Volume 274 — Federal Reporter

<p>1. Executor® and administrators <§=59 — Evidence held to show motes not in inventory were separate property of decedent’s wife.</p> <p>In a suit to set aside quitclaim deeds covering the interests of grantors in the estate oí a decedent, on the ground that the grantors were v overreached by the administrators, evidence held to show that certain notes which were not included in the inventory of the estate were the separate property of the widow, who was one of the administrators, so that they were not to be considered in ascertaining the value of the interests conveyed by quitclaim deeds.</p> <p>2. Courts <§=38|3' — State deeásiom, establishing effect of 'IaMgK»g® in a conveyance, controls.</p> <p>Though ordinarily the interpretation of a contract presents a question of general law, on which the federal courts are not bound to follow the state court, decisions by the highest court of the state that a contract by which the owner agreed to convey if the payments were made at tlie times specified did not work an equitable conversion of the property, where the owner died before the time of performance of the contract, which had become a rule of property in the state before the execution of the contract in controversy, is binding on the federal courts.</p> <p>3. Courts <®=36®(IS)— State dtecSsiom,. mpMmg etpifeMe co-Mversioui of real property, is controlling.</p> <p>It is the exclusive province of the courts in the state in which the land is situated to determine its ownership and devolution and transfer, and whether there has been a conversion of the property from one sort to another.</p> <p>4. Desceñí, and distribution; @=90(4) — -Evidence held not to show heirs were overreached by administrators.</p> <p>In a suit to cancel quitclaim deeds given by the heirs of decedent to the widow, who was one of the administrators, evidence of the value of the estate and the possibility of litigation regarding it held not to show that the administrators overreached the other heirs in procuring the quitclaim deeds for their interests in the estate; there being no misrepresentation of the facts.</p> <p>5. Descent and distribution <^=>84 — Use of estate funds, which would go to widow to pay for deeds to her, not fraud.</p> <p>Where all of the personal property belonging to an estate would go to the widow in any event, the use of the funds of the estate ,to pay for quitclaim deeds by the heirs to the widow is not a badge of fraud.</p> <p>6. Descent and distribution <§=84 — Administrators owe utmost good faith in dealing with heirs.</p> <p>The administrators of an estate owe to the heirs the utmost good faith and fair dealing in procuring from them quitclaim deeds conveying their interest to the widow, who was one of the administrators.</p> <p>Supplemental Opinion.</p> <p>7. Descent and distribution <§=12 — Under California statutes a widow can dispose, in her lifetime or by will, of property inherited from husband.</p> <p>Under Oiv. Code Oal. § 1386, subd. 8, providing that separate property of decedent’s spouse, which came to decedent by descent, devise, or bequest, shall go to the children of the_ spouse or' to the next of kin, the surviving spouse may dispose in her lifetime of any part of the property inherited from the deceased spouse, and may even make testamentary disposition of it, to the exclusion of the heirs of the deceased spouse.</p> <p>8. Descent and distribution @=12 — Property inherited from spouse descends to spouse’s heirs, unless its identity has been lost.</p> <p>The mere fact that property inherited by decedent from a predeceased spouse has changed its form, because of substitution of other property, does not affect inheritance by the heirs of the predeceased spouse, under the California statutes; but if the property has been so commingled with the survivor’s other property that its identity cannot be traced, inheritance by the heirs of the predeceased spouse could not attach.</p> <p>9. Descent and distribution <§=12 — Widow's half of real estate is not Inheritance under Kansas statutes.</p> <p>The right of a widow, under Gen. St. Kan. 1901, '§ 2510, to one-half of the real estate in which the husband at any time during marriage had a legal or equitable interest, is not an inheritance, but springs into existence by operation of law, and is not subject to the California statutes governing the descent of property inherited by a widow from her husband.</p> <p>10. Descent and distribution <§=12 — Widow’s right to homestead under California statutes is mot acquired by descent.</p> <p>The widow’s right to the homestead set apart to her under the California statutes by the probate court is not a right acquired from her husband by descent.</p> <p>11. Deeds <§=61 — Delivery with intent to surrender control to third person, to be delivered after grantor’s death, is effective.</p> <p>Where a grantor gave possession of a deed to a third person, with instructions to deliver it to the grantee on the grantor’s death, and intended thereby to part with all control of the property during her lifetime, the deed becomes effective to pass the present title to the grantee, leaving the grantor a life estate only, and the third party is constituted a trustee for the grantee.</p> <p>12. Wills <§=88 (4) — Reservation of control of deed given to third person for delivery after grantor’s death invalidates conveyance.</p> <p>Where the grantor, who gave a deed to a third person, to be delivered to the grantee after grantor’s death, retained the right to control the deed during her lifetime, the conveyance is void as an attempted testamentary disposition without compliance with the required formalities.</p> <p>13. Deeds <@=56 (2) — Delivery depends on intent.</p> <p>The question of completed and effectual delivery of a deed is one of intent, to be gathered from the circumstances under which the attempted delivery was made.</p> <p>14. Deeds <®=»56(1) — Delivery may be const™,«live, as well as actual.</p> <p>An actual and xormal delivery of the deed is never necessary, but delivery may be constructive, if from all the circumstances the grantor has made known his intention irrevocably to part with his dominion and control over the instrument, to the end that it may presently vest title in another.</p> <p>15. Deeds @=>81 — Authority to agect to sell property and replace it defeats deed given to agent for delivery at graitfor’s death.</p> <p>Where grantor gave deeds executed by her to her agent, with instructions to deliver them immediately upon her death, her authority to the agent to sell any of the property in the meantime, if he could do so at a proiit, renders the attempted delivery invalid, even though it was accompanied by directions to replace the property sold by other property.</p> <p>16. Caneellaiion of instruments <5=>34(1)- — IMay of six years after record ®f deeds and possession Ifeereumder held laches» barring attack for want of delivery.</p> <p>Where the heirs waited six years after acquiring constructive notice of deeds delivered at grantor’s death by the recording thereof, and after possession was taken by the grantees and the property was omitted from the inventory of the grantor’s estate, during which time the grantees had made improvements on the property and had sold some of it, the heirs wore guilty of such laches as bars their right to attack the deed for want of failure of delivery in grantor’s lifetime.</p> <p>17. Equity <£=>87 (1) — Laches does mot depend on sí atete of liraHalioms.</p> <p>Laches does not depend on the statute of limitations, but may be incident to a term of longer or shorter duration than the statute prescribes.</p>

Appeal and Cross-Appeal from the District Court of the United States for the Western District of Louisiana; Rufus E. Foster, Judge. Bill in equity by the United States against the Jeems Bayou Hunting & Fishing Cluh and others, to have the United States adjudicated to be the owner of a certain tract of land, and to compel defendants to account for oil and gas removed therefrom.

Tuttle, Judge. In the matter of the Ann Arbor Machine Corporation, bankrupt. The Boume-Euller Company, a creditor, appeals from an order denying its motion to vacate adjudication.

<p>Appeal from the District Court of the United States for the Southern Division of the Eastern District of Michigan.</p> <p>Action at law by the Detroit Edison Company against Jewett, Bige-low & Brooks. Judgment for plaintiff and defendants bring error.</p> <p>On the 1st day of July, 1916, Jewett, Bigelow & Brooks entered into a contract with the Detroit Edison Company, the important parts of which contract are as follows:</p> <p>“Witnesseth, that the coal company sells and the Edison Company buys twenty thousand (20,000) tons of 6" mine run coal from the Harlan mines, located at Harlan, on the Louisville & Nashville Railroad, Kentucky. The coal company agrees and guarantees to ship between the 1st day oí July, 1016, and the 20th day of June, 1917, the coal herein mentioned in accordance with the following schedule: * * *</p> <p>“(1) If during any month or months covered by this contract period, there shall have been mined the amount scheduled, or more tons of coal at the mines mentioned herein, and less than the scheduled tons shall have been shipped to the Edison Company during this period, then the Edison Company shall have the right to charge the coal company as its liquidated damages twenty (20) cents per ton for each ton short in shipping, and the Edison Company may deduct such damages from any moneys due to the coal company.</p> <p>“(2) If, however, less than the scheduled tons of coal is mined from these mines during- any month or months, and all of the coal so mined is shipped to the Edison Company, then no damages shall be charged to the coal company; but it shall be obligatory on the part of the coal company to furnish evidence satisfactory to the Edison Company that less than a total of the scheduled tons of coal was mined, and that all of the coal which was mined was shipped to the Edison Company.</p> <p>“(3) The Edison Company agrees to accept the full tonnage covered by this agreement, provided same is shipped within the contract period and under the conditions stipulated in the contract or pay liquidated damages in the sum of twenty (20) cents per ton to the coal company for such tonnage as it shall not accept.</p> <p>“It is also understood and agreed that nothing in this agreement is to relieve the Coal Company from its obligation to ship the Edison Company all or part of the tonnage scheduled for each month provided sufficient coal is mined.”</p> <p>The contract further provided that the Edison Company would pay to the coal company, for this coal, ,‘Jl per ton, f. o. b. mines. On the same day the coal company made a proposition in writing that it would sell to the Edison Company during any month or months within the period of this agreement an additional tonnage of coal from the mine or mines referred to in the agreement, up to 10 per cent of coal scheduled for that month or months, at the same price and under the same condition as covered by the agreement, provided the Edison Company would notify it 30' days in advance that it would require such additional tonnage.</p> <p>On the same day another contract, separate and distinct from the first contract herein referred to, was entered into between the same parties, by the terms of which the coal company agreed to sell, and the Edison Company agreed to buy, 30,000 tons of 2" nut and slack coal from the Harvey and Varilla mines, located at Hazard, on the Louisville & Nashville Railroad, Kentucky, at an agreed price of 85 cents per ton, f. o. b. mines, to be delivered within one year from that date in monthly installments specified therein. All the other provisions of this contract are identical with the provisions in the first contract for run of mine coal.</p> <p>Accompanying this contract there was also a written proposition by the coal company, agreeing to increase this tonnage 10 per cent, upon the same terms and conditions named in the proposition accompanying the first contract. It does not appear that the Edison Company ever gave any orders for additional coal, in accordance with the terms of these two separate propositions; but it does appear that on July S. 1916, it ordered 1,000 additional tons run of mine coal for July, which order was accepted by the coal company. It further appears that in August another additional 1.000 tons of mine run coal was ordered and accepted, and in the same month an order was placed for 10,000 additional tons to be delivered at the rate of 1,000 tons per month, commencing in September of that year, and continuing for the remaining 10 months covered by that contract. This made a total tonnage of 32,000 tons run of mine to be delivered under tiie terms and conditions named in the first contract and these three supplemental contracts, and 30,000 tons of 2" nut and slack on the second contract.</p> <p>The Harlan mines include a large number of mines in Harlan county, Ky., which mines produced a much larger quantity of 6" run of mine coal than the amount named in the first contract, including the 12,000 additional tons. The Harvey and Varilla mines consist of but two mines located near Hazard, Ky. The output of these mines would have been sufficient to produce 30,000 tons of 2" nut and slack had the same been screened; but very little of this coal was screened by the owners and operators of these mines because of the shortage of cars. Jewett, Bigelow & Brooks were not the owners of these mines, and had no control over their operation; they were simply coal brokers who bought from the mine operator and sold to the retailer or consumer.</p> <p>It appears from the evidence that the plaintiff delivered upon the first contract an excess of the monthly requirements, except for the months of October and November, 1916, and May, 1917. However, it further appears that by agreement between the parties the excess tonnage of run of mine coal shipped during any of these months should be credited upon the nut and slack contract, so that, notwithstanding the coal company shipped substantially the full amount of the run of mine tonnage from the Harlan mines covered by this contract and the supplemental contracts during the year, nevertheless it was short in the scheduled tonnage for these three months.</p> <p>Upon the second contract for nut and slack the defendant shipped in July, 1917, 139 tons, and in August 445 tons, a total of 584 tons, and no more. The Edison Company brought action against the coal company to recover damages in the sum of $100,000 sustained by it by reason of the breach of these contracts by defendant. This was later increased to $125,000. The declaration averred the making and execution of these two separate contracts, one for 20,000 tons run of mine coal from the Harlan mines, the other for 30,000 tons 2" nut and slack from the Harvey and Varilla mines, and also the fhree separate contracts covering the additional 12,000 tons of run of mine coal from the Harlan mines, but stated the default as a joint default on both contracts to the full amount of the coal not shipped by the defendant, after first deducting from the tonnage actually delivered the 12,000 tons covered by the supplemental contracts. The defendant, however, made no objection to the averment of one default in gross upon these separate contracts, but pleaded the general issue, and gave notice of several special pleas or defenses, the more important of which will be discussed in the opinion.</p> <p>Upon the issue so joined the jury returned a verdict for the plaintiff in the sum of $86,850.19, upon which verdict judgment was rendered by the trial court. The plaintiff in error seeks to reverse this judgment upon 7 separate grounds of alleged error; the more important of which will be considered m detail in the opinion in this case.</p>

Ike Applebaum was convicted of having felonious possession o*f property stolen from an interstate shipment, and he brings error.

<p>Indians @=^>88 (2) ~Federal courts without jurisdiction of crime committed by Indian aHotteo in fee.</p> <p>Criminal Code § 828 (Comp. St. § 10502), held not to give courts of the United States jurisdiction of the crime of murder committed by an Indian of the Coeur d’Alene tribe against another Indian of the tribe on land to which the defendant has received a patent in fee under Act Feb. 8, 1887, § 5 (Comp. St. § 4201) ; but under section 6 of the act, as amended by Act May 8,1906 (Comp. St. § 4203), providing that “when the lands have been conveyed to the Indian by patent in fee, as provided in section 5 of this act, then each and every allottee shall have the benefit, of, and be subject to the laws both civil and criminal, of the state or territory in which they may reside,” the state courts have exclusive jurisdiction of the offense, and it is immaterial that the place where it was committed was within the boundaries of the Coeur d’Alene reservation, in Idaho.</p> <p>Gilbert, Circuit Judge, dissenting.</p>

McCall, Judge. Action at law by A. F. Churchill against the Phcenix Cotton Oil Company. Judgment for plaintiff, and defendant brings error. In the cotton season of 1917-18, Churchill (hereafter called plaintiff) was operating a cotton compress establishment at Dyersburg, Tenn., and the Phoenix Cotton Oil Company (hereafter called defendant) was operating or taking the cotton from several gins in that vicinity.

<p>!. Courts <S=»322(2) — Bill held not to show on its face that defendant should be aligned with plaintiff, so as to defeat diversity of citizenship.</p> <p>In a suit by a North Carolina corporation against a Virginia corporation, from which it had contracted to purchase automobiles and parts, and an Ohio corporation manufacturing such automobiles and parts, the Ohio corporation’s striking employees, and others, for an injunction, the bill held not to showi on its face that the Virginia and Ohio corporations, or either of them, should be aligned with plaintiff, thus defeating diverse citizenship, where it alleged that the Ohio corporation had closed its plant and refused to reopen it in spite of plaintiff's demand. and that the strike had created a reign of terror, which might make it to the Ohio company’s interest to let its contracts be partially uni'nllilled.</p> <p>t. IitjantAiom Bill Md to present justiciable question whether ®r not plaintiff had aay interest in the matter sought to be enjoined.</p> <p>In a suit by a North Carolina corporation against a Virginia corporation, which had contracted to sell it automobiles and parts, and an Ohio corporation, which manufactured such automobiles and parts, striking employees, and others, to enjoin interference with the operation of the factory, where the bill asserted a right and interest in plaintiff to compel the carrying out by the Ohio corporation of its contract with the Virginia corporation, it presented a justiciable question whether or not plaintiff was right in such contention.</p> <p>8. Injunction <§==119 — Cross-bill for im junction. held propedy filed.</p> <p>In a suit by a North Carolina corporation against a Virginia corporation, which had contracted to sell it automobiles and parís, an Ohio corporation, manufacturing such automobiles and parts, striking employees, and others, to enjoin interference with the operation of tile factory, a cross-bill by the Virginia corporation■ for the same relief was properly filed.</p> <p>4. Courts -That corporations had same vice president held not to show identity oí interest.</p> <p>That a Virginia corporation, filing a cross-Mil against an Ohio corporation, its striking employees, and others, had the same vice president as the Ohio company, did not alone show identity of interest, defeating diversity of citizenship.</p> <p>8. Appeal and error ‘S=»83'H3)- — When bill ami eross-MU taken as confessed, allegations taken at their face value.</p> <p>Where a bill and cross-bill to enjoin interference by striking employees and others with the operation of a factory, which stated a flagrant ease of unlawful interference with the operation of the factory, were taken as, confessed, their allegations must be taken at their face value on appeal, and the court cannot speculate as to what the result would have been, had the case gone to trial on its merits.</p> <p>& Injunction Etelief mot denied because piaimtsfPis contract with on© of defendants revocable, when not revoked.</p> <p>In a suit by one having a contract for the purchase of automobiles and parts to enjoin interference by striking employees and others with the operation of the automobile factory, the fact that its contract was revocable at will did not defeat its right to relief, where neither party had attempted to revoke the contract, and it was not obliged to do so.</p> <p>7. Injunction @=>21 — Expiration of contract with one defendant before ffeitfl. order held mot to defeat relief.</p> <p>in a suit by one having a contract for the purchase of automobiles and parts against the other party to the contract, the manufacturer of the automobiles and parts, its striking employees, and others, to enjoin interference with tho operation of the factory, the right to an injunction was not defeated by the expiration of the contract term before the final order was made, where it did not affirmatively appear that plaintiff had obtained all the automobiles and parts called for by the contract, and ' the bill had been taken as confessed before the contract expired.</p> <p>8. Courts <®=>3»4 — -Failure to comply with rule m to continuanse Md! not to defeat jurisdiction t© make final order.</p> <p>Tinder equity rule 56 (198 Fed. xxxiv, 115 O. O. A. xxxiv), requiring causes to be placed on the trial calendar on the expiration of the time for taking depositions, which under rule 47 (198 I<’ed. xxxi, 115 0. C. A. xxxi) runs from the time the cause is at issue, lack of formal compliance with rule 57, relativo to the continuance of causes on the trial calendar beyond the term, did not deprive the court of jurisdiction to make a final order at a subsequent term, especially where it made a formal order continuing to the nest term all pending cases, motions, and matters.</p> <p>9. Injunction <®=101(1) — Right to keep business running is “property right,” within statute limiting injunction in labor disputes.</p> <p>The right of an employer to keep his business running is a “property right,” under Clayton Act, § 20 (Comp. St. § 1243d), forbidding injunctions in eases between employers and employees, etc., unless necessary to prevent an irreparable injury to property or to a property right, etc.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Property Rights.]</p> <p>10. Injunction <©^118 (4) — Bill and cross-bills held to show that there was no adequate remedy at law.</p> <p>In a suit to enjoin striking employees and others from interfering with the operation of a factory, allegations of the original bill and the cross-bills as to the irresponsibility of certain of the defendants held to show sufficiently that there was no adequate remedy at law.</p> <p>11. Injunction «S^MO — Not erroneous because prohibiting peaceful persuasion or picketing.</p> <p>Where at the time a final order was made granting a permanent injunction against interference with the operation of a factory in connection with a strike, there was no longer any controversy between the employer and its employees respecting terms and conditions of employment, and the plant was running at full capacity and full production, and the strike had long ceased to exist, except for certain annoying manifestations on the part of a comparatively few people, who could no longer be regarded as employees, the final order was not erroneous, because it enjoined peaceful persuasion and peaceful picketing.</p> <p>12. Injunction <§£=>104 — Against striking employees and others held not to violate Clayton Act.</p> <p>A final order granting a permanent injunction restraining striking employees and others from interfering with the operation of a factory held not to violate Clayton Act, § 6 (Comp. St. § 8835f), providing that the existence and operation of labor organizations, etc., is not forbidden, and that such organizations and their members shall not be held to be illegal combinations or conspiracies in restraint of trade under the antitrust laws.</p> <p>Í3. Injunction <©=>114 (4) — In suit to enjoin interference with operation of factory, another manufacturer held properly made a defendant and permitted to file a’ cross-bill.</p> <p>In a suit against an automobile manufacturer, its striking employees, and others for an injunction, where the automobile manufacturer in its answer alleged as one reason for its inability to operate that a manufacturer of starting, lighting, and ignition equipment, with which it had contracts, was unable to comply with its contracts because of a strike, and asked that such other manufacturer be made a party defendant, it was properly made a defendant and permitted to file a cross-bill for an injunction against interference with the operation of its plant; there being the necessary diversity of citizenship.</p>

<p>1. Courts <3=^317 — Plaintiff and manufacturer held to have identity of interest in suit to. enjoin interference with operation of factory.</p> <p>In a suit against a manufacturer, its striking employees, and others to enjoin interference with the operation of the factory,' brought by a corporation of another state, alleging that for many years it had been and then was the agent of the manufacturer, etc., plaintiff and the manufacturer held, under the evidence, to have such identity of interest as required their alignment on the same side for purposes of jurisdiction.</p> <p>2. Courts —Federal court without jurisdiction to enjoin interference with operation of factory, though products sold in interstate commerce.</p> <p>Though the greater part of a manufacturer’s business was the sale and delivery of articles manufactured by it to points outside the state, requiring their transportation and sale in interstate commerce, acts in connection with a strike, obstructing, the operation of the plant and only incidentally and indirectly affecting interstate commerce, do not constitute interference with interstate commerce, under the Sherman Act (Comp. St. §§ 8820-8823, 8827-8830),- and the Clayton Act, which may he enjoined by a federal court, in the absence of diversity of citizenship, as manufacturing is not commerce.</p> <p>3. Monopolies l®=^24(I) — Private parties cannot maintain suit under Sherman Act.</p> <p>Private parties cannot maintain a suit to enjoin acts in restraint of interstate commerce under Sherman Anti-Trust Act, § 4 (Comp. St. 5 8823).</p> <p>4. Monopolies <©==324(1) — Private person can enjoin act in restraint of trade only where immediately directed against interstate commerce.</p> <p>Though under Clayton Act, § 16 (Comp. St. § 8835o), a private party may maintain a suit to enjoin acts interfering with interstate commerce, tlio requirement that the acts complained of must be immediately directed against interstate commerce is not done away with.</p> <p>5. Courts <©=»280 — Bill and cross-bills for injunction should bo dismissed, without waiting for final hearing, when court without jurisdiction.</p> <p>Where, in a suit to enjoin interference with the operation of a factory in connection with a strike, it appeared on application for a temporary injunction that the District Court did not have jurisdiction, either) by reason of diverse citizenship or because interstate commerce was involved, the bill and cross-bills should have been dismissed, without waiting for final hearing.</p>

<p>1. Indictment and information <&wkey;>Sí> — Jfadfetairaat charging clearly every element oí offense generally sufficient.</p> <p>In general, an indictment which distinctly and clearly charges each and every element of the offense intended to be charged, and distinctly advises the defendant of what he is to meet at the trial, is sufficient.</p> <p>2. Indictment and informado® <&wkey;>110 (8) — Sufficient 4» describe offense In worts of statute.</p> <p>Generally, in an indictment for a statutory offense, the offense may be described in the words of the statute, and it is for the defendant to show that greater particularity is required by reason of the omission from the statute of some element of the offense.</p> <p>3. War <&wkey;4 — ■Imlicimeiift for seditions utteram:® sufficient,,</p> <p>In an indictment under Espionage Act June 35, 1917, tit. 1, § 3, as amended by Act May 36, 1018, § 1 (Comp. St. 1918, Comp. St. Ann. Supp. 1939, § 10232c), for using disloyal, scurrilous, and abusive language about the military forces of the United States, and language intended to bring the military and naval forces into contempt, scorn, contumely, and disrepute, it is not necessary to set forth the circumstances and setting in which the words were uttered.</p> <p>4. Constitutional law <&wkey;90 — -Disloyal liiteirames during war not within protection of Constitution.</p> <p>-Language charged to have been used by defendant in referring to the President and the army when the United States was at war, in violation of Espionage Act June 15, 1917, tit. 1, § 8, as amended by Act May 16, 1918, § 1 (Comp. St. 1918, Comp. St. Aim. Supp. 1919, § 10212c), held not within the protection of Const. U. S. Amend. 1.</p> <p>5. War <&wkey;>4 — IMiefarasirf; matter Eapioaage A®4 meed not allege criminal intent.</p> <p>An indictment for violation of Espionage Act June 15, 193-7, tit. 1, § 8, as amended by Act May 16, 1918, § 1 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 10212c), for uttering disloyal, scurrilous, and abusive language about the military forces when the United States w'as at war, need not charge a specific criminal intent not made by the statute an element of the offense.</p> <p>6. War <&wkey;4 — Indictment under Espionage Act sufficient.</p> <p>In an indictment under Espionage Act June 15, 1917, tit. 1, § 3, as amended by Act May 16, 1918, § 1 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 10212c), for using scurrilous and abusive language about the army when the United States was at war, it is not necessary to name the person or persons to whom the words were spoken ; but under the settled practice such information can be obtained by defendant, if desired, by demanding a bill of particulars.</p> <p>7. Criminal law &wkey;371(l) — -War &wkey;>4 — Evidence of prior statements admissible in prosecution under Espionage Act.'</p> <p>In a prosecution under Espionage Act June 15, 1917, tit. 1, § 3, as amended by Act May 16, 1918, § 1 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 10212c), for uttering disloyal, scurrilous, and abusive language about the army when the United States was at war, evidence of previous statements made by defendant, either before or after the amendment of the statute, showing that he was disloyal to this country and favored Germany in the war, held admissible as showing his mental attitude and the intention with which the words charged were used.</p> <p>8. Criminal law <&wkey;H?2(3) — Mistake as to evidence in instructions held not reversible error.</p> <p>That the court in its instructions assumed that there was evidence that defendant made a certain statement charged in the indictment, whereas the testimony of the witness who testified to such statement had been stricken out, held not ground for reversal, where defendant virtually admitted the statement when on the stand, and where the court’s attention was not called, by exception or otherwise, to the mistake, which was shared by defendant’s counsel, at whose request an instruction dealing with the statement was given.</p> <p>9. Criminal law <&wkey;698(2) — Failure of court to prevent cross-examination of defendant, not objected to, not error.</p> <p>That the court did not intervene on its own motion to prevent the asking of questions on cross-examination of defendant, which were answered without objection from defendant or his counsel, held not error.</p> <p>10. War <&wkey;4 — Conviction for violation of Espionage Act sustained by evidence.</p> <p>The indictment and evidence held to warrant the conviction of defendant for using disloyal, scurrilous, and abusive language about the army when the United States was at war, in violation of Espionage Act June 15, 1917, tit. 1, § 3, as amended by Act May 16, 1918, § 1 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 10212c).</p>

