a sufficient supply for New England, which cut down the quantity of coal for export by only one-eighth and did not prevent substantially the normal number of vessels from being loaded, does not excuse the charterer’s failure to furnish the cargo, which was due rather to the unprecedented demand for export coal which caused the Commission’s order, and which did not prevent other shippers, who had no permit for transportation, from purchasing coal for their cargoes at the port.</p> <p>2. Shipping 4=52 — Government prohibition excuses charterer, though he could not have furnished cargo anyway.</p> <p>The prohibition of the export of coal by the government excuses, under the restraint of princes clause, the failure of a charterer to furnish the cargo as required by the charter, even though the charterer would have been unable to furnish the cargo in absence of such prohibition.</p> <p>3. Shipping <@=175 — Charter held to impose on charterer risk of delay in getting ship to berth.</p> <p>A -provision in the charter party that the time for loading was to count from the master’s notice of readiness to load, whether the steamer was in berth, or not, imposes on the charterer, not on the owner, the risk of delays in getting a berth.</p> <p>4. Shipping <@=39 — Interlineation in printed charter party prevails over inconsistent printed provision.</p> <p>A typewritten interlineation in the charter party must be given its natural meaning, even though such a construction may limit the terms of some of the printed clauses or he inconsistent with them, since the minds of the parties were specially directed to the matter with which the interlineation dealt.</p> <p>5. Shipping <§=52 — Contingency provided against by charter must render performance practically impossible.</p> <p>In order that the contingencies specified against in the charter party shall constitute a good defense to a libel for the charterer’s failure to furnish the cargo, the charterer’s performance must have been thereby rendered in a practical sense impossible, illegal, or dangerous; it being insufficient that the happening of one of them adds materially to the difficulties and embarrassment of the charterer.</p> <p>6. Shipping <@=52 — Restraint of princes, excusing charterer, must be proximate cause of failure.</p> <p>While the restraint of princes, which will excuse the charterer’s failure to furnish a cargo within the terms of the charter party, need not have been directed against the ship or the goods, but may have had other objects, it must have been tbe proximate cause of tbe failure, as distinguished from the remote cause, and if by itself it could not have prevented performance it will not excuse nonperformance merely because, in combination with nonexeepted causes, it did so.</p> <p>7. Shipping <§=52 — Restraint in getting cargo to ship excuses failure only if it was unobtainable from another source.</p> <p>The restraint of princes clause in a charter party will not excuse the charterer’s failure to furnish a cargo, where the restraint imposed was on the transportation of the cargo for the ship from the source at which the charterer had planned to obtain it, unless that source was, by the terms of the eharter or in the contemplation of the parties at the time it was made, or by the well-established course of trade, the only source from which the charterer could have been expected to get the cargo.</p> <p>@=»For other eases see same topic & KEY-NUMBER in .all Key-Numbered Digests & Indexes</p> <p>8. Shipping <S=S8 (2) — Party seeking to weaken binding effect of eharter has heavy burden of proof.</p> <p>It is no light matter to weaken the binding force of mercantile contracts, and the burden is heavily on him who asks that it be done.</p> <p>©=»For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Admiralty. Libel by the Western Counties Shipping Company, Limited, against the Archibald McNeil & Sons Company, Incorporated, to recover damages for failure to furnish a cargo for a chartered ship. Decree rendered for libelant.

In Admiralty. Libel by the Compagne Navigazione Sota y Agnar against the Diamond Fuel Company, Incorporated, to recover damages for failure to load the ship under the terms of the charter party. Decree rendered for libelant. The Unbe Mendi was chartered on a Welsh form containing the provisions: “3. The cargo to be loaded at an average rate of not less than 1,500 tons per running day, Sundays and holidays excepted.

<p>In Admiralty. Libel by the Canute Steamship Company, Limited, against the Diamond Fuel Company, Incorporated, to recover for the failure to furnish a cargo of coal as required by charter party. Decree rendered for libelant.</p> <p>The Severnmede was chartered on the Washington July, 1919, form, with conditions similar to those in the Renfrew, but without the clause: “This charter party effective, whether permit for cargo granted or not granted.”</p>

In Bankruptcy. In the Matter of the Saludes Lumber Company, alleged bankrupt. Petition of Oscar M. Martelliere and others, creditors, for allowance of claims. On motion to set aside verdict of jury on trial of issues raised by petition.

<p>Seamen <§=>3 — Statutory penalty for delay in payment of wages not applicable to foreign vessels.</p> <p>The provision of Rev. St. § 4529 (Comp. St. § 8320), which entitles seamen to a sum equal to two days’ pay for each day’s delay in payment of wages after discharge, beyond the time therein fixed, ?¡.ei(i”not applicable to foreign vessels, which are governed as to the rights of their seamen by the laws of their respective counties, to be proved as facts in a suit in an admiralty court of the United States.</p> <p><§c^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Shipping §=>166(1) — Steamship company’s duty extends to ail passengers.</p> <p>In connection with an alleged theft of jewels on board a steamship and a search of the staterooms of certain passengers by police officers at the port of destination, the carrier’s duty extended, not only to the suspected persons, hut to the passenger alleging the theft, and to the larger body of passengers not involved in the controversy, who might have been endangered or delayed by any resistance to, or obstruction of, the investigation.</p> <p>2. Shipping §=>166(1) — Captain not bound to prevent transmission o£ radiogram asking officers to meet ship, or inform suspected persons.</p> <p>Where the captain of a steamship bound for Havana, to whom complaint was made of an alleged theft of jewels, refused to order a search of the passengers or of the staterooms of suspected persons, he had neither the right nor the duty to prevent the complaining passenger from sending a radiogram to the Havana police officers, asking them to meet the ship, and was under no- duty to inform the suspected persons that such message had been sent.</p> <p>3. Evidence §=>317(2), 593 — Statement of police officer that search was by permission of steamship captain held hearsay.</p> <p>The statement of a police officer, while searching the stateroom of a steamship passenger suspected of theft, that he was there by permission of the captain, was hearsay, and could have no probative force against the captain, who was not present when it was made, and was dead when it was repeated at the trial.</p> <p>4. Shipping §=>166(5) — Evidence held not to make question for jury as to captain’s consent to search of stateroom by police officers.</p> <p>Where there was testimony that a steamship captain refused police officers at the port of destination'permission to search the staterooms of passengers suspected of theft, but the police officers nevertheless made a search, evidence held insufficient to make a question for the jury as to whether the captain gave permission for the search, especially where the case was presented to, and decided by, the trial court on the theory that permission was refused.</p> <p>5. Shipping §=>168(1) — Passenger, after reaching destination, held not member of ship’s company, bound only by law of ship’s sovereignty.</p> <p>Where a ship had reached ,her destination, and her passengers were about to disperso in various directions, and passengers suspected of theft declined to tell police officers where they intended stopping, they could not be regarded as members of the ship’s company, whose internal discipline was a matter for the law of the sovereignty of the ship, but, like the ship, owed allegiance and obedience to the laws of the port, subject to any existing treaty rights.</p> <p>6. Shipping §=>166(1) — Captain of steamship held not bound to resist search or arrest by police officers on complaint.</p> <p>Under the Cuban law, requiring every citizen to notify the police of any crime within his information, and requiring the police authority to investigate such information, where the police at Havana, to which port a steamship was bound, were notified of an alleged larceny, the agents of the steamship company were not bound to substitute their opinion of Cuban law for that of the officials, or resist the officers in searching the staterooms of suspected persons, and in arresting them, even assuming tliat United States statutes and the treaty between United States and Cuba gave the suspected persons, as American citizens, a right to be tried- in the United States.</p> <p><S=oEor otter cases see same topic & KEY-NTJMBER in all Key-Numbered Digests & Indexes</p> <p>Smyth, Chief Justice, dissenting.</p>

<p>District of Columbia 'Sr=>22 — Statiite prohibiting public vehicles from loitering! near hotels held inapplicable to taxicabs furnished for hotel’s use.</p> <p>Act July 11, 1919, § 12, making it a misdemeanor for public cabs and vehicles to loiter around or in front of hotels, etc., arid authorizing the Commissioners of the District of Columbia to revoke the license of any driver convicted of a violation thereof, did not apply to a taxicab stationed near a hotel under a contract by the taxicab company to furnish vehicles for the exclusive use of the hotel and its guests, where the taxicab company was under the jurisdiction of the Public Utilities Commission and not of the District Commissioners, and the driver was not licensed under Act July 1, 1902, § 7, par. 11; the taxicabs being taxed under paragraph 13.</p> <p>sgrxsFor other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>Smyth, Chief Justice, dissenting.</p>

James M. Parker was convicted of loitering with an automobile in front of a hotel, and he brings error. Reversed and remanded, with instructions.

<p>1. Insurance <©=>750 — Member having option of paying fraternal benefit dues at end of quarter is not in “arrears” until then.</p> <p>A member of a fraternal benefit association, who had the option of paying his dues weekly, monthly, or quarterly, is not in arrears on the payment of dues until the end of the quarter, within a provision of the constitution prohibiting payment of benefits where the member is three months or over in arrears for weekly dues, since “arrears” is defined as that which is behind in payment, or which remains unpaid, though due, and therefore the association is liable on the certificate, where the member died within one month after the expiration of the first quarter for which no payment was made, at which time he was then only 30 days in arrears.</p> <p>/z — ^T?nr other cases see same topic & KEY-NUMBER in -all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.- — For other definitions, see Words and Phrases, First and Second Series, Arrears.]</p> <p>2. Insurance —Constitution of fraternal benefit association held t© exclude evidence of construction.</p> <p>The provision of the constitution of a fraternal benefit company that no benefits shall be paid to a member who is three months or over in arrears for weekly dues, which he had an option to pay quarterly, is too plain and unambiguous to permit of evidence on behalf of the company that the provision was construed to prevent payment where the weekly dues had not been paid by the member during an entire quarter.</p> <p><gr^>For other cases see same topic & KEY-NUMBER in all Key-Numhercd Digests & Indexes</p>

Writ of Error from the Police Court of the District of Columbia. Otis N. Reamy was convicted of willfully loitering around a public building, by stopping his vehicle opposite the entrance thereof, and he brings error. Reversed and remanded, with instructions to enter a judgment of not guilty on the agreed statement of facts.

Writ of Error from the Police Court of the District of Columbia. Clarence Raekey was convicted in the Police Court of the District of Columbia of willfully loitering around a public building, by stopping his vehicle opposite the entrance thereof, and he brings error.

<p>1. Patents «S^lOSd) — Party last to file held senior party, when application was for reissue of patent on prior application.</p> <p>The party whose application for a patent was last filed was the senior party to an interference proceeding, where his application was for the reissue of a patent issued on an application filed prior to the other party’s filing date.</p> <p>2. Patents (1) — Interference- will not be suspended for purpose of considering public use or intervening rights.</p> <p>An interference, being for the sole purpose of determining priority, will not be suspended, after testimony has been taken, for the purpose of considering public use or intervening rights, as these questions cannot properly be considered.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Trade-marks and trade-names 0=61 — Grape juiee and root beer or ginger aío are not goods of same descriptive properties.</p> <p>Grape juice, a fruit beverage, and ginger ale or root beer, cereal beverages, are not goods of the same descriptive properties, so that the owner of a trade-mark for grape juice cannot prevent its registration for root beer or ginger ale.</p> <p>2. Tráde-marks and trade-names <S=61 — Use of root beer compound does not establish prior use of beverage.</p> <p>The use of trade-marks on a compound from which the beverage of root beer can be made does not establish prior use of the trade-mark on the beverage.</p> <p>3. Trade-marks and trade-names <§=Si — User of trade-mark on beer can extend it to root bear and ginger ale.</p> <p>The user of a trade-mark for beer can extend his trade-mark to root beer and ginger ale, or other cereal beverages, which fall within the natural expansion of its business, especially since the Eighteenth Amendment has compelled transition from the production and sale of alcoholic beverages to nonalcoholic beverages, which calls for liberal protection of rights affected by this enforced change.</p> <p>t§ss>J?or other cases see same topic & KEY-NUMBElt in all Key-Numbered Digests & Indexes</p>

Trade-mark interference proceeding between the Berghoff Brewing-Association and the Popel-Giller Company, Incorporated, which, had applied for registration of similar trade-marks for goods of^ the same descriptive properties. From a decision allowing the registration by the Popel-Giller Company, Incorporated, the Berghoff Brewing Associa-tion appeals.

<p>1. Principal and agent >§=>102(1) — Authority to sell stock includes authority to employ an agent to sell.</p> <p>A power of attorney to transfer title to stock impliedly authorized the agent to do all things necessary in the usual course of business to effectuate the sale, including the employment of a subagent to make the sale, and the subagent employed would be the agent of the principal, and not of the agent.</p> <p>2. Embezzlement <í=>44 (1) — Evidence held to show agency.</p> <p>In prosecution for embezzlement of stock certificates, evidence held to show that accused was employed as agent to sell the certificates.</p> <p>3. Embezzlement <§=>10 — Property coming into agent’s possession contemperar neously with creation of agency may be embezzled.</p> <p>Under Code of Law, § 834, defining embezzlement, agency need not exist prior to the coming into accused’s possession of the property alleged to have been embezzled; but, if the agency came into existence contemporaneously with the delivery of the property in question, this is enough.</p> <p><gz^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>4. Embezzlement <3=10 — -Property need not be received by agent from his principal; “under his care.” . . ^</p> <p>. . ^ Under Code of Law, § 834, defining embezzlement, it is not essential that the converted property should have been received by the agent from a person other than his principal, as the phrase “under his care,” in the statute, covers property received either from a third person or from the principal.</p> <p>5. Criminal law <3=829(1) — Refusal of requested charges already covered not en. or.</p> <p>. ... . When a subject is fully covered by the court s charge, it is not error to refuse a request for an instruction with respect to the same matter.</p> <p>6. Criminal law <3=655(5) — Action of court in checking counsel’s argument, based on different view of law from that charged, held not erroneous.</p> <p>In an embezzlement prosecution, the action of the court in preventing counsel for defendant from proceeding further in argument, based on a different view of the law from that which the court had announced, held not erroneous.</p> <p>7. Crime ii-al law <3=853 (1) — Remark of court that it would not “let this man out” k,cM not prejudicial.</p> <p>In au embezzlement trial, remark of the trial court, when overruling motion for peremptory instruction to acquit defendant, that “I am not going to take the responsibility of taking the view of the law you present, and letting this man out, but I shall let the Court of Appeals decide the law points you make,” was not prejudicial, in using the phrase “letting this man out,” since that was exactly what the court was asked to do.</p> <p>8. Criminal law <0=891 — Whether requested charge shall be given in advance of the argument held discretionary.</p> <p>Whether a requested charge shall be given the jury in advance of counsel’s argument rests in the sound discretion of the court, and where the requested charge relates to a familiar principle, about which there can be no doubt, so that, counsel might well assume that such is the law, and argue accordingly, the refusal so to charge is not an abuse of discretion.</p> <p>9. Criminal law <3=785(18) — Instruction on right to disregard the entire testimony of willfully falsifying witness held proper.</p> <p>In an embezzlement prosecution, an instruction as to the jury’s right to entirely disregard the testimony of a witness, if willfully falsifying in any material matter, but cautioning that this rule does not apply where one makes an honest mistake as a witness, held correct.</p> <p>19. Embezzlement <3=5 — Intent to restore property converted no defense.</p> <p>An intent at the time of the conversion to restore the embezzled money is not a defense.</p> <p>11. Criminal law <3=1119(4) — Statements of counsel must be preserved, to show discrimination of court in dealing therewith.</p> <p>The appellate court cannot consider accused’s claim that the trial court discrimina ted in favor of tlic prosecuting attorney and against accused’s attorney, in that the court overruled objections to the prosecuting attorney’s statement and sustained an objection to the statement of counsel for accused, where neither statement is given, so as to show the correctness or otherwise of the court’s ruling with respect to them, since the appellate court cannot assume that such ruling was incorrect.</p> <p>12. Criminal law <3=658(2)-Court’s suggestion as to form of answers of witness held proper.</p> <p>During the cross-examination of prosecuting witness in an embezzlement trial, ho answered, in response to questions whether he did not testify so and so at the former trial of the case, “If the record states that, probably 1 did.” The court intervened and admonished him not to put his answers in tliat way, as counsel was searching his recollection, “not as to the fact, but as to what you said before. Have you any recollection as to how you testified before?” and, on the witness’ answer, “No, I have not,” the court said, “Well, that answers that, then.” Held, the court’s action was not improper.</p> <p>^jnsFor other eases see same topic & KEY-NUMBER, in all Key-Numbered Digests & Indexes</p> <p>13. Embezzlement <s^>48(l), 52 — Case properly submitted on both counts of ■ indictments charging one offense.</p> <p>Where two counts of an indictment charged the embezzlement of the property of different persons, but by a single act, there was only one offense committed, and on verdict on both counts the trial court, in sentencing accused, properly treated the two counts as one, but the case was properly submitted to the jury on both counts.</p> <p>Kobb, Associate Justice, dissenting.</p> <p><S=3For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Action by Thomas H. Bremmerman, administrator of the estate of J. Schafer, deceased, against the Georgetown & Tennallytown Railway Company, a corporation. Judgment for defendant on a verdict directed by the court at the conclusion of plaintiff’s case, and plaintiff appeals.

