Volume 275 — Federal Reporter

<p>1. Appeal anil error <§=>863—-Appelate «curt will net consider merits ou appeal irons order granting pieiimiiaa-ry injunction.</p> <p>Ordinarily the appellate court, on an appeal from an order granting a preliminary injunction will not go into the merits of the case further than necessary to determine whether the trial court exceeded a reasonable discretion in making the order, especially where the rights of the parties can only he determined on full proof of the facts.</p> <p>8„ Appeal atiti ©moe <3=843(2)—Consiitoi'ional la-w <S=46 (1)—Court will detormina constitafciaaai. questions ©niy whoa absolutely necessary.</p> <p>Only when it is absolutely necessary will courts pass on a constitutional question, and this applies with greater force on an appeal from an interlocutory injunction, granted on the bill after a motion to dismiss has boon denied and no answer tendered.</p> <p>8. lujeisctiom <§=<?§ (2)—May be granted to restrain prosecutions by federal officoM HE’S» HiaconsífíutMEaí stainis.</p> <p>A court of equity may control by injunction the action of federal officers threatening to institute criminal proceedings under an unconstitutional act which will seriously affect property rights.</p> <p>4. Iiynueiioa ■<3=74—Equity Las jurisáScfion to review action of executive ©liSeer, in absence off statutory pi®vision for review.</p> <p>An order of a board, commission, or executive officer, prescribing maximum rates for services performed, if no provision for review by the courts is made, entitles one who claims the rates to be confiscatory to a review by a court, of equity, especially if the penalties for violation of the order are so severe that every one would be deterred from testing it in a criminal prosecution.</p> <p>5. IiijraieiMm <3=144—Bills held to entitle cwm’pilaiuaiits to jwollmlmary injmactio.u.</p> <p>Bills, alleging that complainants are live stock commission brokers, with an established business, that their rates of charge for their services are just and reasonable, and that rates prescribed by order of the Secretary of Agriculture, without notice under Lever Act, § 5 (Comp. St. .1918, Comp. St. Ann. Supp. 1919, § 3115%g), are unjust, unreasonable, and confiscatory and will deprive complainants of tbeir property without due process of law, held to entitle complainants tó a preliminary injunction to restrain enforcement of such order, in view of the fact that the statute makes no provision for its review and of the severity of the penalties prescribed for its violation.</p> <p>otho1* eases sec same topic & KEY-NUMB13R in all Key-Numbered Digests & Indexes</p>

Wiade, Judge. Suit in equity by the Union Pacific Railroad Company against James P. Christensen, and his successor, as County Treasurer of Pottawattamie County, Iowa, and others. Decree for defendants, and complainant appeals.

Rose, Judge. In the matter of the bankruptcy of Frederick Mertens and others, individually and as partners, as F. Mertens’ Sons; Henry Shriver, trustee. From an order of the District Court, the Commercial National Bank of Washington, D. C., appeals.

<p>In Error to the District Court of the United States for the Eastern District of South Carolina, at Charleston; Henry A. Middleton Smith, Judge. . . . '</p> <p>. . . Criminal prosecution by the United States against Charles E. Boyd and the Charles F. Boyd Company, Inc. Judgment óf conviction and defendants bring error.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in Equity by Xyouís De F. Hunger against the Perlman Rim Corporation. Decree for complainant, and defendant appeals.</p> <p>Suit is upon patent 638,588, for which application was filed April 25, 1899, patent issued December 5, 1899, to National Wheel & Traction Company as assignee of the inventor, who is the plaintiff herein.</p> <p>The disclosure of the specification is for an improvement in “cushion-tires” for vehicle wheels, the object being “to provide an improved means of attachment of the tire to the wheel rim or felly, and specially designed l’or the driving wheels of automobiles.” It is admitted that the specification reveals two entirely distinct thoughts—one for securing the pneumatic tire to its base by vulcanization, the other for the means o£ attaching said tire base to the wheel proper.</p> <p>The only claim in suit is No. 4, which deals with the last alleged inventive thought, and reads as follows: “In combination with a tapered felly, a tire, an annular rigid base to which said tire is secured, said base having a tapered under-surface and fitted on said felly, substantially as described.”</p> <p>The description referred to is of a “felly slightly inclined or at an angle with the a.xle, the outer diameter of the wheel being the smaller to form a tapering fit for the tire base.” As shown, the tapered felly fits wiíhin a similarly tapered tire base, to the end that “the larger circumference of the base can be easily slipped over the small outer circumference of the felly.” It is then stated that “when in place these wedge-shaped surfaces form a close lit and also resist any tendency of further inward movement of the band on the folly due to strain on the tire in turning corners.”</p> <p>The tapered or frustro-conical tire base when placed over the similarly shaped felly, is not only locked in position but pressed into further wedge-like relation to the folly by bolts passing through said felly substantially at right angles to a spoke and with an extension or lug (integral or detachable) bearing upon the outer surface of the tire base; the entire bolt and lug being tightened with a nut so as to press (if necessary) the tapered tire baso further on the similarly tapered felly.</p> <p>Of this construction it is said that when the securing bolts are loosened it is only necessary in removing the tire base “to back oil the base slightly irom the felly, when it can be easily slipped down off the inclined surface.”</p> <p>Under the assignment above referred to, National Wheel & Traction Corporation remained the owner of reeord of this and other patents of Hunger’s until September 5, 1916, when it assigned said patents to the plaintiff herein by a transfer duly recorded. It is upon this title that plaintiff brought suit.</p> <p>In July, 1902, however, an assignment of the patent in suit (and others) was drawn and executed by the National, etc., Company to a New Jersey corporation known as “Hunger Automobile Tire Company.” This assignment was delivered to the attorney for the men who had agreed to finance the then newly created Hunger, etc., Company, and who causd the incorporation of that company.</p> <p>This corporation commercially manufactured under Hunger’s tire patent; but the business lasted only a few months. It is evident that there were disagreements, if not quarrels, between this plaintiff and the men who were to furnish capital for the new corporation bearing plaintiff’s name. Such disagreements quickly produced insolvency proceedings in the chancery of New Jersey (in October, 1902).</p> <p>The receiver sold out the effects of the Hunger, etc., Company, but never specifically sold the patent or patents covered by the assignment of July, 1902, until September, 1917, about a year after the beginning of this suit. Between 1902 and 1917 the assignment from National, etc., Company to Hunger, etc., Company remained in the possession of the attorney for the financial backers of Hunger, etc., Company, who (as found below) never fulfilled the promises of financial aid or working capital made by them to National, etc., Company and Hunger when the project was formed that took shape in the incorporation of Hunger Automobile Tire Company, the concern which they themselves promptly put into insolvency.</p> <p>In 1917 defendant herein in effect acquired by formal conveyances from the receiver and purchasers at the receiver’s final sale of 1903 (who apparently had never seen or heard of the patent) whatever paper rights to the patent in suit were or had been of the Hunger Automobile Tire Company of New Jersey, whereupon by leave of the District Court the defense was presented that plaintiff had no title to the patent in suit.</p> <p>The alleged infringing article is a now familiar form of demountable motor rim, and may be described in language taken from the decision of Hunt, C. J._, in Perlman v. Standard Welding Co. (D. C.) 231 Fed. 453, affirmed 231 Fed. 734, 146 C. C. A. 18.</p> <p>Defendant’s demountable rim is of the clincher type, and is in effect provided with a block, or scop, so that it will not creep. Each of the locking devices consists of a bolt and a metal wedge. The wedges go between the demountable rim and the fixed rim (or felly), and exert an inclined pressure upon the demountable rim radially away from the wheel body, spacing it from the fixed rim, and also press it laterally against the flange at the other end of the fixed rim; the wedges used by defendant are propelled by means of threaded bolts. (D. C.) 231 Fed. at page 455.</p> <p>The court below found that defendant’s alleged infringing article was manufactured under a patent owned by it, No. 1,052,270, being the same patent which was considered and interpreted in this circuit in the cases, above referred to. It was further held that the patent in suit should not be “restricted to the precise relation of the wedge elements shown” therein, but should be so construed as to “include within its scope the obvious equivalents.” It then declared that defendant’s structure “performs its function in practically the same way as the patented” one, and therefore decreed infringement.</p> <p>Pending trial, however, plaintiu’s patent had expired, whereupon (no injunction issuing) it was decreed that plaintiff “recover from * * * defendant, a reasonable royalty on all demountable rims manufactured, sold, or otherwise disposed of by said * * * defendant in this cause in infringement of (said claim 4 of the patent in suit), as damages for such infringement.”</p> <p>The ascertainment of these damages was sent to a master, who under the form of decree quoted from had no power to do more than ascertain damages. by ascertaining the praper royalty upon Hunger’s invention. No exception has been taken to this limitation upon the master’s power. That official reported: (1) That defendant corporation was liable only for such infringements as it had committed from the date of its incorporation April 6, 1916, to the date of the expiration of the patent in suit—i. e., December 5, 1916—(2) that during that time defendant had either manufactured or sold, or both, 348,568 infringing- rims or tire bases; (3) that a reasonable rate of royalty for the use of the invention of the claim in suit is 8.2096 per rim; (4) wherefore, after making certain deductions, plaintiff should recover as the reasonable royalty aforesaid $73,070.08—for which amount, with interest from the date of the roaster’s report and costs, final decree was entered, and defendant took this appeal.</p>

<p>In Error to the District Court of the United States for the District of Wyoming; John A. Riner, Judge.</p> <p>Action at law by John Barton Payne, Agent United States Railroad Administration, against Harry B. Card. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Crimiuai law ©=°186—Test of former jeopardy.</p> <p>The test by which is determined a plea of former jeopardy is whether if what is set out in the second indictment had been proved under the first it would have supported a conviction, and, if it would, the second cannot be maintained.</p> <p>Crmiiíal law -Ac^ralttal on «me charge of conspiracy held bar to proseoiiion ©si second charge.</p> <p>Acquittal of defendant under an indictment charging conspiracy with another to sell opium derivatives “not in pursuance of written orders on forms issued in blank for that purpose by the Commissioner of Internal Beveime,” in violation of Harrison Anti-Narcotic Act Dec. 17, 1914, c. 1, i 2 (Comp. St. § 6287h), held a bar to prosecution on a second indictment, charging a conspiracy, with the same person, at the same lime and place, to violate said section, in that they conspired that defendant, who was a physician registered under the act, should issue proscriptions for the proscribed drugs not in the course of Ms professional practice, to persons other than his patients, and that his coconspirator, who was a druggist and dealer registered under the act, should fill such proscriptions and sell the drugs to the persons to whom they were issued, proof of such charge being sufficient, under Grim. Code, § 332 (Comp. St. § 10506), to sustain a conviction under the former indictment.</p> <p>3. Conspiracy |®=»37, 43(5)—Defective mdidmmt not aided by averment of overt act; overt act need not be criminal.</p> <p>While an overt act is essential to render a conspiracy punishable under Crina. Code, § 37 (Comp. St. § 10201), such act need not bo a criminal act, and a substantially defective indictment for conspiracy cannot be aided by the averment of acts done by one or more of the conspirators in furtherance of its object.</p> <p>oiiher eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>4. Indictment and information ®=111(1)—Indictment for conspiracy to violate narcotic act need not negativa exceptions.</p> <p>In an indictment for sale of drugs in violation of Harrison Anti-Narcotie Act Dec. 17, 1914, c. 1, § 2 (Comp. St. § 6287h), it is not necessary to negative a-ny of the exceptions to the prohibition of said section.</p> <p>@ns>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Receivers <@=128—Prior lien creditors held not to lose right to foreclose by reason of acquiescence in issuance of receivers’ certificates.</p> <p>Prior lien creditors of a private corporation engaged in the disposal of garbage under a contract with a city could not be deprived of their liens because they did not appear and object, and appeal if their objections were overruled, to a continuation of the business after appointment of a receiver without their express consent, the business being continued by the receiver, and the certificates being issued by him under the mistaken belief of creditors that the business would become profitable, though it was ordered by the court that the receivers’ certificates should he a prior lien.</p> <p>2. Receivers <@=128—Equities held in favor of prior lien creditors as against receivers’ creditors.</p> <p>In a receivership proceeding, prior equities held in favor of prior lien creditors who advanced their money to build a garbage disposal plant upon an express agreement for liens, as against receiver’s creditors who advanced money for the continuation of the business after appointment of the receiver under the belief that the business would become profitable.</p> <p>3. Corporations <@=477 (1)—Void] provision in agreement held severable so as not ito affect right of mortgagee to enforce lien.</p> <p>A provision in an agreement as to prior lien on property of private corporation engaged in disposal of city garbage, whereby the contract with the city was mortgaged, which was void as against public policy, held entirely severable so as not to affect right of mortgagee to enforce its lien on the property and funds; the moneys secured by the mortgage being honestly loaned and applied in building the mortgagor’s plant. '</p> <p><§ssFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Appeal and error <9=80(1), 82(2)—Leave to apply for further relief does mot prevent finality of decree.</p> <p>Leave to apply at the foot of a decree in receivership proceeding for further relief is very usual, and does not prevent the decree from being1 final, or an order modifying the decree from being appealable.</p> <p><gc5>For other cases see same topic & KEY-NUMBER in .all Key-Numbered Digests & Indexes</p> <p>3. Receivers <$=>189—When allowance oí attorney’s fees permitted.</p> <p>The only proper cases that can arise where courts of equity in receivership proceedings can award compensation to an attorney out of funds due others than his. client is where such an attorney for one of a class has created or secured a fund and brought it into the custody of the court, which fund is to inure, not alone to the benefit of his client, but to trait of all those belonging to this class; an allowance in such cases not being on the theory of an attorney’s lien, but on the theory that all interested in the fund should contribute ratably to the eost of creating or securing it.</p> <p><gz»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Keller, Judge. _ _ Suit by the Huntington Development & Gas Company against W. J. Ashworth and others to quiet title. From an adverse decree as to certain part of the tract claimed, plaintiff appeals.

Petition by R. L- Perrow, trustee in bankruptcy of the estate of J. R. Scott, bankrupt, to expunge and reject the claim of C. C. Scott, which had been allowed. Order of referee, annulling the deed of trust, setting aside sales to C. C. Scott, and expunging his claim, was reversed by the court on petition for review, and the trustee appeals.