<p>1. Criminal law &wkey;=37 — Instruction held correctly to state law as to entrapment by officers.</p> <p>In a prosecution for transporting whisky from one state into another contrary to the Keed Amendment (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 8739a, 10387a-10387c), an instruction that if the authorities have reasonable grounds to suspect defendants were causing whisky to be unlawfully transmitted, and one of them joined with defendants for the purpose of detecting their crime, the officer’s acts would not prevent conviction, but that if defendants had no intention of committing á crime, and were induced to do so by the officer, they could not be convicted, correctly states the law in relation to entrapment.</p> <p>3.Criminal law <&wkey;678(l) — Prosecution not required to elect between counts charging different offenses committed on same day.</p> <p>Where the indictment contained numerous counts charging similar offenses, the prosecution need not elect between two of those offenses alleged to have been committed on the same date, where the allegations and the evidence supporting them clearly showed that they referred to different transactions.</p> <p>3. Indictment and information <&wkey;176 — Prosecution not limited to date alleged in indictment.</p> <p>The date in an indictment does not necessarily limit the prosecution to proof of the commission of the offense on that particular date, provided the date proven is prior to the date of filing 'the indictment, and is in such reasonable proximity to the actual date that defendants could not have been misled or prejudiced thereby.</p> <p>4. Criminal law <§=>1167(1) — Departure from alleged date lield not to have prejudiced defendants.</p> <p>In a prosecution for unlawfully transporting whisky from, one state into-another, where defendants • did not deny any of the acts charged against them in the indictment and testified to by the witnesses for the prosecution, but defended only on the ground that they were entrapped by officers intoi committing the offense, they were not prejudiced by a departure of the proof from the date of one of the transactions alleged in the indictment.</p> <p>5. Indictment and information <&wkey;159(3) — Amendment of indictment unnecessary for proof that offense was committed on different date.</p> <p>It is not necessary to amend an indictment to render admissible testimony by a witness that the offense was committed on a different date 'than that alleged in the indictment.</p> <p>6. Criminal law &wkey;>444 — Account books held admissible, without testimony verifying each entry.</p> <p>Account books kept by the seller of the whisky unlawfully transported, which were identified by a witness as those kept in the regular course of business by a person employed for that purpose, are admissible against defendants, though the witness did not make all or any of the entries therein, and though he did not have any recollection with reference to the particular transactions.</p> <p>7. Intoxicating liquors <®=333(1) — Account in fictitious name held admissible against accused.</p> <p>In a prosecution for unlawfully transporting whisky from one state into another, an account kept by the seller of the whisky in a fictitious name is admissible against defendants, after evidence was introduced identifying the defendants as those who purchased some of the goods under that account, since the jury could find therefrom, in the absence of evidence 1o the contrary, that the defendants had opened the account in that name, and continued to purchase the whisky shown thereon from the date of the first transaction.</p> <p>8. Criminal law &wkey;>365(2) — Evidence of purchase in another state admissible, as incident of unlawful transportation.</p> <p>In a prosecution for violation of the Heed Amendment (Comp. St. 191.8, Comp. -SI. Ann. Supp. 1919, §§ 8739a, 10387a-10387c), evidence of the purchase by defendants of whisky in another state is competent, as showing an incident of its unlawful transportation into the state.</p> <p>Si. Criminal law t&wkey;=>H69 (S) — Evidence as to prior trausactions held adtalssible to rebut defense of entrapment. . .</p> <p>. . In a prosecution for unlawfully transporting intoxicating liquors into the state, where the defense was that accused was entrapped into the offense by officers, evidence tending to show similar transactions by defendants before the earliest date mentioned in the indictment is admissible to establish the good faith of the officers in co-operating with defendants in the unlawful transactions for the purpose of detecting the crime,</p> <p>i®. Criminal Jaw <8=»374 — Fasts retailing to Mb transactions creating suspicion only, admissible to rebut defense of amteapmeni.</p> <p>Where the defense of accused was that they were entrapped into the unlawful transportation of liquor by officers, evidence tending to show similar transactions by them before the officers began co-operating wifh them is admissible to show good faith of the officers, though it was insufficient to establish the guilt of defendants, and merely created suspicion against them.</p> <p>11. Criminal law ‘3^369(6) — fflodaratiosa3 that defendants’ grocery business was ostensible only held admissible a'ltkiowgh iavoMug ©User icasmtlon.</p> <p>In a prosecution for unlawfully transporting whisky into a state, where the accused claimed that they had been engaged in the grocery business, and were entrapped by. the officers into committing the offenses charged, declarations by defendants that their grocery business was ostensible only, and that for years they had been engaged in unlawful transactions of the character charged, are admissible against them, though they related to other transactions than those charged In the indictment.</p> <p>12. erimikial Saw 't=a'S'?J2 (3), 1171(6) — Eoforenee to accused as a gang Wd not reva siMe tiMiIer evidence.</p> <p>Whore there was evidence that defendants were organized for the particular unlawful purpose of transporting whisky into the state, a reference by the prosecuting attorney to defendants as a gang, while a harsh one, that should not be used, was not such as to molas It prejudicial error for the court to refuse to caution the district attorney or to instruct the jury to disregard the remark.</p>

<p>In .Error to the District Court of the United States for the Southern District of New York.</p> <p>Actions by the Jewelers’ Safety Fund Society against John Z. Lowe, Jr., Collector of Internal Revenue, and against Charles W. Anderson, Collector, etc. Judgments for defendants, and plaint iff brings error.</p>

<p>In Error to the District Court of the United States for the District of Minnesota; Page Morris, Judge.</p> <p>Action at law by R. B. Whiteside against the W. T. Bailey Dumber Company. From the judgment, plaintiff brings error.</p>

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Ohio; D. C. Westenhaver, Judge.</p> <p>Proceeding by the United States against one truck load of'whisky. Judgment of forfeiture and condemnation, and Joseph Tomon, claimant, brings error.</p>

<p><' Iti Error to the District Court of the United States for the Eastern District of Kentucky; Andrew M. J. Cochran, Judge.</p> <p>•'Criminal prosecution by the United States against Fred W. Weitzel. Judgment of conviction, and defendant brings error.</p>

<p>In Equity. Bill by Marshall Hodgman and others against the Atlantic Refining Company and the Superior Oil Corporation.</p>

<p>In Equity. Suit by Horace B. Spackman against the Swan Creed? Orchard Company, in which receivers were appointed for defendant. The receivers petition to issue receivers’ certificates having priority over all creditors except mortgage creditors.</p>

<p>In Equity. Suit by Joseph A. Kelly against C. G. Lewellyn, Collector of Internal Revenue. On motion to dismiss bill.</p>

<p>In Equity. Suit by Josqfft P. Kelly against C. G< Lewellyn, Collector of Internal Revenue. On motion to dismiss bill.</p>

<p>In Equity. Suit by tbe United States against Yakima County and others.</p>

<p>In Equity. Suit by John G. Patton and Harry P. Sayford, trading as the Sayford Paper Specialty Company, against E. T. Clegg and the Vendig Hotel Company.</p>

<p>At Taw. Two actions by the International Banking Corporation against the Irving National Bank, tried together to the court after a jury was waived.</p>

<p>At Law.. Action by the Kemper Military School against George F. Crutchley.</p>

<p>1. Intoxicating liquors &wkey;>349 — Warrant for search of apartment building held invalid.</p> <p>• A search warrant issued hy a commissioner for search of an apartment building occupied by a large number of families, and without any showing or claim that the premises or any part thereof were being used for the unlawful sale of liquor, held invalid to authorize the search of any apartment therein, or the seizure of anything there found.</p> <p>2. Searches and seizures <&wkey;3 — Search warrant cannot be amended by telephone.</p> <p>A search warrant cannot be amended bv a telephone communication from the commissioner who issued it, nor without evidence to support the amendment.</p> <p>S. Searches and seizures &wkey;»3 — Unlawful seizure cannot fee legaJized by second warrant.</p> <p>Where property was seized under a search warrant unlawfully issued, the seizure cannot bo legalized by the issuance of a second warrant based on information secured through the first search and seizure.</p>

<p>At Daw. Action by the United States against Serol E. Powers to. recover profits on the sale of wool in 1918 in excess of those allowed under the regulations of’the War Industries Board of the Council of National Defense. On motion to dismiss the declaration.</p> <p>The declaration alleged that, pursuant to the provisions and under the authority of the act of Congress approved June 3, 1916, commonly known as the National Defense Act, and of the act of August 29, 1916, known as the Army Appropriation Act, and the act of Congress of August 10, 1917, commonly known as the Food Control Act, there was created a War Industries Board by appointment of the President; that the actions of the War Industries Board were subsequently ratified and confirmed by Act July 24, 1919, and Act Hay 31, 1920, making appropriations for the Department of Agriculture for the fiscal years 1920 and 1921, respectively, and also by the executive order of December 31, 1918; that the War Industries Board acting on behalf of the government, fixed the prices of the wool clip of 1918, and issued regulations for handling that clip, which provided, among other things, that it should be distributed through approved dealers, who should not be entitled to more than 1% cents gross profit on the wool handled by them; that defendant applied for a permit* to operate as an approved wool dealer, and agreed to be subject to the rules of the board, but that it made a gross profit on the total season’s business in excess of the agreed 1% cents a pound, whereby it became justly indebted to the United States for the full amount of the excess profits, and in consideration thereof promised to pay said sum to the United States.</p> <p>To the declaration the defendant interposed a demurrer, or motion to dismiss, for the reasons that the acts of Congress referred to did not, in terms or by legal implication, empower the War Industries Board to make, issue, or enforce the regulations for handling the wool clip as set forth in the declaration, or to limit the dealer’s profits; that the rules and regulations of the War Industries Board set forth in the declaration were made without authority of law, and were illegal and void; that the license issued to defendant and the agreement exacted of it was void; that the matters set forth in the declaration were insufficient as a matter of law to establish any legal liability.</p>

<p>Admiralty <&wkey;5>0 — Stipulator not entilled to intervene.</p> <p>A stipulator for value in a suit in rem held not entitled to intervene, where not shown to have any claim against the res or its proceeds.</p>

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Suit by William Frank Tryson and others, receivers, against the Southern Realty Corporation. From a decree in favor of defendant, plaintiffs appeal.</p>

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Proceeding by M. Alice Zinkhan, as landlord, against Emma Kill-gore, as tenant. Judgment for the landlord, and the tenant appeals.</p>

Suit by Norvell C. Pyne and another against Claude R. Smith to recover possession of premises. From a judgment for plaintiffs on appeal from the municipal court, defendant appeals.

Landlord and tenant proceeding by Rena Cooksey and another against Charles S. Davis. From a judgment for plaintiffs on the insufficiency of the affidavit of defense, defendant appeals.

Appeals and Cross-Appeals from the District Court of the United States for the Western District of Louisiana; Rufus K. Roster, judge. Separate suits by the United States of America against Charles J. Greene, Jr., and others and against A. C. Roucks and others to quiet title to certain lands and to recover the value of oil removed therefrom hy defendants.

<p>Appeal from the District Court of the United, States for the Eastern District of Pennsylvania; J. Whitaker Thompson, Judge.</p> <p>In the matter of the receivership of Peoples Brothers, Inc..; Robert W. Finletter receiver. From a decree distributing funds, the American Surety Company of New York and the Massachusetts Bonding & Insurance Company separately appeal.</p>

<p>At Law. On petition of David Lamar for writ of habeas corpus.</p>

<p>1. Habeas corpus <&=»47 (1) — Circuit judge lias authority to grant writ.</p> <p>A United States circuit judge held to have authority to grant a writ of habeas corpus.</p> <p>2. Habeas corpus —Writ cannot be used as writ of error.</p> <p>A writ of habeas corpus cannot be invoked to review' an erroneous judgment of a court of competent jurisdiction, but challenges the jurisdiction of the court.</p> <p>3. Habeas corpus <§=>25(1) — Writ may discharge from imprisonment in violation oí constitutional right.</p> <p>Where by a sentence to imprisonment there is a denial or invasion of a constitutional right, the prisoner may be discharged on habeas corpus.</p> <p>4. Habeas corpus @^28 — Oes where court transcended its powers.</p> <p>A prisoner may be discharged on habeas corpus, if on inquiry raised by the writ it is found that the court in imposing the sentence transcended its powers.</p> <p>5. Contempt —Letter held not to constitute crimina! contempt.</p> <p>A letter written by petitioner, as an officer of New York City, criticizing the action of a federal judge in denying an application by the city for the appointment of petitioner as coreceiver of a street railroad company, on the ground that it prevented petitioner from access, as matter of right, to the books and records of the company in the interests of the city, where the application had been finally disposed of before the letter was written, held not misbehavior in or so near the presence of the court as to obstruct the administration of justice, and a judgment imposing a sentence of imprisonment on petitioner for criminal contempt under Judicial Code, § 2(58 (Comp. St. § 1245), held in excess of the powers of the eourt, and void.</p> <p>6. Action —“Pending cause” defined!</p> <p>A cause is “ponding,” when it is still open to modification, appeal, or rehearing, and until the final judgment is rendered.</p> <p>[Ed. Note. — Por other definitions, see Words and Phrases, Pirst and Second Series, Pending.]</p>

<p>1. Sales &wkey;>88 — Contract with ambiguous terms for construction by jury.</p> <p>A contract for the furnishing of steel by defendant to plaintiff for a specified use, made by an accepted order and preceding correspondence, showing that the thing sold was to be “commercial hot rolled steel,” “to be absolutely straight with true edges,” the order also containing a sketch showing how it was to be used, in view of the necessity of determining the meaning of such specifications in the trade, and where the requirements must have been understood by defendant, held, properly submitted to the jury for construction in the light of the correspondence and negotiations between the parties.</p> <p>2. Principal and agent <&wkey;124(3) — Sales <&wkey;182(4) — Acceptance under contract and agent’s authority held for jury.</p> <p>Whether payment for and attempted use by plaintiff of steel delivered by defendant on a contract constituted an acceptance under the contract or was pursuant to an agreement which bound defendant to replace the steel if found unfit for the purpose intended, and whether the agent representing defendant had authority to make such agreement, held questions for the jury.</p> <p>3. Sales <&wkey;179 (3) — Effect of conditional acceptance stated.</p> <p>Where steel shipped by defendant to plaintiff under a contract was accepted on condition that it should be reconditioned or replaced in case it proved unfit for the uso intended, a failure of the condition operated to remit the j'sulies to their previous status and reinvest plaintiff with the right to reject the steel and recover the money paid for it.</p>

<p>Appeal from the District Court of the United States for the District of Maryland, at Baltimore; John C. Rose, Judge.</p> <p>Suit in admiralty for collision by A. Suna, master of the Japanese steamer Yaye Maru against the Strick Line, owner of the British, steamer War Lark. From the decree, libelant appeals.</p>

<p>In Error to the District Court of the United States for the Southern District of Florida; Rhydon M. Call, Judge.</p> <p>Action at law by the National City Bank of Tampa against E. M. Thorpe and another. Judgment for plaintiff, and defendants bring error.</p>

<p>In Error to the District Court of the United States for the Southern Division of the Eastern District of Tennessee; Edward T. Sanford, Judge.</p> <p>Criminal prosecution by the United States against Harbert Quarles. Judgment of conviction, and defendant brings error.</p>

<p>1. Monopolies <&wkey;24 (2) —Railroads held necessary parties to proceeding to annul exclusive provision in contracts between them ami a car company.</p> <p>Under contracts between railroad companies and a car company, providing that the car company would furnish refrigerator cars for a fruit crop and furnish men, icing stations, and ice to keep the cars iced, etc., and that the railroad companies would take all their refrigerator cars from the car company and pay icing charges and the usual mileage charge, the destruction of the exclusive clause would destroy the mutuality of the contract and render it unenforceable, and the railroad companies were necessary parties to a proceeding to annul it, as in violation of Clayton Act, § 3 (Comp. St. § 8835c).</p> <p>2. Monopolies <&wkey;24(l) — Federal Trade Commission without jurisdiction of proceeding to annul exclusive provision of contracts between railroad companies and car company; “where applicable to common carriers.”</p> <p>Clayton Act, § 11 (Comp. St. § 8835j), conferring authority to enforce compliance with certain sections, including section 3 (Comp. St. § 8835c), on the Interstate Commerce Commission “where applicable to common carriers,” gives exclusive jurisdiction to the Interstate Commerce Commission where the facts involve common carriers or the business of common carriers, and the Federal Trade Commission is therefore without jurisdiction to require a ear company to cease and desist from using or enforcing a provision in contracts with railroad companies requiring them to take ail their refrigerator cars fox’ a fruit crop from it.</p>

Foster, Judge. Action at law by Mrs. W. C. Johnson and others against Morgan’s Louisiana & Texas Railroad & Steamship Company and others. Judgment for plaintiffs, and defendants bring error.

<p>Internal revenue &wkey;>2 — National Prohibition Act did not affect prior offenses against revenue laws.</p> <p>The Volstead Act did not repeal any part of the internal revenue laws, so far as relates to punishment for offenses previously committed.</p>

<p>In Equity. Suit J>y the Kentucky Distilleries and Warehouse Company against Elwood Hamilton, lately Collector of Internal Revenue. On demurrer to petition.</p>

<p>At Daw. Action by the American Delinting Company against Joseph W. Pomeraning. On affidavit of defense, raising questions of law.</p>

<p>In Admiralty. Suit by the American Hawaiian Steamship Company against Herman A. Willfuehr and Herman S. Willfuehr, trading as the American Fuel & Shipping Company.</p>

At Law. Action by the Philadelphia Storage Battery Company against the Air Reduction Sales Company. On motion to strike off statement and for more specific statement.

<p>Maritime liens <&wkey;28 — Lien for supplies furnished on order of master.</p> <p>A fishing schooner held subject to a lien for food supplies furnished on • order of her master in a port where she was not known, though he was operating her on a lay and had no authority to bind her, where it did not appear that it was customary to let vessels on the lay on that part of the coast, and libelant relied on the master’s apparent authority.</p>

<p>In Admiralty. Suit by S'. J. Patterson against the steam tug Downer; the Downer Towing Corporation, claimant. On exceptions to report of special commissioner.</p>

<p>In Equity. Suit by Hugh C. Pierce and V. Mott Pierce, trustees, against the Bound. Brook Engine & Manufacturing Company and others.</p>

<p>Criminal prosecution by the United States against J. E. Mathie. Submitted on stipulated facts.</p>

<p>Public lands <&wkey;223(l) — Mexican grant ini California held to convey fee.</p> <p>Articles 4 and 5 of the Mexican decree of August 18, 1824, concerning colonization and settlement of national lands, providing that lands within 10 leagues of the sea could not be colonized without the previous approval of the supreme general executive power, and reserving to the federal government the right to take any of such lands for public purposes, apply only to foreign colonization, and not to grants to Mexican, citizens, and a grant of an island on the coast of California in May, 1846, to a Mexican citizen, afterward confirmed by the District Court of the United States under Act March 3, 1851, and patented to the successors in interest of the Mexican grantee, held, to convey title in fee as against the United States, free from any claim to government use.</p>

Suit by the Farmers’ & Merchants’ Bank of Monroe, N. C., and others, against the Federal Reserve Bank of Richmond, Va., begun in the state court and removed by defendant to the United States District Court. On motion of plaintiffs to remand the cause to the state court.

At Daw. Action by George W. Hall against John Barton Payne, Director General of Railroads. On motion to remand to state court and motion by defendant for leave to amend petition for removal.

<p>In Admiralty. Libel by the Central Railroad Company of New Jersey against the Merritt & Chapman Derrick & Wrecking Company to recover for injuries to libelant’s barge.</p>

<p>Appeal from the District Court of the United States for the Eastern District of New York.</p> <p>Libel by the Central Railroad Company of New Jersey against the Merritt & Chapman Derrick & Wrecking Company. Decree for libelant (274 Fed. 239), and respondent appeals.</p>

<p>Appeal from the District Court of the United States for the Eastern Division of the Southern District of Ohio; John E. Safer, Judge.</p> <p>Suit by Charles B. Stowe against the American Refractories Company for infringement of patent. From a decree dismissing the bill, plaintiff appeals.</p>

C. Westenhaver, Judge. Joseph B. Rose, alias Bookey Rose, alias Joseph B. Rujicka, was convicted of the unlawful sale of intoxicating liquor in violation of the War-Time Prohibition Act, and of the unlawful possession of intoxicating liquors in violation of the National Prohibition Act, and he brings error.

Munger, Judge. Suit by the City of Kearney against the Central Power Company. From an order dismissing defendant’s counterclaim, and denying a motion to dissolve a temporary restraining order, defendant appeals.

<p>In Error to the District Court of the United States for the Eastern District of Michigan; Arthur J. Tuttle, Judge.</p> <p>Action at law by John Dallavo against the Hanover Eire Insurance Company. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Ohio; John M. Killits, Judge.</p> <p>Action at law by John G. Dilworth, by his next friend, John C. Dil-wortH, against Matthew F. Bramley. Judgment for plaintiff, and defendant brings error.</p>

Appeals from the District Court of the United States for the Western District of Kentucky; Walter Evans, Judge. Suit in Equity by E- H. Taylor, Jr., & Sons, a corporation, against the Julius Levin Company. From the decree, both parties appeal. In 1911, E. H. Taylor, Jr., & Sons, a Kentucky corporation, was a distiller of the brand of whisky known as “Old Taylor.” The Julius Levin Company, a California corporation, was a wholesaler of whiskies in the Pacific Coast territory.

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Ohio; John M. Killits, Judge.</p> <p>Criminal prosecution by the United States against Harry Davidson and others. Judgment of conviction, and defendants bring error.</p>

<p>Appeals and Cross-Appeals from the 'District Court of the United States for the Western District of Louisiana; Rufus E. Foster, Judge.</p> <p>Suits in equity by the United States against C. W. Lane and others, against the Gulf Refining Company of Louisiana, against the Southwestern Gas & Electric Company and others, against J. M. Walling and others, and against Jessie M. Ra Robadierre and others, consolidated for trial. From the decrees, the defendants in the four suits first named appeal. The United States files cross-appeals therein, and directly appeals in the last-named suit.</p>

<p>1. Master anti servant <§=^80 (8) — Evidence held insufficient to prove a modification of profit-sharing contract.</p> <p>In a suit for an accounting by one party to a 'profit-sharing contract, in which both parties alleged a modification of the original contract, where their testimony was in direct; conflict, held, that neither had sustained the burden resting on him to prove the modification and the terms of the original contract held to govern their rights in profits made in an outside transaction not contemplated when the contract was made.</p> <p>2, Frauds, statute of ’<§=^44(1) — Parol agreement to terminate written contract and substitute another not to be performed in one year held invalid.</p> <p>An alleged parol agreement for the termination of a written contract and the substitution of a different contract not to be performed witbin one year, held invalid and not enforceable, under the law of Florida.</p>

<p>Money received <§=^6 (6) — Money recweraMe, where purpose for which received is not carried out.</p> <p>In correspondence between the parties by letter and telegram, the solo subject of which was the purchase by plaintiff of stock of a corporation to be organized by defendant, in the course of which plaintiff wired, . “will take the ten thousand,” and remitted to defendant §i0,000, a statement in a letter, “In ail matters treat this §10,000 as you would your own,” held not to authorize defendant to use the money in a partnership or joint adventure, nor to relieve defendant from the obligation to return it, where the corporation was not organized.</p>

<p>1. Counties <©=>206(1) — Judgments of commissioners’ court, on which warrants are based, are valid against collateral attack.</p> <p>Under the law of Texas, judgments of the commissioners’ court, on which warrants are based, approving bills rendered, are binding on the county, unless successfully directly attacked.</p> <p>2. Judgment -0=518 — Suit by county for cancellation of warrants issued on judgments held direct and not collateral attack.</p> <p>A suit by a county for cancellation of warrants issued on judgments of the commissioners’ court hold a direct and not a collateral attack on such judgments.</p> <p>3. Judgment <©=>461 (5) — To invalidate for fraud, proof must be clear and convincing.</p> <p>Where a judgment is attacked for fraud, the proof must be clear and convincing to warrant its being set aside, and facts which merely create a suspicion, but do not clearly prove the fraud charged, are not sufficient to overcome the effect of the judgment.</p> <p>4. Counties ©=>165 — -Warrants held legally issued and valid.</p> <p>The commissioners’ court of a Texas county, in making a contract on which warrants were issued, hold to have legally complied with the requirement of the state Constitution (article 11, § 7), by providing for a tax levy to pay the interest and create a sinking fund for the indebtedness incurred.</p> <p>5. Counties ©=>165 — Warrants isened to refund illegal warrants held invalid.</p> <p>Warrants issued by a Texas county to retire outstanding warrants, some of which were illegally issued, hold, under the decisions of the Supreme Court of the state, invalid to the extent that the original warrants were invalid.</p>

<p>Appeal from the District Court of the United States for the District of Kansas; John C. Pollock, Judge.</p> <p>Suit in equity by the Fidelity & Casualty Company of New York against Alex Berg, guardian, and others. Prom an order granting an injunction, defendants appeal.</p>

<p>Insurance <3^83 (1) — Evidence held insufficient to authorize submission of case to jury.</p> <p>Evidence held insufficient, as matter of law, to sustain the burden resting on defendant, an agent of plaintiff insurance company, to establish by clear and convincing proof that a provision of his contract of agency limiting the amount for which he was authorized to issue a policy on grain had been orally waived or annulled, and overruling of a motion by plaintiff for directed verdict held error.</p>

<p>Master arad servant <S=»13 — Telegraph operator held not “on duty,” within federal Hours of Service Act, {taring rest periods.</p> <p>A railway telegraph operator, who was paid for about 12 hours’ service out of 24-hour periods, hut was in actual service only 5 or 6 hours, being released for periods of from 1 to 2 hours from time to time by the train dispatcher, held, not “on duty” for a longer period than 9 hours, in violation of Hours of Service Act March 4, 1907, § 2 (Oomp. St. § 8678).</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, Second Series, On Duty.]</p>

Suits by James J. O’Brien against Walter B. Bashar and others and against Percy P. Anderson and others. From decrees dismissing the bills, plaintiff appeals. On the same day O’Brien filed the two bills above entitled; both have been dismissed as the result of motions under equity rule 29 (33 Sup. Ct. xxvi) ; such motions being the equivalents of special demurrers.