<p>1. Religious societies1 ©=>12 (5) — Judicial review of expulsion limited to determining question of compliance with ¡rules.</p> <p>In a suit to compel a religious society to restore complainants to membership, where no temporal rights of complainants are involved the court’s inquiry must be confined to a determination of whether there has been a substantial compliance with the rules of the church.</p> <p>2. Religious societies ©==7 — Rules held to entitle member to copy of charges only on demand.</p> <p>Church rules giving any one tried by the church an opportunity to vindicate himself and giving him a right to demand and receive copies of all charges against him requires the church authorities to furnish the member with copies of the charges only when the member makes request therefor.'</p> <p>3. Equity —At hearing' on bill and answer, averments of answer must be taken as true.</p> <p>Where the hearing in the court below was upon bill and answer, the averments of the answer must be taken as true.</p> <p>4. Religious societies ©=>7 — Member held expelled without notice.</p> <p>Proof that a church officer went to the home of a member, and, when he stated he was from the church on official business, was informed that the member was in bed and would not open the door, whereupon the officer attempted to push under the door the notice of the meeting to hear the charges against the member, does not show that the member was given the notice of the hearing of the charges against him required by ■ the church rules.</p> <p>¡g^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>5. Religious societies <®^>7 — Members declining to receive notice cannot object to service.</p> <p>Members of a church, declining to receive notices of meeting for the hearing of charges against them after they knew the purport of the ' notices, cannot object that the notices were not properly served, especially where they stated they would not appear at the hearing and that the church could take any action it chose.</p> <p>6. Religious societies —Expulsion of member without notice void.</p> <p>Where church member was not given the requisite notice and opportunity to be heard before he was expelled on charges, the order of expulsion was void.</p> <p>or other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes-</p>

Action hy Ralph E. Fitzsimmons against J. E. Hanger, Incorporated, of Washington, D. C. From a judgment for plaintiff on the second count, after the first count was withdrawn from the consideration of the jury, both parties appeal.

<p>1. Specific performance <3=108 — When defendants ousted complainant pending salt, order restoring possession was proper.</p> <p>Where, pending a suit for specific performance, in which complainant sought to compel the execution of a lease by defendants of premises of which complainant had possession, defendants took the law into their own hands and ousted complainant, an order restoring complainant to the possession was proper, though no injunction had been obtained restraining defendants from interfering with complainant’s possession.</p> <p>2. Specific performance <©=>108 — Defendants, doubting complainant’s ability to respond in damages for possession pendente lite, should apply to court for protection.</p> <p>Where defendants, sued for specific performance of an agreement to execute a lease by a party in possession, doubt complainant’s ability to respond for intervening damages, if allowed to retain possession pending the suit, they should apply to the court for an order protecting their interests, instead of taking the law into their own hands and ousting complainant.</p> <p>@K=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Interference proceeding between Ered E. Earles and another and George W. Comber. From a decision of the Commissioner of Patents, awarding priority of invention to Gomber, Earles and another appeal.

<p>Appeals from a Decision of the Commissioner of Patents.</p> <p>Interference proceeding between Walter Wright, Hiram Joseph Halle, Glenn J. Barrett, and John C. Wahl. From a decision awarding priority to Halle, the other parties separately appeal.</p>

<p>1. Patents «S^iOO — Applicant not entitled to make claims more than two years after issuance of patent to another, notwithstanding intervening patent.</p> <p>Where claims in a patent issued in 1909 were appropriated by H., and, on interference, awarded to him, D. could not make such claims more than two years after the issuance of the patent in 1909, though within two years after the issuance of the patent to H.</p> <p>2. Patents <^=109 — Applicant charged with constructive notice of issuance of patent to another.</p> <p>One having an application for a patent pending had constructive notice of the issuance of a patent to another containing claims which he subsequently attempted to make.</p> <p><S=oFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the Commissioner of Patents.</p> <p>Interference proceeding between Theodore L. Valerius and another and Leroy S. Pfouts. From a decision of the Commissioner of Patents, awarding priority to Pfouts, Valerius and another appeal.</p>

<p>Appeal from the Commissioner of Patents.</p> <p>Interference proceedings between Joseph A. Anglada, ■ Fredellia H. Moyer, Dallas C. Carroll, and Richard S. Bryant. From a decision of the Commissioner of Patents, awarding priority to Moyer, Anglada and Bryant separately appeal.</p>

Interference proceeding between Charles D. Jenks and another and William A. Geiger. From a decision awarding priority to Geiger, the other parties appeal.

Application by Harry B. Pruden for a patent. Prom a decision of the Commissioner of Patents, denying the application on the ground of anticipation, the applicant appeals.

<p>Appeal from the Commissioner of Patents.</p> <p>Application by Clarence C. Hay for the registration of a trade-mark, opposed by Annie M. Malone, doing business under the style and name of Poro College. From a decision of the Commissioner of Patents, denying registration, the applicant appeals.</p>

<p>L Patents <£*=>113 (4) — Senior applicant derives no benefit in interference from allowance while junior application was pending.</p> <p>The senior applicant derives no benefit in interference proceedings from the granting to him of the patent, when the junior application was pending at the time the patent was granted.</p> <p>2. Patents <§=>109 — Claims taken from interfering application 20 months after application are in time.</p> <p>The prior inventor does not lose his rights by delay in taking the claims in issue from the application of the other party for 20 months after that application was filed and 15 months after the prior inventor had knowledge thereof, since such claims were taken well within the 2-year period allowed by the rule, as construed by the Supreme Court. •</p> <p>3. Patents <§=>108(2) — Prior, but less efficient, disclosure of counts in issue, ,is sufficient.</p> <p>A disclosure of the counts in issue by the prior inventor is sufficient to sustain his rights in interference proceedings, though his disclosure was less efficient than that of the subsequent inventor.</p> <p><S=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from Supreme Court of the District of Columbia.</p> <p>Action by Genevieve K. Gish against Ernest G. Walker. Judgment for plaintiff, and defendant appeals.</p>

Application by the Beechnut Cereal Company for the registration of a trade-mark, opposed by the Beech-Nut Packing Company. From a decision of the Patent Office, sustaining the opposition, applicant appeals.

<p>Trade-marks and trade-names @=>3 (5) —“Efficiency” is descriptive word.</p> <p>Tbe word “efficiency,” as a trade-mark for hot-water bottles and other hospital supplies, is more descriptive than suggestive, and therefore not registerable as a trade-mark.</p> <p>@=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & luaexes</p>

Sawtelle, Judge. Action by Mike Koso against the United Verde Extension Mining Company. Judgment for plaintiff, and defendant brings error. Mike Koso, defendant in error here, brought action under the Arizona Employers’ Liability Law (Civ. Code 1913, §§ 3153-3179) and recovered judgment against the United Verde Extension Mining Company for injuries received during his employment in the mine of that company. The only testimony offered by Koso as to the accident was his own.

Suit by the Brockton Heel Company, Incorporated, against Hayden & Clemons, Incorporated. From a decree for defendant, the F. A. Manufacturing Company, Incorporated, assignee of the Brockton Heel Company, appeals. On motion to dismiss the appeal.

Suit by Edward J. Knapp against the Will & Baumer Company for infringement of a design patent. From an interlocutory decree for complainant (253 Fed. 191), defendant appeals.

Dietrich, Judge. ; _ _ Libel by David James Flynn and others, by their guardian and next friend, Honora Della Flynn, against E. A. Christenson and others, as joint owners of the schooner Sophie Christenson, to recover damages caused by the death of David James Flynn while employed as a stevedore in unloading the schooner. From a decree dividing the damages, libelants appeal.

<p>1. Indians <®=316(7) — Grazing lease construed as to excess in number of cat- • tie grazed.</p> <p>Grazing lease for a two-year term, at an annual rental, under Act Feb. 28, 1891, and Act Aug. 15,1894 (TJ. S. Comp. St. §§ 4218, 4219), limiting the cal tie to be grazed “to an average of 9,000 head, the maximum number at any one time not to exceed 11,500 head, and that any excess over and above such maximum number shall be paid for at the rate of $4.50 per head * * 0 in addition to the rental heroin named,” held to mean that for the specified* annual rental lessees could graze any number up to the equivalent of 9,000 head throughout each year taken separately, and for any excess of that number the lessees should pay $4.50 per head grazed during the equivalent of a year; the excess being computed from 9,000 as the maximum for the year as a whole, and not from the 11.500 provided as a maximum at any time.</p> <p>2. Evidence @=>481(1) — Written offer preceding contract may be looked to in construing ambiguous contract.</p> <p>Where a contract was ambiguous, the intention of the parties could be made clear by referring to the written offer which one party submitted preliminary to the contract.</p> <p>3. Damages 8 (6) — Provision in grazing lease for excess pasturage held not a penalty.</p> <p>Grazing lease for a two-year term, at an annual rental, under Act Feb. 28, 1891, and Act Aug. 15, 1S94 (U. S. Comp. St. §§ 4218, 4219), limiting the cattle to be grazed “to an average of 9,000 head, the maximum number at any one time not to exceed 11,500 head, and that any excess over and above such maximum number shall be paid for at the rate of $4.50 per head * * * in addition to the rental herein named,” held not invalid as to the provision for payment of $4.50 per head, on the ground that it was intended as a penalty or liquidated damages, violating Rev. Codes Mont. §§ 5054, 5055, for such provision was merely a stipulated sum to be paid for a specified privilege, namely, to graze cattle in excess of 9,000 up to the limit of 11,500, and such excess, grazing did not constitute a breach of the contract.</p> <p><gc=jFor other cases see same topic & KEY-NUJOiElt in all Key-Numbered Digests & Indexes</p> <p>4. Indians (7) — Grazing lease construed as to averaging excess grazing.</p> <p>Grazing lease for a two-year term, at an annual rental, under Act Feb. 28, 1891, and Act Aug. 15, 1894 (ü. S. Comp. St. §§ 4218, 4219), limiting the cattle to be grazed “to an average of 9,000 head, the maximum number at any one time not to exceed 11,500 head, and that any excess over and above such maximum number shall be paid for at the rate of $4.50 per head * * * in addition to the rental herein named,” held to authorize the averaging of the cattle, to determine extra payment for excess grazing, for each year separately, instead of for a two-year period, as the contract was divisible into two periods of a year each.</p> <p>5. Indians <5=»16(7) — Grazing lease provision for payment for excess grazing held not invalid as payment for illegal act.</p> <p>In action by the government in behalf of the Crow Tribe to recover from lessees under a grazing lease under Act Feb. 28, 1891, and Act Aug. 15, 1894 (TJ. S. Comp. St. §_§ 4218, 4219), for excess grazing as provided for in the lease, the contention that the agreement to pay for excess grazing was invalid as an agreement to pay for violating Rev. St. § 2117 (Comp. St. § 4107), by placing cattle on the reservation without the consent of the tribe, could not be sustained, where the complaint alleged and the answer admitted that the lease was made in pursuance of a resolution of the Crow Tribal Council, and was approved by the Secretary of the Interior, and the lease recited that it was made on behalf of the Crow Tribe under and pursuant to the action of the council of the tribe.</p> <p>6. Indians 4^16(5) — Ouster of one grazing lessee by another does not affect joint liability.</p> <p>Ouster of one lessee by another would not affect their joint liability under a lease made pursuant to Act Feb. 28, 1891, and Act Aug. 15, 1894 (U. S. Comp. St. §§ 4218, 4219).</p> <p>7. Costs <S=>185 — Mileage taxable only for distance that could be reached by subpoena.</p> <p>Mileage is taxable in the federal court only for the distance that could be reached by a subpoena, namely, from any point within the district, and for a distance of 100 miles, if the witness came from a point at a greater distance and without the district.</p> <p>8. Costs "@^170, 184(3), 185 — Mileage and fees of witnesses not testifying, subpoenaed in good faith, and subpoena fees and expenses held properly taxed.</p> <p>Where witnesses were subpoenaed in good faith and their testimony was deemed material to the issues involved, although they did not in fact testify, it was not an abuse of discretion to tax as costs their mileage and fees and the fees and expenses of the marshal in serving subpoenas upon them.</p> <p>ig^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

_ In Error to District Court of the United States for the Second Division of the Northern District of California; William C. Van Elect, Judge. Action by John C. Davis, as trustee in bankruptcy of the estate of Charles F. Willey, against E. T. Willey. Judgment for defendant (263 Fed. 588), and plaintifiBjrings error. This action, brought under section 70e of the Bankruptcy Act (Comp. St. § 9654), was instituted in March, 1918, by Davis, trustee of the estate of C. If.

Dooling, Judge. Libel by the Union Oil Company of California against the steamship Portland and another to enforce the maritime lien. Decree in favor of libelant, and claimant appeals. Libel in rem to recover the value of fuel oil furnished by Union Oil Company to the steamship Portland on different occasions between July 5 and November 27, 1912.