<p>In Error to the District Court of the United States for the Eastern District of South Carolina, at Charleston; Henry A. Middleton Smith, Judge. _</p> <p>_ Criminal prosecution by the United States against Jake Holmes. Judgment of conviction, and defendant brings error.</p>

<p>1. Prostitution —Offense under White Slave Traffic Act is complete when transportation is accomplished.</p> <p>Under White Slave Traffic Act, § 2 (Comp. St. § 8813), the offense of transporting a woman in interstate commerce for the purpose of prostitution is complete when the transportation has been accomplished without regard to whether later the purpose is accomplished.</p> <p>2. Criminal law ®=»59(5) —Aider and abettor must have knowledge of offense.</p> <p>One cannot be convicted under Penal Code, § 332 (Comp. St. § 10506), of aiding and abetting an offense of which he had no knowledge until after it was complete.</p> <p>other eases see same topic & KE Y-NUMBEIt in ali Key-Numbered Digests & Indexes</p>

<p>Corporations <S=>579(2)—Lessor creditor held entitled to follow assets after reorganization sale to recover subsequently accruing rentals.</p> <p>Where the assets of a corporation were sold by the receivers to a reorganized company, subject to payment of claims filed within a time fixed by the court, and such assets exceeded in value the price paid in a sum sufficient to pay all claims, the purchaser, by paying the rent under a lease to the old company until the time for filing claims expired, could not deprive the lessor of the right to follow such assets to recover for subsequently accruing rentals.</p> <p>^ExaFor other cases see same topic & KEY-NUMBER in all Kej “Numbered Digests & Indexes</p>

<p>In Admiralty. Suit bj Yone Suzuki and others against the Central Argentine Railway Company, Bimited, and others. On exceptions to answer of defendant Railway Company.</p> <p>This cause comes up on exceptions by the libelants to four articles of the answer of the Central Argentine Railway Company, one of the respondents in personam. The libel was filed primarily against the charterer of two Japanese schooners, owned by the libelants and chartered each for a voyage from Hampton Roads, Va., to Buenos Ayres, Argentine, with a cargo of coal. The Central Argentine Railway Company, Limited, is sued as consignee of the coal and holder of a hill of lading of the whole cargo in each ship, and the circumstances on which the liability arises are as follows:</p> <p>The charters provided, among other things, for lay days for loading and discharge, and demurrage at 4S cents per gross registered ton for each day that the ship was held beyond the lay days. It also contained the following provisions material hereto:</p> <p>“8. Bills of lading to be signed without prejudice to this agreement at not less than rates as stated herein.”</p> <p>“9. The liability of the party of the second part (the charterer) shall cease and terminate as soon as cargo is loaded and the freight is paid, steamer to have a lien upon the cargo for all freight, dead freight, and demurrage, and all and every other sum or sums of money which may become due the steamer under this contract of affreightment.”</p> <p>The libel alleges that there were delays beyond the lay days both at the port of loading and the port of discharge, from which arose demurrage; also that at tlie port of discharge the ships had to pay various charges for stevedoring and the like, properly payable by the respondents, which they refused to meet. It further alleges that at the port of loading the charterers deducted certain of the freight money due under a false claim of dispatch money, as provided in the charter party. This deduction the libelant claims in addition to the loading demurrage and the demurrage and charges at the port of discharge. It further alleges that the master of each steamer signed a single bill of lading for the whole cargo to be transported to Buenos Ayres to “order or assigns he or they paying freight for the same as per charter party, dated February 16, 1920, all the terms and exceptions contained in which charter are herewith incorporated.” It finally alleges that the respondent Central Argentine Railway Company, limited, “became the owner of said bill of lading and entitled to said cargo, * * * subject to the conditions and exceptions of said bill of lading and of the aforesaid charter party of February 1G, 1920, including the claim for demurrage at loading port and unpaid balance of freight as aforesaid,” and that after much delay it took delivery of the coal under this document.</p> <p>The articles of the answer excepted to allege that the Central Argentine Railway Company, limited, took discharge of the cargo from the ship’s tackle, and that by reason thereof the ship’s lien was lost and the respondent was not liable. As to the charge for freight deducted, the answer alleges that the bill of lading .under which the cargo was shipped provided, among other things, that “freight on the cargo ha.d been prepaid,” that by reason of that provision the lien, if any, was not incorporated into the bill of lading, and the respondent, in taking delivery, received it free from any lien for unpaid balance of freight.</p>

<p>1. Receivers <3=90—Mere inaction not adoption of contract.</p> <p>Mere inaction of receivers, where they do not enjoy any benefits from assets cum onere, is never of itself an adoption of a contract, though it may endanger their right to adopt, and in order to he bound they must positively indicate their intention to take the contract over.</p> <p>2. Receivers <3=90—Intention to adopt contract indicated by retaining assets.</p> <p>The intention of receivers to adopt a contract may be indicated by remaining in enjoyment of assets without dissent.</p> <p>8. Receivers <S=.9fi—Of exporter held not to have adopted his contract of purchase.</p> <p>Receivers of an exporter, who wrote tho seller of goods to such exporter, asking the seller to cancel the exporter’s order, held, not to have adopted the contract for purchase of the goods made by the exporter, either by such letter or by an earlier adoption, suggested and evidenced by the letter.</p> <p><2=3kor other cases see same topic & KEY-NUMBEIt in .all Key-Numbered Digests & Indexes</p>

<p>At Law. Action by the Chicago Title & Trust Company, as trustee of the Chicago City & Connecting Railways Collateral Trust, against one Smietanka, Collector of Internal Revenue. On demurrer to declaration.</p>

<p>1. Bankruptcy @=484—Expenses of receivership under involuntary proceeding fail on petitioners, where respondents are solvent.</p> <p>The expenses of a receivership, under an involuntary proceeding in bankruptcy opposed by respondents, fall on petitioners, regardless of the amount of their bond, where respondents are found solvent.</p> <p>2. Bankruptcy <§=484—Estate of respondents in involuntary proceeding, found solvent, liable in first instance for receiver’s expense to extent of profits.</p> <p>Though respondents in an involuntary proceeding in bankruptcy are found solvent, their estate is liable in the first instance for the receiver’s debts and compensation, to the amount and only to the amount of profits during the receivership, with recourse by respondents over against petitioners for any lost profits and the fee of their counsel.</p> <p><@=»Eor other cases see same topic & KEY-NUMBER, in. all Key-Numbered Digests & Indexes</p>

<p>In Bankruptcy. In the matter of John J. Reisler, bankrupt. On motion to confirm report of special master recommending bankrupt’s discharge; the Richard E. Sause Company, Inc., objecting.</p> <p>This is a motion to confirm the report of the special master recommending that the bankrupt be discharged. On September 29, 1917, the bankrupt was adjudicated; he employed an attorney, not the counsel who appeared in tills proceeding, who filed his petition for discharge with Ihe referee on July 1.7, 1918. He did not at that time pay the referee’s indemnity fee of $47, being-in impoverished circumstances, and immediately left for the West, where he remained until March, 1921. At this time he learned that his discharge never had been granted, hut that the petition had been left in the office of ihe referee without action. He communicated with his attorney, who was in the same error as himself, but who, on examining, found that the information was correct. Immediately thereafter, ¿nd on March 10, 1921, he paid the indemnity due, and the notices were duly mailed for April 18, 1921. Then for the first time the objecting creditors learned that the petition had been filed.</p> <p>Upon the hearing before the referee the bankrupt stated the facts as above, and also that his attorney had been in had health for much, if not all, of the time between the filing of the petition and March, 1921. The attorney was himself called, and testified that he was away from his office practically all the time during the war; that he was taken sick, and he had not been at the office much since that time; that in his absence he had two men take care of his work in the office, hut that both these enlisted in the army, as well as his office boy; that mere was no one there but two stenographers.</p> <p>The referee decided that there was no laches on the part of the bankrupt, and grained, the discharge; there being no other objection. The specifications of objections to the discharge did not include any of the grounds mentioned in the statute, but relied upon the foregoing facts.</p>

<p>In Admiralty. Ifibel by the United States against the steamship Ivor Heath.</p>

<p>1. Sales ©=7—Contrae!, relating' to honker held cue oí sale, and mot oí agency to sell.</p> <p>A contract between plaintiffs, manufacturers of lumber, and defendant, which provided that on payment by defendant of $20 per thousand feet, which payment was made, title to all lumber in plaintiffs’ yard should vest in defendant, to be evidenced by bill of sale, with a similar provision as to lumber afterward manufactured, and by which defendant agreed to market the lumber in the usual course and to pay plaintiffs a percentage of the net proceeds above $20 per thousand held not to create a sales agency, but to be a contract of sale, leaving no interest in plaintiffs except a contingent claim against defendant, dependent on its making sales at a profit, which conting’ency never happened as to lumber destroyed by lire while in the yard.</p> <p>2. Insurance ©=582—Seller mot entitled to share in insurance taken for purchaser.</p> <p>Under a contract by which plaintiffs sold the lumber in their yard to defendant for $20 per thousand, with an agreement for a share of the profits, if any, made on a resale, and requiring plaintiffs to insure the lumber for $25" per thousand for flic benefit of defendant, which they did, also taking additional insurance in favor of themselves, on the destruction of some of the lumber by fire while in the yard, plaintiffs held not entitled to any part of the $25 per thousand insurance, each party having the right, as it did, to insure its own interest.</p> <p>3. Joint adventures ©=4(4)—Division of expenses in carrying out agreement.</p> <p>Plaintiffs, manufacturers of lumber, sold the lumber in their yard and that to be manufactured to defendant for $20 per thousand feet, with an agreement that defendant should market the lumber, which was to be loaded and shipped to the purchasers by plaintiffs, on defendant’s orders, and that plaintiffs should receive a percentage of the profits of resale above the $20 per thousand. Sold, that where defendant ordered certain cars shipped to its own order, and before resale and reconsignment, demur-rage had been incurred on the ears, such demurrage was not chargeable as an expense against plaintiffs’ share of the profits of resale, though increased freight, due to reconsignment, was so chargeable.</p> <p>®=»For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

At Law. Action by Seaboard Air .Line Railway and others against the United States. Petitioners’ requests to charge were read by the court. Petitioners except to refusal to charge in manner and form as asked. Defendant’s requests to charge were read by the court. Defendant excepts to refusal to charge in manner and form as asked. Petitioners except to allowance of defendant’s requests to charge, as allowed.

<p>1. Injunction <§==>85 (2_)—States <3=>191(2)—State officers may be enjoined from enforcing void statute; suit to enjoin officers fromi enforcing statute not one against state.</p> <p>State officers may be enjoined from enforcing a state statute wbicb is void as in violation of rights secured by the .Constitution of tbe United States, and a suit for that purpose is not one against tbe state.</p> <p>2. Commerce <§=>57—Provisions' of Alabama Shrimp Act held void as imposing restraint upon interstate commerce.</p> <p>Alabama Shrimp Act, by section 7, imposes a tax of 5 cents per barrel on salt water shrimp taken from the waters of the state for canning, drying, or shipping within the state. Section 8, while making it unlawful to transport such shrimp by water beyond the boundary of the state unless the usual price paid therefor at the place to which they are transported is higher than paid in the state, also imposes a tax of 20 cents per barrel on shrimp so transported outside, and section 12 prohibits any person who has not for more than a year been a bona fide resident of the state from catching shrimp in its waters for shipment out of the state by water. Held, that sections 8 and 12 were manifestly intended to discriminate against eanners and packers in other states by imposing hindrances and burdens on the interstate traffic in fresh shrimp, and are void as in violation of the commerce clause of the Constitution.</p> <p><§rs>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by Armour & Co., a corporation, against the Louisville Provision Company to restrain infringement of the trade-mark and unfair competition.</p>

At Law. Actions by the Porto Rico Coal Company, Inc., against William IT. Edwards, Collector of Internal Revenue. On demurrers, to complaints. “These cases involve the validity of taxes levied on the plaintiff for the-years 1917 and 1918, and paid under duress in the city of New York, and-now sought to be recovered in fhe first cause of action in action No. 1 and in. tlie only cause of action in action No. 2.

At Law. Actions by the United States against Reginald C. Vanderbilt, against Frederick L- Merriam, and against Henry B. Anderson. On demurrers to complaints. The «ases arise upon the demurrers to complaints at law to recover the income taxes upon certain legacies left the defendants under the will of Alfred G. Vanderbilt, who died in 1915. The will disposed of a large estate, and set up various independent trusts of indefinite duration.

<p>1. Receivers ©=>72—May recover property from adverse claimant only fey plenary suit.</p> <p>The appointment of a receiver for a defendant does not vest him with the right to possession of property then in the actual possession of a stranger to the cause, claiming in good faith such right of possession adversely to defendant and those claiming under him, and the question of the right of possession as between him and the receiver cannot be determined by a summary proceeding in the cause.</p> <p>2. Bailment ©=>18 (4) —Possessory lien lost by causing levy of attachment.</p> <p>One having a lien on property dependent on possession, as for labor or materials furnished in its repair, loses such lien by causing an attachment on the property and surrendering possession to the attaching officer.</p> <p><@rs>For other cases see same topic & KEY-NUMBER in all Key-Numbered. Digests & Indexes</p>

<p>At Law. Action by the B. F. Sturtevant Company, on behalf of itself and all others similarly situated, against the Fidelity & Deposit Company of Maryland. On demurrer to complaint.</p> <p>Demurrer to a complaint upon a surety bond.</p> <p>The complaint was filed by the plaintiff, a Massachusetts corporation, on behalf of itself and of others similarly situated, against the defendant, a surety company of Maryland. It alleged that the city of Syracuse wished to build a vocational high school, and in pursuance of its municipal powers advertised for proposals to perform all the labor and materials necessary for its construction. These advertisements were circulated, together with a copy of a proposed contract for open bidding, and the bidder was required to execute a bond with sureties for his performance. The successful bidder was the P. .T. Sullivan Company, and to it the contract was awarded. The I\ J, Sullivan Company and tlio defendant, as surety, executed tlie required Loud, in tlie sum of §28,000, to tlio board of commissioners of the city of Syracuse.</p> <p>The condition of the bond was as follows: “If the above bounded the P. J. Sullivan Company, tlie contractor with the aforesaid board in tlie aforesaid contract named, shall and will faithfully perform the work and furnish the materials and supplies in and by the said contract signed by it to be performed and furnished and shall faithfully comply with all the conditions and obligations of said contract on its part and in every particular and shall promptly make payment of the sums due to all persons for labor and materials in tlie prosecution of the work provided for in this contract, then and in that event this obligation to be void.”</p> <p>During the prosecution of the work the plaintiff, at the request of the P. J. Sullivan Company and in reliance upon the bond, furnished heating and ventilating equipment with proper accessories to the value of §4,001.95 in performance of the contract of the P. .1. Sullivan Company with the city. The contractor, the P. J. Sullivan Company, has failed to pay this sum to the plaintiff, having been adjudged bankrupt, and has also failed to perform Its contract with the city of Syracuse, causing a loss to the said city in the sum of §20,775.22, which the defendant has paid. The plaintiff claims that there remains due upon the bond §7,224.78, out of which it may recover its claim of §4,091.95. It does not appear whether there are other unpaid subcontractors, or, if so, who they are, where they live, or what is the aggregate of their claims.</p> <p>The demurrer was on two grounds: (1) For failure to state cause of action ; and (2) “that there is a defect of parties plaintiff.” The defendant relies upon the well-established decisions in the state of New York that subcontractors may not sue the surety under bonds of the foregoing character, and that in any case all subcontractors must be parties plaintiff. The plaintiff relies upon the fact that the New York decisions are not binding in a federal court, and that it may sue on behalf of itself and all others similarly situated, without joining them as parties plaintiff.</p>

<p>1. Maritime liens <&=>21—Putative lienor not bound to inquire as to authority to bind ship.</p> <p>The putative lienor, under the Maritime Dion Act of 1910 (Comp. St. §§ 7783-7787), is not bound, whenever he gets an order to supply or serve the ship, to institute an inquiry as to the authority of the person by whom the supplies or services are ordered to bind the ship.</p> <p>2. Maritime liens <S=»25—Services of master stevedore not “necessaries,” within Maritime Lien Act of 1910.</p> <p>The services of a master stevedore are not “necessaries,” within Maritime Lien Act of 1910 (Comp. St. §§ 7783-7787), providing for a lien for repairs, supplies, and other “necessaries” furnished to a vessel; the word “necessaries” having reference to the outfitting of the ship, as opposed to her carriage of freight.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Necessaries.]</p> <p><£s»For other cases see samo topic & KEY-NUMBBIt in all Key-Numbered Digests & Indexes</p>

In Bankruptcy. Petition by Mrs. Rebecca Long to review an order of a referee sustaining objections to her claim against the bankrupt estate of Dennis F. Long, doing business as D. F. & C. P. Long.