<p>1. Bankruptcy '©=287(1) — Form of pleading in proceeding by trustee is immaterial.</p> <p>Where a court of bankruptcy has jurisdiction of a plenary suit by a trustee, the fact that he proceeds by petition as for a summary order is immaterial, if the parties appear and there is a full hearing on the merits, and in such case the proceeding will be treated as a plenary suit.</p> <p>2. Abatement and revival Pcadensy of another suit as bar most be pleaded.</p> <p>In a proceeding in a court of bankruptcy by a trustee against a third party to recover assets, the jurisdiction of the court is not affected by the fact that another action between the same parties involving the same Issues, is pending in a state court, where such objection is not pleaded and there is no conflict between the courts over the possession of specific properly.</p> <p>Boss, Circuit Judge, dissenting.</p>

<p>Petition to Revise and Appeal from an Order of the District Court of the United States for the Southern District of New York.</p> <p>Proceeding in bankruptcy against Charles B. Toole and Douglas Henry, individually and as copartners trading under the firm name and style of Toole, Henry & Co. Petition by Mark P. Poster for reclamation of certain bonds deposited as collateral security with the bankrupts was denied, and Foster petitions to revise and appeals.</p> <p>It appears tnat Toole, Henry & Co. were engaged in business as stockbrokers and members of tbe New York Stock Exchange in tbe city of New York. On April 2, 1919, an involuntary petition in bankruptcy was filed in tbe United States District Court for tbe Southern District of New York praying that Toole, Henry & Co. be adjudged involuntary bankrupts. They were so adjudged, and Edwards H. Childs was appointed temporary receiver, May 8,1919, a petition was filed by Mark P. Foster in tbe District Court aforesaid, praying for tbe immediate delivery to him by tbe receiver of 47 Green Bay & Western debenture B bonds, which were in tbe receiver’s possession, but which tbe petitioner claimed that he was entitled to the immediate possession of as owner.</p> <p>It appears that in June, 1917, Foster had delivered to Toole, Henry & Co., 67 Green Bay & Western debenture B bonds as security on a margin account, which was to be carried in bis name with the bankrupts. After tbe petition in bankruptcy was filed, Foster made an investigation and ascertained that of the original 67 bonds deposited by him with the bankrupts 20 bad been sold, 46 had been pledged to Levy Bros., engaged in a similar line of business as that of tbe bankrupts, along with a number of other securities which belonged to other customers of Toole, Henry & Co., as collateral security for a loan made by Levy Bros, to tbe bankrupts, and that 1 of said bonds was still in the vaults of the latter. On April 3 and 4, 1919, and other days immediately following the filing of tbe petition in bankruptcy, Levy Bros, proceeded to dispose of tbe various securities deposited with them, until they had_ reobtained tbe money advanced by them to the bankrupts, returning the excess securities and a sum of money to the receiver. They did not dispose of tbe 46 bonds belonging to Foster, but returned them to tbe receiver, who was and now is in possession thereof, together with the 1 bond that had never left the vault or Toole, Henry & Co.</p> <p>It is conceded, and it is not open to dispute, that on tbe date of the filing of the petition in bankruptcy tbe margin account of Foster showed that his debit balance was $198,802.79, and that against that debit balance Toole, Henry & Co. had purchased for him and was carrying securities, exclusive of the Green Bay bonds, of the then market value of $219,420.62. Foster, claiming that the Green Bay bonds had been specially deposited to secure Toole, Henry & Co. against any loss on his margin account, brought reclamation proceedings to recover the 47 bonds from the receiver. The receiver offered to return the 1 bond which had remained in the vaults of the bankrupts, which offer was refused. Upon the hearing on the reclamation proceeding, the court determined that Foster was entitled to the delivery of said bonds, and on the 13th day of May entered an order requiring the receiver to turn over to the petitioner the 47 bonds in question. Upon a rehearing, the court stayed the order pending a hearing and determination upon an application made by tbe receiver to vacate and set aside the order, and thereupon entered an order referring the proceedings to the referee for his determination and adjudication. Hearings were duly had by the referee, at the conclusion of which he determined that Foster was not entitled to the delivery of the 46 Green Bay & Western debenture B bonds, but that he must share with tbe other creditors upon equal basis in the ultimate funds realized from the sale of the remaining securities redelivered to the receiver by Levy Bros, after the satisfaction of their debt. The report of the referee was confirmed by the District Court, and from the order confirming said report this appeal is taken.</p>

Rudkin, Judge. Uibel by the Baldwin Shipping Company, Inc., against the Southern Pacific Company. Judgment for defendant, and plaintiff appeals. The appellant presented three causes of libel in the court below, all of which were of similar nature, so that, in this opinion it will be necessary to consider only the first.

<p>1. Obstructing justice <&wkey;l(§ — Conviction for attempting to isitimidiite witness sustained by evidence.</p> <p>In a prosecution under Criminal Code, § 135 (Comp. St. § 10305), for endeavoring to intimidate a witness l)y assaulting and beating him, where at the time of the assault the witness had once testified and was waiting recall in rebuttal, the jury held not precluded from finding the requisite intent from the natural effect of defendant’s act, because he testified that he did not know the witness was to be recalled.</p> <p>2. Obstructing justice <&wkey;4 — Offense of ititimidatjng witnesses not limited to witnesses under sufeposna.</p> <p>It is not a defense to a charge under Criminal Code, § 135 (Comp. St. § 10305) for endeavoring to intimidate a witness by assaulting and beating him, that ¡he person assaulted, who had testified, and who afterward testified as a witness at the time of the assault was not under subpeena.</p>

<p>1. Quieting title <&^>7 (1), 30(3) — Suit to remove cloud held maintainable, and grantors the only necessary parties.</p> <p>Where the- devisees of land under a will which provided that they should have no right to dispose of the land except by will sold and conveyed the land by warranty deeds, their subsequent claim of the right to dispose of the land by will held to constitute a cloud on the title of their grantee which would support a suit by him for its removal and that the grantors were the only necessary parties to such suit.</p> <p>2. Quieting title <&wkey;3D(3) — Bill held defective for want of necessary parties.</p> <p>A bill to quiet title, involving construction of a will, held defective for want of necessary parties.</p>

<p>Mortgages <&wkey;312(l) — Statutory penalty for neglect or refusal to release recoverable only by mortgagor.</p> <p>Under the statute of Oklahoma providing- that, “if the holder of any mortgage on real estate shall neglect or refuse for ten days after being requested by the mortgagor, his agent or attorney, to release such mortgage, such holder of a mortgage shall forfeit and pay to the mortgagor one per centum of the principal debt per diem from and after the expira, tion of the said ten days,” such right of recovery is limited to the mortgagor, and the penalty cannot be recovered by his grantee of the land.</p>

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Ohio; D. C. Westenhaver, Judge.</p> <p>Action at law by Hugh A. Sutherland against John Barton Payne, as agent operating the Pennsylvania Company. Judgment for defendant, and plaintiff brings error.</p>

<p>Shipping <&wkey;147 — Compressed cotton measured according to system in use at port of shipment, instead of system in use at place where compressed.</p> <p>Compressed cotton, being shipped from New York under a contract guaranteeing the cotton to be of a certain density to the cubic Coot, should be measured, in ascertainment of they number of cubic feet, by the Now York system of measuring a bale of cotton, around the bulge of the cotton, instead, of by the system, in use at the placé where the cotton was compressed and other Southern ports, of measuring the bale around the middle band between the bulges of the cotton.</p>

<p>In Error to the District Court of the United States for the First Division of the Northern District of California; Maurice I. Dooling, Judge.</p> <p>John Bacigalupi was convicted of offenses, and he brings error.</p>

<p>Internal revenue t&wkey;2 — Distillery provision of statute repealed by Prohibition Act.</p> <p>Bov. St. §§ 8258, 3279, 3281 (Comp. St. §§ 5991, 6019, 6021), relating to the operation of stills, were repealed by National Prohibition Act, § 35.</p>

<p>1. Removal of causes <&wkey;36 — Joining resident defendants not served does not prevent removal.</p> <p>In an action against a foreign railroad company, the joinder of six members of the train crew, whose names were unknown and who were not served with summons, does not prevent the action from toeing one against the corporation alone, so that it was entitled to remove to the United States court.</p> <p>2. Courts <&wkey;343 — State rule that master and servant cannot be jointly sued is controlling in federal courts.</p> <p>The established law in Ohio that a joint action cannot be maintained against a master and servant where the master’s liability arises solely from the legal relationship existing between them under the rule of re-spondeat superior is binding on the United States courts in determining the right to remove such action from the state courts.'</p> <p>3. Removal of causes <&wkey;49(l) — Controversy is separable if defendants could not be jointly sued under state law.</p> <p>An action against a foreign corporation and resident defendants presents a separable controversy which the foreign corporation can remove to the United States court, where, under the state law, the defendants could not be jointly sued.</p> <p>4. Railroads <&wkey;5)4, New, vol. 6A Key-No.- Series — Corporation not liable for negligence of Director General.</p> <p>The corporation owning a railroad is not liable for the negligent operation of the trains while the railroad was under the control of the Director General.</p>

<p>Commerce —Order oí Interstate Commerce Commission not reviewable.</p> <p>A finding by the Interstate Commerce Commission that a prior order making an allowance to tap lines for the haul of ears from place of loading to the junction point, based on mileage, covered only the direct movement from loading to junction point, and did not entitle a tap line to include additional distance necessary to reach a weighing scale, on the ground that it was not shown to be a necessary movement by such line, held correct as matter of law and not reviewable on the facts, where all the evidence on which it was based is not before the court.</p>

<p>In Admiralty. Suit by Fazel Aliammed and 32 others against the steamship City of Norwich.</p> <p>See, also, 273 Fed. 304.</p>

<p>1. Internal revenue —Assessment and enforcement of taxes held illegal.</p> <p>The action of the Internal Revenue Department in making assessments of taxes for illegal manufacture of liquor, filing liens and issuing warrants of distraint against citizens who had no notice or knowledge of the proceedings, and in many cases had not been charged with any offense, based on reports of prohibition agents, held without authority of law.</p> <p>2. Internal revenue <Sss,08 — To preclude injunction against collection of tax, the manner of assessment and collection must be legal.</p> <p>In order to make applicable Rev. St. § 3224 (Comp. St. § 5947), providing that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court,” the tax which is to be collected must be founded upon some proper subject of taxation, must be assessed in a proper way, and collected in a legal maimer.</p> <p>3. Internal revenue 45 — Taxes cannot be assessed and collected under National Prohibition Act.</p> <p>' Under the provisions of Volstead Act, tit. 2, § 35, internal revenue taxes cannot be assessed or collected. The double tax provided for in said section and the penalties prescribed are nothing more nor less than punishment for the commission of criminal offenses, and these penalties must be collected by civil actions or pronounced as judgments in criminal cases.</p> <p>4. Internal revenue <&wkey;45 — Assessment and collection of penalties by Internal Revenue Department may be enjoined.</p> <p>The penalties provided for the illegal manufacture or sale of liquor by Volstead Act, tit. 2, § 35, cannot be assessed, and collection made by distraint by the Internal Revenue Department, and a suit to restrain such collection is) not prohibited by Rev. St. § 3224 (Oomp. St. § 5947).</p>

<p>On Motion to Stay Proceedings.</p> <p>1. Courts <3=506 — Interlocutory injunction not denied by federal court because of pending action in state court, when stay in that court not aa broad as relief sought in federal court.</p> <p>Under Judicial Code, § 266 (Comp. St. § 1243), proceedings for an Injunction to restrain the enforcement of state statutes or administrative orders will only be stayed because of the pendency of an action in the state court to enforce such statute or order, when the action in the state court is such that the same issues can be framed and the same questions considered and decided as are raised in the federal court, and the temporary relief granted by the stay in the state court must be of as broad a scope as that asked in the federal court; and hence proceedings by telephone companies to enjoin the enforcement of existing rates could not be stayed, where the stay granted by the state court did not suspend an order of the Railroad and Warehouse Commission denying increased rates, and a state statute forbidding the charging of different rates than those on file with the commission. ■</p> <p>On Motion to Dismiss.</p> <p>2. Courts <3=299 — In suit to enjoin enforcement of telephone rates, complaint held to state cause of aetion within jurisdiction of federal court.</p> <p>In suits by telephone companies to enjoin state officials from enforcing existing telephone rates and an order of the state Railroad and Warehouse Commission denying an increase of rates, a company alleging diversity of citizenship, and that more than $3,000 was involved, and that the order denying an increase of rates would deprive the company of its property without due process of law, contrary to Const. Amend. 14, § 1, that the existing schedule was noncompensatory and confiscatory, and that, if the company disregarded the order and the existing schedule, it would be subject to criminal prosecution and punishment by fine or imprisonment, on its face stated a cause of action within the jurisdiction of the federal court.</p> <p>3. Courts <3=299 — Jurisdiction of federal court determined from plaintiff’s statement.</p> <p>The jurisdiction of a federal court is to be determined on the statement by plaintiff himself in his complaint.</p> <p>4. Telegraphs and telephones <©=>33 (1) — Commission's investigation of rates and companies’ applications for temporary increases held distinct proceedings.</p> <p>Where a state Railroad and Warehouse Commission commenced an investigation of telephone rates on its own initiative, and before completion of the investigation telephone companies filed applications for increased rates temporarily, the two proceedings were independent, and relief in the subordinate proceeding need not await relief in the main proceeding, nor need the relief in the main proceeding depend on whether the relief' in the subordinate proceeding was granted or denied.</p> <p>5. Courts 3=493 (3) — Notwithstanding provision for appeal from order of commission, telephone company held authorized to resort to federal court.</p> <p>Under Laws Minn. 1915, c. 152, as amended by Laws 1919, c. 183, authorizing the district court to modify final orders of the Railroad and Warehouse Commission fixing telephone rates and charges, if unreasonable or unlawful, and preventing the order of the commission from becoming final until decision of the appeal to the district court, the district court has only judicial power, and when an order of the commission was made the legislative stage had come to an end, and the judicial stage had been readied, and a telephone company, whose application for increased rates was denied, might resort to the federal District Court by suit for injunction, instead of resorting to the state district court.</p> <p>6. Public service cmhshíssmhs <§=>19Jé, New, vol. 12A K®y-No. Series — Telephone companies held eirtitled to enjoin enforcement of old rates, pending investigation before commission.</p> <p>Where a state Railroad and Warehouse Commission commenced an investigation of telephone rates on its own initiative, pending whicli telephone companies made applications for temporary increases in rates, which were denied by the commission, the telephone companies could sue in a federal court to enjoin enforcement of the order denying the temporary increases, though the main proceeding was still pending before the commission, where it was likely to continue for a very considerable period of time.</p> <p>• On Motion for Restraining Order.</p> <p>7. Telegraphs and telephones <3=533(1) — Restraining order permitting charging of increased rates granted, pending application for interlocutory injunction.</p> <p>Pending an application for an interlocutory injunction against the enforcement by state officials of existing telephone rates and an order of a state commission denying temporary increases, where it appears that the existing rates are confiscatory, that the companies have been trying for several months to get temporary relief, and that every day’s delay is important and perhaps vital, and it cannot he told when the application for an interlocutory injunction can be heard by three judges as required by law, a temporary restraining order, granting an increase in rates until the hearing of such application, will be granted, on conditions protecting customers in case it is finally determined that the increa.se ought.not to have been granted.</p>

<p>L Sales 43^434 — Complaint held not to allege nonconformity to description; “fine granulated,”</p> <p>In a complaint for breach, of warranty for a sale of Eastern cane fine granulated sugar, of a specified brand, allegations that the sugar was off and irregular in color and crystallization not up to the quality of standard Eastern cane sugar or the usual quality of the specified brand does not allege a breach of the warranty implied under New York Sales of Goods Act, § 95, that the goods shall conform to the description, since “fine granulated,” when applied to sugar, relates to the size of the granules, not to the quality.</p> <p>2. Sales —“Merchantable quality” means good enough, to pass under description.</p> <p>tinder New York Sales of Goods Act, § 96, subd. 2, implying a warranty that goods are of a merchantable quality “merchantable quality” means a good enough delivery to pass generally under that description after full examination.</p> <p>[Ed. Note. — -For other definitions, see Words and Phrases, Merchantable Quality.]</p> <p>8. Sales <S=272 — Buyer cannot complain if goods were of average quality of specified brand.</p> <p>A buyer of goods of a specified brand cannot complain that the goods were noil merchantable if in fact they were up to the average of the goods of that brand.</p> <p>4. Sales <©^272 — Dealer in specified brand impliedly warrants it is merchantable.</p> <p>A seller of goods, who is a dealer in the specified brand, impliedly warrants that the goods of that brand are of the average quality of that brand, under New York Sales of Goods Act, § 95, subd. 2.</p> <p>5. Sales <®=272 — General dealer does not impliedly warrant specified brand is merchantable.</p> <p>A general dealer in filling an order for a specified brand in which he does not especially deal, but purchases on the open market to fill the order, does cot impliedly warrant that the goods of- that brand are merchantable so that a complaint for breach of such implied warranty which fails to allege that the defendant was a dealer in that brand of goods is insufficient on demurrer.</p>

<p>1. Indictment and information &wkey;>184 — No variance because evidence shows persons alleged to be unknown were known to grand jury.</p> <p>In a prosecution for conspiracy to violate the National Prohibition Act by shipping a carload of whisky and distributing it among bootleggers or dealers, where the indictment named 31 conspirators, and there were various other persons who may or may not have been parties to the conspiracy, there was no fatal variance, because the indictment charged the defendants named with conspiring with divers other persons to the grand jurors unknown, while offered evidence would have shown that some of the other persons were known to the grand jurors, where the indictment alleged the means and overt acts with sufficient particularity to inform defendants of the nature and cause of the accusation, as required by Const. Amend. 6.</p> <p>2. Conspiracy <&wkey;47 — Participation in offense intendeá to be committed does not make defendant guilty of conspiracy.</p> <p>To establish a conspiracy to violate a certain criminal statute, the evidence must convince the jury that defendants did something more than participate in the substantive offense which was the object of the conspiracy.</p> <p>8. Indictment and informaticn <&wkey;124 (2) —AH conspirators need not be joined in singlo indictment.</p> <p>There is no requirement in the law that all conspirators be joined in a single indictment, and only such as may well be tried in one case should be named in one indictment.</p> <p>4. Criminal law <&wkey;883 (1), 681 — Evidence hold properly admitted, both as rebuttal and as within the court’s discretion to admit.</p> <p>On a trial for conspiracy to violate the National Prohibition Act, by shipping a carload of whisky under a false permit and distributing it to bootleggers and dealers, where defendants denied returning money to purchasers whose whisky was taken from them by “highwaymen,” as testified by witnesses for the government, and denied that M. was employed to sell any part of the carload of whisky, evidence in rebuttal that certain sums of money were sent to a witness in an envelope after a conversation with two of the defendants, and testimony of M. that he was so employed, was properly admitted, both because it was proper rebuttal and because it was within the court’s discretion to admit it, even though properly a part of the government’s evidence in chief.</p> <p>5. Criminal law <&wkey;599 — Defendants held not surprised, and not entitled to continuance of one day at close of government’s case.</p> <p>On a trial for conspiracy to violate the National Prohibition Act, defendants held not surprised by the government’s testimony, and hence the denial of a continuance for one day at the close of the government’s testimony was not error, especially where the court did take a short recess, and the defendants produced a witness who left the impression that further delay was unjustifiable.</p> <p>6. Criminal law &wkey;>510 — Uncorroborated testimony of accomplice may be sufficient.</p> <p>A conviction may rest on the uncorroborated testimony of an accomplice.</p> <p>7. Criminal law &wkey;>762(3) — Expression of opinion as to sufficiency of accomplice testimony should depend on testimony.</p> <p>If a requested instruction advising tbe jury that a conviction should not rest upon the unsupported testimony of accomplices was intended merely as an expression of the court’s opinion of the weight to be given such testimony, it was within the trial court’s judgment whether such expression of opinion should be given or not, and in expressing such opinion he should be guided by the testimony in the particular case rather than by any general rule.</p> <p>8. Criminal law <&wkey;'720(l) — Argument that alibi was “faired alibii” not improper; “fake.”</p> <p>Where it was the contention of the government that witnesses testifying to an alibi were either mistaken or testified falsely, it was not improper for counsel for the government in his argument to refer to the alibi as a faked alibi, since “fake” means to make or construct, and a “faked alibi” is a made, manufactured, or false alibi.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, Second Series, Fake.]</p> <p>9. Criminal law |&wkey;723(5) — Not court’s province to determine appropriateness of counsel’s characterization of defendant.</p> <p>It was not for the court to determine the wisdom or appropriateness of counsel’s characterization of defendant as a “Shylock,” but merely to determine whether there was any evidence to justify the argument, especially where the court told the jury to disregard the entire statement, on defendant’s counsel insisting that the statement reflected on defendant’s race and religion.</p> <p>10. Criminal law <&wkey;919(3) — Argument not ground for new trial, when in part supported by evidence and in part characterized by court as improper.</p> <p>Argument of counsel for the government that defendant was meek and humble on the-stand, and was not the same man that threatened E. with death in a certain station, or the same “king of the underworld,” who with a snap of his fingers held the lives of men in his grasp, did not require a new trial, where there was testimony that defendant did threaten E. with death in such station, and the court charged that the statement that defendant was king of the underworld and held the lives of people in the snap of his fingers was improper.</p> <p>11. Criminal law &wkey;>919(3) — Argument held not ground for new trial, where court charged jury not to consider anything outside the record.</p> <p>The argument of counsel for the government, if made as claimed, that defendant could swim in the tears he had caused, if gathered in one reservoir, did not require a new trial, where the court, who did not hear such argument, referred to the claim that it was made, and admonished the jury that anything outside the record was not proper.</p>

<p>In Equity. Suit for infringement of patent by the Mechanical Construction Company against the Locomotive Stoker Company, in which defendant by way of counterclaim alleged infringement of a patent by plaintiff.</p>

<p>In Equity. Suit by the J. & A. Freiberg Company against Charles I. Dawson and others.</p>

<p>1. Telegraphs and telephones <S=»33(1) — Notice of rate hearing before state commission waived.</p> <p>On a hearing before a state Railroad Commission between two telephone companies relating to the division of joint tolls, the Commission held not without jurisdiction because the notice to the parties did not state the proposed rates and their division as required by statute, where both parties appeared and took part in the hearing without objection, and where each knew in advance the division contended for by the other.</p> <p>2. Telegraphs and telephones <®=^33 (1) —State Commission held authorized to prescribe division of telephone tolls.</p> <p>A state Railroad Commission, having statutory authority to make joint telephone rates and provide for their division, held to have power to prescribe the division of tolls between a company operating general lines and a local company with whose exchange such general lines were connected, on messages going over the lines of both, as “joint tolls,” and as a matter of public concern, the division of the tolls having such relation to the rates themselves as might make a change in the latter necessary.</p> <p>3. Telegraphs and telephones <§»33(1) — Statutory authority to regulate rates not affected by contracts.</p> <p>Where a statute gives power to a state commission to regulate telephone rates, they cannot be removed from such power by contracts between parties.</p>

<p>1. Carriers —Limitation in MR of lading valid.</p> <p>A provision in a bill oí lading limiting the time of bringing suit for loss or damage to two years and one day after delivery of the property held valid and enforceable.</p> <p>2. Camera <S^>160 — Statutory extension fcecaase of suit dismissed! not ap- ' piieable to limitation in contract with earner.</p> <p>Park’s Ann. Civ. Code Ga. § 4381, providing' that a suit in renewal of one dismissed, bnt which had been brought in time, shall stand on the samo footing as to limitations as the original snit, applies only to statutory limitations, and does not extend the time for bringing a suit barred by a limitation in a contract with a carrier.</p> <p>3. Carriers -Not liable to SioMer of order MU of lading for shortage in weight of package freight.</p> <p>Dnder Bills of Lading Act Aug. 29, 1916, § 20 (Comp. St. § 8604jj), where a carrier loads package freight, like cotton in bales, it is required to state in the bill of lading only the number of packages and such marks or diseription as will serve to identify them, and a further statement in an order bill for baled cotton of the weight of the shipment is voluntary and gratuitous, aud where qualified by the words “subject to correction” does not render the carrier liable to a holder of the bill, under section 22 (section 8G04kk), for a shortage in the weight.</p>

<p>In Equity. Suits by John Rossie and by Ernst Rossie against Francis P. Garvan, Alien Property Custodian, and others.</p>

<p>1. Constitutional law <&wkey;81 — Scope of police powers of states.</p> <p>Any legislation which has for its purpose the conservation of the health, comfort, safety, and welfare of society and by its terms is reasonably conducive thereto, and not merely an arbitrary fiat, is a legitimate exercise of the police power.</p> <p>2. Constitutional law <&wkey;70(3) — Expediency of legislation not questionable by courts.</p> <p>The courts cannot declare invalid legislation professedly enacted in the exercise of the police power unless, looking through mere forms and at the substance, it clearly has no real or substantial relation to the object, but is a clear unmistakable infringement of rights secured by fundamental law.</p> <p>3 Constitutional law <&wkey;81 — All contracts and rights subject to police regulation.</p> <p>All contracts and all rights of property are subject to police regulation.</p> <p>4. Food &wkey;»l — Statute prohibiting use of misleading names or words in connection with substitute dairy products valid.</p> <p>Laws Or. 1921, p. 307, prohibiting the use by any person, firm, or corporation dealing in substitute dairy products as a part of a trade or corporate name, or in description of the product, or on labels, packages, or containers, or in advertising matter, 'of the words “milk,” “butter,” “cream,” “creamery,” “churn,” “cheese,” “cow,” or “dairy,” hold within the police power of the state and valid.</p>