Action by W. H. Lawrence against Justus S. Wardell, Collector of Internal Revenue for the First District of California. Judgment for defendant, after general demurrer to the complaint was sustained (270 Fed. 682), and plaintiff brings error. In an action by plaintiff, Lawrence, to recover certain sums paid under protest to the defendant, collector of internal revenue, the District Court sustained a general demurrer to the complaint and entered judgment of dismissal.

<p>In Error to the District Court of the United States for the Eastern Division of the District of Idaho; Frank S- Dietrich, Judge.</p> <p>Charles McKelvey and others were convicted of preventing and obstructing free passage over unoccupied public lands, and they bring error.</p>

<p>In Error to the District Court of the United States for the District of Arizona, William H. Sawtelle, Judge.</p> <p>Action by Epifanio Guerrero against the Phelps Dodge Corporation. Judgment for plaintiff, and defendant brings error.</p>

Anderson, Judge. Suit by Charles A. Becker against the General Chain Company to secure the issuance of a patent. From a decree dismissing the bill, plaintiff appeals.

Suit by thes Tompkins-Hawley-Fuller Company against Amos F. Holden, trading as the Little Falls Paper Company. From a decree dismissing the bill, plaintiff appeals. The plaintiff is a corporation organized under the laws of the state of Oregon, of which state it is a citizen. The defendant is a citizen of the state of New York, and has a regular and established place of business within the Southern district of New York.

<p>1. Collision <S=95 (2) — Evidence held to show vessels were crossing at small angle and that one substantially kept her course and speed.</p> <p>Evidence held to show (hat a steamer going up the North River and a tug towing a barge from a point on the Jersey shore to a pier further down the river on the Manhattan side were crossing at a very small angle, and that the tug did little or nothing, but substantially kept her course and speed, after assenting to the steamer’s signal for a starboard to starboard passing.</p> <p>2. Collision <=95 (4) — Steamer signaling for starboard parsing with crossing vessel held at fault in not stopping or in making close shave.</p> <p>A steamer going up the Hudson river, and colliding with a tug crossing her course at a narrow angle, held at fault in not stopping and backing when the tug’s answer to her signal for a starboard to starboard passing was too long delayed, or in making too close a shave in her own navigation after the signal was assented to.</p> <p>3. Collision <§=93 — Burdened vessel, agreeing to proposal of privileged vessel, escapes risk.</p> <p>When a privileged vessel proposes that the burdened vessel cross her bows, and gets an assent to such proposal, she assumes the risk of the proposal.</p> <p><§=>For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>4. Collision o=»93 — Duty of burdened vessel, assenting to proposal of privileged vessel that she cross her bows, stated.</p> <p>When a. privileged vessel proposes that the burdened vessel cross her bows, and gets an assent to such proposal, the case is one of special circumstances, and the burdened vessel is not rigidly bound to keep her course and speed.</p> <p>5. Collision ©=>108 — When burdened vessel agrees to cross bows, situation is one of special circumstances.</p> <p>Where vessels are crossing at a small angle, and the burdened vessel agrees to cross the bows of the privileged vessel, a position of special circumstances is created, no matter from which vessel the proposal emanates, and the burdened vessel is not absolved from her original duty to keep out of llie way, nor rigidly bound to hold her course and speed.</p> <p>6. Collision ©=>95(2) — Crossing vessel, assenting to signal for starboard passing and doing little to avoid collision, held at fault.</p> <p>Where a steamer going up the Hudson river and a lug towing a barge were meeting at a small angle, and the steamer, tlie privileged vessel, signaled for a starboard to starboard passing, to which tlie tug assented, the tug held at fault in holding- her course and speed, and doing little or nothing to prevent a collision.</p> <p><8=»Eor oilier casos see same topic & ICEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Action by Bentley Gardiner and Mary Elsie Gardiner, executors of the will of George N. Gardiner, deceased, against the Equitable Office Building Corporation. Complaint dismissed, and plaintiffs bring error and appeál. The plaintiffs are citizens of the state of New Jersey and the defendant is a corporation organized under the laws of the state of New York.

Action by the Chile Copper Company against William H. Edwards, Collector of Internal Revenue, Second New York District, to recover $17,500 paid as a stamp tax on certain bonds. A demurrer was interposed and overruled. Judgment was entered for plaintiff. Defendant brings error.

Suit in equity by Lizzie E. Wiess, executrix, and others, against H. L. Sturm, executor, and others. From the decree, both parties appeal.

<p>1. Appeal and error <©=>997 (3) — Directed verdict reviewable only for lack of supporting evidence.</p> <p>Where bolli parties moved for directed verdict, the verdict directed will bo sustained, if supported by any substantial evidence.</p> <p>2. Trial <§=388(4) — Requested declaration of law, bad in part, properly refused.</p> <p>A requested declaration of law, in an action submitted on request by both parties for direction of a verdict, held properly refused, where it was in part based on findings to be made and also contained a declaration clearly erroneous under the issues.</p> <p>3. Contracts <©=71(2) — Extension of time good consideration for indorsement,</p> <p>The personal indorsement by the manager of a business, who also owned an interest therein, of trade acceptances given for merchandise, was based on a good consideration, where, by such indorsement, he obtained an extension of the time of payment of the debt, as the trade acceptances would not have been accepted, except for his indorsement.</p> <p>other cases see same topic & KEY-NUMBER, in all Key-Numbered Digests & Indexes</p>

Bean, Judge. Suit by the Weyerhaeuser Timber Company against Alwin A. Muck and wife, to settle a dispute over a boundary line. Decree for plaintiff, and defendants appeal.

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Action at law by Garbiss Dilsizian and others, partners as Dilsizian Bros., against A. Klipstein & Co. Judgment for plaintiffs, and defendants bring error.</p>

Petition to Revise Orders of the Federal Trade Commission. Separate petitions by the Standard Oil Company of New York and by the Texas Company against the Federal Trade Commission to have set aside orders of the Commission separately entered against both petitioners. Petitions praying that orders of the Federal Trade Commission separately entered against both petitioners dated April 27, 1920, be set aside.

<p>Appeal from the District Court of the United States for the Eastern District of New York.</p> <p>Suit in equity by the Superior Skylight Company, Incorporated, against August Kuhnla, Incorporated, and others. Decree for defend-</p> <p>ants, and complainant appeals.</p>

Libel by Capt. I. P. Hansen, on behalf of the owners of the motor-ship H. C. Hansen, against 1,523,000 feet of lumber loaded on board the motorship H. C. Hansen, of which W. R. Grace & Co. were claimants. Decree allowing libelant demurrage claimed, less a deduction for demurrage during the period the ship was being repaired, and both parties appeal.

Appeals from the District Court of the United States for the Southern District of New York. Suits in admiralty by John Kieman against the Lake Champlain Transportation Company. From the decree, both parties appeal. Affirmed. Suits by Ellen A. Forsyth, by John Forsyth, and by Thomas Costello against the same respondent, in which libelants appeal.

<p>In Error to the District Court of the United States for the District of New Jersey; Joseph D. Bodine, Judge.</p> <p>The Warner-Quinlan Company was convicted of discharging refuse into New York Harbor, and it brings error.</p>

Felix Gouled was convicted of using the mails to defraud and of a conspiracy to defraud the United States, and he brings error.

<p>1. Aliens <§=>49 — Court cannot relieve immigrant from deportation on giving bond against becoming a public charge.</p> <p>A court is without authority to discharge an immigrant, refused admission and held for deportation on the ground that he is likely to become a public charge, on his furnishing a bond conditioned that he will not become such charge.</p> <p>2. Aliens <§=>54 — Order of deportation not roviewable if supported by any evidence.</p> <p>A court in a habeas corpus proceeding can review tbe decision of immigration officers, made after a fair hearing, excluding an immigrant on the ground that because of his physical and financial .condition he is likely to become a public charge, only for lack of any evidence to support it.</p> <p>3. Aliens <§=>49 — “Person likely to become public charge” defined.</p> <p>A “person likely to become a public charge” is one whom it may he necessary to support at public expense by reason of poverty, insanity and poverty, disease and poverty, or idiocy and poverty.</p> <p><S=>For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests~& Indexes</p>

<p>Master and servant <§=92 (1) — Employes’ association, conducting hospitals, held not employer’s agent, so as to charge employer with negligence.</p> <p>Where employe's of a railway company formed a beneficial association, which built and equipped hospitals, the administration of which was in the hands of persons elected by the employes, a small percentage of each employe’s salary being collected by the railway company and turned over to the association, the association was not the railway company’s agent in treating members, and the company was not liable for negligence in such treatment, though it contributed $50,000 a year towards the success of the hospitals, and its treasurer and comptroller were required to be the treasurer and comptroller of the association, and persons not members, injured on the road, were sometimes treated at the hospitals at the company’s expense.</p> <p><§=>For other cases see same topic & KEY-NUMBER in .all Key-Numbered Digests & indexes</p>

Libel by Michael McCole against the lighter "Howell, of which the Chelsea Lighterage Company was claimant. From a decree dismissing the libel (257 Fed. 578), the libelant appeals. Libelant was one of a gang of longshoremen unloading cargo from tbe lighter in tbe harbor of New York. He is a resident of New York; was not a member of the crow but employed at hourly wages, apparently by tbe master of the lighter.

Suit in equity by Max Schey against George Giovanna. From an order finding him in contempt, defendant appeals.

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Criminal prosecution by the United. States against Patrick White and William Smith. Judgment of conviction, and defendants bring error.</p> <p>The indictment was in two counts under the Act of February 13, 1913 (37 Stat. 670 [Comp. St. § 8603]), declaring that whoever shall “steal or unlawfully take, carry away, or conceal * * * from any railroad car, station house " * Dor] depot * - with intent to convert to his own nse any goods or chattels * * * which are a part of or which constitute, an interstate or foreign shipment of freight or express, or shall * * * have in his possession any such goods or chattels, knowing the same to have been stolen,” shall be fined or imprisoned or both.</p> <p>The first count was for stealing, and the second for unlawfully having in possession, certain goods “stolen from a freight car in the New York Central Itailroad yards, foot of Ninety-Eighth street and Hudson river, New York, N. Y., while moving in interstate commerce from Penacook, N. H., to New York, N. Y., consigned to E. H. Van Ingen, Twenty-First street and Fifth avenue, New York, N. Y.”</p> <p>Defendants below, having been convicted on both counts, took this writ.</p>

<p>1. Carriers <@=>189 — Combination of lowest intermediate rates applicable where interstate through rate not published.</p> <p>Where an interstate carrier has not published a through rate, a combination of the lowest intermediate rates applicable to the shipment is to be applied.</p> <p>2. Carriers <@=>189 — Higher of two intermediate rates taken in computing through rate on interstate shipment.</p> <p>In making up the through fate on such a shipment, where it appears that one of the connecting carriers had published a rate from point A to point B on its line, for shipments originating in A, and a higher rate on commodities moving into point A destined for point B, the higher rate must be taken in making up the combination.</p> <p>—,T?m- other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Equity. Separate suits by James J. O’Brien against Walter B. Bashar and others and against Percy P. Anderson and others. From a decree dismissing the bills, with leave to amend, plaintiff appeals. On motion to strike out parts of the record.

<p>Appearance <5^10 — Participation by attorney in proceedings to entry of decree is general appearance.</p> <p>Where defendants’ attorneys first appeared specially to enter a plea to the jurisdiction, and did not subsequently enter a formal general appearance, their participation in the suits to the entry of the final decrees dismissing the bills constituted a general appearance.</p> <p>@=jFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Patents <$=328 — 933,011, for belting, void for anticipation.</p> <p>The Wooster patent, No. 933,011, for belting, of fabric saturated with asphaltum, held void for anticipation.</p>

Criminal proceeding by the United States against John Murray, alias Michigan Shorty, and others. An order for defendants' removal to another district for trial was made, and they bring error.

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Cesare Allemanni and another were convicted of crime, and they bring error.</p>

<p>On petition for modification of opinion.</p>

<p>At Law. Action by James Gray, trustee in bankruptcy o£ Louis Dicker, against Hyman Tantleff and Max Borok. Judgment for plaintiff.</p>

<p>In Equity. Suit by James Gray, trustee in bankruptcy of Louis Dicker, against William Breslof, Benjamin Kellman, David Kellman, and Louis Dicker.</p>

<p>Equity <3=223 — Bill not subject to demurrer, because containing statements of evidence and unnecessary matter.</p> <p>A bill alleging defendant had acquired a patent, which he was bound to assign to plaintiff, which contained a plain statement of the grounds of jurisdiction and of the ultimate facts fm* relief, held good on demurrer, though containing some statements of evidence and unnecessary mau i-of inducement, under the prauice to oven-ale a demurrer, unless founded on an absolutely clear proposition, and that, taking the allegations to be true, the bill must be dismissed at the hearing.</p> <p>ig^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Equity. Suit by the First National Bank of Chicago against Rogers, Brown & Co., a corporation, in which a receiver was appointed. In the matter of the claim of the receiver against the Chicago, Milwaukee & St. Paul Railway Company. Demurrer to answer of Railway Company sustained.

<p>1. Internal revenue <§=11 — Ouija board is taxable as a “game.”</p> <p>Ouija boards are games, or implements with which games are played, within the sense of that word as used in Revenue Act 1919, § 900, subsec. 5 (uomp. St. Ann. Supp. 1919, § 6309V r>a), imposing a 10 per cent, tax on games and sporting goods.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Game.]</p> <p>2. Internal revenue <¡=11 — Small ouija boards held not exempt as games for children.</p> <p>Small ouija boards, sold to merchants for distribution as advertisements, are not the sort of thing which would interest many children, and are not exempt from the internal revenue tax as children’s toys or games, especially where the picture on the envelope in which the boards were distributed showed that those who were to use them were for the most part adults.</p> <p>other eases see same topic & ICEY-Nt/MBER in all Key-Numbered Digests & Indexes</p>

<p>1. Conspiracy <^43 (5) — Averment of overt acts cannot aid statement of offense.</p> <p>The statement of overt acts in the indictment cannot be used to supply deficiencies in a charge of conspiracy, but the charging portion of the indictment must state all the necessary elements of the offense.</p> <p>2. Conspiracy <S=43 (10) — Indictment for conspiracy to defraud the United States held sufficient.</p> <p>An indictment charging a conspiracy to collusively submit false and fraudulent bids for tea offered for sale by the Surplus Property Division of the Army held sufficient as charging a conspiracy to defraud the United States.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Courts €£=>280 — Question of jurisdiction not determinable on demurrer.</p> <p>Allegations of the statement of claim in an action against the United States held insufficient to enable the court to determine on demurrer whether or not the suit was one “to recover fees, salary or compensation for official services” of an officer of the United? States, and therefore not within the jurisdiction of the court, under Judicial Code, § 24, subd. 20 (Comp. St. § 991, subd. 20).</p> <p><§=s>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Criminal law <®=>100(3) — Pending prosecution in state court for liquor law violation does not affect federal court’s jurisdiction of prosecution for National Prohibition Act violation.</p> <p>That accused lias been indicted in tbe state court under a state statute for the same transaction for which he is indicted in the federal court under the National Prohibition Act does not prevent the federal court from proceeding to try accused under the indictment in that court.</p> <p>2. Criminal law <§s=>201 — Prior conviction or acquittal in state court for liquor law violation no bar to prosecution in federal court under National Prohibition Act; “offense;” “same offense.”</p> <p>A prior conviction or acquittal in the state court for violation of the state prohibition act constitutes no bar to a prosecution in the federal court under an indictment found in that court under the National Prohibition Act for the same transaction on which the prosecution or prosecutions were had in the state court; for in Const. U. S. Amend. 5, forbidding twice putting in jeopardy for the “same offense,” the quoted words do not mean the same act or transaction, as the “offense” is not the act or transaction alone, but the act or transaction considered in the light of the legislative provisions and prohibitions.</p> <p>[Ed. Note. — For other deiinitions, see Words and Phrases, First and Second Series, Offense; Same Offense.]</p> <p><gz»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Admiralty. Suit for collision by the Canada Steamship Lines, Limited, as owner of the Steamship Beaverton, against-the steamship Daisai Maru, with others impleaded. Decree against the Daisai M aru.