<p>Creditors' suit <G=>33—Receiver may contest mortgage.</p> <p>A receiver appointed in a creditors’ suit represents all general creditors tor wliose benefit the suit is brought within the meaning of New York Lien Law, § 230, and may contest the validity of a mortgage on xiroperty of the defendant.</p> <p>other casus see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexr.3</p>

<p>In Equity. Suit by Samuel Sampson, doing business as the Hol-Tite Collar Company, against Charles Silverman and Archibald Silverman, doing business as Silverman Bros.</p>

<p>In Bankruptcy. In the matter of A. I,. Hallbauer, bankrupt. On petition of R. I,. Young to reclaim automobiles.</p>

In Bankruptcy. In the matter of A. L. Hallbauer, bankrupt. On petition of the General Securities Company for delivery of an automobile in possession of the trustee, or for permission to foreclose a mortgage thereon.

<p>Courts '§=328 (3)—Value of right of way and future maintenance of side track not considered in determining jurisdiction of court.</p> <p>On application for injunction, pendente lite and permanent, by a railroad against the-Railroad Commission of Georgia, to prevent the enforcement of an order requiring the putting in of an additional side track on the railroad’s right of way, wherein the petition discloses that the total cost of the construction will be' $1,260, injunction pendente lite will be refused, because the amount involved is insufficient to give the court jurisdiction ; the value of the portion of the right of way to he occupied by the track not being a matter which can be considered, because not taken from the company, and cost of future maintenance not being involved.</p> <p>©=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Southern Division of the Southern District of California.</p> <p>Charles U. Williams was convicted of embezzlement, and he brings error.</p>

<p>1. Public lanas @=120—Clear amd ccmvisramg evidence required for caMelkv t-ioii of patent for fraud or mistake.</p> <p>A mere preponderance of evidence is insufficient to justify a chancellor in avoidance of a patent for fraud or mistake, which may only be done on clear, unequivocal and convincing proof of such fraud or mistake.</p> <p>2. Appeal and error @=1009(3)—Findings of trial court on conflicting evidera® presumptively correct.</p> <p>Where a court of equity has considered conflicting evidence and made its findings and decree therein, they must he deemed presumptively correct by the appellate court, which may lawfully reverse them only for obvious error of law, or some serious mistake of fact, in the consideration of the evidence.</p> <p>3. Corporations @=29(2)—As against a collateral attack organization held sufficient to validate dead to eo-iporation.</p> <p>Under Cobbey’s Ann. St. Neb. 1909, § 4119, providing that, “Every corporation, previous to the commencement of any business except its own organization, * * i: must adopt articles of incorporation ana</p> <p>have them filed in - the office of the Secretary of State, * * * and domestic corporations must also file with county clerk,” as construed by the Supreme Court of the state to authorize a domestic corporation to do business when its articles have been filed with the county clerk, a deed conveying land to a corporation, signed after the filing of its articles with the county clerk and delivered on the day they were filed with the Secretary of State, held, as against collateral attack, valid and effective as a deed of a de facto corporation.</p> <p>4. Public lands @=120—Evidence held insufficient to warrant, cancellation of patent for fraud.</p> <p>Findings of the trial court that the evidence was insufficient to sustain claims of the government that a conveyance of lands by defendant was fraudulent, and made for the purpose of qualifying him to make entry of public land, and that he made and presented false affidavits of residence for the purpose of deceiving the officers of the land office, held justified.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Criminal law @=>395—Internal revenue @=>42—Evidence obtained by unlawful search inadmissible; liquor' held secured by illegal search.</p> <p>Where a sheriff and his deputy, without a warrant of arrest or search warrant, entered defendant’s house through an open door, and seized whisky which was on a table by which defendant was standing, the fact that defendant did not object, or that he then said they might look around, which they did, finding more in another building, held not to make the search or seizure lawful, nor to render the evidence so procured admissible against defendant in a criminal prosecution.</p> <p>2. Internal revenue <3=47—Prosecution must prove that whisky charged to have been illegally l'emoved from distillery was untaxpaid.</p> <p>In a prosecution under Rev. St. § 3296 (Comp. St. § 6038), for illegal removal or concealment of whisky on which the tax had not been paid, the amount being less than five gallons, the prosecution had, in view of the provisions of Comp. St. §§ 6030, 6102, 6104, the burden of proving to the satisfaction of the jury beyond a reasonable doubt that the whisky so charged to have been removed or concealed was untaxpaid.</p> <p>ar—>TTnr other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Action by Ernie Adamson and others against the Alexander Milburn Company. Judgment of dismissal, and plaintiffs bring error.</p> <p>The action was commenced in the state court, and was removed into the United States District Court on defendant’s petition, the controversy being between citizens of different states. The plaintiffs Adam-son and Van Pelt are citizens and residents of the state of New York, and Swiggert and Levinson are citizens and residents of the District of Columbia. The defendant is a corporation, and is a citizen and re-sident of the state of Maryland.</p> <p>Ernie Adamson is the 'inventor of an acetylene gas generator, for which patent No. 1,079,823 was issued to him by the United States Patent Office on November 25, 1913. The other plaintiffs acquired an interest in the patent from the inventor, so that all of the plaintiffs were owners of various interests in the patent and the improvements thereon afterwards conceived^by the inventor.</p> <p>At the time the writing sued upon was signed Adamson had also applied for another patent for an improved acetylene gas generator, which patent was subsequently issued to him on September 2, 1919, as patent No. 1,314,780. The offer which resulted in the contract sued upon was to assign to the defendant the patent issued in 1913 and the rights under the application then pending for a patent for the improved generator and all designs and improvements on generators conceived by Adamson prior or subsequent to the date of the offer.</p> <p>The action is at common law for a breach of a written contract.</p> <p>The complaint alleged that on August 15, 1918, the plaintiffs entered into a written agreement wherein the plaintiffs sold to the defendant certain patent rights in the Adamson Acetylene Generator, with the right to manufacture and vend the same for three years, for a consideration of $5,000 and a royalty of $1 for each generator manufactured. It is alleged that by the terms of the agreement the defendant promised to pay to plaintiffs the sum of $5,000 within a reasonable time from the date of the contract, together with the royalty for each generator manufactured, and that defendant also promised to proceed with the manufacture and sale of the generators within a reasonable time. Then it is alleged that a reasonable time has long elapsed, but that defendant has failed to pay to the plaintiffs the said sum of $5,000, and has failed to commence the manufacture and sale of the said gas generators ; that if the defendants had proceeded within a reasonable time to carry out the terms of the contract it could have manufactured and sold 5.000 gas generators, and by reason of its failure to- do so the plaintiffs were damaged in the sum of $5,000; and plaintiffs asked judgment in the sum of $10,000.</p> <p>The plaintiffs alleged that they had duly performed their part of ihe contract, except that they had not delivered or tendered the documents necessary to transfer title to the patents, the reason for their not doing so being that defendant, prior to the time when the title was to be transferred, had notified the plaintiffs that it would fail to carry out the agreement upon its part, and that it would not accept any tender or delivery of the documents necessary to pass the title.</p> <p>The defendant in its answer, among other things, alleged:</p> <p>“That under and pursuant to the terxms and conditions of the understanding between the parties, this defendant merely acquired an option or right to purchase; the patents, inventions, and devices of the plaintiffs in the event that Ihe defendant and its patent attorney or attorneys approved the claims and representations of the said plaintiffs with respect to said generator, and that unless and until the said claims were so approved this defendant should not be liable to the plaintiffs; that the said claims and representations of the said plaintiffs were never approved by the said defendant or by its patent attorney or attorneys, and that the said agreements never became operative aior of any binding force or effect other than as an option of which the defendant did not avail itself. Wherefore defendant demands judgment that the complaint be dismissed, with costs.”</p> <p>The case was tried before the court and a jury. At the close of the plaintiffs’ case the defendant moved to dismiss the complaint on the ground that the plaintiffs had failed to make out a cause of action. Before this motion was disposed of counsel for the plaintiffs stated that he did not think that the plaintiffs had shown that defendant was obliged to manufacture generators, and the claim for royalties was therefore abandoned. The court granted the motion and dismissed the complaint.</p>

<p>1. Patents <@=>109—Absence of oath, to new claims changing invention invalidates patent.</p> <p>The absence of an oath to an amendment substituting new claims in an application is fatal to the patent, where the new claims involve a change in the actual invention,, and not merely in mechanical details.</p> <p>2. Patents <@=>295—Prima facie case free from) reasonable doubt required to warrant preliminary injunction.</p> <p>Where a preliminary injunction is sought the burden is on complainant to establish a prima facie case free from reasonable doubt, and the presumption arising from the grant of the patent is not alone sufficient, nor is a prior adjudication sustaining the patent where new and material facts are alleged which raise a reasonable doubt of validity.</p> <p>3. Patents <@=>328—Preliminary injunction on No. 920,490, for metering panel boards for electric power distribution, held not warranted.</p> <p>An order granting a preliminary injunction on the McWilliams patent, No. 920,490, for a metering panel board for electric power distribution, reversed on the ground that the answer alleging failure to make oath to the claims in issue and invalidity for prior use raised issues which should only be uetermined on final hearing.</p> <p>@=For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Suit by the Beattie Manufacturing company against Margaret D. Smith, trading and doing business under the name and style of the E. H. Brown Manufacturing Company, and another, for infringement of patents. Decree for complainant (266 Fed. 701), and defendants appeal.

<p>1. Appeal and error ©=>173(9)—Defense of res judicata, not presented below, not considered.</p> <p>On appeal from a decree, a claim tbat an earlier decree is a flat bar to tbe present proceeding cannot be considered, where such defense was not raised by any pleading, and tbe appellate court does not have tbe earlier roll before it.</p> <p>2. Injunction <@=>144—Receivers <@=>36—Sufficiency of alleged cause may be challenged.</p> <p>One wbo prays for any preliminary relief, such as a receivership and injunction, may always be challenged as to tbe sufficiency of bis alleged cause of action.</p> <p>3. Injunction <@=>132—Receivers <S=>3—Not per se subject of suit in equity.</p> <p>Such matters as a receivership and preliminary injunction cannot per se be the subject of suit in equity.</p> <p>4. Partnership <@=>17—Intention controls as to relation.</p> <p>In determining whether a partnership exists between persons, as between themselves, the court must look at the agreement and intention of the parties between them.</p> <p>,<3=»For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>5. Evidence @=397(5)—Formal document oí partnership not enlarged or varied by parol.</p> <p>Where evidence of relationship between persons, question being whether or not a partnership exists, is contained in a formal document, such document must speak for itself and it cannot be enlarged or varied by parol.</p> <p>6. Partnership <8=5—Eolation held not created by agreement.</p> <p>An agreement held not to create a partnership, because there was no intent to create community of interest in the whole property or business, which is the essence of partnership, the document contemplating no more than the creating of a new department in an old business, to be managed by plaintiff, who had no interest in the profits until a balance was struck.</p> <p>7. Courts @=273—No accounting in federal court against person brought in as having a lien in absence of partnership.</p> <p>Where plaintiff seeking an accounting failed to show partnership, on which any lien on property in the district depended, but did show a right to an accounting, there can bo no accounting against defendant, brought in under Judicial Code, § 57 (Comp. St. § 1039), as a person without a lien cannot invoke such section.</p> <p>igsaFor other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the'Western District of Virginia, at Harrisonburg; Henry Clay McDowell, Judge.</p> <p>Action at law by John, W. Mims against Degh W. Reid. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Carriers <@=>38—Indictment for falsifying accounts of interstate carrier held sufficient.</p> <p>An indictment under Interstate Commerce Act Feb. 4, 1887, § 20, par. 7 (Comp. St. § 8592) for falsifying the records of an interstate carrier, need not charge that such records were records prescribed by the Interstate Commerce Commission.</p> <p>2. Carriers <@=>38—Evidence held to sustain conviction for falsifying records of carrier.</p> <p>Uncontradieted evidence, including that of defendant, held to sustain a charge under Interstate Commerce Act Feb. 4,1887, § 20, par. 7 (Comp. St. § 8592), of willfully failing or neglecting to make full, true, and correct entries in the accounts and records of an interstate carrier of facts appertaining to the carrier’s business.</p> <p>3. Criminal law <@=>1168(1), 1172(1)—Conviction legal on one count which warrants sentence not reversed for error in rulings on evidence, and instructions.</p> <p>Where a conviction on one count of an indictment, sustained by undisputed evidence, warrants the sentence imposed, the judgment will not be reversed for errors in the charge or rulings on evidence.</p> <p>4. Carriers <@=>38—Memoranda kept by clerk held part of carrier’s records.</p> <p>Memoranda kept by the car clerk of a railroad company, devised by him as a part of the system of his office, held records of the company.</p> <p>5. Criminal law <@<=>799—Comments of court on argument of counsel held not error.</p> <p>Comments of the court in its charge on arguments made by defendant’s counsel, which were outside the record and tending to prejudice the jury, held not error.</p> <p><§cs>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Eastern District of Illinois.</p> <p>Criminal prosecution by the United States against Elzey B. Hill, alias Edward G. Howe. Judgment of conviction, and defendant brings error.</p>

<p>Appeal and error <3=1174—Order granting preliminary injunction modified on condition of execution of substitute bond'.</p> <p>An order, granting a preliminary injunction in a suit by a minority stockholder of a coal company, alleging fraud in a contract for the sale by the company of a large quantity of coal to a defendant corporation, modified on condition of the execution of a bond by such corporation sufficient to protect the rights of the coni company.</p> <p>other eases see same topic & KEY-NUMI3EU in ail Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Southern District of Iowa; Martin J. Wade, Judge.</p> <p>Action by W. J. Birkestrand against the Chicago, Milwaukee & St. Paul Railway Company and others. Judgment for defendants, and plaintiff brings error.</p>

<p>Divorce '5^168—Validity of mine pro tunc final decree by court haring jurisdiction not subject to collateral attack.</p> <p>Validity of nunc pro tunc final divorce decree, entered 14 years after rendition of interlocutory decree by the judge who had rendered the interlocutory decree, and who had jurisdiction of the partiesi and the subject-matter, on a finding that the court had signed a final decree, which through inadvertence had not been presented to the clerk and had become lost, entered as oi! the date when such other final decree had been signed, cannot be attacked by persons not parties to such proceedings in action in another state, on the ground of insufficiency of evidence to sustain such finding.</p> <p><gs»For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Eastern District of Virginia, at Norfolk; Edmund Waddill, Jr., Judge.</p> <p>Suit in admiralty by the Morse Dry Dock & Repair Corporation against the Olympia Shipping Corporation. Decree for libelant, and respondent appeals.</p>