<p>Habeas Corpus. On petition of Erwin R. Bergdoll for a writ to obtain release from confinement under seutence of a general court-martial.</p>

<p>Corporations <&wkey;482(8) — Proceeds on foreclosure distributed severally to bondholders^ and where feondiioMers do not appear, part apportioned to their bonds not found cannot fee clataed by other bondholders.</p> <p>Where, in a suit by a bondholder to enforce a mortgage, in which all other bondholders were permitted to intervene, on recovery, the total amount due to all bondholders was paid into court, such fund is not a common fund, but belongs to the bondholders severally in proportion to their holdings, and where the holders of some of the bonds have not appeared and the bonds have not been found, the other bondholders have no claim to the part of the fund apportioned to them.</p>

<p>1. Intoxicating liquors <&wkey;055 — Vehicle used in illegal transportation may not be sold by government prior to conviction of person arrested.</p> <p>Under National Prohibition Act, providing that in case of illegal transportation' of liquor the officer shall seize the liquor, take the vehicle, and arrest the person in charge of it, the vehicle to be returned to the owner on execution of bond, and that on conviction of the person arrested the court may order the sale of the vehicle, an automobile may not be sold because of being used in illegal transportation of liquor before the driver transporting the liquor is convicted.</p> <p>2. Intoxicating liquors <&wkey;24? — Vehicle used in illegal transportation not forfeited as a common nuisance; “kept.”</p> <p>Under National Prohibition Act, § 21, providing that “any * * * vehicle -* * * where intoxicating liquor * * * is manufactured, sold, kept or bartered * * * in violation of this title * * * is declared to be common nuisance,” and is forfeited, an automobile used in the illegal transportation of liquor is not forfeited as a common nuisance, where it was not alleged that the intoxicating liquor was manufactured, sold, or bartered in the automobile or kept therein and for such purpose ; “kept” meaning the keeping for sale or other commercial purpose.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Keep.]</p> <p>3. Intoxicating liquors <&wkey;255 — Vehicle used in illegal transportation not to be released during period of time trial can be had.</p> <p>Where an automobile was used in the illegal transportation of liquor, and was seized, but released to the owner on giving bond, since the automobile may not be forfeited until the driver is convicted of the offense of illegally transporting liquor, the automobile cannot be released, and the bond canceled until the expiration of the time within which the trial can be had.</p>

<p>¶. Customs cviíles &wkey;>130 — Good faith ©r tosiooence of owasr of automobile seized does not prevent forfeiture.</p> <p>The good faith or entire innocence of the owner of an automobile seized for violation of the revenue laws furnishes no reason why such automobile should not be forfeited to the United States and sold in accordance with the applicable statutes; the question of good faith being immaterial in libel proceedings to enforce such forfeiture and sale.</p> <p>%, Customs duties <&wkey;2 — Provisions fas customs laws for seizure of vehicles used fa unlawful SirapoitiatioE repealed by Volstead Act.</p> <p>The provisions of the customs laws (Rev. St. §§ 923, 3062 [Comp. St. §§ 1549, 5704]), providing that every vehicle carrying merchandise subject to duty or unlawfully imported shall be subject to seizure and forfeiture,' etc., have been repealed, in so far as they related to intoxicating liquors imported into the United States for beverage purposes, by the National Prohibition Act, popularly known as the Yolstead Act, which covers the subject-matter fully in title 2, § 25.</p>

<p>At Law. Action by Catherine Briscoe against the Philadelphia & Reading Railway Company. On motion by defendant for new trial.</p>

<p>1. Dismissal, and nonsuit &wkey;>5 — Plaintiff can take nonsuit before verdict.</p> <p>Under Michigan practice, plaintiff has, in the absence of statute to the contrary, an absolute right to take a nonsuit at any time before verdict.</p> <p>2. Courts <&wkey;351)á — Plaintiff entitled to take voluntary nonsuit in federal court in Michigan;</p> <p>In an action at law in a federal court sitting within the state of Michigan, plaintiff is entitled to the same right to take a voluntary nonsuit at any time before verdict that be is entitled to under Michigan practice.</p> <p>3. Courts <2=366(1) — Construction of state statute by state court followed by District Court of United States.</p> <p>The construction and application of a state statute by the court of last resort of such state will be followed and adopted by the District Court of the United States in giving effect to its terms.</p> <p>4. Dismissal and itansmt &wkey;>6 — Defendant, despite examination ©f plaintiff’s witness, bad not “entered on defense,” and plaintiff could take nonsuit.</p> <p>Where, after opening statement by counsel for both parties, six witnessed were sworn in behalf of plaintiff, and examined and cross-examined by counsel for plaintiff and defendant, respectively, defendant at such stage of the trial had not “entered upon” its “defense to the action in open court,” within the meaning of Compiled Daws Mich. 1915, § 14560, and plaintiff was entitled to submit to a voluntary nonsuit.</p>

<p>1. Courts <&wkey;>328(3)- — Value of good will; element of value involved for jurisdictional purposes.</p> <p>In a suit to enjoin an alleged unfair trade practice affecting the value of complainant’s good will, such value may he considered in determining the amount involved for jurisdictional purposes.</p> <p>2. Trade-marks and trade-names and unfair competition &wkey;>S8 — Unfair trade . practice may be enjoined.</p> <p>Complainant, which makes and sells a well-known syrup for soda fountains, to be diluted with carbonated water and sold to the public as a drink, held entitled to an injunction to restrain defendants, who operate a soda fountain, from diluting complainant’s syrup and adding other ingredients before placing it in their fountain, and drawing and selling the mixture as complainant’s drink.</p>

<p>Ac-tion <&wkey;4B(3) — ñtatesnant cf claim for negligence held sufficient.</p> <p>The statement of claim in an action based on negligent injury held not insufficient because of allegations that the acts or omissions of defendant constituted actionable negligence at common law and also under state statutes.</p>

<p>At Law. Action by the Providence Stock Company against the Addphia Hotel Company. On motion by defendant for new trial.</p>

<p>Comts &wkey;>343- — HThiril persons, wlioss rights eannot be affected, not entitled to intervene.</p> <p>In a suit by the assignee of certificates of stock of a corporation to compel issuance by the corporation of new certificates in his name, where the extent of his ownership or interest in the assigned shares is not in issue, but his claim is based solely on the assignment of the legal title, the rigid s of third persons, claiming an interest in the stock subject to his interest, cannot be affected by the finding or decree of the court, and they are not entitled to intervene under equity rule S7 (198 Jfed. xxviii, 115 C. C. A. xxviii).</p>

<p>Internal revenue <©=>28 — Court Carnot eaijoin collection of tax.</p> <p>A federal trial court, having no jurisdiction to enjoin collection of an internal revenue tax, will not make a finding that what is called a tax in an act of Congress is not in fact a tax, but an imposition which Congress was without power to make, and enforcement o£ which may be enjoined.</p>

<p>Aliens —Refusal to bear arms bar to naturalization.</p> <p>Under Naturalization Act, § 4(3), as amended ,(Comp. St. § 4852[3]), ' requiring an alien, before admission to citizenship, to declare on oath in open court that he “will support and defend the Constitution and laws of the United States against all enemies, foreign and domestic, and bear true faith and allegiance to the same,” an alien, who states that he would not willingly serve in the field in the military forces in case of war, cannot take such oath without mental reservations and is not eligible to citizensfiip.</p>

<p>In the matter of the Mitchell Motor & Service Company, Inc., bankrupt. Petition for review of order of referee.</p>

<p>In Equity. Suit by Ernest Lipke against Ephraim Lederer, Collector of Internal Revenue. On motion for preliminary injunction and motion to dismiss bill.</p>

<p>Naturalization Petition. In the matter of the application .{or citizenship of .Francis M'cEean Jupp.</p>

<p>Petition by Carrie G. Lewis against William J. McCarthy and others for the return of an automobile.</p>

<p>1. Master and servant @=>216(1) — Evidence held to warrant recovery tor brakeman’s injuries.</p> <p>In an action for injuries to a brakeman, struck by cars behind which ho was passing when they were put in motion by other cars bumping against them, evidence held sufficient to warrant findings that the railroad company failed-to equip the standing cars with sufficient and adequate brakes, in violation of the Safety Appliance Act (Comp. St. §§ 8605-8620) ; that it was negligent in kicking cars unattended at the rate of 10 or 15 miles an hour against the standing cars, and in not providing rules limiting the speed; that plaintiff was not negligent in crossing the track, and did not assume the risk; that the injury was due to defendant’s negligence in kicking the cars against the standing cars; and that the failure to sufficiently and adequately equip the standing cars with brakes also contributed to the injury.</p> <p>2. Master and servan* <3=>2C4(2), 228(2)- — Contributory negligence asid assumption of risk immaterial, when brakes are Irssuffseient.</p> <p>Under Act April 22, 1908, §§ 3, 4 (Comp. St. §§ 8659, 8660), Act April 14, 1910, § 2 (Comp. St. § 8618), and Act March 2, 1893, § 8, a railroad company’s duty to equip and maintain cars with sufficient and adequate brakes was an absolute one, and if it failed to do so an injured brakeman’s contributory negligence or assumption of risk was immaterial.</p> <p>2. Master am! servant @=>288 (3) - — Brakeman’s assumption of risk tor jury.</p> <p>A railway brakeman, passing behind cars standing in the yards, did not as a matter of law assume the risk of injury from other cars being kicked against them, where there was evidence that it was an unusual occurrence and a departure from the ordinary conduct of the business to kick cars at such a rate of speed as was used.</p> <p>4. Trial @=>260(1) — -Refusal of instructions already given not error.</p> <p>The refusal of requested instructions which had already been given in the charge, or the substance of which had been previously given, was not error.</p> <p>5. Master and servant @=>285(1) — Proadmate cause of brakeman’s injury ti®M for jury.</p> <p>In an action for injuries to a brakeman, struck by cars behind which he was passing when they were put in motion by other cars kicked against them, where there was evidence that the brakes on the standing cars were not in good order, it was a question for the jury whether this alleged violation of the Safety Appliance Act (Comp. St. §§ 860-5-8623), was a contributing cause of the injury.</p> <p>6. Master arad servant <S=210 (5) — Evidence as to stopping cars with brakes before injury held admissible.</p> <p>In an action for injuries to a brakeman, struck by cars put in motion by others kicked against them, where it was claimed that the brakes on the standing cars were not in good order, evidence that when they were kicked, a few minutes before the accident, a brakeman riding thereon undertook to stop them where he was directed, but that because of the condition of the brakes they went several car lengths beyond where he wanted, and reasonably expected, to stop them was admissible.</p> <p>1. Appeal and error @=>1018(5) — Quection held harmless, in view of answer.</p> <p>In a brakeman’s action for injuries, in which it was claimed that the brakes on cars put in motion when struck by others wore defective, a question asked a conductor as to whether such cars did not go further than he intended them to go, when kicked shortly before the accident, was harmless, where he answered that he had no particular place in mind where the cars should stop.</p> <p>8. Appeal and error @=»231(7) — -When mistake in question not called to counsel’s attention, objection mot available on appeal.</p> <p>Where the inadvertent reference to a railroad for which a witness was working at the time of the trial, in a question concerning his knowledge of the ordinary speed at which cars were dropped or kicked, and the distance loaded standing cars would move when struck by cars kicked against them, was not called specifically to the attention of counsel, the objection is not available on appeal.</p> <p>9. Appeal and error £¡=>1033 (3) —Evidence held more favorable to defendant than plaintiff, and not prejudicial.</p> <p>In an action for injuries to a brakeman, struck by cars set in motion when others were kicked against them, the testimony of a witness concerning the ordinary speed at which cars were kicked, and the distance loaded standing cars would move when others were kicked against them, held more favorable to defendant than to plaintiff, and not prejudicial to defendant, especially where it was cumulative.</p> <p>10. Witnesses <3=^388(4) — Wages of teakemen at tim© of trial held properly proved on redirect examinaitiom in ferakemari’s action for injuries.</p> <p>In a brakeman’s action for injuries, where defendant on plaintiff’s cross-examination brought out the facts that at the time of the injury he was receiving $25.90 a week for seven days of work, and at the time of the trial was receiving $23 a week for six days of work in a drug store, evidence on redirect examination that at the time of the trial brakemen were making $6.48 a day was properly admitted, to show the wages he would have received in his usual employment, but for the injury.</p> <p>11. Evidence <§=>314(1) — Testimony concerning wages of brakemen not hearsay, when witness testifies from personal knowledge.</p> <p>In a brakeman’s action for injuries, though he was not working as a brakeman at the time of the trial, his testimony as to the then wages of brakemen was not objectionable as hearsay, where he was apparently testifying from personal knowledge.</p>

Trippet, Judge. Action by T. W. Jenkins & Co. against the Anaheim Sugar Company. Judgment for plaintiff, and defendant brings error. The case is here for the second time — the first occasion having been a writ of error bringing up the ruling of the trial court Sustaining a demurrer to the complaint. 247 Fed. 958, HiO C. O. A. 658, L. R. A. 19181Í, 293.

Cushman, Judge. Ei bel by Charles D. Willits and I. L. Patterson, copartners doing business under the firm name of Willits & Patterson, against the Toyo Kisen Kaisha, a corporation, as claimant of the Japanese steamship Korea Maru, her engines, boilers, boats, tackle, apparel, and furniture, and the United States Fidelity & Guaranty Company, her stipulator. Judgment for libelants, and defendants appeal.

<p>1. Aliens <S=>54 — Deportation proceedings held not barred by Immigration Act enacted subsequent to alien’» entrance.</p> <p>Immigration Act Feb. 5, 1917, § 19 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4289%3l), providing that deportation may be had at any time within three years after entry of any alien who shall have entered the United States by land at any other than a designated port of entry, or who enters without inspection, being retroactive to include aliens who entered before the passage of the act, and the third proviso of such section, declaring the provisions thereof, “with the exception hereinbe-fore noted,” applicable to the classes of aliens therein mentioned, irrespective of the time of their entry, having no relation to the classes of aliens mentioned in such section, the time for deportation of whom after entry is fixed, a proceeding for the deportation of an alien lihely to become a public charge at the time of his entry, who entered without inspection prior to the passage of such act, is not barred by section 38 (section 4289%u) thereof, providing that nothing contained in the act shall he construed to affect any prosecution except as mentioned in the third proviso of section 19, provided such proceedings were commenced within the time limit fixed by the act.</p> <p>2. Aliens <©^54 — Court bound by conclusions of Secretary of ILabor im deportation proceedings, where evidence is conflicting as to identity of alien sought to be deported.</p> <p>In a proceeding for the deportation of an alien, who entered the United States without inspection, where the testimony of the Immigration Inspector, before whom the hearing was had, and of a companion, who was with such alien at the time he entered the United Stales, and other evidence, was conflicting as to his physical characteristics, but was competent, in view of the practice before an inspector of immigration, and tended to identify the alien as the man wanted, the record was one for the exercise of independent judgment by the Secretary of Labor, by whose conclusions the court is bound.</p>

<p>Master and servant @^69 — Under statute, brakeman held entitled for eight hows to contract wages for ten hours.</p> <p>Under Adamson Act, §§ 3, 4 (Comp. St. §§ 8680c, 8680d), providing that, during a certain period, wages of railway employees should not be reduced below the existing standard day’s wage, and that time in excess of eight hours should be paid for pro rata, where a contract in force when the act took effect provided for a ten-hour day, and provided that the rates of wages prescribed should not be taken as a basis for the purpose of figuring a schedule under an eight-hour day, if subsequently adopted, there was no fixed schedule of rates between the parties, and a brakeman was entitled for an eight-hour day to as much as he had been receiving for a ten-hour day.</p>

Van Pled, judge. Suit by Uorraine de la Montanya Crittenden and others against Narcissus Augustus Dorn and others. From a decree dismissing the suit, plaintiffs appeal.

<p>1. Master and servant <©=>264(12) — Evidence of defective .eyebolt held to support allegation of negligence in providing “tackle.”</p> <p>In an action for personal injury by a seaman on a barge, an allegation in the statement of claim, that the defendant was negligent, “in that no suitable tackle was provided * * * for the carrying on of the work required of this plaintiff on the said barge,” held supported by evidence that an eyebolt in t-he deck in which the hook of a snatch block in use in hauling another barge alongside was inserted was so bent that only the point of the hook was engaged, causing the hook to break under the strain; such hook being a part of the “tackle,” within the meaning of that word as used in the statement.</p> <p>2. Trial <&wkey;309 — Inspection by jury may be determinative.</p> <p>On the question of the cause of the breaking of a hook, held by an eyebolt, where the jury had the hook and eyebolt before it, together with testimony that the eyebolt was in such bent position that only the point • of the hook could be inserted therein, the issue is not wholly dependent on the oral testimony, but may be determined by the jury from their inspection.</p> <p>3. Admiralty <&wkey;2 — District Court has jurisdiction at law of action for maritime tort.</p> <p>Under Judicial Code, § 256, subd. 3 (Comp. St. § 1233, subd. 3), giving to the District Courts exclusive jurisdiction of all civil causes of admiralty and maritime jurisdiction, “saving to suitors in all cases the right of a common-law remedy where the common law is competent to give it,” a District Court has jurisdiction on its law side of an action for a maritime tort, where the jurisdictional requisites of citizenship and amount; are present, the liability and damages to be measured by the rules applicable to admiralty, cases.</p> <p>Woolley, Circuit Judge, dissenting in part.</p>

<p>1. Patents <&wkey;328 — 845,222, for improvement in Fourfirinier machines, held invalid and not infringed.</p> <p>The Eibel patent, No. 845,222, for an improvement in Fourdrinier machines for malting paper, claims 7 and 8, held void for lack of invention. Claims 1, 2, 8, and 12, if construed to cover any elevation of the breast roll of the paper-making wire appreciably greater than that shown by the prior art, are void for indefiniteness and as differentiated from the prior art only by a mere change in degree. If construed in accordance with the natural import of the language, as requiring such a pitch of the paper-making wire as will alone, through gravity, without regard to the head in the flow box, bring about speed equality between the stock and the wire, and practically eliminate the drag of the wire, it discloses no useful invention, since no such pitch has ever been used or claimed to be useful in practice. If conceded validity, as so construed, held not infringed.</p> <p>2. Patents l&wkey;19 — Mere change in degree not patentable.</p> <p>A patent on a mere difference in degree in the use of a principle shown in the prior art is invalid.</p> <p>3. Patents &wkey;52 — Incidental, but known, benefits of prior art practice not patentable.</p> <p>The principle which gives a patentee the benefit of advantages of his invention, which he did not discover, also applies to prior art uses.</p>

<p>Appeal from the District Court of the United States for the District of Massachusetts; George W. Anderson, Judge.</p> <p>Suit by the United States Drainage & Irrigation Company against the City of Medford. From a decree dismissing the bill, plaintiff appeals.</p>

<p>1. Indictment and infonnaiian <&wkey;203 — Judgm-siit not reversible where sentence is supported under one good count of inflieimeitt.</p> <p>Where the sentence imposed on a defendant convicted on a number of counts is less than might have been imposed under any one of the counts, the judgment is not subject to reversal for insufficiency of the indictment, if any one count is good.</p> <p>2. Indictment and information, <&wkey;129(l) — Poisons —Indictment under Narcotic Act held sufficient ¡Midi counts not 'duplicitous.</p> <p>An indictment charging defendant in separate counts with violation of Harrison Narcotic Act Dec. 17, 3914, §§ 1, 2 (Comp. St. §§ 6287g, S287h), in selling and dispensing morphine sulphate both as a physician and as a dealer, held sufficient and the counts not duplicitous nor inconsistent.</p> <p>3. Criminal law &wkey;878 (4) — Acquittal on one count held not inconsistent with conviction ok another.</p> <p>An acquittal on a count charging defendant with having unlawfully obtained, as a registered physician, morphine for the purpose of sale as a dealer, held not inconsistent with his conviction on another count charging him with the sale of some of such morphine as a dealer without having registered as such and without taking orders on the required forms.</p> <p>i. Criminal law <&wkey;!G‘}ii (8), 1044, 1051 (3) —Sufficiency of evidence not re-viowable where question not raised below.</p> <p>Where there was no motion by defendant for directed verdict, nor request for instructions, nor exceptions to instructions given, the sufficiency of the evidence is not reviewable as matter of right in the appellate court.</p> <p>5. Criminal law &wkey9'?2 — Motion in arrest lies only for error on face of record.</p> <p>A motion in arrest of judgment lies only for error on the face of the record, which does not include the evidence or charge.</p>

<p>1. Monopolies &wkey;>11(2) — Leasirag of gasoline tanks exclusively for purpose of storing gasoline purchased from lessor not objectionable.</p> <p>The practice of leasing at a nominal rental tanks and automatic measuring pumps for storing and distributing of gasoline, on condition that they be used exclusively for the purpose of storing and marketing gasoline purchased from the lessor, does not violate Federal Trade Commission Act, § 5 (Comp. St. § 8S36e), nor Clayton Act, § 8 (Comp. St. § 8835c), such system being competitive, advantageous to the public, and economical, and will not be prohibited, because tending to monopoly.</p> <p>2. Commerce —Evidence and stipulations held insufficient to show use of gasoline tanks in interstate commerce.</p> <p>An order of the Federal Trade Commission to desist from the practice of leasing gasoline tanks and measuring pumps to be used exclusively for gasoline purchased from the lessor, based on the theory that the parlies were engaged in interstate commerce, field contrary to evidence and stipulations, showing that the equipment was shipped into Ohio, in the name of the lessor, and that inters!ate transportation had been fully accomplished and ended before the equipment was used.</p> <p>3. Commerce &wkey;>33 — Order to desist from leasing of gasoline tanks held not warranted, on theory of interference with interstate commerce.</p> <p>An order of tlae Federal Trade Commission to desist from the practice of leasing gasoline tanks to be nsed exclusively for gasoline purchased from the lessor, engaged in intrastate commerce only, held not justified, on the ground that competitors were engaged in interstate commerce, and that the interstate and intrastate transactions were closely related, and that hence such practice cast a burden upon interstate commerce.</p>

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Ohio; D. C. Westenhaver, Judge.</p> <p>Suit in equity by George Clements against james B. Kirby. Decree for defendant, and complainant appeals.</p>