<p>1. Parties <©=40 (2) — Stranger must have legitimate and proper interest in fund or property in Question to intervene.</p> <p>Rvon in equity there is a fundamental rule that, before a stranger to a suit can be permitted to intervene, it must appear that he has a legitimate or proper interest in the fund or property in question, which he ought to be allowed to protect in that proceeding.</p> <p>2. War C"-=>(2 — Citizens of France could not intervene to protect judgment against person1 having properly in hands of Alien Property Cusí odian.</p> <p>A citizen of France could not intervene in a suit brought under Act Cong. Oct. 6, 3917, known as the Trading with the'Knemy Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3U5%a. et seq.), to enforce a judgment against the owner of property in the hands of the Alien Property Custodian, even though he presented equities, the republic of France not having extended reciprocal rights to citizens of the United States, in view of section 9, as amended, subds. (e) and (f) ; and even after France extended reciprocal rights, intervention could not be successful, unless the debt arose with reference to the money hold by the Alien Property Custodian which claim must be hied with him after notice of claim had been made in accordance with subdivision (a).</p> <p>@=oFor other cases seo same topic & KE3T-NUMBHIt in all Key-Numbered Digests & Indexes</p>

At Law. Action by the American Hominy Company against the Millikin National Bank. Judgment for defendant. The American Hominy Company, plaintiff, is a corporation organized under the laws of the state of New Jersey, with its head office at Indianapolis, Ind. The defendant is a banking association organized under the National Banking Act (13 Stat. 99), and is located at the city of Decatur, 111.

In Equity. Suit by J. D. O’Keefe, receiver of the New Orleans Railway & Light Company, and others, against the City of New Orleans and others. On motions by complainants for preliminary injunction, and by defendants to dismiss bill. Motion to dismiss denied, and injunction granted.

<p>At Eaw. Action by Walter J. Demer against the Pacific Steamship Company and another, begun in the state court and removed to the United States District Court. On motion to remand.</p>

<p>In Equity. Suit by William Lucking against the Detroit & Cleveland Navigation Company. On motion to dismiss bill.</p>

<p>1. Trade-marks and trade-names and unfair competition <@=68 — When unfair competition in use of photoplay title established slated.</p> <p>Tlie title of a photoplay, if not strictly descriptive, is at least suggestive, and not arbitrary, and in a suit for unfair competition in its uso plaintiff succeeds as soon as he shows an audience educated to understand that the title means his play.</p> <p>2. Trade-marks and trade-names and unfair competition <S=>93(1) — Presumption that story had many readers, of whom substantial part remembered title.</p> <p>In * a suit for unfair competition in the use of a title for a photoplay, first used as the title of a story on. which plaintiff’s play is based, the story published 15 years ago in a magazine of wide circulation presumptively had many readers, of whom a substantial number remember the title; but the presumption is an extremely doubtful inference, and will not warrant a preliminary injunction when the same title has been twice used in other photoplays since the publication of the story.</p> <p>3. Trade-marks and trade-names and unfair competition <@=>93 (1) — Presumptions can help plaintiff’s establishment of case only as they give ground for inference; in absence of facts.</p> <p>In a suit to enjoin unfair competition in the use of a title for a photoplay, presumptions can only help plaintiff to prove a case as they give ground for an honest inference, in the absence of adequate information.</p> <p>4. Trade-marks and trade-names and unfair competition <@=>93 (1) — Presumption that many people saw photoplays having same name as that sought to be protected.</p> <p>In a suit to enjoin unfair competition in the use of a title for a photo-play, where the court must act upon presumptions, it must be presumed that many people saw plays previously produced under the same title.</p> <p>5. Trade-marks and trade-names and unfair competition <@=>95 (1) — Preliminary injunction against use of photoplay title not granted because of two exhibitions.</p> <p>Where, since the publication of the story on which plaintiff’s photo-play was based, the title has been twice used by other photoplays, a preliminary injunction cannot rest on speculation that people who' saw two exhibitions of plaintiff’s play may recommend it to others, who may go to defendant’s play supposing it to bo the one recommended.</p> <p>6. Trade-marks and trade-names and unfair competition <@=>95 (1) — Temporary injunction against use of photoplay title denied.</p> <p>Where plaintiff and defendant produced photoplays based on entirely different stories, but having the same title, and defendant has made 74 films, all of which must be changed if it changes the title, and entered into 240 contracts with exhibitors, and has advertised very widely, and a change of title would constitute a genuine hazard to its success, and some of the films were prepared, and some of tlie contracts let and advertisements displayed, before it knew of plaintiff’s claims, a preliminary injunction hold to be denied.</p> <p>7. Injunction <@=>137(2) — Defendant's loss balanced against plaintiff’s gain in granting or denying temporary injunction.</p> <p>On application for a temporary injunction, defendant’s loss must be balanced against plaintiff’s gain, and a sufficient disproportion will put plaintiff to his action.</p> <p><§=>For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>8. Trade-marks and trade-names and unfair competition @=98 — Expense of changing name of photoplay is proper element of damage from unfair competition.</p> <p>If plaintiff in good faith finds it necessary to change the title of its photoplay, because of defendant's unfair competition in the use of the same title, the expense of such change will be a proper item of damage.</p> <p><®s»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Homestead <S=>118(3) — Wife must join in oil and gas lease in Oklahoma.</p> <p>Under Const. Okl. art. 12, § 2, and Rev. Laws Okl. 1910, §§ 1143, 1145, 1146, 3343, relating to conveyances of a homestead, the wife must join with the husband in the execution of an oil and gas mining lease covering the, homestead.</p> <p>2. Courts <§=^>366(19) — State decision as to effect of homestead laws is controlling.</p> <p>A decision of the Supreme Court of the state of Oklahoma that the wife must join with the husband in the execution of an oil and gas mining lease covering the homestead in that state is controlling on the United States District Court.</p> <p>3. Indians <§=>13 — Homestead under state law may Include allotment homestead and tribal surplus allotme nt.</p> <p>The homestead of an Indian in Oklahoma may, under Const. Okl. art. 12, § 1, and laws of that state, include not only the homestead allotment, which is a term used in treaties and acts of Congress for classification in the imposition of restrictions, but may also include the tribal surplus allotment, provided the two do not exceed ICO acres.</p> <p><gssFor other cuses see same topic & KISY-NL'UBEB, in all Key-Numbered Digests & Indexes</p> <p>4. Indians <®=>16 (3) —Extension of oil lease on homestead must be signed by wife, notwithstanding approval by Secretary of the Interior.</p> <p>Though an oil and gas lease on an Indian allotment, which did not contain any provision for extension thereof, and a subsequent extension and modification of the lease, were executed in conformity with Act July 1, 1902, Act April 21, 1904, and Act May 27, 1908, and the regulations thereunder, and were approved by the Secretary of the Interior, the extension, which was executed after the Indian had married and established his homestead on the land, was not binding on the wife, if she did not join therein, as required by the state Constitution and laws, since the approval of the Secretary was not conclusive that the extension was executed in conformity with the state law, which was essential to its validity.</p> <p>5. Homestead '‘3=>122 — Facts held not to estop wife’s repudiation of oil lease on homestead.</p> <p>The fact that an Indian allottee had collected an oil royalty on the basis provided by an extension of the lease, executed after he had married and established his homestead on the property, and that additional wells had been drilled under the extension, does not estop the wife from repudiating the lease because she did not join therein, where she did not learn of the extension until five years after it was executed, and shortly before sbe brought suit to cancel it.</p> <p>6. Homestead <§==>133 — Lessee's credits after repudiation of extension of oil lease on homestead stated.</p> <p>In an accounting after the cancellation of an oil lease extension coveringthe homestead, which was executed without the wife’s consent, the lessee is entitled to credit for the difference between tbe royalty paid under the extension and that which would have been payable under the original lease, and also for the sum expended in completion of wells on the premises after the extension was executed.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>At Law. Action by the Sandusky Cement Company against A. R. Hamilton & Co., a corporation, begun in the state court and removed to the United States District Court. On motion to dismiss.</p>

<p>Criminal prosecution by the United States against-Edward O’Dowd. On motion by defendant for new trial.</p>

<p>1. Intoxicating liquors <3=248 — Complaint for search warrant sufficient.</p> <p>Under Laws Wis. 1919, c. 55i>, § 3, authorizing issuance oí a search warrant on complaint o£ any peace officer, made on information and belief, '‘to the effect that provisions of this act are being violated,” and that liquors are kept for unlawful sale at a designated place, a complaint is sufficient if it alleges the requisite facts, though it does not mention such act, but erroneously refers to) an earlier statute repealed or suspended.</p> <p>3. Criminal law €=>385 — Liquor not icadmissiMe in evidence because unlawfully seized by state officers.</p> <p>That liquor was obtained through an unlawful search and seizure by state officers, having no connection with federal authorities, does not render it inadmissible as evidence on the trial of a defendant in a federal court.</p> <p>Q — iFnr other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Bankruptcy. In the matter of Harry John Jens, bankrupt. On petition by the trustee in bankruptcy for review of an order of the referee holding certain insurance policies on the life of the bankrupt exempt.

<p>Maritime liens *8=*24 — Furnisher of supplies to charterer not entitled to lien.</p> <p>Where libelant for live years had furnished oil supplies to a canning company for the operation of a large number of motor launches, which it chartered during the canning season, a mere change by libelant in its bookkeeping, by making the charges against each boat and sending the bills in care of the company, which received and promised to pay the same, held not to entitle libelant, which had knowledge that the company had no authority to bind the boats, to a lien under Act June 23, 1910, §§ 1, 3 (Comp. St. §§ 7783, 7785).</p> <p><g=»For other eases see same topic & KKY-NTJMBElt in all Key-Numbered Digests & Indexes</p>

<p>Bankruptcy <@=>43 — -Voluntary petition on behalf of Corporation held sufficient to give jurisdiction.</p> <p>A petition in voluntary bankruptcy filed by the attorney for a corporation, whose action was ratified by a majority of the stockholders and by all the directors who were competent to act for it, the other directors having claims against it, helé sufficient to give the court jurisdiction.</p> <p><§palTor other cases see same topic & KEY-NUMBElt in all Key-Numbered. Digests & Indexes</p> <p>3. Bankruptcy ‘©=’391 (3) — Bankrupt entitled to injunction restraining suits in state courts.</p> <p>Where there were more than 100 separate damage claims against a bankrupt corporation, all arising from the same transaction, on some_ of which .actions had been brought in the state courts, and on all of which liability depended on the same facts, the bankrupt held entitled to an injunction restraining prosecution of suits on such claims until it could obtain its discharge, and its trustee held, entitled to an order requiring adjudication of the claims in the bankruptcy court, where they could be consolidated for trial as to liability.</p> <p><§=s>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Admiralty. Suit for collision by Louis H. Green against the steamship Amolco.</p>

<p>Criminal law '@=>942(2) — Prior opinion expressed by witness mot ground for new trial.</p> <p>Newly discovered evidence, wliicli went no further than to show that a material witness for the government liad, at a time prior to the indictment, expressed an opinion that defendants were ignorant of facts essential to establish the fraud charged, held not ground for granting a new trial, where the verdict of the jury was supported by evidence of substantive facts.</p> <p>@=oFor oilier cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by the Italian Book Company against Mauro V. Cardilli for infringement of a copyright. On final hearing-. Decree for plaintiff.</p>

Criminal prosecution by the United States against Max Cohen, against Samuel Garber and others, against Julius Ring, and against Abraham Levy. On motions by defendants to quash informations.

<p>Towage @=>19 — Tug liable for causing moored boats to go adrift.</p> <p>A towing tug, which tied up boats in her tow to others moored to a pier during high wind, the additional strain causing breaking of the lines to the pier, held liable for injuries sustained by any of the boats so set adrift.</p> <p>cgxxoFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Habeas Corpus. Application by Frank E. Poole-for a writ to revise sentence after plea of guilty.</p>

<p>1. Aliens 3=>59 — In prosecution for attempting to re-enter after deportation, ' reference in warrant of deportation to wrong statute is immaterial.</p> <p>In a prosecution under Immigration Act Feb. 5, 1917, § 4 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4289%bb), for attempting to enter the United States after having been arrested and deported therefrom, it was immaterial that the warrant of deportation, dated before the act of 1917 went into effect, purported to bo based on such act, as the previous Act Feb. 20, 1907, as amended by Act March 2(5, 1910, contained the same provision.</p> <p>2. Aliens 3=^56 — Statute as to attempt to re-enter after deportation not lim- ■ ited to re-entry within one year.</p> <p>Act Feb. 5, 1917 § 4 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4289%bb), providing that an alien deported under the provisions of that act relating to prostitutes, etc., and thereafter attempting to return or enter the United States, shall be guilty oí a misdemeanor, applies to an attempt to re-enter more than one year after the deportation, though another provision of the act includes in the persons denied admission persons deported and again seeking admission within one year without the consent of the Secretary of Labor.</p> <p>3. Aliens 3=^58 — Statute punishing attempt to re-enter after deportation not ineffective^</p> <p>Act Feb. 5, 1917, § 4 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4289%bb), making it a misdemeanor for certain aliens, after being deported, to attempt to return to or enter the United States, is not ineffective as penalizing an attempt to do an act which is not in itself a crime, as the attempt is expressly made punishable, and is in itself a substantive offense, and not a mere attempt to commit another offense.</p> <p>4. Crimiual law 3=>695(4) — Admission of evidence not error, when objection on particular ground not made.</p> <p>On the trial of an alien for attempting to enter the United States after being deported, the admission of a Canadian certificate of naturalization to show that her husband was an alien, without proof of the authority of the Canadian court issuing it, was not error, where such objection was not interposed to its admission.</p> <p>5. Criminal law 3^>315 — Foreign citizenship presumed to continue until countershowing made.</p> <p>On the trial of an alien for attempting to enter tho United States after being deported, where her Canadian citizenship was shown to exist on November 15, 1911, the presumption continued until a showing was made to tho contrary.</p> <p>6. Aliens 3=»59 — Canadian naturalization certificate held to show prima facie Canadian citizenship.</p> <p>On the trial of an alleged alien for attempting to enter the United States after being deported, a certificate of naturalization granted by a Canadian court under Revised Statutes of Canada, and certifying that defendant’s husband had been naturalized as a British subject, was sufficient to show prima facie that at the date thereof he was a citizen of the Dominion of Canada.</p> <p><@z=»]?or other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Thomas and St. John in the Virgin Islands; Thiele, Judge. Jose Soto and Jose Lopez were tried together, and defendant Lopez was found guilty of murder, and defendant Solo was found guilty of being an accomplice, and they appeal.