<p>Indians <§=>38 (2)—Selling liquor to Indian a “felony.”</p> <p>The offense of selling liquor to an Indian in violation of Act Jan. 30, 1897, § 1 (Comp. St. § 4137), which provides that any person convicted of such offense “shall be punished by imprisonment for not less than sixty days and by a fine of not less than $100 for the first offense and not less than $200 for each offense-thereafter,” is a “felony,” as defined by Penal Code, § 335 (Comp. St. § 10509), and not within the jurisdiction of a commissioner, whose jurisdiction is limited by statute to misdemeanors.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Felony.]</p> <p>^=»For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>At Law. Action by the United States against Jeremiah A. O’Leary. On motion for remission of penalty of forfeited recognizance.</p>

<p>Mandamus proceeding by Castner, Curran & Bullitt, Inc., against Norman R. Hamilton, Collector of Customs of the Port of Norfolk.</p>

<p>In Equity. Suit by the William H. Haskell Manufacturing Company against the Nelson Blower & Furnace Company. On petition of the Commerce Trust Company.</p>

<p>Iii Equity. Bill by the General Electric Company against the Ohio Brass Company.</p>

<p>Action by the National Laboratory & Supply Company against the United States. On trial hearing without a jury.</p>

<p>At Law. Action by Castner, Curran & Bullitt, Incorporated, against Ephraim Lcderer, Collector of Internal Revenue. On trial heaving without a jury.</p>

<p>1. Public landls <§=>22416, New, vol. 11A Key-No. Series—Pueblo lands passing! to successor city ttecerinined by patens.</p> <p>A city of California has no title to any lands as successor to a Mexican pueblo except such as were-included in its claim presented to and confirmed by the Board of Band Commissioners appointed under Act March 3, 1851, nor outside the boundaries described in the patent issued pursuant to said act.</p> <p>2. Navigable waters €=37(8)—After-acquired rights to land under water not inuring to grantee.</p> <p>St. Cal. 19n, p. 1357, granting to the city of San Diego the right to make certain uses of lands under the waters of San Diego Bay, but expressly prohibiting any conveyance or transfer of the same, did not inure to the benefit of a prior grantee of the city of lands in the bay to which it had no title, and such conveyance being wholly ineffective and void may be so adjudged irrespective of the rights of the city under the act.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Commerce <S=»33—Larceny —Goods shipped between points in same state, but through another state, are moving in “Interstate commerce.”</p> <p>Act Feb. 13, 1913, § 1 (Comp. St. § 8603), making it an offense against tbe United States to steal “goods or cbattels moving as * * * an interstate or foreign shipment of freight or express,” is complementary to tbe general regulation of railroads, and covers such commerce as tbe Interstate Commerce Act itself covers, which includes a shipment between points in tbe same state, but by a line passing through another state.</p> <p>TEd. Note.—For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.]</p> <p>ig^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Bill by Charles F. Russell against W. M. E. Tilghman.</p>

<p>At Law. Action by the Tidewater Portland Cement Company against Poííasli Bros. On questions of law raised by affidavit of defense.</p>

<p>In Equity. Suit by the Seaboard Air line Railway Company against C. Fowler, Sheriff, and others.</p>

Paris, Judge. Suit in eqniiy by the Kinloch Telephone Company and another against local Union No. 2 of the International Brotherhood of Electrical Workers and others. Held: at which a vote was taken and carried to the effect -that the business agent, to wit, appellee Givens, should have the power to take men off the job of the Kinloch Company whenever he saw fit.

<p>Appeal from the District Court of the United States for the Eastern District of Wisconsin.</p> <p>Bill by the Advance Rumley Company-against the John Eauson Manufacturing* Company. Erom an adverse decree, plaintiff appeals.</p>

Libel by the Gans Steamship Line against Wilhelm Wilhelmsen and another, as owners of the steamship Themis, and the Nova Scotia Steel '& Coal Company, Limited, and Barber & Co., Inc., impleaded. Decree for libelant (The Themis, 244 Ted. 545), and respondents appeal. Suit is by Gans Line for breach of a charter party made to it, for Steamship Themis, and by Wilhelmsen as owner.

<p>1. Deeds <@=>94—Previous agreements marged in delivered deed, in absence oí ground for reformation.</p> <p>All previous conversations or executory agreements, as an agreement for sale at a certain amount per acre, are merged in the delivered deed, conveying lands described by government divisions and subdivisions, for a gross sum, unless the evidence justillos a reformation of the deed for mutual mistake.</p> <p>2.. Covenants 125(4)—-Damages for failure of title to part of land sold in gross is-vahío of part lost and not proportion of price.</p> <p>Where sale of lands described by government subdivisions was for a sum in gross, tbe measure of damages for breach of covenant for title, by failure of title as to some of the tracts, is not a proportional part of the purchase price, but tbe value of the land as to which title failed, so as to compensate for the actual loss, not exceeding the consideration paid, the lands being of unequal value.</p> <p>3. Covenants <S=»108(1)—Where sal© is toy government subdivisions, excess of acreage in ©no will not avail again si faltare of title of another.</p> <p>Where sale is by government subdivisions, without any acreage being set out following tbe descriptions, excess of acreage in some of tlie quarter sections does not entitle the vendor to recover for excess, and consequently will not avail as against claim for damag(?s for failure of title as to other subdivisions.</p> <p>other cases see same topic & KEY-NXJMBEIt in .all Key-Numbered Digests & Indexes</p>

<p>1. Collision <5=77—Steamer to keep lookout.</p> <p>Every steamer is required to have at least one lookout in the eyes of the ship.</p> <p>2. Collision <3=43—Steam vessei to keep out of way of sailing vessel.</p> <p>When a steam vessel and a sailing vessel are proceeding in such directions as to involve risk of collision, the steam vessel shall keep out of the way of the sailing vessel.</p> <p>3. Collision <3=44—Sail vessel should hold her course as to care toward steam vessel.</p> <p>It is the primary duty of a sailing vessel as to risk of colliding with steam vessel to hold her course and speed, and to do so as long as the steamer can avoid collision.</p> <p>®ss>For other eases see same topic & KEY-NUMBER in all Ke^-Numbered Digests & Indexes</p> <p>4. Collision <§=>108—Acts of sailing vessel, in agony of collision with steamer, immaterial.</p> <p>When it becomes apparent to a sailing vessel that a steamer does not intend to conform to the law concerning its duty to keep out of the way of the sailing vessel, what is done or omitted to be done by the sailing vessel in the agony of collision can make no difference, as it is impossible to consider a decision so made as a fault.</p> <p>5. Collision <§=>48—Burden on vessel to justify departure from rules.</p> <p>When a sailing vessel departs from the rule as to holding her course and speed when collision with a steamer is imminent, the burden of proof rests upon her to justify the departure, taking upon herself the obligation of showing both that her departure was necessary at the time it took place in order to avoid immediate danger, and that the course adopted was reasonably calculated to avoid that danger.</p> <p>6. Collision <§=>49—Strong case must be made out against sailing ship colliding with steamer.</p> <p>In cases of collision between a steamer and a sailing vessel, a strong case must be made out if the sailing vessel is to be held in fault.</p> <p>7. Collision <§=>49—Steamer colliding with sailing vessel held in fault.</p> <p>In a proceeding by the owner of a sailing vessel colliding with a steamer for limitation of liability, held that the steamer was solely in fault.</p> <p>8. Collision <§=>11—Rules rigorously enforced.</p> <p>In controversies arising out of collisions between vessels, the courts should, rigorously enforce the collision rules, that the object for which they were framed may be attained.</p> <p>9. Collision <§=>154—Admiralty rule promulgated after collision not necessarily controlling.</p> <p>Rule 7 of the Admiralty Rules of Practice (267 P. viii) promulgated by the Supreme Court on December 6, 1920, to become effective on March 7, 1921, providing that if costs shall be awarded by the court to either or any party, then the reasonable premiums or expense paid on all bonds or stipulations or other security given by that party in the suit shall be taxed as part of the costs of that party, was not necessarily controlling in a collision proceeding wherein the costs were taxed before such rule was promulgated.</p> <p>10. Admiralty <§=>124.—Cost of stipulation included in costs.</p> <p>In a proceeding to limit liability of a vessel arising out of a collision, where the right to limit was contested, held that the cost of stipulation should have been included in'the amount of costs taxed, though the costs were taxed prior to the promulgation of rule 7 of the Admiralty Rules of Practice (267 Fed. viii) by the Supreme Court.</p> <p>@=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>L Collision ©=^37—Tug in fault for collision between tow and crossing steamer.</p> <p>A tug with barges in tow alongside held, solely in fault for a collision between her tow and a crossing steamer approaching from starboard for violation of the starboard hand rule, which made her the burdened vessel and required her to keep out of the way and to avoid crossing ahead, instead of which she kept her course and speed on the assumption that the steamer would follow her usual course and turn to port before the vessels met.</p> <p>2. Collision <S=>90—Narragansett Bay not “narrow channel.”</p> <p>Narragansett Bay, which is customarily navigated in all directions, Is not a narrow channel, and the starboard hand rule applies to navigation therein.</p> <p>[Ed. Note.—Por other definitions, see Words and Phrases, Second Series. Narrow Channel.]</p> <p>—.Vnr other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>3. Collision <^=’■144—Contributory fault must be clearly shown.</p> <p>Where the fault of one vessel for a collision is established beyond question, she is not entitled to a division of damages with the other except on dear proof of a fault not made in extremis.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Action at law by George F. Hoffman and Peter H. Corr, partners as the Hoffman-Corr Manufacturing Company, against the. American Mills Company. Judgment for plaintiffs, and defendant brings error. This cause comes here on writ of error to the United States District Court for the Southern District of New York. The defendant in error, plaintiff below, is hereinafter called plaintiff. The plaintiff in error, defendant below, is hereinafter called defendant.

John J. McGrath and another were convicted under an indictment charging the asking and acceptance of money with intent to have their decision and action influenced as officers of the United States, and bring error. The plaintiffs in error, who were defendants below, are hereinafter referred to as defendants.

Libel by John' G. Mulligan, as executor of the estate of Lawrence Mulligan, deceased, against the steam tug John Carroll, Carroll Towing Line, Inc., claimant, and others. Decree for defendants, and libelant appeals.

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Criminal prosecution by the United States against Nichols Field Wilson and others. Judgment of conviction, and defendants bring error.</p> <p>This canse comes here on writ of error to the United States District Court for the Southern District of New York. 'The plaintiffs in error are hereinafter referred to as defendants.</p> <p>The defendants and 14 others were indicted on June 1, 1917. The indictment contained 13 counts. It charged that the defendants had unlawfully, knowingly, and willfully devised and intended to devise a scheme and artifice to defraud, and that for the purpose of executing the said scheme and artifice so devised they placed and caused to be placed in a post office of the United States in the -New York City post office, to be sent and delivered by the post office establishment of the United States certain writings, inclosed in postpaid envelopes, addressed to designated persons, against the peace of the United States and their dignity, and contrary to the form of the statute of the United States in such case made and provided.</p> <p>The trial began on May 22, 1918. At that time the court severed the indictment as to four of the defendants named therein. On June 26th a verdict of not guilty was directed as to three of the others. The trial was concluded on June 29th, the jury returning a verdict of not guilty as to four others. The defendants Wilson, Matches, and C. R. Berry & Co. were found guilty on all the counts. The defendant Loomis was found guilty on all the counts hut the eighth. Other defendants who were found guilty have not joined in the writ of error. .</p> <p>The defendant Wilson was sentenced to a term of imprisonment of five years on each of certain counts, the sentences to run concurrently, and to two years on certain other counts, the term to begin at the termination of the term of five years.</p> <p>The defendant Loomis was sentenced to a term of one year and one day on each of the counts, the sentences to run concurrently.</p> <p>The-defendant Matches was sentenced to a term of three years on each of the separate counts, except on count 13, on which he was sentenced to two years, the sentences running concurrently.</p> <p>The defendant 0. It. Berry & Co., Inc., was sentenced to pay a fine of $1,000 on each count, the total fine amounting to $13,000.</p> <p>The sentences of imprisonment were to be executed in each case at the United States penitentiary at Atlanta, Ga.</p>