<p>In Error to the District Court of the United States for the Western Division of the Southern District of Ohio; John W. Peck, Judge.</p> <p>Action at' law by James P. Lewis, Banking Commissioner of the Commonwealth of Kentucky, against the Fifth-Third National Bank of Cincinnati. Judgment for defendant, and plaintiff brings error. On motion by defendant to dismiss.</p> <p>On the 11th day of April, 1906, George Alexander and eight other citizens of Kentucky organized a banking corporation under the name of George Alexander & Co., Bankers, which name was later changed to the George Alexander & Co. State Bank, Incorporated. The articles of incorporation provided among other things that the highest amount of indebtedness or liability which the corporation might incur should not at any time exceed $10,000 over and above itsi liabilities to depositors and its liabilities upon bills of exchange, checks,'or drafts upon other banks having its funds upon deposit. At divers times between January 22, 1914, and May 5, 1914, inclusive, this bank borrowed from the defendant, The Fifth-Third National Bank of Cincinnati, three several sums, aggregating $85,000, and at the same time indorsed and delivered to the defendant as collateral security 16 promissory notes, aggregating about $56,000.</p> <p>The George Alexander & Co. State Bank later became insolvent and turned over its property to Thomas J. Smith, banking commissioner of the commonwealth of Kentucky, and Buckner Woodford, special deputy banking commissioner of that commonwealth, who took possession thereof and proceeded to wind up the affairs of the insolvent hank in pursuance and by authority of chapter 4 of the Session Acts of the General Assembly of the commonwealth of Kentucky of 1912. A demand was made upon the defendant by the banking commissioner and special deputy banking- commissioner for the return of all the notes held by it as collateral to secure the payment of the debts due it from the George Alexander & Oo. State Bank, which demand was refused, and later this action was brought in the United States District Court -for' the Southern District of Ohio, Western Division, for an order directing this defendant to deliver said notes held by it as collateral to the plaintiffs as banking commissioner and deputy banking commissioner of the commonwealth of Kentucky, or in lieu thereof a judgment for their value. This suit was based upon the provision in the charter of the George Alexander & Co. State Bank limiting the amount of indebtedness that it might incur to $10,000. Later George C. Speer, as banking commissioner, was substituted as plaintiff in place of Thomas J. Smith, banking commissioner, and Buckner Woodford, as deputy hanking commissioner. When the term of Geo. G. Speer as banking commissioner expired, his successor in office, the present plaintiff in error, Jas. P. Lewis, was substituted as party plaintiff.</p> <p>On November 14, 1914, an amendment to the petition was filed, which averred, among other things, that the defendant had collected $48,640.37 on these notes deposited with it as collateral security, and had applied that sum to the payment of the $35,000 indebtedness, evidenced by the three promissory notes and the $8,640.37 overdraft, with interest thereon owing by the George Alexander & Co. State Bank to the defendant. The petition admitted that $10 000 of this money collected was properly applied to the payment of the first |10,()00 note, and asked judgment In the sum of $33,640.37, the balance of the sum realized upon the collateral securities and applied by the defendant to the payment of the two other notes and overdraft.</p> <p>The defendant filed an amended answer to the petition as amended, in which answer, among other things, it averred that J. W. Bacon, W. W. Mitchell, It. B. Hutehcraft, 13. P. Claybrook, John M. Brennan, and Harry Olay were and had been continuously since June 29, 1907, the duly elected, qualified, and acting directors of said bank and its predecessor, George Alexander & Co., Bankers; that said board of directors, or a majority of them, by resolution formally adopted and furnished by said bank to defendant herein, authorized the several loans and each of them thereafter made by defendant to said bank, which said loans were made and the collateral accepted by defendant, in the regular course of business without knowledge of any restric- ■ tion upon the power of said bank to make the same; that said directors are and have been at all times herein collectively able to respond to any judgment or judgments in amounts sufficient to make good all valid outstanding claims of creditors and depositors of the George Alexander & Co. State Bank. The defendant also averred that on July 18, 1914, the original plaintiffs in tliis action filed in the circuit court of Bourbon county, Ky., a pe-Uiion against these directors, alleging that as such directors they had unlawfully declared and paid the sum of ,834,800 to the stockhoders, but that said bank had not earned said dividends, or any part (hereof, and that at the time such dividends were paid the George Alexander & Co. State Bank was insolvent, and that such declaration and payment of dividends was in violation of the statutes of Kentucky; that said directors were liable, not only for the dividends so wrongfully paid, but for all valid claims against the bank totaling $143,081.23, on the ground that through negligence of said defendants as such directors the president of the George Alexander & Co. State Bank hart made excessive loans to insolvent persons, and had allowed large overdrafts to insolvent persons, and had appropriated large amounts of the money of said bank to his own use; that said suit is still pending and undetermined on the (locket of said circuit court of Bourbon comity, Ky., and is being prosecuted by the plaintiff in this action, substituted for Thomas J. Smith, banking commissioner.</p> <p>The defendant further averred that on February 25, 1915, the predecessor of Thomas J. Smith, as banking commissioner of the commonwealth of Kentucky, and Buckner Woodford, as special deputy banking commissionex* of said commonwealth, filed their certain other petition in said circuit court of Bourbon county, Ky., against these same directors, alleging that they were liable jointly, severally, and individually in the sum of $83,319, with interest thereon, on the ground that they had negligently and in violation of their duties as directors of said hank loaned and permitted to be borrowed by one George Alexander, the president of said bank, and to other persons from time to time, without having security or) sufficient security for said loans, certain moneys of said bank in excess of the amount or amounts which the law of Kentucky permitted to bo loaned by said bank to said person or persons, and had permitted depositors in said bank to overdraw their accounts, contrary to law, which cause is still pending and undetermined, and is being prosecuted by plaintiff as the successor of said Thomas J. Smith, banking commissioner. The defendant also denies that all the assets of said George Alexander & Co. State Bank will not be sufficient to discharge its indebtedness to its 'depositors and creditors having valid claims, and that it will be necessary to use said notes given to defendant as collateral, or the proceeds, to satisfy the creditors or depositors of the State Bank; that if said loans were ultra vires the directors of said State Bank are personally responsible to plaintiff, and that this suit was instituted and is prosecuted for the benefit of said persons, directors of said bank and primarily liable for its alleged losses, and who are responsible and financially able to meet said responsibility, for the purpose of avoiding or reducing their liability.</p> <p>The plaintiff filed a motion to strike this answer from the file, or, in'the alternative, to strike out certain averments therein pleaded. Pending this motion the present plaintiff in error succeeded George G. Speer as banking commissioner for the commonwealth of Kentucky, and filed a supplemental petition and second amendment to the petition. The court overruled the motion to strike the amended answer from the files, and it also overruled in part the alternative motion to strike certain averments from the amended answer, but sustained that motion as to averments in that answer and which are not now important.</p> <p>The plaintiff then filed a reply to this amended answer, denying that the directors of the George Alexander & Go. State Bank named in the answer are or have been at all times collectively able to respond to any judgment or judgments in amounts sufficient to make good all valid outstanding claims of creditors and depositors. It denied that this suit is being prosecuted in the interest of the directors of the George Alexander & Go. State Bank; that in the action brought by this plaintiff in the Bourbon county court against these directors he did not allege as a fact that said directors were liable, hut avers that in said actions the liability of said directors was alleged as a legal conclusion; that, for lack of information upon which to form a belief, the plaintiff denies that the amount necessary to pay the creditors and depositors of said George Alexander & Go. State Bank can be recovered from the defendants in said cases in the Bourbon county circuit court of Kentucky, and avers that until the conclusion of said actions it will be impossible to determine whether or not such amount or amounts can be recovered from said defendants.</p> <p>Upon this state of the pleadings the court entered judgment for the defendants, and this proceeding in error is brought in this court to reverse that judgment. A motion has been 'filed in this court by the defendant in error to dismiss this action, on the ground that plaintiff in error has adjusted and settled the claims of all creditors of George Alexander & Co. State Bank, and has assigned all the assets of said bank to J. W. Bacon, W. W. Mitchell, John M. Brennan, E. P. Claybrook, and Harry B. Olay, being the directors of said bank named in the amended answer of the plaintiff at page 30 of the printed record. In support of this motion there' was filed in this court a certified copy of the order entered by the Bourbon county circuit court of Kentucky, affirming a compromise agreement between the parties to suits Nos. 10227 and 10094 in that court, in which compromise agreement it is provided that each depositor and bona fide creditor should receive his claim as theretofore allowed in the amount and upon which the distribution has heretofore been made, without interest, less costs and allowances hereinafter incurred and made. It was further provided in the order confirming the compromise agreement that, in case any creditor or depositor fails or refuses to accept the amount due him or her under this order on or before January 1, 1922, the amount so due such creditor shall be paid by the banking commissioner to J. W. Bacon, W. W. Mitchell, John M. Brennan, E. P. Claybrook, and Harry B. Olay immediately after said date and without further order of this court.</p> <p>This order confirming this compromise was entered October 18, 1920, and on November 24, 1920, a further order was entered, which order states that these defendants had paid in pursuance of this compromise agreement $93,-277.82, which said sum, the special deputy banking commissioner accepted in full satisfaction and settlement of all claims which he as special deputy banking commissioner'may have against said parties, and thereupon agreed to dismiss and settle the two cases Nos. 10227 and 10094 pending in that court. Upon these facts, as above stated, it was ordered that “both of said suits be dismissed, settled.” This order further recites that “the claim of the banking commissioner against It. B. Hutcheraft, one of the defendants in said two suits, who has not paid any part of said money, is hereby assigned to said J. W. Bacon, W. W. Mitchell, John M. Brennan, E. P. Claybrook, and Harry B. Clay, and all other assets of Geo. Alexander & Co. State Bank, after the settlement is carried out according to the order entered herein on October 18, 1920, are also assigned to them.”</p> <p>It is admitted by the plaintiff in error that this settlement was made by him with the approval of the court in the two several cases pending against these directors oC the George Alexander & Co. State Bank, as shown by these certified copies of the order entered by that court in reference thereto; that the defendants in that suit of her than Hutcheraft paid to him the sum of !¡?93,277.82 in full settlement and satisfaction of the claims asserted against them by the banking commissioner of the commonwealth of Kentucky in both of these actions, and that in pursuance of the settlement agreement, and in consideration of the payment to him by these directors of sufficient money with which to discharge the debts of the defunct; bank, he has assigned ail the assets of that bank, including the claim in suit, to these directors.</p>

<p>1. Larceny <&wkey;l — “Steal” and “take” defined.</p> <p>To constitute “stealing” there must he an unlawful taking and carrying away, with intent to convert to the use of the taker and permanently deprive the owner, and to “take” a thing, within the meaning of the criminal statutes, it is necessary that the taker, at some particular moment, should have adverse, independent, absolute possession of it.</p> <p>[JSd. Note. — For other definitions, see Words and Phrases, First and Second Series, Steal; Take.]</p> <p>2. Larceny &wkey;>l — Prosecution for stealing goods in interstate commerce must conform to statute as t® place ci theft.</p> <p>To authorize a conviction, under Act Feb. 13, 1913, § 1 (Comp. St. § 8603), making it an offense to “steal or unlawfully take, carry away or conceal * * * from any railroad car, station house, platform, depot, steamboat, vessel or wharf with indent to convert to his own use any goods or chattels moving as, or which are a part of, or which constitute an interstate or foreign shipment of freight or express, * * * or have in his possession any such goods or chattels, knowing the same to have been stolen,” it must be alleged and proved that the property was stolen from one of the places specified in the statute.</p> <p>3. Receiving stolen goods <&wkey;2 — Stolen goods, after recovery by owner, are not “stolen property.”</p> <p>Where the actual physical possession of stolen property has been recovered by the owner or his agent, its character as stolen property is lost, and its subsequent delivery by the owner or agent to a particeps criminis, for the purpose of entrapping him as the receiver of stolen goods, does not establish the crime.</p>

<p>1. Camera ©=>.333 (5) — Jumping from moving trato contributory negligence.</p> <p>Under Railroads and Canals Act N. 3. § 55, providing that one injured by jumping from a car while in motion shall be deemed to have contributed to the injury sustained, and shall not recover therefor from the company owning or operating the railroad, there can be no recovery for the death of one jumping off the train while moving.</p> <p>2. Carriers ©=>334 — Eiding on platform in violation of notice contributory negligence.</p> <p>Under Railroads and Canals Act N. J. § 39, there could be no recovery for the death of a passenger going on the platform and steps of the car while the train was in morion, in violation of a printed notice, and thrown from the train by the swaying and jolting thereof.</p> <p>3. Courts ©=>385 — Rule of state court as to last olear chance followed.</p> <p>In an action for death occurring in New Jersey, the federal court follows the rule of the state court that, to entitle plaintiff to recover under the last clear chance doctrine, defendant’s negligence must be so gross as to imply a disregard of consequences or a willingness to inflict injury.</p> <p>4. Carriers ©=>346(3) — Evidence heM net to show gross negligence after discovering passenger’s peril.</p> <p>In an action for the death of a passenger, who jumped or was thrown from the steps of a car and rolled under the train, evidence held insufficient to show gross negligence with respect to the stopping of the train after a trainman knew of his dangerous situation.</p> <p>5. Carriers <®=348(12) — Instruction on last clear chance cfoctrine held sufficiently favorable to plaintiff.</p> <p>In an action for the death of a passenger, who Jumped or was thrown from the steps of a car and rolled under the train, an instruction sufficiently charging the doctrine of last clear chance, but claimed to be erroneous because of the statement that the jury should keep in mind tnat this hinged on whether or not deceased was thrown from the train by a violent lurch or jerk, held sufficiently favorable to plaintiff, where the evidence at most showed concurrent negligence.</p> <p>6. Mal <S=257 — Refusal of requests presented after charge held discretionary..</p> <p>Where requested charges were not made necessary by the charge given, and there was nothing to suggest inadvertence, mistake, or error in not presenting them earlier, it was discretionary to charge or refuse them, especially where it was the custom in the district to present them before counsel began to sum up to the jury, though there was no written rule on the subject.</p>

<p>1. Criminal law <®=s5,1088 (3)— Support for assignment of error based on insufficiency of evidence as- to identity held not famished by request to charge.</p> <p>An omnibus request to charge that under all the evidence verdict should be for defendant was not enough to call the trial judge’s attention to claim that the evidence did not show identity of certain shipments of shoes with the shoes stolen and subsequently received by defendant, so as to furnish support for an assignment of error based on that claim.</p> <p>2. Receiving stolen goods —Knowledge of theft from interstate shipment not essential.</p> <p>Under the statute denouncing the crime of having in possession goods stolen from an interstate shipment, knowing they had been stolen, It is immaterial that defendant did not know that they were stolen from such a shipment; he taking the chance that they had been so stolen and receiving them at his peril.</p> <p>8.'Criminal law @=»510, 780 — Conviction may be had on uncorroborated testimony of accomplices; the jury being cautioned to scrutinize it carefully.</p> <p>While the jury should be cautioned to scrutinize most carefully the uncorroborated testimony of accomplices, there is nothing which forbids a conviction atf common law or in a federal court on such testimony.</p> <p>4. Criminal law l@==3'822(15) — Charge on defendant’s testimony held fair.</p> <p>A charge to the effect that in weighing defendant’s testimony the jury might consider his interest but are to accept or reject it according to their honest judgment whether it is in accord or in conflict with the' truth, held, as a whole, full, fair, without prejudice, and free from error.</p>

<p>Appeal from the District Court of the United States, for the Eastern Division of the Northern District of Ohio; D. C. Westenhaver, Judge.</p> <p>Suit by the Sandusky Foundry & Machine Company against D. Sen-saud de Ravaud and others. From a judgment for defendants, plaintiff appeals.</p>

<p>1. Patents <&==>37 — Device held not an invention.</p> <p>A device to steer an automobile trailer by means of a draft bar attached to a truck pulling a trailer held too closely allied in art to the steering gear of an automobile to be patentable.</p> <p>2. Patents <§=>38 — Extension rearward and downward of draft bar held not new and novel in art.</p> <p>Extension rearward and downward of a draft bar, used in the steering apparatus of a trailer pulled behind a truck or automobile, is not new or novel in the art, so as to be patentable.</p> <p>3. Witnesses <@=>99 — Official of corporation which is a party to the suit is competent witness.</p> <p>That a witness is secretary and treasurer of corporation which is a party to the suit does not disqualify him as a witness.</p> <p>4. Appeal and error <®=890 (5) — Objection to testimony of witness, because testimony in another suit was different, disregarded, where record does not show cross-examination,</p> <p>If testimony of a witness in another suit was different from his testimony in the present suit, such inconsistency should be brought into the record by cross-examination, and in the absence thereof the objection will be disregarded on appeal.</p> <p>5. Patents <9=18 — Improvement in machinery, obvious to one skilled) in mechanical work, is not patentable.</p> <p>Where an improvement in machinery was made by one skilled in mechanical work, and was obvious to any person so skilled, the improvement is not patentable.</p> <p>6. Patents <§=»40 — Device held not patentable.</p> <p>Reversible trucks or dump wagons, with a pivoted draft bar at each end, which is connected to the wheels for steering purposes, and which may be locked to the wagon bed or frame in a central position when the truck is being drawn from tbe opposite end, are not patentable merely because of an automatic locking device to keep tbe apparatus out of operation at certain times.</p> <p>7. Patents @=»26(I) — Automatic locking steering device held not to he an invention.</p> <p>Where similar steering devices had been invented prior to the addition of an automatic lock, the addition of the lock does not constitute an invention; the mere adaptation of an old element to a specific use not being an invention, unless the combination produces a new result or an old result in a new and materially better way.</p> <p>8. Patents <S=26(1) — Device held not to be an invention.</p> <p>The combination of an automatic lock, which is in itself new and novel, with other locking devices, to keep the locking gear out of operation, does not amount to an invention sufficient for patent, covering the combination with any and all forms of automatic locks, although the new device in itself may be patentable.</p> <p>9. Patents <3=328 — No. 1,214,087, for improvement in steering mechanism adapted to 1 railfe- trucks, told void for lack of invention.</p> <p>The Hudson patent, No. 1,214,037, claims 1, 2, 3, and 4, for steering device for trailers, held invalid for lack of invention.</p> <p>10. Patents <3=328 — No. 1,117,81®, claims 6, 7, and! 8, told invalid.</p> <p>The Eccard & Smith patent, No. 1,117,816, claims 6, 7 and 8, for an improvement in reversible trucks or dump wagons, held invalid.</p> <p>11. Patents <8=328 — No. 1,117,816, claim 9, told valid, but not infringed.</p> <p>The Eccard & Smith patent, No. 1,117,810, claim 9, for an improvement in reversible trucks or dump wagons, held valid, but not infringed.</p>

<p>Health <&wkey;23 — Prohibition of shows and circuses during epidemic of influenza held valid.</p> <p>The action of the board of health and sheriff of a county in passing and enforcing a resolution prohibiting circuses and shows in the county for a period of about three months at a time when Spanish influenza was prevalent in the state, held within the police power and valid in the absence of clear proof that it was arbitrary and discriminatory and not taken in good faith.</p>

<p>In Error to the District Court of the United States for the District of Oregon; Robert S. Bean, Judge.</p> <p>Action by the United States against the Columbia & Nehalen River Railroad Company. Judgment for defendant, and the United States brings error.</p>

<p>Criminal law <&wkey;942(l) — Facts occurring after conviction, which discredit material witness, may warrant new trial.</p> <p>It is ground ior new trial that after defendant’s conviction a material witness, without whose testimony he could not have been convicted, was indicted and convicted of a crime committed before the trial, which, if the fact could have been shown at the trial, would have tended to greatly discredit his testimony.</p>

<p>In Equity. Suit by the Gammill Lumber Company against the Board of Supervisors of Rankin County and others. On motions to dismiss and for preliminary injunction.</p>

<p>I. Internal revenue &wkey;>2 — Act levying. 10 per coni, excise tax on net profits of employers of cliilfi labor held unconstitutional.</p> <p>Act It'eb. 24, 1919, § 1200 (Comp. St. Ann. Supp. 1919, § 6336yga_), providing a revenue tax of 10 per cent, on the net profits o£ certain employers of child labor, is unconstitutional, as an attempt on the part of Congress, not to collect revenue, but to control the internal affairs of a state. 8</p> <p>3. Interina! revenue <&wkey;38 — Revenue laws enacted by Congress to ©«force legislation forbidden by Constitution ore void.</p> <p>Since Act Feb. 24, 1919, § 1200 (Comp. St. Ann. Supp. 19.19, § 6336%a), levying a 30 per cent, revenue tax on the net gain of employers of child labor, is unconstitutional, a suit to enjoin the collection of this tax can be maintained, notwithstanding Rev. St. § 3224 (Comp. St. § 5947), providing that no suit for the purpose of restraining the assessment or collection of any tax shall bo maintained in any court, since to permit its collection would extend the power of Congress through taxation to legislation forbidden to it by the Constitution, especially in view of Const. Amends. 9 and 10.</p>

<p>In Bankruptcy. In the matter of Sarah Moore, bankrupt. On petition filed by the bankrupt to review an order of a referee in bankruptcy denying her petition for allowance of cash exemptions.</p>

<p>1. Carriers &wkey;ri2(6)á)-~©rifer i® earners as to joirai; rates 1m>M net to® un* . certaim to to enforceable.</p> <p>An order by the state public utility commission to express companies to receive for each other for transportation within tho state at all terminal or intermediate points of physical contact or connection of routes over railroad linos over which they have respectively established routes and to charge joint rates is not too uncertain to be enforced.</p> <p>2. Camera &wkey;ri2 (6%)- — Failure of notice tel carrier by public utility com-késsío» of makfeg joint rate makes rate invalid.</p> <p>Where an express company filed a schedule containing joint rates with another, and the public utility commission changed provisions of the schedule as to joint rates, making them more extensive, in the absence of 30 days’ notice to carriers, as provided by Code 1910, § 2630, the joint rates are invalid.</p> <p>Carriers ‘Srs’lZil) — Public utility commission has no power to institute joint rates.</p> <p>Where an express company filed a schedule of joint rates with another expresa company, a public utility commission may not, by striking out clauses of the schedule without notice or hearing, extend these joint rates, since to do so would amount to an institution of rates, while the utility commission is limited to a making of rates.</p> <p>4. Carriers <&wkey;12(6}£)- — Wüjcb a public utility commission makes joint rates, it must make division between the carriers.</p> <p>When a public utility commission makes joint rates, it must make division between carriers, and give the carriers an opportunity to be heard and contest the division, before requiring the service to be given.</p> <p>5. Camera <S=»12 (5) — Public utility commission, in making rates, is limited to just and .reasonable rates.</p> <p>In making joint rates between express companies, a public utility commission may not require one express company to make short hauls for a pro raía share of the! joint rate, since to do so would be to require the carrier making the short haul to render service for an unjust and unreasonable rate.</p>

<p>1. Trade-marks and trade-names and unfair competition <&wkey;i‘J (1) — Competitive sale of similar aríide, free from deceit, is not unfair competition.</p> <p>Tlie copying by defendant of an article made by complainant, not protected by patent, and its' sale in competition, does not constitute unfair competition, unless accompanied by acts tending to create confusion as to origin of defendant’s article, or to induce purchasers to believe that it is complainant’s product.</p> <p>2. Patents <&wkey;828 — 1,081,915, for a spark plug, held void for lack of invention.</p> <p>The Charles F. Johnston patent, No. 1,061,915, for a spark plug, held void for lack of invention.</p>

<p>1. Bridges <&wkey;20(4) — Failure to furnish and deliver site to contractor is a breach of premise, for which damages may be recovered.</p> <p>A contract for the construction of approaches to a bridge carries with it an implied covenant to deliver the site in a condition to permit the work to be done, and a failure is a wrongful breach, for which the contractor may recover damages.</p> <p>2. Bridges &wkey;>2<)(4) — Where contract fixed no time for delivery of site to contractor, delivery ramst he within reasonable time.</p> <p>Where a contract for the construction of bridge approaches required the work to be done within a specified time, but made no provision as to when the site for the work should be delivered to the contractor, the law implies that the site should be ready for delivery either on execution of the contract or within a reasonable time thereafter.</p> <p>3. Contracts &wkey;>296 — Owner must be deemed to have warranted that plans and specifications were sufficient.</p> <p>Where work was to be done according to plans and specifications on file, the owner, or the one engaging the work done, will he deemed to have warranted their sufficiency, and the contractor may recover, where they were changed and such change caused injury.</p> <p>4. Bridges <&wkey;20 (4) —County liable to contractor,, who Is injured by failure to deliver site for work.</p> <p>As full power is conferred upon county commissioners by Gon. Code Ohio, §§ 2333-2361, to contract for the construction of bridges, and as section 2408 authorizes the county commissioners to bring and defend suits involving injury to any roads, etc., the county is liable to a contractor injured by failure of the county authorities to deliver the site for the work within a reasonable timo and by change in plans and specifications, notwithstanding section 2359 and related sections require a preliminary estimate of the cost of the entire work, and forbid the letting of the contract at a price exceeding such cost, and section 5660 requires a certificate of the county auditor that funds are in the treasury or in the process of collection sufficient to defray the expense, for, were any other rule followed, great confusion would result, and the latter sections must be deemed merely to-describe conditions precedent to liability on a contract.</p> <p>5. Bridges <&wkey;20 (4) —Prohibit ion against extra compensation will mot prevent bridge contractor from recovering for breach of contract by county.</p> <p>Although Const, art. 2, § 29, declares that no compensation shall be made to any public officer after the service shall have been rendered or the contract entered into, etc., a contractor who was to build approaches to a bridge may, in case of breach of contract by the county in delivering the site, etc., recover damages.</p> <p>6. Pleading <&wkey;216 (2) —Only allegations of petition can be considered on demurrer.</p> <p>Under Gen. Code Ohio, § 11333, the court, on demurrer to a petition, can consider only the allegations of the petition, and not exhibits attached thereto.</p> <p>7. Bridges <&wkey;20(4) — In case of failure to deliver site within time, contractor is not restricted to a mere extension of time for performance.</p> <p>In case of failure of county authorities to deliver site to the contractor for work within time, the contractor is not restricted to an extension of time for performance, but may recover damages resulting, notwithstanding the contract provided for liquidated daily damages in case of the contractor’s failure to complete within the time specified.</p> <p>8. Bridges <&wkey;20(4) — Provision allowing engineer to suspend work will not warrant discontinuance entirely for other reasons.</p> <p>A provision in a contract for the construction of bridge approaches, allowing the engineer to suspend work, must be deemed to relate to any part or portion, and not the whole work, and the act of the county in discontinuing the entire work for its own interest cannot be justified under such provision, so as to escape liability to the contractor who was thus injured.</p> <p>9. Contracts <&wkey;296 — Provision allowing change by engineer held not to contemplate substantial modification.</p> <p>A provision allowing the engineer to make alterations, to be paid for at the contract price, will not prevent the contractor from recovering for substantial modifications of the contract, which changed the entire work.</p> <p>10. Bridges <&wkey;20(4) — Provision for payment on engineer's estimates will not preclude recovery for breach.</p> <p>A provision in a contract for bridge approaches for payment on estimates of the engineer will not preclude the contractor from recovering damages for a substantial breach of the contract, caused by failure to deliver the site within a reasonable time and a substantial change of specifications.</p>

<p>1. Patents <©=’328 — 932,935, for one-piese bifocal ions, held valid and infringed.</p> <p>The Conner patent, No. 932,965, for a one-piece bifocal lens, held, not anticipated, valid, and infringed.</p> <p>2. Patents <3=505 — To anticipate, method of producing patented article must fee shown.</p> <p>Prior inventions or discoveries, relied on to anticipate or limit a later patent for a manufactured article, must disclose a method of producing such article.</p>

<p>In Equity. Suit by Leon Noble against Malcolm Douglas and Bert C. Ross, Prosecuting Attorney and Deputy Prosecuting Attorney for King County, Wash. On motion for preliminary injunction.</p>

<p>At Law. Action by J. C. Francesconi & Co. against the Baltimore & Ohio Railroad Company to recover damages for the use and injury by the defendant of two tank cars owned by plaintiff.</p> <p>The two tank ears in question were delivered empty to the defendant, with written orders to return them to the shipping point by designated routes. Instead of returning the cars, the defendant placed them in servicé, carrying acid, between other points, and used them in such servicel for more than sis months, and when they were returned to plaintiff they were so damaged by the acid that the tanks had to be repaired.</p> <p>Rule 29 of the Interstate Commerce Commission’s tariff rules reads as follows:</p> <p>“Tank Cars of Private Ownership — Obligation to Furnish — Mileage Allowance, and Equalization of Mileage.</p> <p>“Section 1. In providing ratings in this Classification for articles in tank cars, the carriers whose tariffs are governed by this Classification do not assume any obligation to furnish tank cars. When tank cars are furnished by shippers or owners, mileage at the rate of three-quarters (%) of one cent per mile will be allowed for the use of such tank cars, loaded or empty, provided the cars are properly equipped. No mileage will be allowed on cars switched at terminals nor for movement of cars under empty freight car tariffs.</p> <p>“Sec. 2. Private cars will be moved empty, without charge, at the time movement is made between stations or junction points on the lines of carriers whose tariffs are governed by this Classification (either individually or jointly), including delivery to connecting! lines, subject to the following conditions:</p> <p>“(a) Should the aggregate empty mileage of any owner’s cars on June 30th of each year, or at the close of such yearly period as may be mutually agreed upon, exceed the aggregate loaded mileage on the lines of such carriers individually (or jointly when mileage accounts are computed jointly), such excess must be paid for by the owner, either by an equivalent loaded mileage during the succeeding six months, or, at tariff rates without minimum, plus the mileage that has been paid by the carriers to the owners on such excess empty mileage. Any excess of loaded mileage over empty mileage of any owner’s cars at the end of the accounting period will be continued as a credit against the empty movement of such cars for the ensuing twelve months.</p> <p>“(b) New cars or newly acquired cars, moved empty to home or loading point by order of the owner, must be billed at regular tariff rates.”</p> <p>Rule 13, formerly rule 14d, provides:</p> <p>“When private tank cars are unloaded, the owner will issue instructions for empty movement to the agent at point of unloading, either direct or through consignee. The agent will bill each car to final destination, showing name of the consignee and full route.”</p>