<p>Appeal from the District Court of the United States for the District of North Dakota; Charles F. Amidon, Judge.</p> <p>Suit in Equity by the Farmers’ Grain Company of Embden against William Danger, as Attorney General of the State of North Dakota, and others. Decree for defendants, and complainant appeals.</p>

<p>Appeal from the District Court of the United States for the Second Division of the Northern District of California; Charles M. Bourquin, Judge. .</p> <p>. Action by Edson F. Adams and others against the C. A. Smith Timber Company and others. From a judgment for defendants, plaintiffs appeal.</p>

<p>In Error to the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge.'</p> <p>Suit by the United States against the Philadelphia Knitting Mills Company. Judgment in favor of defendant, 268 Fed. 270, and the United States brings error.</p>

Dickinson, Judge. Suit by the Gorgas-Pierie Manufacturing Company against the Union National Bank of Philadelphia and the Bank of Taiwan, Limited, to restrain the payment of a draft to the Bank of Taiwan, in which the Union National Bank filed an answer in the nature of a cross-bill, praying for an order that plaintiff and the defendant Bank of Taiwan interplead. From an order directing the plaintiff and the Bank of Taiwan to interplead, the Bank of Taiwan appeals.

Criminal prosecution by the United States against Harry Lefkowitz and Russell V. Stuart, and others. Judgment of conviction, and defendants named bring error. The plaintiffs in error, together with one Louis Lefkowitz (brother to Harry Lefkowitz, plaintiff in error), William 1). Steadman, and the United Magma Mines Company (a corporation of Arizona) were tried under an indictment containing six counts. The first five counts are under Criminal Code, § 215 (Comp.

Petition by the Lehigh Valley Transportation Company, as owner of the steam tug Mahanoy, for limitation of liability and denying all responsibility. Prom a decree permitting the limitation of liability, but allowing six claims against the tug, the petitioner appeals.

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Action at law by Wilson P. Tanner against the Ballard & Ballard Company, Incorporated. Judgment for defendant, and plaintiff brings error.</p>

Morris, Judge. Suit by the Willys-Overland Company against the Akron-Overland Tire Company to restrain the use by defendant of the name “Overland” in the transaction of its business. From a decree granting a preliminary injunction (268 Fed. 151), defendant appeals.

<p>In Error to the District Court of the United States for the Southern Division oí the Southern District of California; Oscar A. Trippet, Judge.</p> <p>T. M. Anderson was convicted of making false representations to settlers pertaining to the public lands of the United States, and he brings error.</p>

<p>In Error to District Court of the United States for the District of New Jersey; Charles F. Lynch, Judge. *</p> <p>Action at law by Stephen McMahon against the Public Service Railway Company. Judgment for plaintiff, and defendant brings error.</p>

S. Farrington, Judge. Action by W. G. Douglass against the Gould & Curry Mining Company, in which the defendant sought to recover certain accrued rentals, and plaintiff by reply sought specific performance of an alleged contract for the sale of realty. From a judgment for plaintiff on his original cause of action, after the court withdrew the counterclaims from the jury, defendant brings error.

Tu Error to the District Court of the United States for the District of New Jersey; Charles E. Lynch, Judge. Proceeding for contempt by William N. Cooper, trustee in bankruptcy of Louis Biderman, agaiust Louis Biderman. Judgment against respondent, who brings error.

<p>Appeal from the District of the United States for the Southern District of New York.</p> <p>Libel by Edward Lutz against Edwin Allen Douglass and others. Decree for respondents (248 Fed. 366), and libelant appeals.</p>

Appeal and Cross-Appeal from the District Court of the United States for the Western District of Pennsylvania; Charles P. Orr, Judge. Suit in equity by the Uibbey Glass Company against the McKee Glass Company. Defendant appeals from the final decree, and complainant cross-appeals.

Dibel by H. N. Hartwell & Sons, Incorporated, against the Neptune Dine, Incorporated, to recover the value of a cargo of coal. Decree for libelant, and respondent appeals.

<p>War <®=>12 — Foreign petitioners for stay held not to have interest in fund, entitling them to intervene.</p> <p>In a suit under Trading with the Enemy Act, § 9 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3115%e), where the fund was in the treasury of the United States awaiting determination of the suit, foreign petitioners in intervention had no lien upon those funds, under Code Civ. Proe. N. Y. § 1405, giving a lien on chattels subject to levy by execution from the time the execution is delivered to the officer, and have no interest in the fund, entitling them to intervene under equity rule 37 (33 Sup. Ct. xxviii), or enabling them as citizens óf a foreign court to sue elsewhere than in the District of Columbia.</p> <p>@s»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>At Eaw. Action by the Ehret Magnesia Manufacturing Company against Ephraim Lederer, Collector of Internal Revenue. Trial by the court.</p>

<p>On petition of Abram Sichofsky for writ of habeas corpus.</p>

<p>1. Removal of causes <©=>19 (1) — Cause removable, if one of several causes of action stated arises under laws of United States.</p> <p>If any one of several causes of action stated in plaintiffs’ pleading in a state court arises under the Constitution or laws of the United States, the cause is removable, though joined with other causes not so arising.</p> <p>©s^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>2. Removal oí causes <5^19 ((>) — Suit held removable as arising under patent laws.</p> <p>A suit by the heirs at law oE a deceased patentee to set aside a conveyance of the patents by his administrator on the grounds of want of power in the administrator and fraud of defendant, with a prayer that plaintiffs be declared the owners of the patents and recover the value of their use while so withheld, involves title to the pal cuts and rights thereunder, and is removable from a slate court as one arising under the patent laws.</p> <p><^>F(>r other casen see same topic & KttY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Trade unions Decision on question of jurisdiction of union tribunal is conclusive.</p> <p>A construction by the tribunals of the union of a section of the rules of the union prescribing the .division of the union before which charges against a member should be tried is conclusive, since it did not go to any of the fundamental rights of tire member.</p> <p>3. Removal of causes <§^108 — 1Objection that some defendants fiM not reside in district hold waived.</p> <p>In a suit removed from a state court by a petition in which all the defendants joined, where plaintiff moved to remand only for t3ie reason that no federal question was involved, both plaintiff and defendants had waived the objection that not all of the defendants resided in the district to which the suit was removed.</p> <p>3. Appearance 7) — Objection to sortie» by publication ip waived by motion to-dismiss and answer.</p> <p>The filing of a motion to dismiss the bill on other grounds and the subsequent filing of an answer waives the objection that nonresident defendants served by publication were not properly brought into court, and that point cannot be raised at the final hearing.</p> <p>^ssdfor other eases see same topic & KI3T-NÜMBEH in all Key-Numbered Digests & Indexes</p> <p>4. Associations ©^5!! — Mandamus @=^125 — Mandamus is not adequate remedy to restore to membership in unincorporated association.</p> <p>Mandamus will not issue to restore to membership a member of an unincorporated association who was illegally expelled, though it might issue if the association were incorporated, and therefore an expelled member of an unincorporated association may seek redress in equity.</p> <p>5. Beneficial associations ©^ll — Right to recover benefits not adequate remedy for void expulsion.</p> <p>The fact that the rights to sick and death benefits, which were lost by the expulsion of a member, could be enforced in an action at law for such benefits after they accrued, if the expulsion was void, does not defeat the member’s right to sue in equity to be restored to membership.</p> <p>6. Trade unions ©=^9 — Benefit associations and brotherhood held proper parties to suit to restore membership in division.</p> <p>In a suit to compel the restoration of plaintiff to membership in a division of a'trade union, the benefit association of the division, the International Brotherhood of the union, and an incorporated mutual life and accident insurance association, whose privileges were extended only to members of the division, are directly concerned in the question whether the membership should be restored and are therefore proper parties to the bill even though they may not have been necessary parties.</p> <p>7. Trade unions ©=^4 — Failure to recover does not show dishonesty in bringing suit.</p> <p>The fact that a suit brought by a member of a trade union to enjoin a strike called by the officers of that union could not have been maintained does not establish that the suit was dishonestly instituted, and therefore in a subsequent suit to compel the restoration of a membership after expulsion for instituting the suit for injunction, the right to the injunction need not be determined, so long as the contentions made by plaintiff in that suit are not so patently bad as in themselves to suggest they were set up in had faith.</p> <p>8. Trade unions ©^H — Rule held not to prohibit seeking redress in the courts.</p> <p>The rule of a trade union, imposing the penalty of expulsion on any member who by communication to railroad officials or others interfered with a grievance in the hands of a committee, will not be construed to prohibit a member from seeking redress in the courts, since the language does not suggest it had reference to legal proceedings, and an intention to deny access to the courts will not be presumed, but, if it be enforceable at all, must be unmistakably expressed.</p> <p>9. Trade unions ©^4 — Seeking injunction against strike held not to violate rule against resort to courts.</p> <p>A trade union rule, prohibiting resort to the courts- in any controversy arising within the organization for which the laws of the union provide a means of settlement, without having previously exhausted all remedies within the brotherhood, does not prohibit a member from seeking to enjoin a strike which he contended was called by the union officials without authority, where the strike was to begin within a few days, and the only redress within the brotherhood was by appeal to the next convention, which would not meet for 14 months.</p> <p>10. Trade unions ©=^4 — Expulsion on charge of resort to courts cannot be justified by proof member co-operated with employer to that end.</p> <p>Where the only charge presented against the member of a trade union was that he had resorted to the courts to prevent a strike called by the head of the union, which under the rules was not a sufficient ground for expulsion, the expulsion cannot be sustained on the ground that the member had cooperated with the employer in bringing such suit, in view of the union rule that the charges on which the member was brought to trial must be in writing.</p> <p><@=3For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by the Bankers’ Service Corporation against the Randis Christmas Savings Club Company. 'Decree for defendant.</p>

<p>Appeal from the District Court of the United States for the Middle District of Pennsylvania; Charles B. Witmer, Judge.</p> <p>Suit in Equity by the Bankers’ Service Corporatipn against the Landis Christmas Savings Club Company. Decree for defendant (273 Fed. 717), and complainant appeals.</p>

<p>. Bankruptcy <§=3212 — Fund received by trustee through mistake paid over to lawful owners.</p> <p>The trustee of a deceased bankrupt joined in a conveyance of real estate and received a share of the proceeds, in the mistaken belief, shared by all the parties, that bankrupt before his death was owner of a vested interest in remainder in the property, whereas his interest was contingent and was terminated by his death prior to that of the life tenant. Held, that the mistake, under the law of Pennsylvania, was not one of law only, hut of law and fact, and the court, under Bankruptcy Act, § 2, subd. 7 (Comp. St. § 9586). had jurisdiction to order the fund paid over to the lawful owners of the property sold.</p> <p><§=»For other oases see same topic & KEY-NUMBER in .all Key-Numbered Digests & Indexes</p>

<p>Criminal prosecution by the United States against Joseph Regan. On plea in abatement.</p>

<p>At Law. Action by Alfred W. Heil and Joseph S. Heil, partners as Heil & Co., against the United States. On demurrer to petition.</p> <p>Demurrer to a petition under the Tucker Act for failure to allege any cause of action. The petition alleges the President’s seizure of the marine cables of the Commercial Cable Company on November 2, 1918, under the war power, and his consequent operation of them, and that during the time of such operation the plaintiffs paid the proper tolls and delivered to “the Commercial Cable Company,” as an “agency” of the United States, a cable message to be sent to London, which “the company” (i. e., the Commercial Cable Company) promised to transmit; that “the respondent” (i. e., the United States) never transmitted the message at all, and because of that failure the plaintiffs lost. The message was for the purchase of £100,000 sterling, and the loss depended upon fluctuations in British exchange.</p>

<p>At Law. Action by the Oriental Textile Mills against the Thompson Worsted Company. On motion by plaintiff for new trial.</p>

<p>At I,aw. Action by the Union Trust Company of San Francisco and Albert Uachman, as executor of the will of Heuriette S. Lacliman, deceased, against Justus S. Wardell, Collector of Internal Revenue. On demurrer to complaint.</p>

<p>Appeal from the Commissioner of Patents.</p> <p>Interference proceeding between Adcli Benjamin Cadman and Warren R. Hudson. From a decision of the Commissioner of Patents, awarding priority to Hudson, Cadman appeals.</p>

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Action by the Butte Creek Consolidated Dredging Company against Laura F. Olney and another. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from the Supreme Court of the District Court of Columbia.</p> <p>Action by the Empire Lighting Fixture Company, Incorporated, against J. E. Taylor & Co.' and another. From a judgment for plaintiff, defendants appeal.</p>

<p>1. Attorney and clieitt <£=75 (1) — Party cannot appear perawraJly or substitute another attorney without leave o-f the court.</p> <p>A party who appeared at the trial by an attorney cannot appear on appeal personally, or substitute another attorney, without the court’s, permission.</p> <p>2. Attorney and client <@=>75(3) — Attorney dismissed without charge of mss^conduct will be protected by court in gi-aatlag leave to substituí© asmttieir attorney.</p> <p>Though permission to substitute an attorney where the former was dismissed for misconduct is usually granted as a matter of course, the court may in its discretion refuse permission to make such substitution, where charges of misconduct are not made, except on such conditions as will protect the rights of the attorney to his compensation for services theretofore rendered.</p> <p>8. Attorney and client <ft=»192(l) — Attorney under contingent fee contract has interest in cause ®f action entitling Man to intervene.</p> <p>An attorney, who instituted a suit under a contract with his client whereby lie was to receive a percentage of the fund recovered, is vested with an interest in the cause of action which entitles him to intervene in. the suit to protect it.</p> <p>4. Attorney and client <S=»192(2) — -Proseeutio® of appeal by attorney may foe considered in equity as áiíervemííois to protect contingent interest.</p> <p>In a suit in equity, where forms may bo disregarded, an attorney who took an appeal in his client’s name may, if he so desires, prosecute the appeal on his own behalf after the client sought to dismiss it, in order to protect liis interest in the cause of action arising from his contingent fee. contract.</p> <p><3r»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes*</p>