<p>1. Patents <£=813 (1)—Plaintiff in infringement suit must show profits made on sale of infringing article.</p> <p>Though a former decision of the Circuit Court of Appeals establishing the validity of a patent, and defendant’s infringement thereof estops defendant from denying the utility of the device and that it was of value, the burden is on plaintiff, suing for profits from the sale thereof, to show that profits had been made.</p> <p>2. Patents <8=318(4)—Only if entire market value of infringing arise!© is attritaitaMe to patent devi®» may patentee recover entire profits from sale thereof.</p> <p>In a suit for infringement of a patent on a nonskid wire tread for tires, if the entire value of the whole infringing tire as a marketable article is properly attributable to the patent device, complainant is entitled to the entiie profits on all the tires manufactured and sold by defendant embodying such invention; but, if the whole value of such tire is not solely attributable to such device, complainant must separate and apportion by reliable and tangible proof the part of defendant’s profits derivable from the use tneroof, to establish a claim for more than nominal damages.</p> <p>3. Patents <8=318(4)—Owner of patent on wire tread! cannot recover whole profit missile by mfriiigw osu sal© «£ tires, entine vain© of which is not attributable to such treads.</p> <p>A tire being a composite structure, each element of which must be credited with its share of the total profit from the sale thereof, the court erred, in a suit for infringement of a patent on a nonskid wire tread for tires, in awarding to plaintiff the whole profit made by defendant on the sale of tires on which such treads were used, there being no evidence that the entire value of such Iires was properly attributable to the presence of the wires in the treads.</p> <p>4. Patente <S=318(6)—Royally paj-menis by isfeinger £or use oí other feature® used ifii iffifrimg'lpg article should be Redacted ffrcmt profits from sale thereof awarded to owner of patent.</p> <p>In a suit for infringement óf a patent on a nonskid wire tread for tiros, the court, in awarding to plaintiff defendant’s profits from the sale of tiros containing such treads, erred in refusing to allow defendant credit for royalties paid by it for the use of other features used in connection with such tires, such royalty payments being part of the cost of production, and the fact that one of such payees failed to receive a patent on his device cannot deprive defendant of its right to deduct the amount paid him for work done in the development of a practical method for imbedding a wire, so as to produce an anti-skid function.</p> <p>5. Priests <8=318(6)—Profits from sal© of tires without patented wire tread should! lie deducted from ¡profits awarded to patent owner.</p> <p>In awarding to the owner of a patent on a nonskid wire tread for tires the profits made by an infringer from the sale of tires with such treads, tlie court erred in not allowing the deduction .of profits on tires without the imbedded wire of such patent; any profit gained by an infringer from the use of what was old prior to the date of the patent not constituting any part of the compensation to be awarded to the patentee.</p> <p>6. Patants <£=318 (8)-—Advertising expenses should be deducted from profits from sal© ©£ infringing article awarded to patentee.</p> <p>The advertising of a business being a necessary expenso and one of the means by which the profits arise, the amount expended in advertising an article containing an infringed patent device should be deducted from the profits realized on the sale of such article, in ascertaining the amount payable to the owner of the patent on such device.</p> <p><S=For other casos see same topic & KEY-NUMBER in‘all Key-Numbered Digests & Indexes</p> <p>7. Patents @=318(1)—Complainant not entitled to royalties from sale of infringing article, where no profits realized.</p> <p>Where infringer realized no profits from sales of the infringing article, complainant held not entitled, under circumstances of case, to reasonable royalties from sale of such article.</p> <p>8. Patents @=319(1)—Patentee's assignee cannot recover for lost sales Decause of infringement, where it sold no articles containing patented device.</p> <p>Where neither the assignee of a patentee of a nonskid wire tread for tires nor any concern paying it royalties manufactured or sold tires containing such device, it cannot recover damages for lost sales because of sales of such tires by an infringer.</p> <p>9. Patents @=318(5)—Interest on profits from sale of infringing article allowable only from date of referee’s report as to amount thereof.</p> <p>Where the District Court held a patent not infringed, and the infringer ceased its infringement months before a decision of the Circuit Court of Appeals establishing the validity of such patent, so that it could not he regarded as a deliberate and wanton infringer, the court below, on remand, erred in allowing the patentee’s assignee interest on the infringer’s pronts from the sale of the infringing article from the date of the decision of the higher court, where the determination of the amount of such profits was in the hands of a referee during part of such time; interest on an infringer’s profits being allowed only from the date of the referee’s report ascertaining the amount thereof, or from the date of their first judicial ascertainment, where ascertained by the court, unless such infringement was deliberate and wanton.</p> <p>10. Patents @=319(3)—What constitutes wanton or deliberate infringement.</p> <p>Where an infringer ceased its infringement months before the validity of a patent was established by the Circuit Court of Appeals, on appeal from decision holding noninfringement, the infringer could not be regarded as a wanton or deliberate infringer.</p> <p><£^>For other cases see same topic & KEY-NUMBXCR in‘all Kev-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Eastern District of South Carolina, at Columbia; Henry A. Middleton Smith, judge.</p> <p>Action at law by T, Alex liaise, administrator of Marion O. Hawkins, deceased, and also as administrator of William Edgar Lowery, deceased, against Janies C. Davis, Agent of Railroads, and the Atlantic Coast Line Railroad Company. Judgments for defendants, and plaintiff brings error.</p>

<p>Master mñ ser rant <§=398—-Misáis Injuries Act limitation held Inapplicable to “subrogated” employer’s claim under Compensation Act against wrong1doer for workman's death..</p> <p>Under Workmen’s Compensation Uaw 111. § 29, as amended (Hurd’s Bev. St. 1917, c. 48, § 152), providing that, “Where an injury or death for which compensation is payable by the employer nnder this act, was not proximately caused by the negligence of the employer or his employes, and was caused under circumstances creating a legal liability for damages in some person other than the employer, * * * such other person having also elected to be bound by this act, * * * then the right of the employé or personal representative to recover against such other person shall be subrogated to his employer, and such employer may bring legal proceedings against such other person to recover the damages sustained in an amount not exceeding the aggregate amount of compensation payable under this act, by reason of the injury or death of such employé,” such an action by the employer held founded on a new and independent right given by the act itself, to which the five-year statute of limitation is applicable, and not upon an assignment of a cause of action given by the state Injuries Act in favor of the employé which is subject to a special limitation of one year.</p> <p>Alschuler, Circuit Judge, dissenting.</p> <p>" other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Shipping <@=>132 (3)—Vessel mast make delivery of goods admitted by bill of lading to have been received.</p> <p>The master of a ship, when he issues a bill of lading for goods, must make delivery of all the goods admitted by the bill of lading to have been received, and, when a shipowner signs a bill acknowledging the receipt of a specific quantity of goods, he is bound to deliver the full amount specified, unless he can show that the whole or some part of it was in fact not shipped; the burden of establishing a short shipment being on the vessel.</p> <p><§i»For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexei</p> <p>i» BMffjuflng ®^»133(3)—-SSuitai on ¿¡ipnoer to shew Wfietito oí bill oí lading.</p> <p>Ii a 'ikipownor seeks to avoid responsibility for goods, admitted by the bill of lading to have been received, by showing falsification of the bill, which he duly signed, lie bears the onus.</p> <p>S. Mm ©=»I58(S8)~—SUpying Q^ica—Tally eed voseipfe held best ®vi“ Aeras».; IfcfcflWy tt vessel dKB mat eomsema EmtM receipt o£ goods on brave.</p> <p>Where hags of nitrate were loaded on a vessel by lighterage company employed by shipper, the ship’s responsibility for the shipment did not commence until the* goods were laden on board, and a tally into the ship and recoiyis given for each lighter was the best evidence of what, was actually loaded.</p> <p>41» SlilpplMK ^pp.w»!aF &cM to sviic-seuriy ü«evo tf&i goods «*- mS&tn¿! bv Mfl «f fecSfejf were mi s cotNosí</p> <p>in a proceeding by vessel to recover freight, evidence introduced by libelant held sufficient to sustain a finding that all oí the goods admitted by the bill of lading to have been received wore not received by ihe vessel.</p> <p>g, Appeal anti m*w <§=»1?3 (1)—©efessss not pfea&ri below nal eansiticKttti.</p> <p>A defease not pleaded in the answer, and not relied on below, will not be considered on appeal by defendant.</p> <p><@=^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>I. Sales In ®as® ®f by c®n®ep®m*we, written «osateaei used not. 1)8 evitaseis fey single paper.</p> <p>Where, if there was a contract made, it was to be spelled, out of correspondence between the parties, it could not be said that there was not an express contract in writing, complete in its essentials, merely because there was no one document which could be labeled the contract between the parties.</p> <p>8. Contrasts <S=*29—Whether several paisers constitutes written coufeacfc question of feet.</p> <p>Whether a number of paper writings evidenced a contract complete in all its essentials was a question of fact, and when both parties moved for a direction of verdict, the resolution of such fact inquiry was for the court.</p> <p>3. Frauds, statute of <©=300(4), 05(1)— Statute taeM satisfied as to sales contra®! fey a delivery anti acceptance thereraidev as a part payment and acceptance of goods.</p> <p>Where an owner of slabs and a manufacturer of steel plates made an arrangement whereby slabs were to be taken by the manufacturer of the steel plates at a certain price, and steel plates were to be delivered to the seller of the slabs at a certain price, the statute (Personal Property Law, JST. Y. § 85) was satisfied on delivery of the slabs to the manufacturer of the steel plates and acceptance by the seller of the slabs of part of the steel plates, that constituting part payment and acceptance of part of the goods or choses in action so contracted to be sold.</p> <p>■g-—.Vnr other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>4. Sales <S=>384 (2)—-Measure of damages for breach sf. contract to receive difference between contract anS market prices.</p> <p>Under Personal Property Law N. Y. § 145, where owner of steel slabs sold them to a manufacturer of steel plates at a certain price, and agreed to purchase the steel plates to be manufactured, of such sizes-as should be directed, at a certain price, and the contemplated sizes were articles widely dealt in in the open market, and quoted from day to day in trade publications of authority, the measure of damages for failure of the seller of the slabs to receive the .steel plates was the difference between the contract price of the steel places and the market price thereof.</p> <p>QzaFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Bill in equity by Pose O’Neill Wilson and another against Haber Bros., Inc. From a decree awarding an injunction and accounting, defendant appeals.</p>

<p>Maritime Hens —“Other necessaries” in statute does not include services of stevedore.</p> <p>“Other necessaries” for which a lien is given by Act June 23, 1910, § 1 (Comp. St. § 77133), held not to include the services of a master stevedore in loading a vessel in her home port.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Other.)</p> <p>tgc^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the District of Maryland, at Baltimore; John C. Rose, Judge.</p> <p>Suit in admiralty by John J. Dempsey, trading as Dempsey & Sons against the Eastern Transportation Company, owner of the barge Frank R. Diggs, and S. G. Seligman and others, partners as Seligman, Williams & Ball, owners of the tug Juniper. Decree for respondents, and libelant appeals.</p>

Pollock, Judge. Criminal prosecution by the United States against Pietro Pierre for threats to take the life of the President. Demurrer to indictment was overruled, a verdict of guilty returned, and defendant brings error.

<p>Criminal law <©=^1159 (6)—Conviction, based largely on circumstantial evidence, not disturbed.</p> <p>A conviction will not be disturbed on appeal, where there was evidence to support every material allegation against the defendant, although most of the evidence was circumstantial.</p> <p>tgr^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexe*</p>

<p>Injunction <S=»26 (3)—Equity will not restrain prosecution of action solely 5i««-a«so of existence off cross-claims which cannot he pleaded therein.</p> <p>Equity will not intervene to restrain prosecution of suit at law or in admiralty merely because of the existence of cross-claims which cannot be pleaded in such suit, nor unless there are other circumstances, such as insolvency of the plaintiff, which may invoke its jurisdiction.</p> <p>other casos see same topic & KEY-NUMBER. in all Key-Numbered Digests & Indexes</p>

<p>Trade-marks and trade-names and unfair competition <§=s>18, 58, TO (2) —-Trademark for candy held valid and infringed.</p> <p>The word ‘'Peaks” in the form of a design with the letters K and S connected, printed on the tinfoil wrappers of bars of chocolate candy made in the form of a bar or ridge with peaks, held valid as a trade-mark, and infringed by defendants by the use on competing candy, similarly formed and wrapped, of the word “Alps,” with the letters A and S connected, and such imitation also held to constitute unfair competition; complainant having extensively advertised its product.</p> <p><fc;x>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Salvage <S^>34—Award for assisting disabled destroyer.</p> <p>A tug held entitled to a salvage award of $1,500, for towing to a place of safety a naval destroyer, costing $1,500,000, which had struck against the rocks in Hell Gate and broken a propeller, and in such condition was in a position of danger, although, as it chanced, she would have drifted clear with the tide.</p> <p>(^»For other cases see saíne topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Patents @=328—54,714, for design for frame for shades for electric lights, held valid and infringed.</p> <p>The Cohn design patent No. 54,714, for a design for frame for shades for electric lights, held valid and infringed.</p> <p>2. Patents @=252—Slight alteration in design held not to avoid infringement.</p> <p>The addition to an otherwise exact copy of a patented design of a small detail, which changes its appearance so little that it still not only resembles, but would be taken for the design of the patent, does not avoid infringement.</p> <p>3. Patents @=129—Employer of patentee estopped to deny invention.</p> <p>A corporation which employs a patentee, who has assigned his patent, in making an infringing structure cannot, through him, attack the validity of the patent for lack of invention.</p> <p><§=5*For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Aliens <§=»46—Alien wife of native-born citizen if afflicted with dangerous contagious disease not entitled to admission.</p> <p>immigration Act, § 22 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4289*41), providing that whenever a naturalized alien or one who has taken up his permanent residence in this country shall send for his wife or minor children, and either wife or child shall be affected with any contagious disorder, such person, if thought curable, shall be treated in hospital until cured at the expense of the husband or father, and then admitted, “provided, that if the person sending * * * is naturalized, a wife to whom married, or a minor child born subsequent to such * * * naturalization shall be admitted without detention for treatment in hospital,” held not to authorize the admission, as matter of right of the alien wife of a native-born citizen if affected with a dangerous contagious disease.</p> <p>®s»For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Courts <^307 (2)—Interpleader statute fiaos rot give District Court1 jurisdiction of a citizen of District of Columbia* 1</p> <p>, Act Feb. 22, 1917 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 991a), providing that District Courts shall have cognizance of suits in equity begun by bills of interpleader, when filed by an insurance company, alleging that each of two or more persons, citizens of different states, claims to be the beneficiary under an accrued policy, such suit to be brought in the district of the residence of one of the claimants, does not give a District court jurisdiction of such a suit where one of the claimants is a resident and citizen of the District of Columbia.</p> <p>2. Courts <®=>8OT(2)—District of CoinmMa is net a “state” within section 1 ©f artiste 3 of the Constitution.</p> <p>The District of Columbia is not a state within section 2, article 3, of the Constitution, conferring upon federal courts the jurisdiction of controversies “between citizens of different states.”</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second. Series, State.]</p> <p>(gcs>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by Hiram Walker & Sons, Limited, against Richard I. Lawson, Collector of Customs, and John A. Grogan, Collector of Internal Revenue.</p>

<p>1. Corporations <3^665 (1) —Not subject to suit in foreign jurisdiction in which it is not doing business.</p> <p>A corporation cannot be sued in a jurisdiction foreign to that of its organization unless it is there doing business at the time the action is commenced.</p> <p>2. Courts '3=^280—Jurisdictional allegations in complaint may be controverted by affidavit.</p> <p>Where the complaint in an action in a federal court against foreign corporations contains allegations not essential to the statement of the cause of action, but relating solely to the question of the court’s jurisdiction over defendants, such allegations may be controverted by affidavits for the purposes of a motion to dismiss or to quash the service on the ground of want of jurisdiction over defendants.</p> <p>@=x>For other cases see same topic & KEY-NUMBER in ail Key-Numbered Digests & Indexes</p>