<p>In Admiralty. Suit by Joseph S. Shanley and others against the United States.</p>

<p>In Admiralty. Suit by the Hazelwood Company against the steamship Tamba Maru; ' Nippon Yusen Kaisha, claimant.</p>

<p>In Equity. Suit by the Amos Bird Company against L. L. Thompson, Attorney General of the State of Washington, and others. _ On motion for preliminary injunction and motion to dismiss bill.</p>

<p>At Law. Action by C. Noel Legh & Co., Limited, against George G. Stitzinger and others, trading as G. G. Stitzinger & Co. On affidavit of defense raising question of law.</p>

<p>Patents <§=>328 — 1,231,382, for felt welts for gloves, valid and infringed.</p> <p>The Knee patent, No. 1,231,382, for welts for gloves made of felt, and process for making the same, held not invalid for anticipation or prior use, and to disclose invention; also infringed.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in equity by Louis Knee against Max Karmin and David H. Flanzer. Decree for complainant (274 Fed. 720), and defendants appeal.</p>

<p>At Raw. Action by the United States against John Reed to recover penalties. On demurrer to petition.</p>

<p>1. Patents <®=>9(t(7) — Acceptance of suggestions from others does not defeat right to patent.</p> <p>Acceptance of suggestions made by workmen or associates of the inventor during experimentation do not deprive the inventor of the right to claim sole invention, if the improvements are not of themselves patentable.</p> <p>2v Patents <£1=>328 — Design 49,204, for an insulator, held valid.</p> <p>The Cline design patent, No. 49,204, for a design for an insulator, held valid.</p> <p>8. Patents <S^209 (1) — License may be granted by parol.</p> <p>Where defendant manufactured and marketed an article patented by complainant, with complainant’s acquiescence, though the oral agreement between them was never made definite as to terms, defendant cannot be charged as an infringer, but is accountable for an equal share of the net profits, as a partner.</p>

<p>1. Copyrights ©=>82 — Objections to bill for mMngememt of renewal not sustained.</p> <p>A bill for infringement of a copyright renewed under Copyright Act, § 28 (Comp. St. § 9544), alleging that the renewal was granted to an executor and was “duly obtained,” held sufficient to show a right of action as against a motion to dismiss, as importing the existence of a will and the nonexistence of living widow or children of the author, having exclusive, prior right of renewal.</p> <p>2» Copyrights <S=>33 — Sight oí renewal is new property right.</p> <p>The right to renew a copyright, given by Copyright Act, § 23 (Comp. St. § 9544), is a new property right vesting exclusively in the persons enumerated in the statute in the order named and which cannot bo affected by any assignment or other action by the author with respect to the original copyright.</p> <p>3. Copyrights ®’33 — Notice of copyright by parson obtaining renewal as executor held sufficient.</p> <p>Notice of copyright by the person who obtained a renewal as executor of the author held sufficient where tins renewed copyright vests in the estate.</p> <p>4. Copyrights <3=»33 — ■Executor eaamot renew whore author dies before renewal period.</p> <p>The author of a copyrighted work who dies more than a year before expiration of the copyright has no right of renewal under Copyright Act § 23 (Comp. St. § 9544) which he can bequeath as part of his estate, but, where he leaves neither widow nor children, such right vests directly, under the statute, in his next of kin, and cannot be exercised by his executor.</p>

<p>1. Shipping <S^132 (3) — Owner, invoking protection of Harter Act, has burden of proof.</p> <p>Where a steamship stranded through fault or negligence in navigation, to entitle the owner to the protection of Harter Act, § 3 (Comp. St. § 8031), it must be affirmatively shown that due care was exercised in the selection of the navigation officers and engine room force.</p> <p>2. Shipping @=>53 — Breakdown clause held not to exempt ship from liability to charterer for damages to cargo from negligent stranding.</p> <p>The breakdown clause in a charter party held not to exempt the ship from full liability for damage to cargo owned by the charterer, resulting from her stranding through fault or negligence in her navigation.</p> <p>3. Shipping @=»43 — Ship held liable for late arrival to load bananas.</p> <p>A ship held liable to the charterer for damage resulting from her late arrival at a wharf for loading bananas, due to delay caused by her negligent stranding, where it was shown that in accordance with the custom of the trade the bananas had been cut and were ready for loading.</p>

<p>At Raw. Action by the Monroe Cider Vinegar & bruit Company against Vincent H. Riordan, late Collector of Internal Revenue,</p>

<p>Internal revenue <®=7 — Debenture bonds issued as dividends to stockholders held taxable as “income.”</p> <p>Debenture bonds, issued by a corporation to its stockholders, representing accumulated surplus or undivided profits, so far as they represent earnings since March 1, 1913, held taxable as “income” of the stockholders, under Act Sept. 8, 1916, § 2a (Comp. St. § 6336b [a]).</p> <p>fEd. Note. — For other definitions, see Words and Phrases, First and Second Series, Income.]</p>

<p>Bankruptcy <§=384, 484 — Composition not to be confirmed where allowance to receiver exceeds that prescribed by act.</p> <p>Under Bankruptcy Act. § 48d (Comp. St. § 9632[d]), providing than on confirmation oí a composition the commissions allowed a receiver or marshal shall not exceed one-half of 1 per centum of the amount to be paid creditors, and section 72 (Comp. St. § 9656); providing that “neither the referee, receiver, marshal, nor trustee shall in any form or guise receive, nor shall the court allow him, any other or further compensation for his services than that expressly authorized and prescribed in this act,” a court is without power to confirm a composition which provides for compensation of a receiver in a sum largely in excess of that prescribed in section 48d.</p>

<p>Courts —Triority of claims for wages given by state law followed in distribution of assets of domestic corporation.</p> <p>in tlio distribution by a federal court of the assets of a domestic manufacturing corporation in a suit to preserve the good will and property of the corporation, effect may equitably be given to a state statute giving priority to claims of employes for wages.</p>

<p>1. Injunction <3=18? (4) —Preliminary injunction denied where rights in doubt.</p> <p>A suit by a telephone company against a number of patrons, as individuals and as representing other patrons, to enjoin them from bringing suits which are threatened in case complainant raise's its present rates, which it claims are confiseatoi’y, involves no federal question, in the absence of a state statute or order of the state Railroad Commission commanding the continuation of the alleged confiscatory rates; but where the telephone company is threatened with innumerable suits by its patrons, who are all citizens of a different state, in all of which suits there is involved a common question of law and fact, a federal court has jurisdiction on the ground of diverse citizenship, and a court of equity on the ground of preventing a multiplicity of suits, but where the confiscatory character of the present rates and the reasonableness of the, proposed rates are sharply contested a preliminary injunction will not be granted.</p> <p>2. Courts <@=508(2) — Federal court held without jurisdiction to enjoin suit in stale court.</p> <p>A federal court held without jurisdiction, under Judicial Code, § 205 (Comp. St. § 1242), to enjoin prosecution by the Attorney General of a State of certiorari proceedings in a state court against a telephone company.</p>

<p>In Equity. Suit by Meinecke & Co., a corporation, against the Lisk Manufacturing Company.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in equity by Meinecke & Co., a corporation, against the Lisk Manufacturing Company. Decree for defendant (274 Fed. 747), and complainant appeals.</p>

<p>1. Post office >3=514 — Publication held nonmailable, as encouraging insurrection.</p> <p>Where a newspaper published articles encouraging insurrection against the government and destruction of the established order of society, and expressed approval and justification of the crimes committed in the Russian revolution, the publication may be excluded from the mails, under Orimi--nal Code, § 211, as amended by Act March 4, 1911, § 2 (Oornp. St. § 10381), declaring nonmailable matter of a character tending to incite arson, murder, and assassination.</p> <p>%. Constitutional law <3=>90 — Post office <3=514 — Exclusion ©f publication from mails, as encouraging of insurrection, is not censorship of press.</p> <p>Where a publication is nonmailable, as tending to encourage arson, murder, and assassination, the excluding of it from the mails is not a censorship of the press, but merely tbe refusal of the government to distribute literature tending to its destruction.</p>

<p>In Error to the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge.</p> <p>Proceeding by John Cadwalader, Jr., against Ephraim Lederer, Collector of .Internal Revenue. Judgment for plaintiff (273 Fed. 879), and defendant brings error.</p>

<p>Corporations <&wkey;40fi(l) — Certificate for delivery of bonds to be issued held authorized.</p> <p>A certificate issued by defendant corporation, by which it agreed to deliver to plaintiff 13 of its first mortgage bonds, of $1,000 each, to be secured by trust deed then in preparation, held duly authorized, and binding on defendant, and to sustain an action by plaintiff for damages for nondelivery of the bonds</p>

Actions at law by Edmund J. Burkhardt against the United Properties Company of California. Judgments for plaintiff, and defendant and others, trustees, bring error.

<p>In Error to the District Court of the United States for the Second Division of the Northern District of California.</p> <p>Action by one Ramdullah against P. B. Cross. Judgment for plaintiff, and defendant brings error.</p> <p>This' is an action on the part of the defendant in error to recover damages in relation to several leases of real property, made by plaintiff in error to defendant in. error ánd another or others, for the seeding, growing, and production of rice. Reference will be made herein to the parties as plaintiff and defendant.</p> <p>The leases as set forth by the first count are four in number, bearing date, respectively, as therein stated, February 28, March 13, April 2, and February 13. 1918. The term of each lease is two years. The rent reserved is $50 per acre for the term, payable $6 per acre on the execution of the lease, $25 per acre December 1, 1918, and $19 per acre December 1, 1919. The $6 per acre on each lease was paid as stipulated. The lessees, other than Ramdullah, assigned to him prior to the commencement of the action.</p> <p>Immediately upon the signing of the leases, and thereafter, lessees entered into possession of the premises and planted the same to rice. A chattel mortgage was given the lessor, empowering him to take possession of the rice as soon as threshed, and to store and sell the same, and out of the proceeds to pay himself the balance of the rental due and account to lessees for the surplus. It is alleged that about June 1, 1918, defendant agreed with the lessees that he would charge and collect rent only for those acres described in the leases which produced a fair and normal crop of rice; that such a crop was produced upon 300 acres only of the land, and that was all that was harvested; that, when the rice was matured, plaintiff employed defendant to harvest it, under certain terms for performing the service; that on deduction of the rent due, and the expenses of harvesting the crop, there was left due plaintiff from defendant a large sum of money, to wit, $59,025, for which recovery is sought.</p> <p>The second count is predicated upon alleged negligence on the part of defendant in harvesting and caring for the crop.</p> <p>The third is predicated upon the alleged failure of defendant to furnish water for the irrigation of the lands covered by the leases, in compliance with the stipulated requirements,, and it is alleged that upon defendant’s failure so to do by the 25th of April, 1918, or to deliver or furnish any water until June 1, 1918, the lessees notified defendant of their desire and intention to terminate the leases, and that thereupon defendant agreed and promised that, if lessees would continue in possession of the land and care for the crops of rice planted, if said lands did not produce a normal crop of good rice, defendant would repay lessees all rental moneys on the lands so failing to produce, and would relinquish all claims for rentals for the year 1918 on such lands as failed to produce a normal crop, and would also pay to lessees all moneys which had been expended or might thereafter be expended by lessees on the nonproducing lands. It is then further alleged that 425 acres of the lands failed to produce any crop of rice whatever, and judgment is claimed for the rental advanced thereon and for the money expended in planting and caring for the crop, which failed by reason of the failure of plaintiff to deliver the water on the lands as required under the leases.</p> <p>The fourth count pertains to the alleged wrongful exclusion of the lessees from the lands leased for the year 1919.</p> <p>The fifth has relation to plaintiff’s employihent of defendant to harvest the crop grown under a subsequent lease, of date July 9, 1918, and defendant’s alleged failure to account for the proceeds obtained for the crop.</p> <p>The sixth is predicated upon defendant’s alleged negligence in harvesting and taking care of the rice grown on the premises under the leases, whereby much of it was allowed to deteriorate, to the plaintiff’s damage.</p> <p>The seventh count is for damages arising upon the alleged failure of defendant to furnish the amount of water stipulated to be furnished under the lease of July 9, 1918.</p>

<p>1. Parties <&wkey;21 — Defendant corporation held properly named as interested party.</p> <p>In an action for breach of a contract of employment, defendant’s claim that it was a different entity from a corporation of the same name, with which plaintiff’s original contract was made, held without merit, where the contract was authorized by the defendant through its vice president, and both corporations recognized plaintiff’s employment.</p> <p>2. Master and servant <&wkey;7 — Contract of employment held modified by subsequent agreement.</p> <p>Where plaintiff’s contract was for employment as, a chief accountant at defendant’s Shanghai office, a later contract for plaintiff’s temporary employment at defendant’s Tokyo office held a modification of the original contract, leaving the parties- subject to all consistent conditions of tbe original contract, including a clause providing that the contract was conditioned on plaintiff’s work being efficient and satisfactory.</p> <p>3. Courts <&wkey;365 — Decision of state court as to construction of employment contract followed.</p> <p>Where a contract for employment was entered into in California, but was to be performed at Shanghai, and its construction was to be governed by law of California, decisions of courts of that state, if they have spoken, are binding on tbe federal court.</p> <p>4. Master and servant <&wkey;55 — “Efficient and satisfactory” service construed.</p> <p>A contract under which plaintiff was to perform the duties of a chief accountant in an “efficient and satisfactory” way held not to mean that the work must be done to tbe satisfaction of the employer.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First ana Second Series, Efficient; Satisfactory.]</p> <p>5. Appeal and error <&wkey;842 (1) —Broach of contract held question of fact, not reviewablo.</p> <p>The District Court’s finding that an employee had not broached his contract, which contained a clause that he was to perform in satisfactory way, was one of fact, which the Circuit Court of Appeals will not disturb, where the evidence tended to support such finding.</p> <p>6. Pleading <&wkey;I66 — Plaintiff held not required to answer defendant’s allegations.</p> <p>Under Carter’s Ann. Code Civ. Proe. Alaska, § 69, as adopted by Act June 6, 1900, providing that defendant may have judgment on the pleadings, if plaintiff fails to reply to new matter in the answer, it is essential that the new matter be material and constitute a defense, and where the practical issue is already tendered by complaint and answer, it cannot be material; hence, where plaintiff alleged that he was wrong-folly discharged, it was not necessary that the reply to defendant’s allegation that plaintiff was inefficient and insubordinate, and performed his work unsatisfactorily.</p> <p>7. Aibitraifei; a*::! aware! <@=>57 — Award held not to bar suit.</p> <p>In an action for breach of an employment contract, an arbitrator’s award, which was not definite and did not adjust the matters referred for arbitration, held not to bar the employee’s action, since an award is void unless sufficiently definite and exact, so that nothing further remains to fix the lights and obligations of the parties under the submission.</p> <p>8. Master and servant <&wkey;4l(l) — Measure of damages for breach of contract.</p> <p>Where scarcely a year of a three-year contract for plaintiff’s services as chief accountant had expired when his action for breach was instituted, the measure of damages was prima facie the contract earnings subject to recoupment on the part of defendant.</p> <p>9. Master ami servant &wkey;>42(l) — Seduction of damages for breach of contract rot required.</p> <p>Where plaintiff’s three-year contract for employment as chief accountant at Shanghai was breached in less than a year, plaintiff was not required to reduce his damages by accepting employment as a bookkeeper, which would Injuriously affect his future career, nor was he under obligation to go to America, for the purpose of finding employment.</p> <p>10. Appeal and error <&wkey;843(ll) — Finding »s to mitigation of damages a question oí fact, and conclusive.</p> <p>In an action for breach of an employment contract, the finding of the District Court on the question of mitigation of damages was one oí fact for that court, and conclusive on the Circuit Court of Appeals.</p> <p>11. Master and servant <&wkey;>41 (6)- — Employer has burden of shewing other employment.</p> <p>In an action 'for breach of a contract of employment, the burden was upon the defendant employer to show that the employee might with reasonable effort have obtained employment elsewhere.</p> <p>13. Appeal and or rev <@=>173 (11) —Appellant cannot claim set-off where claim not made in trial court.</p> <p>In an action for breach of an employment contract, defendant cannot on appeal insist that the trial court failed to give credit for a sum admitted to be due from plaintiff where defendant claimed no such amount in its answer as a set-off or counterclaim and the. trial court’s finding as to the amount plaintiff was entitled to recover being supported by evidence.</p> <p>13. Appeal and error <&wkey; 1047(1) — 'Mai <&wkey;98> — Defendant, entitled to ruling as to admissibility of evidence but fallare to make ruling not vital unless incompetent evidence admitted.</p> <p>Although defendant was entitled to the ruling of the trial court at some stage of the proceeding touching the admissibility of certain testimony, so that it might have the opportunity of reserving exceptions, the mere failure to make such rulings is not vital, unless the court did in fact admit incompetent and irrelevant testimony.</p> <p>14. Appeal and error <&wkey;1047(l) — Keservaticn of ratings as to' admissibility of evidence, until final Sailings, held! harmless.</p> <p>In an action for breach of an employment contract, the trial court’s reservation until final findings, of rulings touching the admissibility of plaintiff’s testimony as to character and efficiency of his services, objection being based on the proposition that plaintiif was subject to dismissal in pursuance of defendant’s independent judgment, held harmless, whore such proposition is found to be unsound and the testimony consequently admissible.</p>

<p>1. Trial <&wkey;i7g — Plaintiff entitled to benefit of inferences on motion for di» reeled verdict.</p> <p>On a motion by defendant for an instructed verdict, it is the duty of the trial judge to give plaintiff the benefit of every fair inference which might reasonably be drawn by the jury from the evidence, guided only by sound processes of reasoning and applicable principles of law.</p> <p>2. Trial <&wkey;140(l) — Credibility of witnesses is for jury.</p> <p>The credibility of witnesses is peculiarly a question for the jury.</p> <p>3. Trial &wkey;>143 — Evidence contradicting prima facie case does not authorize directed vei’dict.</p> <p>Where plaintiff produces material evidence sufficient, if believed and uncontradicted, to warrant a verdict, no amount of contradictory evidence will authorize the trial judge to take the question of its effect and weight from the jury; the testimony not being contrary to reason or to .natural and physical laws.</p> <p>4. Trial &wkey;>169 — -When verdict properly directed, stated.</p> <p>A verdict cannot properly be directed for defendant merely because the trial judge feels that, should the jury find in plaintiff’s favor, he would regard it as his duty in the exercise of a sound judicial discretion to set the verdict aside; the test being whether there is such an utter absence of substantial evidence as to make it his duty as matter of law to set the verdict aside, independently of the exercise of discretion, and without reference to how greatly the court may think the conflict in me testimony to preponderate in defendant’s favor.</p> <p>5. Railroads <&wkey;350(7) — Evidence SieM to make question for jury as to ringing of bell.</p> <p>In an action for injuries sustained in a crossing collision, evidence, though negative in character, held sufficient to make a question for the jury as to whether the bell on the engine was ringing.</p> <p>6. Evitteis.ce <&wkey;584(D — Testimony oí employees of defendant neither fiisre-ganfed nor accepted as conclusive.</p> <p>In an action for injuries sustained in a crossing collision, the testimony of the train employees that the bell was ringing should not be discredited merely because of their employment, nor accepted as conclusive merely because they were in a position giving them better means of knowledge than other witnesses.</p> <p>I. Railroads &wkey;>340(2) — liable-for injury from conmrmrt negligence of trainmen and another.</p> <p>If the negligence of those in charge of a train colliding with an automobile in which plaintiff was riding was a proximate cause of the collision, plaintiff is entitled to recover, even though the driver of the automobile was also negligent, unless his negligence is imputable to plaintiff.</p> <p>8. Judgment <&wkey;251(2), 258(1) — Recovery not defeated by negligence of plaintiff, or another imputed to her, when, mot pleaded' or found.</p> <p>In an action for injuries sustained in a crossing collision, relief cannot be denied plaintiff because of her negligence, or that of the driver of the automobile in which she was riding, where contributory negligence was not pleaded, and the court, in directing a verdict for defendant, made no finding thereon.</p> <p>9. Negligence <&wkey;136(30) — Driver’s negligence held not clearly imputable to passenger as matter of law.</p> <p>The negligence of the driver of an automobile was not-so clearly imputable as matter of law to an employee of the driver, riding in the rear seat on an errand of her own, and testifying that she had nothing to (to with driving the car and had never driven one, as to warrant the affirmance of a judgment on a directed verdict for defendant, where the question of imputed negligence had not been considered by the trial court.</p> <p>10. Railroad's &wkey;>350(21) — Passenger not negligent as matter of law in not attempting to malee driver stop.</p> <p>Where cars standing on a side track obstructed the view of the main track at a railroad crossing, one riding in the rear seat of her employer’s automobile, and having no authority over him, was not guilty of personal negligence as a matter of law in not attempting to make him stop the automobile within the 8 or 9 feet between the two tracks; she not having seen the approaching train.</p> <p>II. Railroads &wkey;>346 (5) —Inference of automobile driver’s freedom from negligence.</p> <p>In an action for injuries in a collision between a railroad train and an automobile, there is an inference of the automobile driver’s freedom from, negligence in the reasonable use of his senses of sight and hearing, coexistent with the presumption of due care on the part of the engineer.</p> <p>12.Railroads ‘<&wkey;350(9) — Attempted warning held not conclusive of railroad’s freedom from negligence.</p> <p>In an action for injuries sustained in a crossing collision, if cars standing on a side track and obstructing the view required the train crew to use additional care, the attempt of a third person to warn the automobile driver of the train’s approach held, under the evidence, not controlling on the question of the driver’s negligence, and not as a matter of law to relieve the railroad from the consequence of its alleged negligence.</p>

<p>1. Sales @=>387 — 'Modification of terms of payment held question for jury.</p> <p>In an action for breach of a contract to accept and pay for a quantity of eocoanut oil, an alleged modification of the terms of payment, being denied by plaintiff, was a question of fact for the jury.</p> <p>2. Sales <&wkey;319 — Remedies wf seller on buyer’s breach of contract stated.</p> <p>A seller, under the common law and Personal Property Law N. Y. §§ 85, 128, 129, 132, 142, on breach of the buyer’s contract to accept and pay for goods sold, may indemnify himself by storing or retaining the property for the buyer, and sue him for the entire purchase price, sell it as agent of the buyer, and recover tbe difference between the contract price and the price so obtained, or keep it as his own and recover the difference between the market price at the time and place of delivery and the contract price.</p> <p>3. Sales <&wkey;174 — Seller need not show that he had goods in stock, where buyer broached contract before elate fixed for delivery.</p> <p>In an action for breach of a contract to buy eocoanut oil, where defendant failed to give shipping instructions and to furnish a bank credit, as agreed, it was not necessary for the plaintiff, in order to show readiness to deliver the oil, to establish that he had it in stock; defendant’s breach of contract excusing further performance by plaintiff, of whom was required only such readiness as was necessary to enable him to make delivery at the time fixed for delivery, sufch oil being obtainable in the market at the time fixed for delivery.</p>

<p>1. Shipping &wkey;>58(2) — Finding, that sinking was due to unseaworthiness held sustained.</p> <p>Finding that sinking of a boat while being loaded with coal at charterer’s tipple was due to its unseaworthiness, and not to negligence of charterer in loading, held sustained by the evidence.</p> <p>2. Shipping <&wkey;42 — Warranty of fitness of boat for known use by charterer implied.</p> <p>There is an implied warranty by the owner of a boat of its general fitness for the known use for which it was chartered.</p> <p>3. Shipping <&wkey;54 — Charterer not liable for sinking of boat due to unfitness for known use.</p> <p>There is no liability of the charterer ofi a boat for its sinking due to no negligence of the charterer, but to lack of its general fitness for the known use for which it was chartered, of which there was an implied warranty by the owner.</p>

<p>In Error to the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge.</p> <p>Action by Willard W. Saperson, trustee in bankruptcy of Booby’s, Incorporated, against Harry Burstein. Judgment for defendant, and plaintiff brings error.</p>

<p>Appeal from the 'District Court of the United States for the Southern District of New York.</p> <p>Libel by the Moran Towing & Transportation Company against the Cranford Company. Decree for libelant, and respondent appeals.</p>

<p>1. Municipal corporations <§»484(2) — Decree In proceeding for local improvement IicM not res jadleata as to reasonableness of basis of taxation».</p> <p>A decree of the circuit court in a proceeding under Kansas City Charter, art. 8, § 28, to establish a taxing district for a local improvement, determining the validity of an ordinance passed by the city, was not res judicata, so as to prevent landowners from raising the question as to the reasonableness of the basis of taxation.</p> <p>2. Mmiisipa! corporations ©^MSOd), 463 — Benefit district and assessments held arbitrary and uureasoflaMe.</p> <p>Benefit district, created to meet expense of local improvement, consisting of an approach to a park, and assessments on property within such district, held arbitrary and unreasonable.</p>

<p>1. War <@=12 — Attorney may collect from property in hands of Alien Property Custodian for services to an alien only up to October 6, 1917.</p> <p>Section 9 of tbe Trading with the Enemy Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3115%e), amended June 5, 1920, to provide that a debt shall not be allowed under this section against property in the hands' of the Alien Property Custodian, unless it was owing to and owned by claimant prior to October 6, 1917, was within the valid powers of Congress as applied to an attorney’s inchoate lien for services in defending a claim against the property subsequent to October 6, 1917.</p> <p>2. War <@=12 — Attorney may not collect from property in hands of Alien ■ Property Custodian for services rendered after October 6, 1917.</p> <p>Notwithstanding section 7 of the Trading with the Enemy Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3115%d), providing that an enemy or ally of an enemy may defend by counsel any suit in equity or action at law, under section 9 (section 3115%e) an attorney may not recover from property in the hands of the Alien Property Custodian for legal services rendered since October 6,1917, because his claim is not an inter-r est, right, or title in the property conveyed, or a debt owing from an alien enemy accruing prior to October 6, 1917, and if the services were rendered to the alien or to the property, they were unlawful, except as they were directly in defense of an action.</p> <p>3. War <@=>12 — Attorney may collect from property in hands of Alien Property Custodian on claim assigned by Ms former partner.</p> <p>Where a claim for services as an attorney rendered prior to April 30, 1915, had been acquired by plaintiff from his former law partner on the dissolution of the partnership prior to October 6, 1917, plaintiff may recover on such claim against property of the alien in the hands of the Alien Property Custodian, although assignment of the claim by plaintiff’s former partner was made in April, 1919; it not being an assignment prohibited by section 7 and 9 of the Trading with the Enemy Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 3115%d, 3115%e), and being In no way by or on account of the alien enemy.</p> <p>4. War <@=>12 — Assignment of property ini hands of Alien Property Custodian by alien enemy conveys no rights.</p> <p>An alien enemy’s consent, assignment, or acquiescence in an attorney’s daim for services in defense of property now in the hands of the Alien Property Custodian can give the attorney no title to the property.</p> <p>5. Interest <@=39 (5) — Attorney for alien enemy entitled to interest from date of rendering bill.</p> <p>An attorney for an alien enemy, whose property is in the hands of the Alien Property Custodian, is entitled to interest on the amount allowed by the decree from the date when he presented the bill, or brought it to the attention of the alien in the usual manner between .attorneys and clients.</p>