<p>1. Vendor and purchaser ’@=>37(1) — Pin-chaser cannot rély on representation that other party was agent, when he signed as owner.</p> <p>In a suit to cancel a contract for the purchase of real estate, the purchaser cannot rely on misrepresentation by the vendor that he was the agent for the owner, and not the owner, where the contract provided it was to be approved by the owner, and it was so approved by the vendor, who also executed it as agent.</p> <p>2. Vendor and purchaser <§=>37 (6) —Misrepresentation by owner that he was agent for owner does not injure purchaser.</p> <p>A misrepresentation by the owner of the property sold that he was the agent for the owner does not injure the purchaser, and does not invalidate the contract.</p> <p>3. Vender and purchaser <§=>37 (5) — Misrepresentation of value avoids contract,, only if known to be false.</p> <p>A misrepresentation by the vendor as to the value of the property sold is fraud, invalidating the contract, only if the vendor knew the representation was false when he made it, so that a bill to cancel the contract for fraud must allege knowledge of the falsity of such representation.</p> <p>,<@=s>Forotlier cases see same topic & KET-NUMBER in all Key-Numbered Digests & Indexes</p> <p>4. Vendor and purchaser €=>37 (4) — Purchasers having opportunity to examine cannot rely on iMisrepx*esentations as to value.</p> <p>Where purchasers lived in the same place in which the property was located, and had full opportunity to examine it and ascertain its value, they cannot roly on misrepresentations by the vendor as to its value.</p> <p>5. Mortgages -Denial of injunction against sale under purchaser’s trust deed, after dismissal of suit to cancel, held proper.</p> <p>Where the purchasers sued to cancel the contract for the purchase of the property, and asked that the trustees under a trust deed given by them be restrained from selling the property pending the determination of the suit, the purchasers cannot complain of the denial of the injunction against the trastees, after the court had properly dismissed the bill for want of equity.</p> <p>6. Trial €=>11 (3) — Suit to cancel for fraud, dismissed for want of equity, need not be tr&Esiermi to law side.</p> <p>Where the court held that a bill to cancel a contract for the purchase of realty on the* ground of fraud did not state a cause for equitable relief, it was not necessary to transfer the ease to the law docket, which is required by Trial <3ourt X^aw, rule 76, only when the suit would otherwise bo dismissed on the ground it had been brought on the wrong side of the court.</p> <p>7. Appeal aíid error ©=>M43(1)~-ISefasal fo cite for contempt trustees alleged to be prejudiced held harmless.</p> <p>liefusal of the trial court to cite for contempt trustees under a deed given by the purchaser, who sold the property pending the purchasers’ suit to cancel the contract ion fraud, was not prejudicial to the purchasers, where the cancellation of the contract was refused, and there was no prayer for the removal of the trustees, though there was an allegation that they were prejudiced against the purchasers.</p> <p>other eases see same topic & KEY-NUJ1BER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Action by Frank T. Richardson against Frank H. Harriman, trading under the firm name and style of the Harriman Motors Company. Judgment for .plaintiff, and defendant appeals.</p>

<p>Appeal from the Commissidtier of Patents.</p> <p>Application by the Choro-Cola Company for the registration of a trade-mark, opposed by the Coca-Cola Company. From a decision of the Commissioner of Patents, overruling the opposition, the opposer appeals. •</p>

<p>Appeal from the Commissioner of Patents.</p> <p>Interference proceeding between Edward E. Clement and John G„ Roberts. From a decision of the Commissioner of Patents, awarding priority of invention to Roberts, Clement appeals.</p>

Application by Chester H. Braselton for a patent. Prom a decision of the Commissioner of Patents, allowing certain of the claims and disallowing others, the applicant appeals.

<p>Appeal and error ©=>1138 — After case has become moot, court can affirm judgment, if that is most consonant with justice.</p> <p>Where a petition for mandamus to compel the Secretary of the Treasury to make payments to a railroad on the Interstate Commerce Commission’s certificate, before the total amount due the railway was ascertained, bad become moot by reason of the amendment to Transportation Act Feb. 28, 1920, by Act Feb. 26, 1921, by adding section 212, expressly providing for such payment, the Court of Appeals has the right, without considering the merits, to do what is most consonant to justice, and can affirni the judgment dismissing the petition.</p> <p>cgsaFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Action by Elizabeth Moore Joyce, begun in the municipal court, to-recover from Mrs. G. H. Lehker possession of certain described premises. From a judgment of the Supreme Court, after appeal to that court, for the landlord, the tenant appeals. .

<p>Appeal from the Supreme Court of the District of Columbia. .</p> <p>Action by Elsa P. Humes against Lorimer C. Graham to recover on a foreign judgment. Judgment for defendant, and plaintiff appeals.</p>

Interference proceedings between John C. Wahl and Walter Wright. From a decision of the Commissioner of Patents awarding priority as to one count to Wahl and as to the other three counts to Wright, Wahl appeals.

<p>Appeal from the Commissioner of Patents.</p> <p>Interference proceeding between Albert Andersen and J. W. Rattig, and another. From a decision of the Commissioner of Patents, awarding priority to Rattig and another, Anderson appeals.</p>

<p>In Error to the ‘District Court of the United States for the Northern Division of the Western District of Washington; Jeremiah Neterer, Judge.</p> <p>Carlos If. Byron and Edward M. Comyns were convicted under an indictment charging violation of and conspiracy to violate Penal Code, §215, and they bring error.</p> <p>Plaintiffs in error Byron and Comyns were convicted under 46 counts of an indictment, 45 charging violation of section 215 of the Penal Code (Comp. St. § 10385) and 1 count charging conspiracy to violate that section (section 37 of the Penal Code [Comp. St. § 10201]). Writ of error was sued out.</p> <p>The scheme alleged pertained to lands in Washington and was as follows:</p> <p>Certain lands forming part of the public domain had been withdrawn from entry and application to purchase under the Timber and Stone Act and were put within the limits of the Olympic National Forest by presidential proclamation ; certain lands had been selected by the state as school indemnity selection, which selections had been approved by the Secretary of the Interior, who was without authority to convey such land; certain other lands were included in lieu selections made under the act of Congress approved June 4, 1897 (the Forest Lieu Land Act [30 Stat. 36]), which said selections were pending before the Department of the Interior, and while so pending were not subject to application or entry under; the Timber and Stone Act; certain other lands were embraced within school indemnity selections of the state, which had been allowed by the register and receiver and were pending before the Department of the Interior, and while such selections were so pending no rights to the lands could be acquired by application to purchase under the timber and stone laws.</p> <p>It is alleged that the defendants falsely pretended to certain “victims” that preference rights and patents to said lands could be secured by means of applications to enter presented through defendants, and defendants promised that upon payment of certain sums to them title to said lands could be obtained through the Department of the Interior within periods of time varying from a few months to two years, and that in the event of failure to obtain titles defendants would repay to the victims the money they had paid; whereas defendants knew no rights or preferences could be secured through the Department of the Interior by virtue of such applications under the Timber and Stone Act, and defendants knew the victims would receive nothing of value for what they were induced to pay to defendants, and defendants had no intention of repaying any money, but it was a part (>£ the scheme to induce the victim by false statements and representations upon which the victims relied, to part with their money by making them promises of repayment in the event title could not be secured. It is alleged that defendants also represented that it was not necessary that the victim should personally visit and inspect the land before making application, and that title could be secured for the nominal sum of $2.50 per acre and no more; whereas, defendants knew the lands, if subject at all to sale, would first be appraised by the Department of the Interior and sold at their appraised value, and not necessarily at the sum of $2.50 per acre, and knew that applications under the Timber and Stone Laws would not be allowed or recognized unless there had been a previous personal examination of the lands by the intending purchaser.</p> <p>Further allegation is that the defendants falsely represented that while the applications would probably be rejected by the local land office, pursuant to regulations of the Department of the Interior, said regulations were void, and that defendants by their long experience would secure the annulment of said regulations by appeals to the Commissioner of the General Land Office and Secretary of the Interior, or in some other manner, and that in the meantime the applications would be kept alive by appeals or proceedings pretended to be known to the defendants, so that the victims would be awarded first right of entry in any event; whereas, defendants well knew they could, not secure annulment of the regulations referred to, and well knew that no rights to the lands could be secured by such applications, or any appeals in support thereof:</p> <p>It is alleged that defendants falsely pretended to the victims that defendants had associates in Washington through whom advance information would be obtained concerning cancellation of pending entries; whereas defendants had no means of securing such information that was not possessed by the public at large. It is charged that the purpose was to defraud and to misrepresent, and to induce victims to pay money which defendants intended to appropriate and did approriate to their own use. Specific acts are charged to have been unlawfully and feloniously done for the purpose of executing the scheme. For example, intending to defraud Emma Y. Christensen, defendants at Seattle placed or caused to be placed in the mail, addressed to the Commissioner of Public Lands of the state of Washington, a paper filed in the United States land office, styled an appeal to the Commissioner of the General Land Office at Washington, D. C., from the decision of the local land officers rejecting an application of Emma V. Christensen made through defendants to purchase certain described tracts under the timber and, stone acts.</p> <p>The conspiracy count elaborately charges a combination to devise a scheme to defraud certain people and the public generally by means of the post office establishment by a plan such as has been already outlined. Many overt acts are alleged to have been done in furtherance of the conspiracy and to effect the object thereof. Among other acts pleaded it is alleged that papers called appeals from The decision of the local land officers were mailed, letters containing copies of decisions by the Interior Department officials were received wherein the decision of the Commissioner of the General Land Office was affirmed. Letters from defendant Oomyns to one Shull, named as a “victim,” are set forth, wherein Oomyns advises Shull that, while his application has not been allowed, hearing upon the case has been set, and that he would never lose a cent in the matter, and that the land is still government land; that title has not passed.</p> <p>The bill of exceptions does not include all the evidence, but by stipulation it appears that defendants used the mails at the times and places charged in the indictment; that witnesses for the government testified that applications for lands under the timber and stone act on which they had been located by the defendants were promptly rejected in the local land office; that some of the witnesses for 1lie government testified that defendants represented that by filing applications in the land ofiice they could obtain title to the lands, and that nothing was said about the necessity of going into court to secure their rights. Further stipulation is that the United States adduced oral and written testimony in proof and support of and tending to prove and establish the 46 counts of the indictment under which conviction was had.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Uibel by the Globe & Rutgers Fire Insurance Company against Walker D. Hines, as Agent of the United States Railroad Administration. Decree for respondent, and libelant appeals.</p>

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Leopold Harris was convicted of aiding and abetting another in violating the Harrison Narcotic Drug Act, and he brings error.</p>

<p>1. Poisons <@=4 — Defrauding government of revenue not necessary to conviction for illegal sales under Narcotic Act.</p> <p>To sustain a conviction under Harrison Narcotic Act, § 2 (Comp. St. § 6287g), proof that the government was defrauded of revenue is not necessary!</p> <p>2. Poisons <@=9 — Good faith of physician in dispensing drugs question for jury.</p> <p>In a prosecution of a physician for dispensing drugs m violation of Harrison Narcotic Act, § 2 (Comp. St. §§ 6287g), which defendant, rather than the jury, may be entitled to determine what was proper treatment of a patient, whether he made such determination in good faith is a question for the jury.</p> <p>3. Poisons €=8 — Conviction for illegal sale of narcotics sustained by evidence.</p> <p>Evidence which warranted a finding that defendant, while registered as a physician, was in fact engaged in the sale of drugs to addicts, and not in the practice of his profession, held to sustain a conviction for violation of Harrison Narcotic Act, § 2 (Comp. St. § 62S7g).</p> <p>4. Jury €=131(8) — Refusal to permit examination of jurors as to opinions held not error.</p> <p>In the prosecution of a physician for illegal dispensing of narcotic drugs, refusal to allow counsel for defendant to ask jurors whether they had any preconceived ideas as to the proper method of treating drug addicts held not error.</p> <p>5. Criminal law <@=1166% (6) — Acceptance of incompetent juror not reversible error, where peremptory challenges are unused.</p> <p>The acceptance of ah incompetent juror is not reversible error, where defendant did not use all his peremptory challenges.</p> <p>6. Poisons <@=9 — Evidence admissible on trial for illegal sale of narcotics.</p> <p>On the trial of a physician, charged with illegal sale of narcotics, evidence of the quantities of such drugs purchased by him held admissible on the issue as to whether defendant was using the drugs in the practice of his profession in good faith, or whether he was engaged in handling them as merchandise.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>T. Poisons —That persons to whom narcotics were sold were registered as addicts under state law no defense to prosecution finder federal statute.</p> <p>In the prosecution of a physician for sale of narcotics in violation of Harrison Narcotic Act, § 2 (Comp. St. | 6287g), exclusion of evidence to show that the persons to whom defendant sold drugs were registered as addicts under the New York state law held not error.</p> <p><®=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Aliens 3=32(0 — Chinese woman not entitled to judicial hearing before deportation for prostitution after admission.</p> <p>In view of the provision of Immigration Act Feb. 5, 3917, § 38 (Comp. St. 1938, Comp. St. Ann. Supp. 1919, § 4289Viu), saving from repeal the laws relating to Chinese, except as provided in section 19 (section 4289% jj), which latter section provides for deportation of an alien engaging' in prostitution after entry in the United States, which differs in that respect from the similar proviso in Immigration Act Feb. 20, 1907, § 43, a Chinese woman is not entitled to the judicial hearing granted by Chinese Exclusion Act Sept. 13, 1888, § 13 (Comp. St. § 4313), before her deportaüou for prostitution after her entry, but may be deported after the executive hearing granted by the immigration laws.</p> <p>2. Aliens <§=20 — Cannot object that law requiring deportation was enacted after entry into court.</p> <p>A Chinese person cannot object that the statute permitting her deportation after executive hearing was enacted after her entry into the country, since the nation has the inherent power to exclude or expel any class of aliens absolutely or on its own conditions.</p> <p>8. Aliens <§=32(12) — Inclusion in record of correspondence and memoranda not offered at hearing does not deny fair hearing.</p> <p>In proceedings for the deportation of an alien, the inclusion in the record sent to the Commissioner of Immigration and the Assistant Secretary of Labor of letters and memoranda written before petitioner’s arrest and not introduced at the hearing does not make the hearing unfair, since bad faith or improper conduct will not be imputed to executive officers because they acquainted themselves with former official action in the ease.</p> <p>4. Aliens <©=32 (1) — Technical procedure need not bo followed in deportation hearing.</p> <p>Since the statute expx’essly provides for a summary hearing for the deportation of an alien, it is not necessary that the executive officers observe the technical rules of law and procedure that are accorded to parties in a criminal proceeding.</p> <p>5. Alien® <§=32 (1) — Presence of counsel at preliminary examination not necessary for fair hearing.</p> <p>The fact that an alien was not represented by counsel at a preliminary-examination does not make the hearing an unfair one, entitling her to release on habeas corpus, where she was represented by counsel at the final hearing and given full opportunity to examine and cross-examine witnesses.</p> <p>6. Aliens 3=32(12) — Immaterial statement in record doss not prevent fair hearing, where there was sufficient competent evidence.</p> <p>The inclusion in the record of deportation proceedings of an irrelevant hearsay statement by an inspector does not render a hearing unfair, where there was ample evidence of legitimate character to support the finding, since it is inconceivable that the judgment of the Secretary of Labor was controlled by such irrelevant matter.</p> <p>7. Aliens <§=32(12) — Judgment of Secretary on credibility of witnesses cannot be questioned.</p> <p>The credibility of the witnesses in proceedings for the deportation of an alien is for the Secretary of .Labor to pass on, and his judgment cannot be questioned, so long as the evidence is sufficient to support his conclusion.</p> <p><®=>For other cases see same topic & KEY-NUMBER in all Key-Numbored Digests & Indexes</p>