<p>1. Bankruptcy <§=60—Inability to pay debts maturing held “insolvency,” and appointment of receiver an act of bankruptcy “because of insolvency.”</p> <p>Where there were suits of creditors pending against a corporation which was actually insolvent in the bankruptcy sense and claims in the hands of attorneys for collection, and it feared judgments and executions thereon, and could not pay its debts as they matured, there was a condition of “insolvency” as the term is commercially used, and within the meaning of laws of Ohio, and appointment of a receiver on application of a stockholder instituting the proceeding as an indorser of past-due notes of the corporation was an act of bankruptcy, the receivership being “because of insolvency” within the meaning of Bankruptcy Law, § 3a, subd. 4 (Comp. St. § 9587), although the application for appointment of the receiver did not say that the corporation was insolvent, but was careful to aver that it was solvent in the sense of the Bankruptcy Law (Comp. St. §§ 9585-9656), and that its assets at a fair valuation were more than sufficient to pay all of the indebtedness.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Insolvency—Insolvent.]</p> <p>2. Bankruptcy <@=60—Receivership under state law because of insolvency an act of bankruptcy.</p> <p>Where, because of insolvency, a receiver has been put in charge of corporate assets under the laws of a state or of a territory or of the United States, an act of bankruptcy is committed; that is, when the laws of the state provide for a receivership on the ground of insolvency, and are applied to a corporation insolvent in the bankruptcy sense, the act of bankruptcy is complete.</p> <p>@=»For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Bankruptcy ©=>87—Conveyance not made to hinder or delay creditors not “act of bankruptcy.”</p> <p>A conveyance of real estate by a corporation within four months before the filing of an involuntary petition in bankruptcy against it does not constitute an act of bankruptcy within the Bankruptcy Act, though it hinders and delays creditors in the collection of their claims, where the evidence shows nO fraudulent design to do so. but that the conveyance was made to secure past indebtedness and to obtain future advances.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Act of Bankruptcy.]</p> <p>¡5. Bankruptcy ©=>57—Prior conveyance by bankrupt solvent at date of filing petition not “act of bankruptcy.”</p> <p>Where a bankrupt at the date of filing an involuntary petition against it was solvent, a conveyance, by it within four months before the filing of such petition did not constitute an act of bankruptcy within the Bankruptcy Act.</p> <p>3. Corporations ©=>198—A creditors’ agreement reciting a prior voting trust agreement held effective, whether actually signed and executed by a committee of creditors and the corporation or not.</p> <p>Where a committee of creditors of a corporation, who were elected directors thereof and conducted the business in the name of the corporation, and to whom was assigned the majority of the stock for purposes set out in a voting trust agreement, sent to other creditors of the corporation for their signature a creditors’ agreement reciting the voting trust agreement and purporting to be signed by them and executed by the corporation, such agreement became effective so far as the corporation, committee, and such creditors as signed it were concerned, whether it had been actually signed and executed or not; such acts being an adoption of such purported signatures.</p> <p>4^s>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>4. Bankruptcy <§=80—Creditors’ agreement held not general “assignment for benefit of creditors” witfiin Bankruptcy Act.</p> <p>Though a majority of the stock of a corporation was transferred to a committee of creditors for purposes set out in a voting trust agreement under which such committee was put in virtual charge of the corporation, a creditor’s agreement prepared by it and sent to other creditors for their signature, though effective as between themselves, the corporation, and all other creditors signing it, did not constitute a general assignment for the benefit of creditors so as to constitute an act of bankruptcy within the Bankruptcy Act.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Assignment for Benefit of Creditors.]</p> <p><®=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Food <@=15—Falso statements in circulars in package not violation of Food and Drugs Act.</p> <p>False representations in circulars inclosed within package cannot be considered as violations of Food and Drugs Act June 30, 1906 (Comp. St. §§ 8717-8728), relating to misbranding.</p> <p>2. Food <@=29 (1)-—Information as to false representation in label held sufficient.</p> <p>An information, alleging that statements of label were false and misleading, in that they represented to the purchaser that the article was a substitute for eggs and could be used in place of eggs for cooking and baking, whereas, in truth, said article was not then and there a substitute for eggs, and could not be used in place of eggs for baking and cooking, was sufficient, under Food and Drugs Act June 30, 1906 (Comp. St. §§ 8717-8728), as against an objection that it did not set forth why or in what manner the article could not be used as a substitute for eggs.</p> <p>3. Feed <@=15—Proviso in Food and Drags Act held not to fumishi refuge for false representation as (to mature of contents of package.</p> <p>The proviso of the fourth subsection of section 8 of the Food and Drugs Act of June 30, 1906 (Comp. St. § 8724), providing that an article of food which does not contain any added poisonous or deleterious ingredients shall not be deemed to be adulterated or misbranded in certain eases, goes only to the branding or name of the artiele, and does not furnish a refuge for one who has on the label otherwise falsely stated the nature of the contents of the package.</p> <p>4. Food <@=15—Statement on label that article was substitute for eggs not one of opinion.</p> <p>Statement on label of package, “Substitute for eggs in baking and cooking,” was not one of opinion only, but one of fact, and, where false, constituted a violation of Food and Drugs Act June 30, 1906 (Comp. St. • §§ 8717-8728) ; it being otherwise expressed upon the label that the article could be otherwise used in place of eggs “in baking and cooking.”</p> <p>5. Food <@=15—Representations as to result to be obtained held to constitute misbranding of food.</p> <p>False representation as to results which may be obtained by the use of an article may constitute misbranding under Food and Drugs Act June 30, 1906 (Comp. St. §§ 8717-8728).</p> <p>6. Indictment and information <@=52 (1)—Information need not be upon oath where defendant voluntarily appears.</p> <p>An information not upon oath is not violative of the Fourth Amendment to the Constitution, where defendant has voluntarily appeared and filed motion to quash, it being only required that information shall be supported by oath before warrant may be issued thereon.</p> <p>«@ss>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>iJSaisknqtéejr <8=*348—Court has Jurisdiei!®® to HquMats taxes clama®?? by Unite?! States.</p> <p>tinder Bankruptcy Act, § 64a (Comp. St. § 9648), providing that the court shall order the trustee to pay all taxes legally due and owing by the bankrupt to the United States, etc., in advance of payment oí dividends, “and in case any question arises as to the amount or legality of any such tax Hie same shall be heard and determined by the court,” while the United States is not required to file a claim for taxes, in the absence of any action on its part, the court has jurisdiction to proceed in invitum to liquidate any such tax, and notice to the collector of Internal revenue for the district is sufficient as a condition precedent to such proceeding.</p> <p>(g^For other cases see same topic & KEY-NUMBKR in all Key-Numbered Digests & Indexes</p>

<p>In Bankruptcy. In the matter of The Hub, bankrupt. On application under Bankruptcy Act, § 69, for a warrant to the marshal to seize property of the bankrupt and hold it subject to further order of the court.</p>

Bean, Judge. Action at law, brought by T. B. Story and L. P. Work, copartners doing business under the firm name and style of Story & Work, to recover damages from defendant, R. N. Stanfield, for breach of contract to deliver certain sheep as provided in the contract. Demurrer to the amended complaint, on the ground that it does not state facts sufficient to constitute a cause of action, sustained. Plaintiffs bring error.

<p>1„ Criminal law ‘8=>9?(1)—District where ©vert act is commiUeS lias jurisdiction isa eortsp&acy prosecution,</p> <p>A conspiracy to (lo a certain thing is not ended for all purposes when the plan if; completed, hut carries on through every act done in the execution of that plan, and a charge of conspiracy to illegally transport liquor from one state into another, and the carriage of the liquor into the latter state, is sufficient to give the court in that district jurisdiction of the offense.</p> <p>%, Criminal law <S=»619—CmsgoKdatioia of cases for trial lieiii proper.</p> <p>The consolidation for trial of separate indictments against the same delenckmts, growing out of the same transaction, 'held, proper.</p> <p>4 Crimial lavs <Sr»2Q0(©) —AMpriliaJ ©il ©ms infiiekneaj, h©M not MCMKifcteB.i, with rafiivEctiom <m another, basad ©a the same toaais&sfiop.</p> <p>An acquittal under an indictment for conspiracy held not inconsistent with conviction under another, charging the same conspiracy and alleging the .same overt acts, but chat the conspiracy was formed in a (Literem state.</p> <p>4 tMiiiinal law ’0-4115(9(12)—Erna* ía aSinjsslom oí1 «wsfessiom «sas'ei by fsDSEijuejtii ©vicfeiim,</p> <p>Erro?' in admission of a confession without proper foundation being laid by showing that it was voluntary held cured, where such fact was shown by defendant.</p> <p>íá, Criminal law <¡^854 (?)9 8S5 (1) —-IPamMtiiag sfigraraiitat ®f jury amd fusfaustniig as 4» duty 4» signs© EieH Biot Improper.</p> <p>Permitting a jury to separate during their considera Lion of a case be cause accommodations could not be procured for them together, and general instructions given on their reassembling as to their duty to agree, if possible', held proper.</p> <p>«^=pFor other eases see same topic & KEY-NUMBER in all Koy-N umbered Digests & Indexes</p>

Appeals from the District Court of the United States for the Southern District of New York. In the matter of the John B. Rose Company, bankrupt, James G. Graham, trustee, and of the Rose Brick Company, bankrupt, Charles Clayton Bourne, trustee. Appeals by the Travelers’ Insurance Company from orders of the District Court. These causes come here on appeals from orders entered in the United States District Court for the Southern District of New York.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>In the matter of the John B. Rose Company, bankrupt. On appeal by the Metropolitan Bank from an order of the District Court.</p> <p>The John B. Rose Company is a corporation organized under the laws of the state of New York, and was adjudicated a bankrupt on June 11, 1918.</p> <p>The Metropolitan Bank on September 24, 1918, filed proof of claim in the sum of $25,000.</p> <p>The proof of claim is based upon an alleged guaranty which may be found in the margin.1</p> <p>The proof of claim invokes the guaranty in respect of 16 promissory notes which aggregate something in excess of $25,000. The notes were all drawn to the order of John B. Bose and were indorsed by him. They were discounted by the bank which placed the money to the credit of: his individual account.</p> <p>The order adjudicating the John B. Bose Company a bankrupt contained the usual provision referring the matter to a referee in bankruptcy to take such further proceedings as required by the act of Congress.</p> <p>The trustee of the bankrupt moved to expunge the claim of the bank on the ground that the guaranty on which the claim rested was ultra vires the John B. Bose Company and therefore void.</p> <p>The referee in bankruptcy allowed the claim. The District Court overruled the order of the referee, and on November 15, 1920, entered an order disallowing the claim and expunging it from the list of claims against the estate of the bankrupt.</p> <p>The bank seeks to uphold the guaranty upon the theory that while the bank account was in the name of Rose personally, it was Cor the benefit of the John B. Rose Company and the subsidiary companies to which reference has been made.</p>

<p>Appeal from the District Court of the United States for the South'efin District of New York.</p> <p>Suit in Equity by Samuel Lumiere against the Pathé Exchange, Inc., and others. From a decree of dismissal without prejudice, both parties appeal.</p>

<p>In Equity. Suit by the Beaver Board Companies against James Imbrie and others, copartners doing husiness as Imbrie & Co. Claim of the State of Santa Catharina, Republic of Brazil, expunged.</p>

<p>In Equity. Suit by the Beaver Board Companies against James Imbrie and others,, copartners doing business as Imbrie & Co. Petition by George T. Brokaw for leave to join individual defendants denied.</p>

At Eaw. Action by James Donnelly against Anderson Brown & Co., Inc., James MacFadyean, and William C. Brower. On motion by defendants to vacate order for examination, of defendants. The plaintiff obtained an order to examine the defendants in an action at law for the purpose of framing his complaint. H'e relied upon the provisions of article 1, title 3, of chapter 9 of the New York Code o£ Civil Procedure, which gives such a right.

<p>Internal revenue <@=>2—Statute requiring registration of stills not repealed by National Prohibition Act.</p> <p>Rev. St. § 3258 (Comp. St. § 5994), requiring the registration of stills, held not repealed by the National Prohibition Act.</p> <p>@=oFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Insurance <S==>475—Marine contract held not valued policy.</p> <p>In a contract of márine insurance on a particular cargo for a particular voyage, effected by a binder, incorporating by reference the New York lighterage form, the insertion of the words “valued at sum insured” held. not to change the normal character of the policy as a contract of indemnity under which the insured in case of loss is entitled to recover only the actual value of the property lost.</p> <p><gc»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Equity. Suit by the Victor Talking Machine Company against the Cheney Talking Machine Company. Decree for complainant- on one cause of action, and for defendant on the second.

<p>In Equity. Suit for infringement of patents by the Victor Talking Machine Company against John Wanamaker, New York.</p>

<p>I. Landlord and tenant <§=»47—Intention of grantor governs in ooitstructiem of leas©.</p> <p>Whether a particular provision oí’ a lease amounts to a condition or not, the rale is that the intention of the grantor governs, and such intention is to be gathered from the whole instrument and the existing facts.</p> <p>X, LiMifilffiril asid taiacst *@^>76(1)—EScsti’ictions to lease against subletting valid.</p> <p>In a lease for a term of years, restrictions against assignment or subletting are valid.</p> <p>So Landltor’d and tenant !©=»77—-Verbal transfer of lease hieM mot effective against 'landlord.</p> <p>Where a lease of a building for a term of years contained a provision, against assignment or subletting without consent of the lessors, but recited that lessees intended forming a corporation to conduct business in the premises, and provided that they should have the right to transfer and assign the lease to such corporation on a form attached, to bo signed by both assignee and lessors, by which the assignee took subject to all obligations of the original lease. The taking of possession by the corporation from the lessees without the execution of such instrument or the knowledge of any transfer by the lessors held not effective to transfer title to the lease to the corporation.</p> <p>4. Landlord and tenant «8^76(3)—Prevision m lease requiring formal execution of transfer held not waived'.</p> <p>Provision of a lease, requiring any assignment to be executed on a form attached and signed by assignee and lessors, held not waived by the lessors, in the absence of door proof that they bad actual knowledge of an informal transfer by lessees.</p> <p>5, Landlord asid teaami -jftwfeioatj hi leas» for ibrMksr© in cas© of bamkrapisy oí legases EieM t® apply to cofitOMiifiom assignee.</p> <p>A provision of a lease, giving lessors the right to re-enter in case of bankruptcy of lessees, held to apply to a corporation which the lease provided might become assignee, and which went into possession and became assignee in fact as between it and the lessees.</p> <p>®, Baurkritpicy <Ss»255—■ Trasteo stooulá *»* assramo teso which w® delay settlement of estate.</p> <p>It is not in accordance with the settled policy of requiring prompt settlement of bankrupt estates to authorize a trustee to take over a lease of a large business building held by the bankrupt and having over five years to run.</p> <p>i@s5>For other cases soo same topis & KEY-NUMBElt in all Kej -Numbered Digests & indexes</p>

At Law. Action by Norvena Lineker and another against Mary J. Dillon, formerly Mary J. Tynan, and Thomas B. Dillon. Judgment for plaintiffs. In the matter of the contempt of the First National Bank of Modesto and F. C. Feck, President, the Union Savings Bank of Modesto and C. D. Swan, President, and G. W. O’Connor. Proceeding dismissed as to G. W. O’Connor. Respondents other than O’Con-nor adjudged in contempt.

In Equity. Suit by Leslie Dane and others against Sheridan T. Whitaker, prosecuting attorney, and others. On motion by complainants for preliminary injunction.