<p>In Equity. Suit by the Charleston Dry Dock & Machine Company against J. R. O’Rourke and others. On motion for preliminary injunction.</p>

<p>At Law. Action by Frank M. Zeller against the American International Corporation. On rule by defendant for judgment on the pleadings and motion by plaintiff to remand to state court.</p>

<p>1. Counties <&wkey;190(2) — Counties in Alabama may not malte special levy in excess oí mills.</p> <p>Under Const. Ala. § 235, providing that no county shall levy a tax in any one year in excess of one-half of 1 per cent, of the taxable property therein, provided that to pay any debt contracted for the erection of public building's, bridges, or roads it may levy and collect “such special taxes, not to exceed one-fourth of 1 per cent., as may have been or may bo authorized by law,” and Code Ala. 1997, § 134, which limits the authority of a county board to levy special taxes to a tax not exceeding one-fourth of 1 per cent., a county board is without power to levy a special tax to pay for road wort in excess of one-fourth of 1 per cent., though the excess.is to be taken out of the general tax of one-half of 1 per cent.</p> <p>8. Counties <&wkey;199(l) — County board not authorized to anticipate surplus in general fund by levying special ta¡x.</p> <p>Code Ala. 1907, § 5766, authorizing the court of county commissioners or boards of revenue of any county to transfer to the road fund any surplus of the general fund, does not give them power to anticipate a surplus and apply it in advance to a road debt by levying it as a special tax.</p> <p>3. Counties <&wkey;190(l) — County boards! not authorized to split general levy.</p> <p>Code Ala. 1907, § 1335, requiring payment to the cities within a county of one-half of so much of a special tax as was collected on property located in such cities, confers no authority on a county board in levying taxes to split the general levy of 5 mills and levy a part as a special tax.</p> <p>4. Counties <&wkey;190(2) — Taxing powers of counties are conferred and limited by statute.</p> <p>A county has no power of taxation except such as is conferred by statute, to be exercised subject to the conditions and limitations prescribed.</p> <p>5. Estoppel <&wkey;62(3) — County held not estopped by acts of officers.</p> <p>' A county held not estopped to assert the invalidity of a contract made by the county board, which it had no power to make, by the act of its officers in pleading such contract as a defense to an action against it.</p> <p>6. Counties &wkey;>lll(l) — Contract to levy special tax binding.</p> <p>A county held bound by a contract made by its board of revenue, based on a valuable consideration, to levy a special tax for the payment of county warrants held by complainants, which levy the board had authority to make, and also held bound to apply the proceeds of a similar levy which had been made and collected Jo the payment of such warrants.</p>

<p>1. Electricity &wkey;>ll — Cities in South Dakota may make valid contraéis fixing rates oí electric company.</p> <p>The statutes of South Dakota (Pol. Code 1.903, § 1229) which authorize municipal corporations, to provide for lighting streets and public grounds, to regulate openings for laying gas or water pipes, and the erection of electric light poles, and provide that any company organized for the purpose of manufacturing gas or electricity “has the right, by consent of the city council, to lay down pipes or string wires on poles in the streets and alleys of any city in this state, subject to such regulations as such city may by ordinance impose,” confer no power upon a city to regulate or change rates to bo charged for electric current, and a city, in granting a franchise to an electric company, may by contract, accepted by the company, fix maximum rates of charge for a stated term, which contract is valid and binding during the term, regardless of the fact that the rates so fixed are or may become confiscatory.</p> <p>2. Constitutional law <&wkey;205(1) — Franchise ordSussice «u<í_ contrast with electric ccmyauy not giant oí special privilege or immunity.</p> <p>The provision of Const. S. D. art. 6, § 12, that “no law malting any irrevocable grant of privileges, franchises or immunity shall be passed,” held not violated by a city ordinance granting a franchise for a term of years to an electric company, including a contract fixing rates to he charged by the company.</p>

<p>1. Creditors’ suit <&wkey;59 — Complainant entitled to costs, including counsel</p> <p>One jointly interested with others in a common fund, who brings and prosecutes a suit for its preservation and administration, as in a generar creditors’ suit is equitably entitled to reimbursement of his costs, including reasonable fees of his counsel, to be paid either out of the fund itself or by proportionate contribution from those receiving the benefit of the litigation, but such counsel fees may be awarded dire.etly to his solicitors.</p> <p>Z. Creditors’ suit <&wkey;59 — Allowance of fees to complainant’s counsel.</p> <p>Fees allowable to counsel for complainant in a creditors’ suit include reasonable compensation for services rendered after the appointment of a receiver in discharge of his duty, acting in behalf of all creditors standing in a similar position to complainant, to prosecute the suit to final distribution and to defend and otherwise protect the fund; but such fees are to be based only on the fund applicable to claims of creditors of the same class as complainant, and the fund on which' others have superior liens cannot be subjected to such payment.</p> <p>3. Creditors’ suit <&wkey;59 — Basis of allowance of counsel fees.</p> <p>Where counsel for complainant in a creditors’ suit are also employed by interveners under contracts for special fees, while the general allowance to them from the fund recovered of fees for their services in recovering the same is not to be diminished by the total of such special fees, the amount of the claims of the separate clients from whom they receive special compensation is to be taken into consideration by way of a general deduction in determining the total fund on the basis of which their fees should he fixed.</p>

<p>1. Injunction ®=»85 (2) — Severity oí punishment for violation of statute ground of equity jurisdiction to determine validity.</p> <p>A provision of a civil statute subjecting any person violating it to a year’s imprisonment for an act otherwise lawful, held to justify a resort to equity to determine its validity.</p> <p>2. Aliens State may prohibit aliens from acquiring lands.</p> <p>A state may lawfully prohibit the acquiring of lands by aliens if there is no treaty to the contrary.</p> <p>3. Treaties <8=»11 — Are paramount to state laws.</p> <p>If a state Constitution or statute conflicts with a treaty, it is either void or suspended during the existence of the treaty.</p> <p>4. Aliens <3=»13 — Japanese treaty does not give right to lease agricultural lauds.</p> <p>The provision of article 1 of the treaty between the United States and Japan (37 Stat. 1504), that citizens and subjects of each contracting party “shall have liberty * * * (in the territories of the other) to own or loase and occupy houses, manufactories, warehouses and shops, * * to lease land for residential and commercial purposes, and generally to do anything incident to or necessary for trade,” held not to give the right to lease agricultural land, but to leave each state in the United States free to grant or prohibit such right to Japanese subjects.</p> <p>5. Aliens <S=^13 — Farming snot incidental to trading in farm products.</p> <p>Thp leasing of land for farming purposes is not incidental to trading, either wholesale or retail, in farm products.</p> <p>6. Constitutional law <®=’2C8(1) — Bight to convey land to cue prohibited from acquiring it by laws of state not a privilege or immunity.</p> <p>The Fourteenth Amendment to the Constitution held not to give a citizen the right to sell or lease land to an alien prohibited by the laws of the state from acquiring land by purchase or lease.</p> <p>?. Allens <3=>i8 — Statute prohibiting ownership of land held valid.</p> <p>The Alien Land Act of Washington, which prohibits the purchase or lease of land by any alien who has not in good faith declared his intention to become a citizen, held constitutional and valid.</p>

At Law. Actions by the Dock Contractor Company against the Niagara Ealls Power Company and by the latter Company against the Raymond Concrete Pile Company. On motions by plaintiff in the first case to amend complaint, and by defendant in the second case to amend answer.

<p>In Equity. Suit for injunction by A. Bourjois & Co., Incorporated, against Anna Katzel. On motion for preliminary injunction.</p>

<p>In Equity. Suit by the American Engineering Company against the Frederick Engineering Company and the Frederick Iron & Steel .Company.</p>

<p>Patents <@=’328 — 1,152,222, for improvement in underfeed stokers, held valid and infringed..</p> <p>The Riley patent, No. 1,152,222, claims 3, 9, and 10, for an improvement in the underfeed stoker of the Taylor patent, No. 778,812, consisting of the addition of an extension grate at the foot of the Taylor retort, upon which the portion of fuel passing unconsumed through the retort may be efficiently burned under forced draft, held the invention of the patentee, valid, and infringed.</p>

<p>1. Mines and minerals <3=44 — General exception of known Iodo in placer patent effective.</p> <p>Under the law as settled by the Supreme Court, the issuance by the Land Department of a patent for a placer mining claim is not conclusive that there is no known lode therein, and a general exception in the patent of any known lode may be invoked by any subsequent claimant of a lode, though the effect may be to lessen or wholly destroy the value of tlie placer claim.</p> <p>2. Mines and minerals <S=»43 — Lode crossing placer claim held not excepted from the patent as a known lorie.</p> <p>A lode crossing a patented placer claim helé, on the evidence, not identical with a lode known to exist prior to the patent and not excepted from the patent as a “known lode.”</p>

<p>1. Habeas corpus <§=»59 — Court bound to assume truth of allegations of petition, when xoicontroverted.</p> <p>The court is bound to assume the truth of uncontroverted allegations in a petition for a writ of habeas corpus.</p> <p>2. Habeas corpus <S=>3 — Petitioner, who deserted after improper induction into army, not entitled to writ, where h© did not avail himself of proper legal remedy.</p> <p>Where a nondeclarant alien, a citizen of Austria-Hungary, was erroneously inducted into and retained in the military service of the United States during the war with Germany, after having been given an exempt classification by a draft board, but he did not avail himself of the proper legal remedy to obtain appropriate relief, and, on the other hand, deserted, he is not entitled to the extraordinary writ of habeas corpus to procure his release from custody of the military authorities as a deserter.</p> <p>3. Army and navy <§=44(2) — -Military authorities have jurisdiction of iin-properly inducted deserter.</p> <p>The military authorities have the power and right to arrest and bring to trial on the charge ol' desertion one who, after being inducted into the army and becoming subject to military law, defied the orders of his superior officers and deserted, though ho had been inducted into the army improperly in the first place, having been accorded exemption under the Selective Service Act (Comp. St. 1018, Comp. St. Ann. Supp. 1919, §§ 2044a-20Í41t), in force during the war with Germany, as a non-declarant alien.</p> <p>4. Habeas corpus @=>85(1) — Court will not assume military tribunal will deny fair heating.</p> <p>The District Court of the United States will not assume, on petition for habeas corpus by one held in custody by the military authorities as a deserter, that the proper military tribunal to try the offense will deny to petitioner a full and fair hearing, or will deprive him of any rights to which he is entitled on account of having been improperly inducted into the army in the first place, after having been accorded exemption as a nondeclarant alien Tinder the Selective Service Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 2014a-2O44k), in force during tlie war with Germany.</p>

<p>1. Shipping <Ss=»137 — Damage <© sugar cargo held «Sue to miseaworthiness.</p> <p>Damage to a cargo of sugar from leakage of sea water into a hold heM due to unsea worthiness of tile vessel by reason of structural defects, which manifested themselves under ordinary conditions of severe weather. and for which the vessel was not exempted from liability by Harter Aet. | 3 (Comp. St. § 8031) ; it being shown that many of the rivets were not properly fitted or driven, allowing leakage around them, which defects should have been disclosed by a proper inspection.</p> <p>2. Shipping <@=143 — Owner of chartered vessel primarily liable for damage to cargo due to unseaworthiness.</p> <p>Where damage to the cargo of a chartered vessel was due to unseaworthiness, the owner is primarily and the charterer secondarily liable therefor.</p>

<p>1. Seamen <S=»12 — Coastwise seamen, signing shipping articles, may be discharged only by master before commissioner.</p> <p>While seamen in the coastwise service are not required to be shipped before a commissioner and sign articles, they may be so signed, as authorized by Act April 11, 1904 (Comp. St. § 8293), and when that is done the statutes relating to such contracts apply, and under Rev. St. §§ 4549-4551 (Comp. St. §§ 8338-8340), a seaman can only be discharged by the master in the presence of a commissioner.</p> <p>2. Seamen @=>19 — Acceptance > of unauthorized discharge does not entitle seaman to unearned wages.</p> <p>Libelant, who had signed shipping articles as assistant engineer, was told before the voyage commenced by the chief engineer, who had no authority to discharge him, that he was discharged to make room for another, and left the vessel, but before she sailed was notified that he was not discharged, and directed to report for duty, which he refused to do. Meld,, that he was not discharged, and was not entitled to recover a month’s wages, under Rev. St. § 4527 (Comp. St. § 8318).</p>

<p>Patents <®=»318(3) — Standard for determining profits of infringer of process patent.</p> <p>Tiie standard of comparison by which is measured the profits for which an infringer of a process- patent is accountable is the gain he made by use of the patented process, rather than any other which was open to the .public and which he might have used, and his choice is not limited to the processes known at the date of the patent or when infringement commenced, but he was free to choose at any time during its continuance, and the best process, known and free, which he might then have used, furnishes the standard for subsequent infringement.</p>

<p>Shipping <©==>123 — Damage to sugar cargo held due to improper dunnage.</p> <p>Damage to the lower and outside tiers of bags of sugar from moisture held due to unseaworthiness of the ship, caused by failure to supply proper dunnage.</p>

<p>1. Action ©=>23 — Plaintiff may plead equitable reply to legal defense. •</p> <p>Under Act March 3, 1915 (Judicial Code, § 274b [Comp. St. § 1251b]), providing that in actions at law equitable defenses may be interposed by answer, plea, or replication, without filing a bill in equity, where a legal defense is set up in the answer, plaintiff by replication may meet it by an equitable reply, and where defendant pleaded a release of the cause of action sued on, plaintiff could by replication attack the settlement for fraud.</p> <p>2. Jury <@=»31(3) — Statute permitting equitable reply to legal defense not invalid.</p> <p>Act March 3, 1915 (Judicial Code, § 274b [Comp. St. § 1251b]), construed as permitting plaintiff to meet a legal defense by an equitable reply, does not violate Const. Amend. 7, relative to jury trials, and is not invalid; there being no constitutional guaranty of permanent circuity of action.</p> <p>3. Equity <3=378 — Submission of issues involved in equitable reply is discretionary, and preferable when issue simple.</p> <p>IJnder Act March 3, 1915 (Judicial Code, § 274b [Comp. St. § 1251b]), where defendant pleads a release, and plaintiff by replication alleges fraud and seeks equitable relief, whether the issues involved in the equitable relief should be submitted to a jury or determined by the court is a matter of judicial discretion, and where the issue is simple and eminently fit for submission, it should he left to the jury, as the statute is remedial, and should he liberally construed.</p> <p>4. Release C=24(2) — May be set aside in equity without previous tender of consideration.</p> <p>Previous tender of the consideration of a release is not necessary in equity before setting it aside for fraud.</p> <p>5. Release <§=>17 (1) — Invalid when facts concealed.</p> <p>Where defendant agreed to pay plaintiff a specified portion of the profits on copper properties brought to his attention by plaintiff, defendant, in negotiating for a release of plaintiff’s rights, could not legally conceal the facts known to him concerning the ore bodies in the properties, engineers’ reports, advantageous methods of exploitation, and progress made in interesting powerful financial forces and experienced exploiters of such properties, and, where he did so, the settlement was invalid for fraud.</p> <p>6. Releas© ©=>17(1)- — Representation as to opinions and intentions concerning properties in which party releasing had interest held material.</p> <p>Where defendant agreed to pay plaintiff a share of the profits on copper properties brought to his attention by plaintiff, representations by him in negotiating for a release of plaintiff’s rights as to his opinion of the properties and intentions concerning their acquisition, contemporaneously with the consummation of a deal highly satisfactory to him for the exploitation of the properties by powerful financial interests, were material and highly important.</p> <p>7. Judgment 0=713 (3) — In suit to rescind assignment of option to purchase contract not conclusive in suit to set aside release made to holder of option.</p> <p>Defendant agreed to pay plaintiff a share of the profits on copper properties brought to his attention by plaintiff. Plaintiff gave R., defendant’s agent, an option to purchase his contract for a comparatively small amount. Defendant demanded the option from R., and thereunder procured a release from plaintiff for the amount specified in the option. R. brought suit to rescind the assignment of the option for fraud, for the benefit of himself and plaintiff "as his interest may appear,” having arranged with plaintiff to divide the proceeds. Held', that a judgment for defendant did not bar plaintiff’s action to set aside his release for fraud and recover the profits due him, though both suits sought to mate defendant liable on his original contract with plaintiff, as the suits were for different frauds, directed against different persons, with relation to different transactions. ■</p> <p>8. Limitation of actions @=>104(1) — Statute inapplicable when cause of action concealed by defendant.</p> <p>Though plaintiff’s cause of action to set aside a release of his rights under a profit-sharing contract, and to recover the profits due him, accrued more than six years before suit was brought, the statute of limitations was not a defense, where the cause of action had been fraudulently concealed by defendant.</p> <p>9. Release @=>24(1) — Delay in repudiating not laches, when no disadvantage resulted.</p> <p>Where plaintiff’s delay in suing to set aside a release of his rights under a profit-sharing contract and to recover the profits due him did not operate in any way to defendant’s disadvantage, laches was not available as a defense, as such defense depends on the circumstances 'of the particular case.</p> <p>10. Release @=22 — Plaintiff’s attempt to recover profits released through tnird person’s suit held to give defendant no right to complain.</p> <p>Where defendant, agreeing to pay plaintiff a share in the profits on certain copper properties, obtained a release from plaintiff by concealing facts plaintiff was entitled to know, he could not complain because plaintiff, before obtaining full knowledge, arranged with a third person to share the proceeds of a suit brought by him seeking to recover the same profits under an option given by plaintiff to the third person and assigned to defendant.</p>

<p>1. Patents &wkey;>28S — Device mot using dement of patented! device held not to infringe patent.</p> <p>A patent on a plant for thawing frozen contents of cars by inclosed stalls in which hot air is introduced, which may be deflected by means of dampers to other stalls, is not infringed by a plant of the same construction, where the stalls are independent and separate, and no use is made of dampers for deflecting air currents.</p> <p>2. Patents <&wkey;238 — Change In plan of construction of plant held to avoid infringement of patent.</p> <p>Where a plant for thawing frozen contents of cars was being constructed to use dampers for deflecting air currents in such a way as to infringe a patent covering such a plant, but the plan of construction was changed by securely closing the openings left for the dampers with plates, there is no infringement of the patent, though the plates could be removed and the dampers mounted with little expense.</p> <p>3. Patents <&wkey;828 — No. 1,044,230, claims 20, 23, for thawing apparatus, held not infringed.</p> <p>Patent No. 1,044,230, claims 20 and 23, for plant for thawing frozen contents of cars, held not infringed.</p> <p>4. Patents <&wkey;310 (10) —Filing of supplemental bill for infringement held unnecessary.</p> <p>Where an interlocutory decree over a year before enjoined infringement of a patent, and the final decree provided that the injunction should continue, except with respect to a released plant, the filing of a supplemental bill for an injunction with respect to another plant was unnecessary.</p>

<p>Bankruptcy <&wkey;349 — United States Shipping Board Emergency Fleet Corporation held not entitled to priori'y'o; payment.</p> <p>The United States Shipping Board Emergency Fleet Corporation, incorporated under the general corporation law of the District of Columbia pursuant to Act Sept. 7, 1916, §§ It, 13 (Comp. St. |§ 8116f, 8t46g), given tRe President’s authority to construct, purchase, and requisition vessels under Act June 15, 1917 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3115Vied), by the President’s executive order of July 11, 1917, was not entitled to priority of payment under Bankruptcy Act, § 64 (Comp. St. § 9648), and Key. St. § 3466 (Comp. St. § 6372), of a debt due it from a bankrupt with whom the corporation made a contract as a principal, and not as the agent of the United States government, on the theory that the debt was one due to the United States, since, the corporation having been organized as a private corporation under the District of Columbia’s. general incorporation law, the government’s ownership of the stock did not divest it of its character as a private corporation, in view of sections 607, 608.</p>

<p>1. Bankruptcy <&wkey;341 — Governmeiil’s claim for taxes passed! on in first instance fey bankruptcy court and not allowed as matter of course.</p> <p>Under Bankruptcy Act, § 64a (Comp. St. § 9648), claim of the government for taxes is not ordered paid in its entirety as-matter of course and the trustee remitted to proceedings under Rev. St. § 3226 (Comp. St. § os)49) to have the money returned, but the bankruptcy court passes on and determines validity of tbe tax in the first instance; it not being a case where the trustee is seeking to maintain a suit for recovery of internal revenue taxes illegally assessed, the government and not the trustee being the moving party, and this notwithstanding the trustee moves that the government's proof of debt be reconsidered and rejected, a verified proof of debt in bankruptcy having probative force and making out a prima facie case requiring the objector to go forward.</p> <p>2. Internal revenue &wkey;>7 — -Additional payment to be made at <¡©3 of year by leases to lessors of films bold rent, as expensa of operation and not a declaration of dividends.</p> <p>Under contract of the G. Kim Company with ten manufacturers of moving picture films, each originally owner of one-tenth of G.’s common stock, whereby they were to lease to it their films at nine cents a loot plus a payment at the end of the year, such payment to be from G.’s net profits during the year in excess of a 7 per cent, dividend on preferred stock and a 12 per cent, dividend on its common stock, such payment to each to be such proportion of such balance as the number of feet leased by it to G. bore to the total number of feet leased by G. from all Patents Company licensees during the year, held, relative to the income tax of G., that such additional payments should be considered rent, an expense of operation, and not a declaration of dividends to the manufacturers, though the question is one of intent.</p>

<p>In Error to the District Court of the United States for the Western District of Arkansas; Frank A. Youmans, Judge.</p> <p>Action by the Clear Creek Oil & Gas Company against the Ft. Smith Spelter Company and others. From an adverse judgment, plaintiff .brings error.</p>

<p>1. Abatement and revival <&wkey;9 — Injunction suit by carrier attacking state-fixed rates hele! a class suit preventing action by shipper ios* overcharge.</p> <p>An injunction suit by a carrier against officers of a state and all shippers, though only one shipper was named, attacking a state-rate statute as unconstitutional, was a class suit binding on all shippers, so that, till reversal of a decree therein enjoining any steps to enforce the statute, shippers other than the one named could not institute action to recover charges collected in excess of such statutory rates.</p> <p>%. Judgment <&wkey;8W — Decree dismissing, without prejudice, suit by carrier again at shippers as a class, after holding it without merit, held conclusive on the maim question) therein, in subsequent) action by shipper t® recover overcharge.</p> <p>Decree of Supreme Court dismissing, without prejudice, injunction suit by carrier against shippers as a class, after holding it without merit, is conclusive on tlie main question therein, whether the state rates were confiscatory, in a subsequent action by a shipper to recover of the shipper overcharges paid during the period of the injunction suit; and this notwithstanding a decision and order of the Interstate Commerce Commission prior to the decree of the Supreme Court, holding that there was a discrimination against interstate commerce by reason of, difference between interstate and intrastate rates, and ordering the removal thereof for the future.</p> <p>3. Interest <&wkey;12 — Recoverable on excess charges by carrier.</p> <p>A shipper recovering excess charges of a carrier is entitled to interest thereon.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Eibel in admiralty by E. B. Aaby against Bred M. Dyer. Decree for libelant, and respondent appeals.</p>

Petition to Revise Order of the District Court of the United States for the Eastern District of New York. Involuntary petition in bankruptcy by Charles S. Merlis and others, against the Regal Cleaners & Dyers, Inc. Motion to strike out the alleged bankrupt’s answer and the appearance of its attorneys denied, and petitioners seek to revise order.

<p>1. Trusts &wkey;35(D — Deed and contract held not to create trust in favor of third person. , ,. . ,</p> <p>, ,. A deed of real property and a contract between the parties executed at the same time, providing that the grantee should pay to a sister of the grantor $50 per month and that, such payments being made, the deed should be effective until the marriage or death of the grantee, when the property should revert, construed together as parts of the same transaction and held to constitute a conveyance on condition subsequent, and not to create a trust in favor of the sister, enforceable by her.</p> <p>2. Contracts &wkey;187 (1) — When third person may enforce contract made for Ms benefit.</p> <p>Under Rev. Codes Mont. § 4970, providing that “a contract made, expressly for the benefit of a third person may be enforced by him at any time before the parties thereto rescind it,” as construed by the Supreme-Court of the state, which construction is binding on the federal courts, a contract to come within the scope of the. statute must be one wherein the promisor undertakes to pay or discharge some debt or duty which the-promisee owes to the third person, and where no consideration passes, from the third person, but the provision for his benefit is voluntary on the part of the promisee, he cannot maintain an action for its enforcement.</p>

libel by the Hogarth Shipping Company, I/united, against the steamship Western, Pride, her engines, etc., claimed by the United States. From a decree for libelant, the claimant appeals.

Suit by the Pennsylvania Cement Company against the Bradley Contracting Company and Frank Bradley, as president, etc. From an order directing that he be committed for contempt of court, the last-named defendant appeals.