<p>1. Railroads <§*=>327 (1) — Automobile driver’s duty to stop, look, and listen.</p> <p>The duty of an automobile driver to safeguard his safety and that of the traveling public on approaching a grade railroad crossing, by stopping, looking, and listening, is imperative, but the question whether a violation of that duty is negligence depends on the circumstances.</p> <p>2. Railroads <S^350(31) — Automobile driver’s contributory negligence held question for jury. -</p> <p>An automobile driver with an obstructed view, who stopped, looked, and listened 50 yards from a railroad grade crossing, and then permitted his ear to drift quietly under full control toward the crossing, and who on reaching a point alongside the track from which he could see to the nearest curve, and from which the statutory crossing signals could have been heard, looked to the left and then to the right, when he first saw the unsignaling train which was almost upon him, and struck his car while he was attempting to cross, held not guilty of contributory negligence as a matter of law.</p> <p>^zoFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Libel by the Pennsylvania Coal Company and another against the steam tug Black Diamond, of which Walker I). Hines, as Director General of Railroads, was claimant, in which the steam tug William E. Cleary, of which the Cornell Steamboat Company was claimant, was brought in under the fifty-ninth rule (29 Sup. Ct. xlvi). From a decree for tire libelants against the steam tug William E. Cleary, the claimant of that tug appeals.</p>

<p>1. Collision ©=>93 — Ferryboat, after' leaving slip, is bound by navigation rules.</p> <p>While ferryboats, while operating in or close by the entrances to their own slips, have rights somewhat superior to those of oilier craft in _ the immediate vicinity, such rights are no greater than reasonably required for their proper and efficient navigation, and they must maintain a sharp lookout for' craft passing up and down the stream, and, once safely clear of their racks, are bound to navigate with respect to other craft in accordance with the rules of the road.</p> <p>2. Collision ©=>93 — Ferryboat held in fault for collision with crossing tug.</p> <p>A collision between a ferryboat, leaving her New York slip to cross North River, and a tug, coming down COO feet or more off the piers, and therefore the privileged vessel under the starboard hand rule, held due solely to the fault of the ferryboat in failing to sooner see the tug and to navigate accordingly. That another tug with a tow, passing down ahead and closer in, agreed by signal to allow the ferryboat to pass ahead did not require the outer túg to do the same, nor affect her rights or duty under the rule to keep her course and speed, nor was she in fault for failing to answer the ferryboat’s signal, given when collision was imminent and probably inevitablo.</p> <p><@zs>For other cases see same topic & KEY-NUMBER in. all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the District of New Jersey; Joseph L. Bodine, Judge.</p> <p>Suit by the Ward Baking Company and others against Weber Bros, and others. From a decree, on an accounting, both'parties appeal.</p>

<p>In Error to the District Court of the United States for the District of New Jersey; Charles E. Eynch, Judge.</p> <p>Suit by Frank Murray against John Barton Payne, Director General of Railroads, to recover damages for injuries. Judgment for defendant, and plaintiff brings error.</p>

<p>Internal revenue —Taxable “income” from sale of right to subscribe for stock.</p> <p>Where a guardian, as holder for its ward of shares of stock of a corporation, was given the right to subscribe for an equal number of shares of a new issue of stock at a fixed price, which right it sold, the sum received therefor is not taxable in its entirety as income received during the year, under Income Tax Act Sept. 8, 1916, § 2 (Comp. St. § 6336b), but the amount taxable is the gain or profit realized from the sale which was the excess of the sum received above the net value, after deducting the subscription price, of the new shares it would have obtained by itself exercising the right.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Income.]</p> <p>®ss»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by the New York Canal Company, Limited, against J. B. Bond and Charles F. Weinkauf. Decree for defendants.</p>

<p>Admiralty ®=>47 — Service of foreign attachment not legal.</p> <p>Under admiralty rule 11 of the District Court for the Northern District of California, providing that, when property named in a foreign attachment is not delivered up to the marshal by the garnishee, it shall be sufficient service of the attachment to leave a copy thereof with the garnishee, “with notice of the property attached,” compliance with the latter provision, which was added to the rule to conform the practice to that under the state law in the service of writs of attachment, is essential to the validity of the service and to the acquiring by the court of jurisdiction over the property.</p> <p><gE5>For oilier cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>At Law. An action by Frank Morse against James A. Higgins was begun in the state court, and defendant petitions for certiorari to remove the same to'the federal court.</p>

At Law. In the matter of the petitions of James A. Higgins for removal to the federal courts of two actions, one by Frank Morse and the other by Cora Morse, against petitioner, pending in a state court of New Plampshire.

<p>Patents <5=3288 — Defendant in infringement suit may be served in another district of same state.</p> <p>Judicial Code, § 52 (Comp. St. § 1034), providing that, when a state contains more than one district, if there aro two or more defendants residing in different districts, suit may be brought in either district and duplicate writ issued to any other district where any defendant resides, and be there served upon him, held applicable to suits for infringement of patents, brought in a district where authorized by section 48 (section 1030).</p> <p><§=»For other cases seo same topic & KEY-NUMBER in all Key-Numbered Digeste & Indexes</p>

<p>1. Patents <@=328 — 760,102, claims 1 and 4, for mechanical artificial arm and hand, held valid and infringed.</p> <p>The Carnes patent, No. 760,102, for an artificial mechanical arm and hand, claims 1 and 4, held not anticipated, valid, and infringed.</p> <p>2. Patents 41=64 — Patent for inoperative device not anticipation.</p> <p>A patent for a device, which is inoperative or fails to accomplish the desired end, is not an anticipation of one which successfully accomplishes it.</p> <p>3. Patents <S=26(2) — New combination of old elements may constitute invention.</p> <p>That some of the elements of a combination are old does not negative invention, where the combination-is new, and produces a new and practical device.</p> <p>4. Patents <@¡=328 — 999,484, claim 1, for artificial arm, held valid and infringed.</p> <p>The Carnes patent, No. 999,484, for an artificial arm, is for a primary invention, and entitled to a broad range of equivalents. Claim 1 also held infringed.</p> <p>5. Patents 4=167.(2) — Words “substantially as set forth” not limitation to precise construction shown.</p> <p>The use of the words ‘“substantially as set forth” do not limit a patentee to the precise construction shown, nor exclude infringement by mechanical equivalents.</p> <p>6. Word's and phrases — “Mechanical arm.”</p> <p>The term “mechanical arm” is understood in the artificial limb trade as meaning an arm provided with fingers which can be moved by some mechanical contrivance, together with mechanism for rotating the wrist, simulating, as nearly as possible the motion of the human wrist, hand, and fingers.</p> <p><£c»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by the United States against the Reading Company and others. On settlement of decree.</p> <p>See, also (D. C.) 226 Fed. 229; 253 U. S. 26, 40 Sup. Ct. 425, 64 L. Ed. 760.</p>

<p>1. Equity <Srs»429 — Moiiifiaatio® of dc®Fpa wBMh jnrisdieilloit of court.</p> <p>A court of equity, which entered a decree in a suit brought by the ITnired Otates under Sherman Anti-Trust Act July 2, 1890, § 4 (Comp. St. § 8823), for dissolution of a combination as in restraint of trade, by which decree it authorized the creation of two new corporations to take over certain of the business! of the combination to insure competition, making such corporations parties to the decree, and retaining jurisdiction “for the purpose of making such other and further orders and decrees as may become necessary for carrying out the plan herein set forth,” In l,d to have power to modify the decree on petition of one of such corporations as affecting that corporation, where no revision is made on the merits ór with respect to any defendant concluded thereby, but where the modification is consistent with the purpose for which jurisdiction was reserved.</p> <p>S. r.Mt'T'oprfses ®=>26(l)“~Peiitio3t by corporation created! pursuant to decree dls«#lvteg combination! to construe or modify «lecrco bold appropriate procedure.</p> <p>Where a decree dissolving a combination as in restraint of trade required the creation of two new corporations to take over and operate certain plants of the combination, to insure and maintain competition, making them parties to the decree, one of such corporations, desiring to purchase certain additional plants, held to have profierly applied to the court for a construction of the decree or its modification, if necessary, to permit the purchase.</p> <p><§^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>_On petition by Charles Lawrence for writ of habeas corpus, heard with four other similar cases.</p>

<p>1. Internal revenue @==>7 — -That excise tax is measured by income return does not make it an income tax.</p> <p>That the excise rax levied by Congress on all those engaged in any kind of business is measured by the income return does not make an income tax of what is really an excise tax, or charge made for the privilege enjoyed.</p> <p>2. Internal revenue <2=»0 — Attorney receiving commission® for acting as executor, but not making a business of so acting, mot subject to exeise tax.</p> <p>Under the act of Congress imposing an excise tax on all those engaged in any kind of business, and the regulations thereunder, the question of liability to the excise tax depends upon whether the taxpayer made a business of doing what he did do, and not on the distinction made by some political economists between earned and unearned income, or in the fact as to whether the income comes from a taxpayer’s personal labor or from investments, and hence an attorney, acting as executor and receiving commissions as such, but not making a business of so acting, is not subject to the excise tax.</p> <p>3. Internal revenue cs=»38 — Plaintiff, suing to repover excise tax, has burden</p> <p>of making out case.</p> <p>One bringing suit to determine the lawfulness of a tax payment exacted of him had the burden of making out his case, by showing that he was not subject to the excise tax exacted.</p> <p>4. New trial -Not granted when ease substantially a ease stated and is to be appealed.</p> <p>Where the case is substantially a case stated, and is to have an appellate experience, a new trial will not be granted, as the only difference would be in the party appealing.</p> <p><@saFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests Ac Indexes</p>

<p>Trade-marks and trade-names and unfair competition @=43 — “Mail Order” as trade-mark is apt to bo confused with “Mail.”</p> <p>An application to register the words “Mail Order” as a trade-mark for various kinds and grades of paper was properly denied as being so similar to an existing trade-mark, consisting of the word. “Mail” either alone or printed on a representation of a mail box, as likely to cause confusion or mistake in the minds of the public, or to deceive purchasers, under Act Feb. 20, 1905, § 5 (Comp. St. § 9490).</p> <p>other cases see same topic & KEY-NUMBER, in all Key-Numbered Digests & Indexes</p>

Landlord and tenant proceeding by Maud E. Lee against Martha Burwell. From a judgment of the Supreme Court, on appeal from the municipal court, holding the affidavit of defense sufficient to present an issue to be tried by .a jury, the landlord appeals.

<p>judgment ®=®?S3(5> — Holder of judgment Boa against vessel seized and sold by shipping f,soars! koí entsiSedi to relief in equity.</p> <p>The bolder of a judgment lien against a German-owned vessel, which was subsequently seized by the United States Shipping Hoard and sold to private purchasers, is', not entitled to equitable relief for the protection of its lien, since, if the lien was not affected by seizure, it can be enforced against the vessel in the hands of the purchasers, and, if the seizure extinguished the lien, the creditor’s remedy is not in equity.</p> <p><@E»For othei* cu&ea see same topic & KEY-NUMBE11 in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Action by Maurice H. Eichberg, trading as the National Timber Company, against the United States Shipping Board Emergency Fleet Corporation for damages resulting from an alleged breach of contract. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge.</p> <p>Suit in equity by the General Electric Company against the Philadelphia Electric & Manufacturing Company. Decree for defendant, and complainant appeals.</p>

<p>1. Patents <3=>15 — Under present statute, design patent cannot be issued for mere outline.</p> <p>Under Rev. St. § 4929, as amended by Act May 9, 1902 (Comp. St. § 9475), authorizing design patent for any new, original and ornamental design, which omits the provision, found in earlier statutes, authorizing a patent for any new, useful, and original shape or configuration, no patent can be issued for a mere shape or outline of the design or pattern, unless such shape or outline is, in and of itself, an ornamental design.</p> <p>2. Patents Originality and beauty are essential to valid design patent.</p> <p>Patents for design- were intended to encourage the decorative arts, and no patent can be • issued for a design, unless it possesses both originality and beauty.</p> <p>8. Patents ®=3328 — Design patent 54,809, for child’s romper, held not to disclose invention.</p> <p>The Zidell patent, No. 54,809, for design for child’s romper, held not to disclose invention, in view of the earlier patent issued to the same inventor for a design which embodied all the features of the patented design.</p> <p><@=3For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>4. Patents -Outline of figure previously patented, with oHiamemiatalioms, does not disclose invention.</p> <p>A design for a child’s romper, consisting merely of an outline drawing, does not disclose invention over a previous design having the saíne outline, but, embodying also additional ornamental features.</p> <p>5. Patents @^28~~IMfferait appearance of outline on filled-in figure does not show patentability of design.</p> <p>The rule that the test of the validity of a design patent is whether the design presents to the eye the same general appearance aa the prior design does not apply where the latter design embodies the same or time as the earlier, but lacks ornamental features embodied in the earlier.</p> <p>6. Patents <3=»121 — Cannot be issued for feature • of previous design not ¿aimed in specification.</p> <p>A patentee of a design cannot obtain a subsequent new patent for a design embodying features which were embodied in the original design, though not claimed therein; his remedy being by application for reissue of the original patent.</p> <p><§S5>For otlier oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in Equity by Isaac Silverman against the Sunrise Pictures Corporation. From an order denying a preliminary injunction, plaintiff appeals.</p> <p>Augusta Evans Wilson was the author of numerous books, and particularly one entitled “At the Mercy of Tiberius.” This novel was copyrighted by her publisher, Dillingham, as “proprietor,” and such copyright expired October 32, 1915. Mrs. Wilson died a resident of Mobile, Ala., and testate, in May, 1909, leaving her surviving neither husband, children, nor any descendants of ehilden deceased. Her will was duly admitted to probate in the county of her residence on May 25, 1909. By it she devised and bequeathed her residuary estate, “including copyright on my books,” to three sisters, to the children of deceased brothers, and to the surviving widow of one brother in the same parts or shares as the same persons would have taken as next of kin under the laws of Alabama had the testatrix died intestate.</p> <p>On August 7, 1911, Mrs. Wilson’s executors rendered their final accounts, and the probate court, having ascertained and declared that the debts of the testatrix were fully discharged and all specific legacies paid, distributed the residuary estate to the legatees above referred to or those entitled in succession to such as had died pending estate settlement. Thereupon the executors were fully and finally discharged. April 7, 1915, two of the sisters of Mrs. Wilson filed an application “in accordance with the provisions of section 24 of the act of March 4, 1909,” for the renewal of said copyright on the book entitled “At the Mercy of Tiberius.” The application stated that this “renewal copyright Is claimed by us as next of kin Virginia E. Bragg, and Mary E. Tarleton (sisters).” At this time Mrs. Wilson’s third sister was dead, leaving children her surviving. It does not appear whether, when the surviving sisters applied for renewal of copyright, any consultation was had with, or the consent obtained of, their nieces and nephews, who were similarly related to Mrs. Wilson.</p> <p>In or prior to 1920 plaintiff wished to obtain the copyright of “At the Mercy of Tiherius” in order tot make a “movie” out of it, and to that end obtained assignment, not only from Mrs. Tarleton, the still surviving sister of Mrs. Wilson, but froin all other persons who in 1920 could be comprehended under the description “next of kin” of Mrs. Wilson. An administration d.b.n.e.t.a. was also raised of the Wilson estate, and the administrator assigned to plaintiff whatever rights he had.- Defendant openly threatened to produce a photoplay based upon the novel “At the Mercy of Tiberius.” Plaintiff applied for the injunction above referred to. No objection was apparently offered below, and none has been presented here, except lack of title in plaintiff. The District Court refused the injunction, and plaintiff appealed.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Petition of Mildred Bryant, on behalf of Harry Harris, against D. F. Plouston, Secretary of the Treasury, and others, for writ of habeas corpus. Writ dented, and petitioner appeals.</p>