<p>In Bankruptcy. In the matter of Harry Bazil Brashear, bankrupt. On certified questions from referee.</p>

<p>Proceeding by Francis P. Garvan, as Alien Property Custodian, against the Marconi Wireless Telegraph Company of America. On rule to show cause why shares of stock of the company standing in the name of the Dresdner Bank should not be transferred to the Alien Property Custodian.</p>

<p>1. Collision <@=>102—Overtaking and overtaken vessel held-both, at fault.</p> <p>Where a steamer collided with a tug while attempting a starboard passage from the rear after signaling for a port passage, both vessels held at fault; the steamer, even though the tug turned to port after assenting to the port passage and thence to starboard as the steamer, signaling for a starboard passage, veered in that direction, in failing to put her engines full speed astern, and attempting a starboard passing without having first secured the tug’s assent, and the tug, with the steamer so near and either directly astern or a trifle on her starboard quarter, in assenting to a port passing.</p> <p>2. Collision <®=>14—Blunder, though excusable, no defense, if master without license.</p> <p>Though a tug’s error in agreeing to a port passing by a steamer too near astern was in extremis, and the situation, in which pool judgment was difficult, was not created by her, such facts are no defense where her master had no license as required by law, since, if the man in charge blunders and does not have the legally required evidence of competency, it is insufficient that he had all needful skill or that his lack of it made no difference.</p> <p><@E5>For other cases see same topic & KEY-NXJMBER in all Key-Numbered Digests & Indexes</p>

<p>In Bankruptcy. In the matter of the Couch Cotton Mills Company, bankrupt. Application of temporary receiver of state court for direction from the bankruptcy court to its receiver to surrender certain assets.</p>

<p>Ill Bankruptcy. In the matter of the Beaver Cotton Mills, bankrupt. Application of A. H. Penfield, minority stockholder, to annul adjudication of the Beaver Cotton Mills as a voluntary bankrupt.</p>

<p>Action by Carl Laemmle against Mark Eisner, ex-Collector of Internal Revenue, etc. Verdict directed for defendant, and against plaintiff.</p> <p>At the close of the plaintiff’s ease, defendant, withont submitting any evidence, moved for the direction of a verdict in his favor. The facts disclosed by the evidence introduced in behalf of the plaintiff are substantially as follows:</p> <p>The Universal Film Manufacturing Company was organized in 1912 with a capital stock of §2,000,000, consisting of 10,000 shares of preferred stock and 10,000 shares of common stock, of the par value of §100 each. On May 5,1913, the plaintiff, in conjunction with a man named Swanson and others, controlled a majority of the stock of the company under a voting trust agreement, and the plaintiff was president of the company. On the above date one David Horsley was the owner of 1,250 shares of the preferred stock and 1,540 shares of the common stock of the Universal Film Manufacturing Company. On that day Horsley entered into an agreement with one Patrick Powers, a former stockholder of the company, who at that time had apparently disposed of all his stock, whereby Powers for good and valuable consideration was given an option to purchase the stock hold by Horsley for 1he sum of $167,400, to be paid $57,400 in cash and $110,000 in notes. The stock was deposited in escrow with tiie Bank of the Metropolis, and the option was to extend for a period of 80 days, and thereafter for three periods of 30 days each, provided it was not terminated by 10 days’ notice in writing prior to the expiration of'any one of these periods. No such notice was given prior to tho happening of the events hereinafter set forth.</p> <p>On the same day-—May 5,1913—a collateral agreement was executed between Horsley and Powers, wherein and whereby it was agreed that, if Powers purchased the Horsley stock for 60 por cent, of its par value, lie should receive a brokerage fee of $5 a share, and furthermore that Powers should not exercise the option unless Laemmle, the plaintiff, refused to sell to Powers the stock held by him in the company. On June 7, 1913, while the option agreement’ was still apparently in effect, but before any formal exercise of the option on ¡he part of Powers, the 1,250 shares of preferred stock deposited by Horsley under tho agreement with the Bank of the Metropolis were transferred to the name of 'Powers on tire books of tho company. This transfer was made by Swanson, the vice president and secretary of the company, and Burton Garrett, the assistant secretary) apparently acting in collusion with Powers.</p> <p>About this time, also, according to the testimony of the plaintiff, Swanson, in violation of his voting trust agreement, transferred his own stock to Powers, thereby depriving the plaintiff and his group of the control of the company. Instead of taking legal steps to restrain and remedy what tho plaintiff characterizes as criminal action on the part of Swanson, plaintiff entered into negotiations with Horsley and induced him to sell him the stock covered by the. option, agreement with Powers for the sum of $172,475, of which $97,475 was to be paid in cash and $75,000 in notes. In the agreement'“of sale berweor. the plaintiff and Horsley the option agreement with Powers was expressly referred to, and the plaintiff agreed to defend Horsley against any suri; by Powers for breach of this agreement, and fo pay any judgment which the latter might recover. This transaction took place the 11th day of June, 19.13, and, according to the admissions of the plaintiff and the documentary evidence introduced, was had with full knowledge of the prior agreement between Horsley and Powers. The plaintiff’s contention on this point is that he was advised and believed that the prior option agreement was void.</p> <p>On Juno 13,19.13, Powers formally exercised the option, and, being unable to secure the stock, on July 24, 1913, brought suit against tho plaintiff and the Universal Film Manufacturing Company to have himself declared the owner of the Horsley stock. The plaintiff, Laemmle, appeared by one George N. Sage; but, according to Ms testimony, the litigation was conducted mainly by Staneli/ieM & Levy. An answer was interposed in Ms behalf, and subsequently an amended complaint filed, to which Laemmle demurred. No trial was ever had, and subsequently, on December 30, 1914, a settlement was reached between Powers and Laemmle, whereby the Horsley stock was divided between them, and Laemmle. retained control of the company and remained its president. The action was discontinued on January 15, 1915.</p> <p>In tho course of this litigation plaintiff, during the year 1914, paid to his attorneys, Stanchfield & Levy, the sum of $7,500 for their services therein. During the year 1915, plaintiff paid to these attorneys the sum of $51,700, likewise for their services in this action. These sums represent no services performed in any other action, and were paid solely for the defense and settlement of the action brought by Powers over the Horsley stock.</p> <p>In making return of his income for the purposes of taxation for the years 1914 and 1915, plaintiff attempted to include the sains so paid as deductions from Ms gross income, under the heading: “The amount of necessary expenses actually paid within the calendar year, for which the return is made, in carrying on any individual business.” After an audit of his returns by the internal revenue officials, these amounts were disallowed as deductions and additional taxes for these years assessed. After assessment of these additional taxes, plaintiff filed claims for abatement, which were rejected by the Commissioner of Internal Revenue. After such rejection the amount of tile additional taxes, with interest and penalties, were paid by plaintiff, though not under protest, and claims for refund filed. These claims were subsequently rejected by the Commissioner of Internal Revenue, and this action was brought to recover the amount of the additional taxes so assessed and collected.</p>

<p>Intoxicating liquors <@=>248, 249—Search warrant and affidavit changed to apply to different premises held invalid.</p> <p>A search warrant for certain described premises, but which was afterward changed as to date, location of premises, and name of owner to apply to the private dwelling of petitioner, held invalid; the affidavit, also changed, but not resworn to, containing no charge that the premises were being used for the unlawful sale of liquor as required by National Prohibition Act, tit. 2, § 25, is not a predicate for the issuance of a search warrant for a private «dwelling.</p> <p><§x=^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Criminal prosecution by the United States against So rah Connelly. On petition of defendant for return of liquors.</p>

<p>Bankruptcy <@=464 (2)—Bankrupt may be discharged from debts not scheduled in prior proceeding.</p> <p>On a new voluntary petition, filed more than six years after bis discharge in prior proceedings, a bankrupt may be discharged from all outstanding debts, including a debt existing when the first petition was filed, but not scheduled thereunder.</p> <p>©E^kor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Brown, Judge. Suit by Kate Atwood and another against the Rhode Island Hospital Trust Company and others. From a decree dismissing the bill {264 Fed. 360), plaintiffs appeal.

<p>1. Trade-marks and trade-names and unfair competition <S=»98—Scops of accounting for unfair competition.</p> <p>Where complainant, in a suit for unfair competition, prayed for an accounting for profits only, and not for damages, and the court awarded an injunction, perpetual in time and universal in place, and directed an accounting “of all gains and profits accruing from the manufacture and sale” of defendant’s product, the master is without authority to compel complainant to submit to an examination as to the extent of its trade, for the purpose of limiting the inquiry to sales made in common territory.</p> <p>2. Appeal and error <§=»1203(7)—Authority of master ois an accounting limited by terms of decree.</p> <p>A decree directing an accounting, entered pursuant to the mandate of an appellate court, is in effect the decree of that court, and while it remains in effect the trial court can give the roaster no different authority.</p> <p><§z=oFor other eases see same topic & KEY-NUMBER, in all Key-Numbered Digests & Indexes</p> <p>3. Trade-marks and trade-names and unfair competition <®=>98—Scope of accounting for unfair competition.</p> <p>Where the court found that complainant was the originator and had the exclusive right to make and sell a package, and that defendant had willfully trespassed on its right by placing the package of its own manufacture on the market to forestall complainant’s trade, and ordered an accounting of profits by defendant, such accounting will not he limited to sales by defendant in complainant’s territory.</p> <p>4. Appeal and error <^=>14 (2)—Order relating to carrying out decree entered on mandate is reviewafele by appeal.</p> <p>While questions arising on an accounting before a master under an interlocutory decree are not reviewable by appeal until the master’s report has been disposed of by the trial court, the master has no authority to open questions adjudicated by the decree, and where that was entered on a mandate from the appellate court, the question whether it is being correctly carried into' execution may be raised in the appellate court, either by appeal from an order of the trial court or by petition for mandamus.</p> <p><@spFor other cases see same topic & KEY-NTJMBER in all Key-Numbered Digests & Indexes</p>

<p>Trade-marks and trade-namies <§=»G4—‘Use of trade-mark by competitor on genuine article not infringement.</p> <p>The importation and sale in the United States of an article made in a foreign country, bearing the trade-marlc under which it is known and sold in the country where made, and also in this country, is not an infringement of the American trade-mark on the same imported article though that is owned by a competitor.</p> <p>Hough, Circuit Judge, dissenting.</p> <p><@E»lTor oilier cases see samo topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Action by Cornelia B. Kissam and John C. Knox, Executrix and Executor of the will of Jonas B. Kissam, against Richard J. McElligott, late acting Collector of Internal Revenue. Judgment for plaintiffs, and defendant brings error.</p>

Bourquin, Judge. Action a,t law by Tisdale E. Van Atta against the Montana National Bank. Judgment for defendant, and plaintiff brings error. The complaint upon which this action was tried in the court below was an amended one, the original not appearing in the record.

<p>Appeal from the District Court of the United States for the District of North Dakota; Joseph W. Woodrough, Judge.</p> <p>Suit in equity by the First National Bank of Fargo against K. C. Eddy, as Treasurer of Cass County, N. D., and another. Decree for complainant, and defendants appeal.</p>

<p>Action by the Calumet & Hecla Mining Company against the Equitable Trust Company for money had and received. On demurrer to the complaint for failure to state a cause of action and for defect of parties defendant.</p> <p>This is an action to recover money had and received for plaintiff’s use. The complaint alleges that Stafford purchased the steamer H. M. Whitney, and that, the defendant loaned $225,000, being part of the purchase price, that in order to secure repayment Stafford transferred the legal title of the steamer to a third party (the treasurer of the defendant), and that he thereafter held the legal title to said steamer f.or the defendant to secure the repayment of the $225.000. The complaint further alleges that Robert ID. Miller and. Stafford, either in person or doing business under the name of Acme Steamship Company, with tho knowledge and consent of the defendant, operated said steamer, and that a corporation known as the Acme Operating Corporation, with the knowledge and consent of the defendant, acted as agent for said Miller and Stafford, individually or doing business as Acme Steamship Company, in entering into affreightment contracts and issuing bills of lading for the carriage of freight by said steamer; that it was understood and agreed between Miller and Stafford and the defendant that until the. $225,000 had been repaid to the defendaut in full the moneys earned in the operation of the steamship and received by Miller and Stafford individnally, or doing business as Acme Steamship Company, or Acme Operating Corporation, should be paid by them to the defendant, to bo applied by it in the payment of the indebtedness of $225,000. The complaint further alleges that Miller and Stafford, doing business under the trade-name of Acme Steamship Company and Acme Operating Corporation, as agents for Miller and Stafford, individually, or doing business as'Acme Steamship Company, and the defendant falsely and fraudulently represented to plaintiff that tho steamship was to enter on a voyage to Genoa and would carry freight, and requested plaintiff to pay freight payable in advance; that plaintiff believed the representations to be true, and, relying on the same, delivered to Stafford and Miller, doing business as Acme Steamship Company and Acme Operating Corporation, its check for $10,-503.35 for freight of copper to be shipped on the steamship, which said agents well knew the United States government had refused permission to sail; that tho copper was delivered to the ship and the check was indorsed payable to the defendant and received by it; that the copper was not shipped on the steamer; that the plaintiff has elected to rescind the contract and seeks to recover the $19,503.35 from the defendant.</p> <p>The defendant demurs to the complaint:</p> <p>(1) Because it states no cause of action.</p> <p>(2) Because of a defect of parties defendant in that the presence of Miller and Stafford, individually, and doing business as Acme Steamship Company and Acme Operating Corporation, is necessary for a complete determination of the action.</p> <p>In this action for money had and received the complaint alleged that A. and B., as agents for the defendant, falsely represented to plaintiff that a certain steamship was to make a voyage to Genoa and would carry freight, and requested plaintiff to pay freight in advance; that plaintiff believed the representations to be true, and, relying on the same, delivered tc A and B. its check in payment for the freight of copper to be shipped on the steamship, which said agents well knew the United States government had refused permission to sail; that the copper was delivered to the ship and that the check was indorsed payable to the defendant and received by it; that the copper was not shipped on the steamer; that the plaintiff had elected to rescind the contract and seeks to recover the amount of the cheek from the defendant. Defendant demurred to the complaint on the ground that it stated no cause of action. Held that the demurrer should be sustained because there was no proper allegation of agency. There was in the complaint, in addition to the allegations above recited, an allegation that A. and B. operated the steamer as agents, but this was not equivalent to an allegation that they had been appointed as agents to operate the ship, but was only a legal conclusion. Moreover, there was no allegation that the defendant had knowledge or was put on notice respecting the 'equities and claims which the plaintiff might have in the money by reason of any false representations, and, though there were additional allegations that defendant was a mortgagee of the ship, this would not render it liable for affreightment or other contracts made by the mortgagor or his agent, who was really in possession.</p>

<p>In Bankruptcy. In the matter of Walter L. Branche, alleged bankrupt. Hearing on petition and answer.</p>

<p>1. Criminal law @=167, 168—Former acquittal or conviction, to constitute bar, may be upon warrant and without jury, but court must have jurisdiction.</p> <p>If a former conviction or acquittal was by a tribunal having jurisdiction of the offense, defendant cannot again be prosecuted for the same offense though the trial may have been on a warrant and without a jury; but it must appear that such tribunal had jurisdiction of the offense charged in the later indictment or information.</p> <p>2. Criminal law @=201—Conviction under state statute not bar to prosecution under federal statute for same act.</p> <p>Acquittal of a defendant by a state municipal court under a state statute on a charge of having unlawfully in his possession a quantity of whisky held not a bar to a prosecution in a federal court for the same act under the National Prohibition Act, on the grounds (1) that the state court was without jurisdiction of an offense against the federal statute, and (2) that the acts charged constituted separate offenses under the state and federal statutes, respectively, though their provisions violated were the same.</p> <p><@=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Equity. Suit by the Public Ledger against the New York Times and others. On motion to dismiss bill. This is a. motion to dismiss a bill in equity upon its face. The bill is composed of two causes of action, one in copyright and the other in unfair competition. In each it alleged that the complainant was a Pennsylvania, and the defendant a New York, corporation, and the individual defendants citizens of New York.