<p>1. War &wkey;>4 — Indictment for aiding and abetting insubordination need not allege tiio means employed or the particulars of the incitement, aid, or assistance.</p> <p>The indictment for aiding and abetting in an attempt to cause insubordination, disloyalty, and refusal of duty in the military forces of the nations when it was at war, the conduct of the principal being set out, need not allege the means employed by the abettor or the particulars of fcls incitement, aid, or assistance, but it is enough to charge, in general terms, that he knowingly aided and abetted the principal and induced and procured him, to commit the principal offense.</p> <p>3, Criminal law &wkey;>il39(3) — Asaig'ninuais oí emur oh admission of evidence held Insraffident,</p> <p>Assignments of error on admission o£ evidence are insufficient; they giving no information as to the character of the evidence, or of the objections made to it, but referring geneially and at large to the “shorthand report of the trial.”</p> <p>8. Wat <&wkey;4 — SUMerso oii aiding ansi abrBlimg seditious uti rameo feto proper.</p> <p>Evidence on prosecution for aiding and abetting another in his seditious utterances held not to have gone beyond the proper limits, to show his unlawful intent and that Ms participation was not casual or inadvertent.</p>

<p>Internal revenue <&wkey;2 — Statutory provisions repealed by National Prohibition Act.</p> <p>Since the enactment of the National Prohibition Act, a suit cannot be maintained under Bev. St. § 3450 (Comp. St. § 6352), for forfeiture of a vehicle as having been used to remove and conceal distilled spirits whereon a double tax has been imposed under said Prohibition Act, with intent to defraud the United States of such tax.</p>

<p>In Error to the District Court o£ the United States for the Southern Division of the Southern District of California; Oscar A. Trippet, Judge.</p> <p>Criminal prosecution by the United States against Robert Davis and O. A. Dodson. Judgment of conviction, and defendants bring error.</p>

<p>In Error to the District Court of the United States for the District of Oregon; Chares E. Wolv'erton, District Judge.</p> <p>Fred Peterson was convicted of conspiracy to make and alter certain obligations of the United States and to publish, utter, and sell the altered obligations, and brings error.</p>

<p>Seamen <&wkey;21 — Acts constituting “desertion.”</p> <p>Libelant'shipped as cook for a voyage from Jacksonville, Fla., to Havana and return. At Havana he had a controversy with the master because of claimed delay in delivery of his mail, abused the master, and refused to obey orders, whereupon the master caused his arrest by the harbor police. On his release the vice 'consul refused his discharge and ordered him to return to the vessel, which he refused to do. Held, that such refusal constituted “desertion” under Rev. St. § 4596, as amended (Comp..St. § 8380) and a consequent forfeiture of wages.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Desertion (In Maritime Law).]</p>

<p>In Equity. Suit by the Jewelers’ Circular Publishing Company against the Keystone Publishing Company.</p> <p>This ease comes up upon exceptions to a report of Hon. E. Henry Laeombe, special master, filed June 9, 1921. Both parties except, hut it will be necessary only to take up the defendant’s exceptions, which raise only questions of law. The suit is in equity for infringement of a copyright, the evidence being referred, to a master in the first instance. The plaintiff is the publisher of the periodical of the jewelry trade known as the “Jewelers’ Circular,” which in 1915 published and copyrighted a third edition of its Trade-Mark Directory, called Trade-Marks of the Jewelry and Kindred Trades. This book contained the names and addresses of jewelers classified under different heads, arranged alphabetically, and opposite the name of each jeweler appeared the trade-names and trade-marks used by him. ■ It was the result of considerable past labor, and was sold in large quantities to the trade at $5 a volume. The information contained in it had been obtained by direct inquiry from the jewelers, and the illustrations of the trade-marks were printed from cuts generally prepared by the plaintiff personally. In some eases the trade-mark owner would himself send an illustration printed upon his stationery in such form that it could be photographically transferred to the surface of a cut which could be directly used in printing. In many cases the plaintiff got either a sketch, or the impression of a die upon metal or paper. In such cases a drawing oí the sketch or impression must bo made by a draftsman, which should be suitable for photographic transfer, and a cut was made from which the printing could be done.</p> <p>The defendant, in October, 3920, made up a book called the “Jewelers’ Index,” in several sections; one, the trade-mark section, of 88 pages, answering the same purposes as the plaintiff’s and containing the same information. In preparing tills section, after some preliminary and ineffectual inquiries, which are not necessary to mention here, the defendant sent to each jeweler whose name it proposed to insert in the “Index,” a letter, asking him to send “a cut of inclosed trade-mark of yours, also cut of any other trade-marks you are now using. * * * We trust you will make a special effort in sending cuts. * * * Send cuts same size (smaller, if possible and convenient) to Jewelers’ Index. * * * If unable to furnish cut, send detailed description of trade-mark. * * * If you use different trade-marks for various items, please send cuts and specifications. ® ~ * Assuring you cuts or electros will be returned as soon as possible, we remain,” etc. Along with this letter and fastened thereto was a printed illustration of the trade-marks which wore supposed to belong- to the jeweler in question, and these were clipped direct from the plaintiff’s book.</p> <p>In most cases the jeweler did nothing but return the clipping so inclosed, with n statement that it correctly represented Ms trade-marks. In some instances, he simply sent back the clipping without comment, and in others it did not appear that the letter was answered at all. The master found in all cases that the defendant in good faith supposed that the clipping which it copied and republished in the “Index” had had the assent of the jeweler against whose name it was entered. While a large part of the trade-mark section of the defendant’s book was made up in this way, there were some instances in which the jeweler sent cuts directly, having perhaps himself made the cuts from the illustration sent by the defendant, originally clipped from the plaintiff’s book. In many instances Miss Clark, the draftsman for the plaintiff, had made errors in drawing the trademarks, some of which plaintiff had not corrected. These remained in the defendant’s book, being mechanically reproduced as part of the trade-mark proper.</p> <p>The plaintiff, after the return of the master’s report, procured a writ of seizure under the Supreme Court rules, and has seized those copies of the “Index” which still remained in the defendant’s hands. The latter had distributed the book gratuitously as an advertisement among the trade, but the copies so distributed remained its property, and subject to recall at its request, It is the purpose of the plaintiff to seize all these copies in the hands of the defendant’s customers and impound them, subject to forfeiture and destruction, under section 25 (c) and (d), of the Copyright Act (Comp. St. § 9546), and under the Supreme Court rules.</p> <p>The defendant raises the following points: (1) That the plaintiff’s book is not protected by copyright, as it is only a list of prints or labels designed to be used for articles of manufacture, and as such within section 3 of chapter 801 of the Statutes of 1874 (18 Stat. 79); (2) that the “Index” is not an infringement, because the defendant was entitled to use the plaintiff’s book in the way that it did. Having in each ease, as the special master found, verified the accuracy of the information contained in the plaintiff’s book, it regards itself free to repeat that information, under the supposed rule of Edward Thompson Co. v. American Law Book Co., 122 Eed. 922, 59 C. C. A. 148, 62 L. R. A. 607. It also contends that the plaintiff should be enjoined from seizing those copies which are now in the hands of its own customers.</p>

<p>1. Patents &wkey;>69 — Foreign publications, to anticipate, must give full description.</p> <p>Foreign publications, to constitute anticipations of a later patent, must disclose a complete and operative structure, and the description must be sufficiently clear, definite, and understandable to enable persons skilled in the art to construct it.</p> <p>2. Patents <&wkey;>328 — 1,195,923, for a water-softening apparatus, held valid and infringed.</p> <p>The Gans patent, No. 1,195,923, for a water-softening apparatus, consisting of a filter device in which the water is passed through a zeolite bed, with the result of making it absolutely soft, and also of means for restoring the zeolite when exhausted by flowing with a salt solution, held not anticipated by prior publications, valid, and infringed.</p> <p>8. Patents <&wkey;354 — Disclaimer held valid.</p> <p>A disclaimer filed some three years after issuance of a patent, the only effect of which was to limit it in a single feature, held valid.</p> <p>4. Patents <&wkey;112(3) — -Issnauco raises presniMpiicm of invention.</p> <p>The rule that a doubt as to invention is to be resolved in favor of tbe patent is especially applicable in a case where the commercial utility ot the device is beyond dispute.</p> <p>5. Patents <&wkey;fs2--Anticipation nrast be prove# beyorn# reasonable ttonbt.</p> <p>The burden rests on the party alleging it to prove anticipation beyond a reasonable doubt.</p>

<p>Indians &wkey;>27 (2) — Courts without jurisdiction of internal controversies over property rights.</p> <p>In the absence or congressional legislation bestowing on the individual Indians in the Cattaraugus Reservation the right to litigate internal questions relating to their property rights in the federal courts, and conferring jurisdiction on a District Court to determine such controversies, it will not assume jurisdiction.</p>

<p>At Raw. Separate actions by the New York Trust Company and others, as executors of William R. Harkness, against William H„ Edwards, as collector of internal revenue, and by the United States against John D. Rockefeller.</p> <p>Those eases involve the legality of the income tax levied upon the plain-till in the Harkness Case and the defendant in the Rockefeller Case. The question turns on the effect of certain corporate actions taken by the Prairie Oil & Gas Company and the Ohio Oil Company during the winter of 1914-15. The Prairie Oil & Gas Company was the owner of pipe line property and oil property, and for reasons not here relevant felt itself forced to separate these two into two separate corporations. In pursuance of that purpose it caused a corporation to be organized known as the Prairie Pipe Line Company. It then made a contract with the pipe, line company, by which it was to convey all it: pipo line property to it, in consideration of which the pipe line company promised to distribute all its own stock to the stockholders of the oil company in the same proportion as their existing holdings. This was carried out, and the shares of the pipe line company so received by Harkness and Rockefeller were taxed as part of their income for the year in which the shares were issued.</p> <p>The transaction in the ease of the Ohio Oil Company was similar, except that the agreement between it and the Illinois Pipe Line Company, which it organized, required the shares to be transferred direct to the oil company. However, the resolution of the directors of the oil company which accepted the contract, declared as a dividend all the shares to be received from the pipe line company and directed them to be distributed among its stockholders in accordance with their existing holdings. This agreement was carried out as well, and the shares so declared were also taxed as income against Harkness and Rockefeller as in the case of the Prairie Oil & Gas Company. In both cases the pipe line properties represented a surplus above the par value oi the oil companies’ stock; the conveyances, therefore, left the oil companies’ capital unimpaired, and required no reduction in their authorized issues.</p>

<p>In Equity. Separate suits by J. I. Eyon and others, by W. M. Eyon and others, by J. M. Skaggs and others, by J. F. Eyon and others," by C. R. Eyon and others, by C. F. Sparks and others, by O. B. Kazee and others, by R. T. Sparks and others, and by H. F. Williams and others, all against the Union Gas & Oil Company and others, for the cancellation of oil and gas leases.</p>

At Raw. Action by Henry R. Towne against Richard J. McElligott, Acting Collector of Internal Revenue. On demurrer to complaint. This case arises upon demurrer to a complaint by a taxpayer for money paid on income taxes. It raises two questions: First, whether the profits realized upon the sale of the plaintiff’s shares of stock were correctly computed ; second, whether a surtax of 72 per cent, on such profits was confiscatory.

<p>L Patents <§=>118 — Disclosure in operable form essential to pioneer invention.</p> <p>A patent, which was the first that purported to disclose a machine by which certain work could be done, so as to be fairly within the definition of a pioneer patent, is not entitled to rank as such patent, unless it is accompanied by disclosure, which shows the art how the idea stated in the claim may be realized in an operable structure.</p> <p>2. Patents <§=>118 — Faults in diagrams, which mechanic could not correct, defeat patent.</p> <p>Though faults in diagrammatic representations do not defeat a patent, if the drawings show at least enough for the ordinary skilled mechanic to build the machine, the drawings must, to make an operable disclosure, be sufficient to enable such mechanic to build a machine, or the disclosure is not operable.</p> <p>3. Patents <§=>118 — Evidence held to show defects in disclosure rendering machine inoperable.</p> <p>In a suit for infringement of a patent, evidence held, to show that there were such defects in the machine disclosed by the patent as rendered it inoperable.</p> <p>4. Patents <§=>118 — Evidence held not to show defects could bo overcome by mechanic.</p> <p>In a suit for infringement of a patent, evidence field to show that the defects in the construction of the machine as disclosed by the patent were such as could not be overcome by a skilled mechanic.</p> <p>5.Patents <§=>129 — Patentee cannot claim improvement covered by subsequent patent was mechanical only.</p> <p>A patentee, who had received a subsequent patent covering improvements in the machine covered by the earlier patent, cannot claim that such improvements were merely mechanical and did not involve invention, and therefore cannot claim that a machine constructed under the later patent established that the disclosure in the earlier patent possessed only such defects as a skilled mechanic could overcome.</p> <p>6. Patents <§=>118 — Evidence held mot to show operation of machine constructed under patent.</p> <p>In a suit for infringement of a patent where the defense was that me patent did not disclose an operable machine, evidence held not to show that machines which had been actually operated were constructed under the patent in suit.</p> <p>7. Patents <§=>91 (4) — Evidence held not to show that subsequent patentee had taken prior patentee’s idea.</p> <p>In a suit for infringement of a patent, where the defense was that the disclosure in the patent was not operable, evidence held not to establish complainant’s contention that defendant had taken the idea from the prior patent, and made it profitable by the use of its greater ingenuity and resources.</p>

<p>Bankruptcy <§=>44 — Petition against partnership by one partner must allege insolvency and act of bankruptcy.</p> <p>Bankr. Act, § 5a (Comp. St. § 9589), providing that a partnership may be adjudged a bankrupt, treats a partnership as an entity, and in view of General Order in Bankruptcy No. 8, providing that a member of a partnership who refuses to join in a petition to have the partnership declared bankrupt “shall be entitled to resist the prayer of the petition in the same manner as if the petition had been filed by a creditor of the partnership,” that he shall be served with notice, and “shall have the right to appear * * * and to make proof if he can that the partnership is not insolvent or has not committed an act of bankruptcy and to make all defenses which any debtor proceeded against is entitled to take by the provisions of the act,” a petition filed against a partnership by one partner alone must conform to the requirements of an involuntary petition and must allege insolvency and an act of bankruptcy by the partnership.</p>

In Equity. Suit by the Gorham Manufacturing Company against Eugene M. Travis, Comptroller, and Charles D. Newton, Attorney General of the State of New York. The ease comes up upon final hearing on a bill in equity by a foreign corporation to enjoin the Comptroller and Attorney General of New York from enforcing a franchise tax levied in 1918..

<p>At Raw. Action by the Selden Breck Construction Company against the Regents of the University of Michigan. On demurrer to declaration.</p>

In Equity. Suit by the Consolidated Gas Company of New York against Charles D. Newton, Attorney General of the State of New York, and others. Application by defendants for an extension of time fixed by decree for turning over to plaintiff the sums impounded.

<p>In Admiralty. Suits by Edward Mazza against the J. G. White Engineering Company, and by Stathatos & Co., Limited, against the International Freighting Corporation, and four other cases. On exceptions By libelants to two articles of answers.</p> <p>The case arises on tbe libelant’s exceptions to two articles (tenth and eleventh) of the answer for insufficiency.</p> <p>The libel was filed by the owner for damages arising for a breach of the charter party under which the respondent chartered a steamer for a voyage from Baltimore to Genoa with a cargo of coal. The material part of the charter party for the purposes of the case are clauses 3 and 7, which read as follows:</p> <p>‘•3. The cargo to be loaded with customary despatch but at not less than 1,500 tons per running day, Sundays and legal holidays excepted, lay days commencing, * * * steamer being completely discharged of inward cargo and ballast in all her holds and ready to load, such notice to be given between business hours, 9 a. m. to 5 p. m., or 1 p. m. on Saturdays. * * * Any time lost through riots, strikes, lockouts, or any disputes between masters and men occasioning a stoppage of pitmen, trimmers, or other hands connected with the working or delivery of the coal for which the steamer is stemmed; or by reason of accidents to mines or machinery, obstructions on the railway or in the docks; or by reason of floods, frost, fogs, storms or any cause beyond the control of the charterers, whatsoever, not to be computed as part of the loading time (unless any cargo be actually loaded during such time). In tl^e event of any stoppage or stoppages arising from any of these causes continuing for the period of six runing days from the time of the vessel being ready to load, this charter shall become null and void, provided, however that no cargo shall have been shipped on hoard the steamer previous to such stoppage or stoppages. In case oí partial .holiday or partial stoppage of colliery or collieries from any or either of the aforementioned causes, the lay hours to be extended proportionately to the diminution of output arising from such partial holiday or stoppage. * * * ”</p> <p>“7. The act of God, the king’s enemies, restraints of princes and rulers, and perils of the seas excepted. Also fire, barratry of the master and crew, pirates, collisions, slrandings, and accidents of navigation, or latent defects in, or accidents to hull and/or machinery, and/or boilers, always excepted, even when occasioned by negligence, default, or error in judgment of the pilot, master, mariners, or other persons employed by the shipowner, or for whose acts ho is responsible, not resulting, however, in any case, from want of due diligence by tile owner of the ship, or by the ship’s husband or manager. Charterers not answerable for any negligence, delimit or error in judgment of trimmers or stevedores employed in loading or discharging the cargo. The steamin’ has liberty to call at any ports in any order, to sail without pilots, to tow and assist vessels in distress and to deviate for the purpose of saving life or property, and to bunker. It is also mutually agreed that this shipment is subject to all the terms and provisions of and all the exemptions from lia bilily contained in the act of Congress of the United States, approved on the i3th day of February, 1893, and entitled ‘An act relating to Navigation of Vessels,’ etc.” Comp. St. §fj 8D2S/-8035.</p> <p>The libelant alleges readiness and tender of the vessel and the respondent’s failure to furnish a cargo. ,</p> <p>The tenth article of the answer alleges that the respondent was acting as agent, for Société Co-operative Suisse de Gharbons, of Basle, Switzerland, on whose behalf the charter party was made, as appeared from the approval signed by one Rohner, Chief of the Official Purchasing Office of the Legation of Switzerland.</p> <p>The eleventh article is too long to set out in extenso; in substance it is as follows: That at the time in question no coal was stored at any ot' the loading ports named in the charter party, but it was all transported in freight, cars always direct to the vessels into which it was dumped, as was well known to the libelants. That strikes and labor troubles arose before July 9, when the vessel was tendered, which greatly impeded the transportation and delivery of coal. That by reason of the situation so arising the Interstate Commerce Commission declared an emergency to exist, and established by valid orders priorities, preferences, and conditions in the shipment of coal. That all carriers obeyed these orders, and that the respondent by reason of their provisions was unable to obtain a cargo, although it made diligent efforts to do so. That the condition so arising continued for six running days, at the end whereof the respondent denounced the charter party as entitled to do.</p>

In Admiralty. Libel by the Aktieselskabet Bruusgaard against the Standard Oil Company of New Jersey.

In Admiralty. Libel by Robert Petterson and others against the United States. Libel by eight seamen against the United States, as owner of the steamship Bushong, for double pay from May 10 to July 3, 1920.

<p>!. Internal revenue <&wkey;28 — United States has no present provable claim for income taxes against receivers until expiration of year for which taxes are due.</p> <p>The United States has not a present provable claim for income taxes against receivers of a corporation on the corporation’s receipt of an amount of money as income prior to the expiration of the calendar year for which such taxes are due.</p> <p>t. Internal revenue <&wkey;7 — “Income tax” defined.</p> <p>An “income tax” is not a tax upon any specific sum of money, but is a personal tax, measured by sums of money received, or possibly accrued, to the person taxed during a certain period.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Income Tax.]</p> <p>3. Receivers &wkey;>113 — Court cannot adjudicate validity of imposing tax prior to due date of tax.</p> <p>Where, on petition by receiver for instructions as to taxes due the government, the United States refuses to state whether it will claim an income tax on a sum of money received by the receivers prior to the due date of such tax, and does not consent to the adjudication of the question of whether the government can impose such a tax on such fund, the court cannot adjudicate such question.</p> <p>4. Receivers <&wkey;>153 — Personally liable for income tax on disirEration of fund prior to due date.</p> <p>Under Comp. St. §'§ 6372, 6373, relating to priority of “debts due to the United States,” a receiver who distributes to creditors a sum of money received prior to the due date of income tax would be personally responsible, where a valid claim is made by the government, on due date.</p> <p>5. Action <&wkey;6 — One cannot be compelled to come into court and have future rights adjudicated.</p> <p>One having no present demand presently enforceable, but who can be shown to be about to present a demand, cannot be compelled to come into court and have his future rights adjudicated.</p>

<p>In Bankruptcy. In the matter of the Tidewater Coal Exchange, bankrupt. On objection to the jurisdiction of the court.</p> <p>A petition in bankruptcy was filed by three persons alleging themselves to be creditors of the Tidewater Coal Exchange asking an involuntary adjudication against this association. Certain parties, claiming an interest in the result, ,intervened and objected to tlie adjudication on the ground that the alleged bankrupt was not an “unincorporated company” within the meaning of section 4b of the Bankruptcy Act (Comp. St. § 9588). The facts were stipulated and are as follows:</p> <p>On June 20, 1917, at the instance of the Council of National Defense, certain shippers of bituminous coal to eastern tidewater ports formed an association known as the “Tidewater Coal Exchange.” Its general purpose was to speed the transshipment of coal from cars to ships at tidewater ports and so to release the average number of cars held up. These shippers agreed that all their shipments should be pooled in common at the ports, and deliveries made to ships out of the pool; they being credited with all coal received by the Exchange and debited with all coal shipped on their consignments. The affairs of the Exchange were managed in accordance with rules duly promulgated and by an executive committee of eleven persons elected by the members l'or one year, and the chief executive was a commissioner. The expenses of the Exchange were paid by the carriers, but the members agreed to pay the carriers the amount assessed against them for freight charges, under the authority of the commissioner. The Exchange hired many employees, and the total cost of operating was over 8800,000. It established a system of coal classification, reducing the previous 900 classes to about 50, under which the coal was all consigned and shipped.</p> <p>At the outset no member was allowed to ship more than the amount of coal he had in the pool, but this system was subsequently changed, and from time to time the commissioner allowed members to withdraw a larger quantity of coal than had arrived, and they thus became debit members of the Exchange. Similarly, those who had shipped more coal than had been delivered, on their consignment, were credit members. It so came about that the pool did not contain enough coal to answer all the claims of all members.</p> <p>Besides the members, any shipper of coal might deal with the Exchange on the same terms as members, and after the control of the carriers by the Director General, all shippers of coal to tidewater were in fact compelled to ship in this way, since they could not get cars unless they agreed to the pool. The total quantity of coal thus passing through the Exchange amounted to over 72,000,000 tons, or about 1,500,000 carloads.</p> <p>On the 10th day of April, 1920, the Exchange was incorporated under the laws of Delaware, and the corporation took over and Conducted the same business from that date, until it was closed on April 30, 1920.</p> <p>The status of the objectors here does not definitely appear. In the opinion they are assumed to be creditors, although the record seems rather to put them in the position of debtors.</p>

In Bankruptcy. In the matter of the Tidewater Coal Exchange, bankrupt. On motion for adjudication by petitioning creditors, on motion to strike out certain answers, and on motion of the Delaware Steamship & Commerce Corporation to be allowed to intervene and file an answer.

<p>1. Statutes <§=>190 — Construed according to actual words used, where unambiguous.</p> <p>In the construction of statutes, the actual words used must prevail, so far as they may bear only one meaning.</p> <p>Z. Seamen <3=>24 — Entitled on dtemand to one-half of wages earned and still due under statute entitling them to one-half of wages “earned,”'</p> <p>Under Rev. St. § 4530, as amended in 1915 (Comp. St. § 8322), entitling seaman, on arrival at port in United States, to “one-half of the wages which he shall have earned,” on demand from master, seamen are entitled on suc-h demand to one-half of the wages earned and still due them, and not merely to one-half of the total wages earned since the voyage began, in view of the legislative history of such statute.</p> <p>[Ed. Note.- — For other definitions, see Words and Phrases, First and Second Series, Earn.]</p>

<p>In Admiralty. Libel in personam by Victor Mattes and others against the Standard Transportation Company for seamen’s wages.</p> <p>The respondent is a British corporation and at the time in question was the owner of the Wabasha, flying the British flag. She sailed from Bombay in the early part of 1920, and reached New York with a Chinese crew in April of that year. This crew deserted while in New York, and the master was forced to engage another crew, consisting of 45 or 47 men, of whom the libelants, 29 in number, were a part. They were made up of various nationalities, largely Portuguese, who were supplied by a boarding house keeper. The Wabasha was a coal-burning steamer, and the men shipped as seamen, firemen, quartermasters, oilers, and coal passers. Some of them had prior discharges, and all swore at this trial that they had had former experience as seamen.</p> <p>The master, the chief officer, the second officer, the second engineer, and steward were called for the respondent, and swore that the crew was incompetent. The quartermasters could'not steer a straight course;, the cook so cooked the food that the crew were in constant complaint; the seamen were unable to do anything but the simplest duties. The second engineer testified that the coal passers refused to heave up the ashes, so that the firemen were unable to work the boilers, and the speed of the ship was reduced from 10% to 8 or 9 knots an hour. The master swore that the men could not get the ashes out, and that one of them hurt his hand in doing so; that the officers constantly complained that there was no sailor among the crew; that they were themselves always complaining of their food; that off Gibraltar he threatened to call a British man-of-war, apparently because of their complaints about food. On his cross-examination, however, he testified that their conduct was not bad conduct, that they tried to obey orders, but were incompetent.</p> <p>The steamer made the port of Algiers on May 10th, when the master called the crew on dock, and, according to his statement, asked them whether they would be willing to be sent back to New York. He says that they agreed, and the other officers say so. The crew, of whom many were called, unanimously swore that they performed their duties and were ordered off the ship, on which they were willing to serve out their articles. In any event, they went ashore in small boats, and the master on the 11th shipped an Algerian crew at £25 a head to Calcutta, .with maintenance ashore and return to Algiers added. (The master said that they would not serve beyond Calcutta.) At that port this Algerian crew was sent back by passenger steamer and a Bascar crew shipped, at about 24 or 26 rupees a month, equal to $8 or less. This third crew worked the ship back to New York.</p> <p>The libelants, together with the rest of the New York crew, were sent home via Havre,, and their wages paid until June 8th, when t£ey arrived. As the Wabasha reached New York on September 15th, they claim for loss of wages between those dates, less what each had been able to earn meanwhile.</p>