<p>Poisons <S=»4 — Defrauding revenue not essential to conviction for violation of Narcotic Act.</p> <p>In the prosecution of a physician for prescribing or dispensing drugs in violation of Harrison Narcotic Act § 2 (Comp. St. § 6287k), it is not a defense that his acts were not intended, and did not tend, to violate or defeat the revenue provisions of the act but the only issue is whether ho aeted in good faith in prescribing drugs to patients for maladies requiring administration of the drug, or whether he dispensed or prescribed them generally to persons seeking his professional aid merely to procure the drugs.</p> <p><g^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the District of Wyoming.</p> <p>On motion of appellant to recall mandate and rectify decree.</p>

<p>Brokers ®=’43(3) — Contract held not to entitle brokers to a commission from the seller of merchandise.</p> <p>Where defendant wrote to plaintiff’s brokers concerning a powder, “We make you a price of six (6) cents- per pound, net without commission,” and later, on receiving a letter from plaintiff apprising them be had a buyer, and containing seller’s contract, defendant returned the letter, marked “Accepted,” the letter reading, “It is understood that you are to protect us for the difference as between your price of 6 cents per pound net and the final selling price which our buyers are paying for the material. You will understand that we will have to divide the above overage with two other brokers,” plaintiffs had no claim for commission.</p> <p><§zz>Fov other cases see same topic & KEY-NUMBER, in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the District of New Jersey; Joseph E. Bodine, Judge.</p> <p>Action at law by Hazel Holland, by her next friend, Thomas Holland, and Thomas Holland, against the Director General of Railroads. Judgment for defendant, and plaintiffs bring error.</p>

<p>Master and servant <5=>!12 (3) — Injuries to brakeman, slipping on gravel, held net actionable.</p> <p>A railroad company held not chargeable with negligence because it did not keep the top of a retaining wall alongside its track on a private siding free from gravel or other substances, which rendered it liable for injury to a brakeman, who slipped on such substances and fell, when walking on the wall in moving cars on the track.</p> <p>igr^jFor other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Eastern District of Pennsylvania; J. Whitaker Thompson, Judge.</p> <p>Action by the Real Estate Title Insurance & Trust Company of Philadelphia against Ephraim Lederer, Collector of Internal Revenue. Judgment for plaintiff, and defendant brings error.</p>

<p>Libel by the United States against one Cole Aero Eight Automobile and others. On demurrer to libel.</p>

<p>Suit in Equity by the Pacific Gas & Electric Company against the City and County of San Francisco and others. On exceptions by complainant to report of master.</p>

<p>At Law. Action by the Gulf, Colorado & Santa Eé Railway Company and Walker D. Hines, Director General of Railroads, against the Cities Service Company and the Empire Refining Company. On demurrer to declaration.</p>

<p>1. Trade-marks and trader-names «3=34 — Contract held not void as transfer in gross, but as transfer of right to use in connection with, sale of toilet preparations.</p> <p>A contract whereby an institute, which had been engaged in the treatment of skin diseases and the sale of preparations incidental thereto, transferred to a company the right to use its. trade-mark and trade-name in the latter’s business, wbieb under its charter included the sale of the preparations, as well as the treatment, from which transfer were excepted rights theretofore granted to other corporations, the only one shown being a grant to complainant of the right to use the trade-mark in connection with the sale of specified articles, and also excepted the right of the institute to use the mark so long as it continued in the business, granted the right to use the mark in connection with the sale of the preparations, as well as in the treatment of diseases, so that the transfer of the trade-mark was -not void as a transfer in gross.</p> <p>2. Contracts <3=153 — Construction which renders exception meaningless should be avoided.</p> <p>A construction of a contract which renders meaningless an exception expressed therein should be avoided.</p> <p>3. Trade-marks and trade-names <3=34 — Sale of list of patients who bought marked preparations sufficient to support transfer of trade-mark.</p> <p>A sale by an institute, which was engaged in the treatment of skin - diseases and the sale of preparations in connection therewith, of its list of patients of the institute, who were also the customers of the preparations, was a sale of the good will of the institute, so that the transfer of the trade-mark in connection therewith was not void as a transfer m gross.</p> <p>4. Trado-marks and trade-names <§=35 — Contract held an assignment of trade-mark, not a license.</p> <p>A contract ,by a trade-mark owner, .giving to a corporation, in consideration' of all of the stock of the company, the exclusive license to use the trade-mark, with certain .exceptions, which otherwise disclosed a purpose to transfer the rights in the trade-mark, subject only to those exceptions, was not a mere license, personal to the company, to use the mark, but was in legal contemplation an assignment, notwithstanding the use of the word “license.”</p> <p>5. Trade-marks and trade-names <@=35 — Assignment of trade-mark held to include owner’s name used in connection therewith.</p> <p>An assignment of a common-law trade-mark, identified by reference to a certificate of registration of the mark as applied to a facial soap, included in the assignment the name of the original maker, which had accompanied the trade-mark as previously used, and also the last name of the maker, by which abbreviated name the commodities had become known to the purchasing public in connection with the trade-mark.</p> <p>6. Trade-marks and trade-names <§=32 — Abandonment is matter of intention.</p> <p>The abandonment of a trade-mark is a matter of intention.</p> <p>7. Trade-marks and trade-names <£=32 — Facts held not to show intention to abandon.</p> <p>The fact that an institute, which owned a trade-mark and had been engaged in the treatment of skin diseases, which was not authorized by its charter, thereafter transferred its trade-mark rights to a corporation, of which it owned all the stock, and which was authorized to treat diseases, as well as to sell the preparations, negatives an intention to abandon, so that the rights to the trade-mark were not lost by temporary nonuser.</p> <p>cgsoFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>8. Trade-marks and trade-names ©=>39 — Want of consideration to owner of trade-mark held to invalidate license contract, as abrogation of prior agreement.</p> <p>In a contract between a corporation, which was in fact the owner of a trade-mark, subject to the right of a partnership to use it on certain preparations, and the partnership, whereby the partnership, "for a consideration moving to it and future royalty payments, licensed the corporation to use the trade-mark on preparations other than those on which the partnership was licensed to use it, there was no consideration to the corporation which would make the contract binding on the corporation as an abrogation or novation of the previous contract by which the corporation had acquired the trade-mark.</p> <p>9. Corporations ©=>404(2) — President cannot make contract divesting corporation of all assets.</p> <p>in the absence of corporate authorization or ratification, a contract which divests the corporation of all its assets is beyond the power of the president to make.</p> <p>10. Corporations ©=42f>(l) — Sale of assets by president held not ratified.</p> <p>A contract by the president of a corporation, transferring all its assets, was not ratified by the corporation, where the next year it claimed to be the owner of the assets, and soon thereafter repudiated the alleged contract, which repudiation was acquiesced in by the other party.</p> <p>11. Corporations ©=>404(2) — Transferee’s ownership of all stock does not authorize president to transfer all corporate assets.</p> <p>The fact that a transferee of all the assets of a corporation owned all the capital stock at the time of the transfer is not equivalent to antecedent corporate authority for the transfer by the president.</p> <p>12. Contracts ©=>8,2 — Expressed consideration impliedly excludes another consideration.</p> <p>The expression of one consideration in a written contract impliedly excludes any other consideration therefor.</p> <p>13. Corporations ©=>458 — 'Transfer of stock to corporate president for his services is not consideration for sale of assets by corporation.</p> <p>The fact, that the transferee of all of the assets of a corporation, who also owned all the stock of the corporation, afterwards transferred the stock to the corporation’s president in consideration for services rendered by him to the transferee, is not consideration to the corporation for the transfer of its assets.</p> <p>14. Evidence ©=>231(3) — Eights of transferee from, corporation not affected by statements of officer after the transfer.</p> <p>The transferee of a trade-mark previously owned by a corporation is not affected as to the rights so acquired by statements of an officer of the company made after the transfer.</p> <p>15. Estoppel ©=>98(2)- — Transferee held not estopped by inconsistent statements by transferor in other proceedings involving different issues.</p> <p>The transferee of trade-mark rights from an individual is not estopped as to such rights by the position taken by the individual in bankruptcy proceedings of a corporation, which also transferred its trade-mark to the transferee, and in a suit by the trustee in bankruptcy in which the individual was attempting to protect his rights as a minority stockholder, where the rights which he transferred were those which ho held as an individual, and not as a stockholder.</p> <p>16. Estoppel ©=>54 — Party claiming must be ignorant of real facte.</p> <p>Misrepresentations on which estoppel in pais can be based must consist of facts, not opinions, and the party claiming the estoppel must have been ignorant of the real facts, so that complainant cannot rely on estoppel without showing that it was ignorant of the facts concerning which the representations were made.</p> <p>—,Fnr other cases see same topic & KEY-NUMBBR in all Key-Numbered Digests & Indexos</p> <p>17. Trade-marks and trade-names <@=>45 — Registration does not enlarge rights of owner.</p> <p>The registration of an existing common-law trade-mark does not confer any greater rights in the use of the mark on the registrant, nor diminish the rights of others entitled to the use thereof.</p> <p>18. Trade-marks and trade-names <@=>95 (4) — Threat to infringe, not shown to have been sanctioned by defendant, does not authorize injunction.</p> <p>A bill to enjoin infringement of a trade-mark must be dismissed as to one defendant, where there had been no infringement, and the only threat to infringe was based on a circular issued by a third person, which was not shown to have been sanctioned by that defendant.</p> <p>19. Trade-marks and tradenames <@=>93 (3) — Transferee held not to infringe rights of prior transferee for specified articles.</p> <p>Where complainant had acquired exclusive right to use a mark on certain specified toilet' preparations, evidence held not to show that defendant had infringed complainant’s rights, though it used the trademark on other toilet preparations, and thereby some confusion _ had arisen in the minds of the public as to the origin of the different articles.</p> <p>20. Trade-marks and trade-names <@=>64 — Individual can use own name, which has acquired secondary meaning.</p> <p>An individual has, subject to certain conditions, the right to use his name in his business, although his surname may have acquired a secondary meaning, and he has also the right to transfer that business to a corporation bearing his name.</p> <p>21. Trade-marks and trade-names <@=>61 — Transfer of right in connection with stated articles includes only those articles and others closely resembling them.</p> <p>The transfer of exclusive right to use an existing trade-mark on specified toilet preparations gives the transferee the right to prevent the use of such mark by others only for the same preparations, or for those so closely resembling them as to b'e calculated to deceive and mislead the public to believe that they , are identical with those named in the transfer.</p> <p><@£5>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by the Continental Equitable Title & Trust Company against the National Properties Company and its receiver. On application by the named defendant to strike from the decree of foreclosure entered provision for deficiency decree.</p>

<p>Maritime liens <^=>10 — Claims for reconstruction of vessel not maritime.</p> <p>Claims for labor and material furnished and used in converting a war vessel, after its sale by the Navy Department, into a vessel of commerce and trade, held for work in the nature of construction, not giving a right to maritime liens, nor within the admiralty jurisdiction.</p> <p>'<§=For other cases see same topic & KEY-NUMBER in ail Key-Numbered Digests & Indexes</p>

<p>Shipping <§=54 — Charterer liable for injury to barge.</p> <p>The charterer of a barge, impliedly bound to return _ her in good condition, ordinary wear excepted, held liable for her injury by being driven ashore in a storm while loading alongside a dredge.</p> <p>@cs>For other cases see same topic & KEY-NUMBDR in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Southern District of Ohio; John W. Peck, Judge.</p> <p>Habeas corpus proceeding by George F. Ormsby to procure his discharge from custody on a bench warrant issued by the Supreme Court of the District of Columbia. From the order discharging the writ, petitioner appeals.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge.</p> <p>Suits in admiralty by Max Fleishman against the steamer Penn and against the steamer Lord Baltimore. Decrees for respondents, and libelant appeals.</p>

C. Westenhaver, Judge. Action at law by the Zahner Metal Sash & Door Company and others against "the Pennsylvania Company. Judgment for plaintiffs, and defendant brings error.

Appeals from the District Court of the United States for the Eastern District of Virginia, at Richmond. Suits in equity by the Metropolitan Trust Company and others against the Virginia Passenger & Power Company and others. From orders denying them leave to intervene, the Bankers’ Trust Company, Executor, and Thomas O’Connor and others, separately appeal.

Appeals from the District Court of the United States for the Eastern District of Virginia, at Alexandria; Edmund Waddill, Jr., Judge. Suits in admiralty by the Quemahoning Coal Company, Inc., and Coale & Co. against the Steamer St. Johns; the Colonial Beach Company, owner and claimant. Decrees for libelants, and claimant appeals.

<p>Limitation of actions <5=’l 10 — Judgment creditor need not revive judgment after bankruptcy to’ preserve lien against land.</p> <p>A creditor, who had a valid judgment lien against the land at the time of the judgment debtor’s bankruptcy, need not thereafter revive his judgment by scire facias to preserve the lien as against the trustee and the existing creditors, since the rights of all the parties became fixed at the time of bankruptcy, and especially where no trustee had been appointed at the time the scire facias proceedings should have been brought, so that there was no one who could be designated as terre-tenant in such proceedings.</p>

In Equity. Suit by Charlotte P. Kellogg and others against Paul Schaueblc, instituted in the chancery court of the state and removed to the United States District Court on petition of defendant. On motion by complainants to remand to the state court.

<p>Petition to Revise and Review an Order of the District Court of the United States for the Middle District of Pennsylvania; Charles B. Witmer, Judge. In the matter of the Motor Sales & Service Company, bankrupt. Petition of John E. Myers, attorney against the Farmers’ Trust Company of Carlisle, Pa., and J. R. Harkison, trustee in bankruptcy of said bankrupt, to revise and review an order.</p>

Petition to Revise and Review an Order of the District Court of the United States for the District of New Jersey; John Rellstab, Judge. In the matter of David Pottash, individually and trading as Clayton Shoddy & Cotton Mills, bankrupt; Willis T. Porch, trustee. On petition by the New Jersey Housing & Contracting Company to revise and review an order of the District Court.

Petition to Revise! an Order of the District Court of the United States for the District of New Jersey. Involuntary bankruptcy proceeding against the Standard Aero Corporation of New York. On petition by the bankrupt to revise an order affirming rulings of the referee, opposed by Charles H. Leonard, petitioning creditor, and Harry A. Oetgen, trustee.

<p>Appeal from the District Court of the United States for the District of New Jersey; Thomas G. Haight, Judge. Suit by Samuel F. Nirdlinger against Henry E. Stevens, Jr., in which Arthur S. Arnold and others, executors and trustees, were substituted as parties on the death of plaintiff. From a decree for complainants (262 Fed. 591), defendant appeals.</p>

<p>Suit in Equity by the Atchison, Topeka & Santa Fé Railway Company against R. E. Collins and others. On motion for preliminary injunction.</p>

<p>Suit by the Southern Pacific Company against R. E. Collins and others.</p>