<p>At I,aw. Action by Dexter & Carpenter, Inc., against the United States.</p>

<p>In Equity. Suit by the Minerals Separation, Limited, and the Minerals Separation North American Corporation, against the Miami Copper Company. On supplemental bill asking that the Minerals Separation North American Corporation be admitted as party complainant.</p>

in Bankruptcy. In the matter of George B. McClelland, bankrupt. On trustee’s and creditors’ objections to the allowance of claim of Margaret Warren for $1,620. The opinion of Force, referee, disallowing the portion of claim not conceded, is as follows: On the hearing, the objecting creditors and the trustee, on the one hand, •withdrew the objections to the item of $35 and conceded that the amount was advanced as set forth in the claim.

<p>1. Copyrights <@=>33—Proprietor has no right of renewal</p> <p>The right to obtain an extension of a copyright given by Copyright Act, § 24 (Comp. St. § 9545), is a new and independent right existing only in the persons designated without regard to the proprietor of the original copyright.</p> <p>2. Copyrights <@=>33-—Neither executor nor legatee of author, as such, has right of renewal.</p> <p>Where the author of a copyrighted book died more than a year be-for expiration of the then existing copyright, neither his executor nor a legatee, as such, could obtain a valid extension under Copyright Act, § 24 (Comp. St. § 9545).</p> <p>@=^For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by the Richmond Screw Anchor Company against the Bethlehem Steel Bridge Corporation. On motion for preliminary injunction.</p>

<p>In Bankruptcy. In the matter of M. M. Saslaw, alleged bankrupt. On review of order of referee.</p>

<p>Bankruptcy <©=>61—Resolution of corporation sufficient to warrant adjudication.</p> <p>In the absence of fraud or collusion, a resolution passed by the directors of a corporation, admitting1 its inability to pay its debts and asking that it be adjudged a bankrupt, is sufficient to warrant an adjudication, and the question of its solvency is immaterial.</p> <p><gs»For oilier cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Equity <@=149—Interrogatories must be founded on allegations of bill.</p> <p>a defendant is not bound to answer an interrogatory not arising out of the antecedent matter stated or charged in the bill of complaint.</p> <p>2. Patents <@=282—Interrogatories held not pertinent to issues made by bill for infringement.</p> <p>Defendant in an infringement suit is not required to answer interrogatories calling for a comparison of its device with the drawings of a patent not in suit.</p> <p>^z^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Bankruptcy <8=>224—Beferee held to have jurisdiction to vacate improvident order and enforce restitution of property delivered thereunder.</p> <p>A referee who, without notice to the bankrupt ordered money set apart as Ms homestead exemption, delivered to one claiming to be the receiver of a state court, held to have jurisdiction to vacate such order and to require restitution of the money.</p> <p>g—.Vat Other cases see same topic & KEY-NUMBEIt in all Key-Numbered Digests & Indexes</p>

Appeal and Cross-Appeal from the District Court of the United States for the Eastern District of Missouri; Charles B. Earis, Judge. Suit in equity by Samuel Kauffman against the Sodemann Heat & Power Company. From the decree, both parties appeal.

<p>1. Appeal and error @=>1009(3)—Findings and decree on conflicting evidence presumed correct.</p> <p>Where the chancellor in a suit in equity has considered conflicting evidence and made his finding and decree thereon, the presumption is that they are correct, and unless appellants make it clearly appear that an obvious error of law has intervened, or a serious mistake of fact has been made in the consideration and decision of the issues in the case, the adjudication will not be disturbed by an appellate court.</p> <p>2. Constitutional law @=>284(1)—Highways @=’122—Legislative assessment of benefits held arbitrary and void, as denying due process.</p> <p>The Legislature of Arkansas by Road Laws 1919, vol. 1, pp. 1040-1042, §§ 20, 21, authorized the board of commissioners of a road district, after hearings, to make assessments of benefits on property for the construction of a highway, subject to the right of appeal to the courts by the property owners. Pursuant to such authority the board, after a hearing, made an assessment of benefits against the property of a railroad company in the sum of $2,767.50, which was duly entered on the tax books. By Sp. Act Feb. 23, 1920, No. 308, the Legislature assumed to increase such assessment to $25,000. Held, that such action was arbitrary, and the act unconstitutional and void, as taking the property of the railroad company without due process of law, and that the assessment made by the board was the only valid assessment.</p> <p>3. Courts @=>262 (4) —Federal court of equity has power to prevent taking by state of property without due process of law.</p> <p>The power is conferred and the duty is imposed on a federal court, sitting in equity to relieve by its decree, injunction, or other process a citizen of the United States who properly invokes its aid from an arbitrary and unwarranted exercise of the legislative power of a state, which without due process of law or compensation threatens to deprive him of all or a part of his property.</p> <p>4. Highways @=>138—Power delegated to make special assessments is judicial in nature and can he exercised only after hearing.</p> <p>When a Legislature delegates to a board or to commissioners the determination of the question what lands will be benefited by a road improvement, or what the amount of benefits to such lands will be, the inquiry becomes in its nature judicial in such a sense that property owners are entitled to a hearing, or an opportunity to be heard, after notice, before these questions are determined.</p> <p>@=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Western District of Oklahoma; John H. Cotteral, Judge.</p> <p>Action at law by Close Bros. & Co., a corporation, against the Board of County Commissioners of Pottawatomie County, Okl. Judgment for plaintiff, and defendant brings error.</p>

<p>Petition to Superintend and Revise from the District Court of the United States for the Northern District of Georgia; Samuel II. Sibley, Judge. _</p> <p>_ Petition in bankruptcy for allowance of a mortgage lieu by Herbert S. Brown and others, opposed by R. T. Camp, trustee in bankruptcy of John E. Brown, bankrupt. Order denying claim sustained, and claimants bring petition to superintend, and revise.</p>

<p>Criminal law ‘§==’1036 (8)—Sufficiency of evidence cannot be first challenged on appeal.</p> <p>Where the sufficiency of evidence of guilt was not challenged at the close of the trial by demurrer, motion, request for instruction, or otherwise, the question is not open on appeal.</p> <p><g^>Por other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>At Raw. Petition by the Francis Drug Company to' adjudge Elmer C. Potter, Federal Prohibition Director, in contempt of court for his failure to obey an order in a proceeding by the United States against twelve cases of hour Roses whisky and two gallons of alcohol.</p>

<p>Collision «5^85 ($)—Privileged vessel not in fault for keeping her course and speed.</p> <p>A steamer held not chargeable with contributory fault for a collision at night, caused by the gross fault of a meeting tug- with a long tow, which, though the steamer was tlie privileged vessel, turned to port across her course, where the steamer kept her course and speed, and had no reason to suppose the tug would not pass port to port, as required by the rules, until so close that collision was imminent, and any error on her part thereafter was excusable.</p> <p>0-a>For other cases seo same topic & KEY-NUIvíBER in all Key-Numbered Digests & Indexes</p>

<p>At Law. Action by William Drew against the United States Shipping Board Emergency Fleet Corporation. Motion by plaintiff for judgment.</p>

<p>At Law. Action by the Franklin Sugar Refining Company against Holstein Harvey’s Sons, Inc. On demurrer to pleas.</p>

<p>In Bankruptcy. In the matter of the Superior Motor Truck Company, bankrupt. On review of order of referee on intervention of A. J. Williams.</p>

In Equity. Separate suits by Ebhu C. Wilson against the Union Tool Company and against th* Eucey Manufacturing Corporation for infringement of patents. On motions by both plaintiff and defendants for fuller statements of particulars and on objections to interrogatories propounded to defendants.

<p>In Equity. Suit by the Republic Acceptance Corporation against Charles J. De Land and another. On motion to dismiss bill of complaint.</p>

<p>At I,aw. Action by K. Palmer Gavit against Roscoe Irwin, Collector of Internal Revenue. On demurrer to complaint.</p>

<p>1. Patents <3=118—Combination may bo claimed which does not do useful work separately.</p> <p>A part or a combination may bo claimed in a patent, though it cannot do useful work separate from the rest of the machine or apparatus of which it constitutes a part.</p> <p>2. Patents <3=172—Claim not strictly interpreted.</p> <p>Where an invention is substantial and meritorious, a claim should not be strictly interpreted and limited.</p> <p>3. Patents <3=328—1,230,750, for strip metal blocker, held valid and infringed.</p> <p>Claim 1 of letters patent- No. 1,230,750, for improvements in strip metal blockers, held valid and infringed.</p> <p><£=Eor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>At Daw. Action by Beverly D. Worden against M. E. Gillett and D. C. Gillett, trading as M. E. Gillett & Son. On motion to strike and demurrer to plea.</p>

<p>1. Insurance <3=136(4), 13? (4)—Policy held not delivered and first premium held not paid</p> <p>A life insurance application provided that the insurance was not to take effect unless the first premium was paid and the policy delivered and received during insured’s lifetime and good health. The policy was written and mailed to the local agent, but he was informed of insured’s death before delivering it, and thereupon returned it to the company. There was no payment of the first premium, except by insured’s giving his note therefor to the agent individually, under a secret agreement that the agent would personally pay the premium and look to the note, and the agent canceled and returned the note to insured’s representative after his death. Held, that the first premium was not paid and that the policy was not delivered.</p> <p>2. Insurance <3=136(4)—Insured’s local agent held not agent of insured to receive delivery of policy.</p> <p>Where application for life insurance policy provided that the policy should not take effect unless delivered and received during insured’s lifetime and good health, held, that the local agent of the insurance company was not insured’s agent to receive the policy, and delivery to him was not delivery to insured.</p> <p><te»For other eases see same topic & KBY-NTJMBBR in all Key-Numbered Digests & Indexes</p>

<p>1. Trial <©=284—Failure to call attention to error in instructions waives the error.</p> <p>Where it is obvious from the remarks of the trial judge at the close of his charge that he believes he has substantially covered the requests to the satisfaction of the litigants, though in fact he has inadvertently overlooked some of them, and an opportunity is given to bring to bis attention tbe omissions or dissatisfaction, failure to take advantage of this opportunity waives tbe error.</p> <p>2. Trial <§=278—Objections to charge must be specific.</p> <p>Objections to the charge of the trial judge must he specifically made, in order that he may be given an opportunity to correct errors and omissions, before the same are made the basis of proceedings in error.</p> <p>3. Sales <@=’416(2)—Evidence held immaterial in action for breach of contract.</p> <p>In an action for breach of contract for delivery of iron pipe, evidence to show that when the contract was made the market price waS higher than the contract price held immaterial on the question of the measure of damages.</p> <p>4. Sales <@=174—Refusal of seller to perform held not justified by delay of buyer in making payments.</p> <p>Where plaintiff had been buying goods from defendant for a number of years, and making payments from time to time on its general account, wbieb bad never been settled or stated, failure to make payments within tbe time required by tbe terms of a contract did not justify defendant in refusing to make further shipments thereunder without previous notice to plaintiff.</p> <p><g=»For other cases see same topio & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>5, Bales <S^41S(7)—Offer by seller to fill contract at advanced price held not to limit buyer's damages for breach.</p> <p>In an action for breach of contract to sell and deliver iron pipe, an oiler by defendant to fill the contract at an advanced price could not limit plaintiff’s damages to the difference between the contract price and the price named in such offer, where such offer was not made unconditionally, but required, expressly or impliedly, that plaintiff relinquish its rights to damages under the contract in accepting the offer.</p> <p>other cases see same topic & KKY-NUMIÍEXI in all Key-Numbered Digests & Indexes</p>

<p>Hrade-ffliaffks airdl trade-names and unfair competition. <§^>68—Giving fey manufacturer ©f premiums to salesmen of retailers not “unlawful ©r uaiiair coHipetitio».”</p> <p>Giving of premiums by manufacturer to salesmen of retailers, with the knowledge and consent of such retailers, to induce the salesmen to push the sale of the manufacturer’s goods, was not “unlawful or unfair competition,” within the meaning of Federal Trade Commission Act (Oonip. St. if 8R80a-8836k), making unlawful unfair methods of competition in commerce; such conduct of the manufacturer not constituting fraud nor unfairness to the public.</p> <p>[Ed. Note.—-For other definitions, see Words and Phrases, First and Second Series, Unfair Competition.]</p> <p>^szaFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Van Fleet, Judge. Suit by the United States against Edward L. Cooksey and others. Judgment for defendants, and the United States appeals. This appeal, together with appeals in 23 companion eases, was taken from a decree dismissing a suit to cancel a patent for lands alleged to have been fraudulently obtained in violation of the provisions of the Timber and Stone Act (Act of Congress June 3, 1878, amended by Act of August 4, 1S92 ['Comp. St. §§ 4671—4673, 4988, 10216]).

<p>Public lands ■@=>129—Evidence held to show fraud in obtaining patents.</p> <p>In actions by the United States to cancel patents to land for fraudulent representations of entrymen, evidence held to show fraud and knowledge thereof on the part of defendants.</p> <p>igssoFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Evans, Judge. Suit by Frank N. Snell and another against J. C. Turner Lumber Company and another, in which a receiver was appointed. 271 Fed. 696. From an allowance of attorney’s fee to W. M. Toomer, the J. C. Turner Lumber Company and others appeal.

<p>1. Criminal law @=>433—Intoxicating liquors @=>134—Opinion that liquid was beer held no basis for conviction^ as liquid must be beer as defined by Volstead Act.</p> <p>To constitute a violation of the Volstead Act by selling beer, the liquid must he “beer” as defined in the act, and the opinion of government agents, who were not chemists, attempted no analysis, and established no export qualifications to measure the alcoholic content of the liquid by drinking it, would afford no basis for a judgment of conviction.</p> <p>2. Criminal law @=>395—Liquor taken from ice box without search warrant inadmissible.</p> <p>Bottles of beer taken from an ice box in defendant’s place without a search warrant, in violation of the Nourtli Amendment to the federal Constitution, were inadmissible in evidence in a prosecution for a violation of the Volstead Act; and such was true as to testimony of the chemist who analyzed such beer.</p> <p><g^5>For other cases see same topic & KEY-N JMBER in all Key-Numbered Digests & Indexes</p>

In Bankruptcy. In the matter of S. B. Pittman, bankrupt. On review of referee’s order denying claim of D. F. Bridgers to priority as to certain store fixtures.

<p>In Bankruptcy. In the matter of S. B. Pittman, bankrupt. On petition of trustee for review of order of referee.</p>

At Law. Action by Mrs. Henrietta W. Liebman, administratrix, against Rufus W. Fontenot, Collector of Internal Revenue. On exception to petition. Plaintiff, administratrix of the succession of her deceased husband, Louis Liebman, brings this suit at law to recover the sum of $1,468/)». alleged to have been erroneously collected on the estate of Louis Liebman, under Act of Congress of September 8, 1916 (Comí). St. §§ CSSGl/íib-BSSG^m).

<p>1. Collision <@=>100(2)—Ship navigated by unlicensed master down narrow channel in fog, at full speed, without proper lookout, without stopping engine on hearing fog signal of approaching vessel, held at fault.</p> <p>Master, wbo navigated heavily laden vessel without a license, in violation of Rev. St. § 4401 (Comp. St. § 8153), down a narrow channel, without a proper lookout, in a dense; fog, at full speed, and who failed to stop the engine and navigate with caution when be beard fog signal of approaching vessel, as required by 26 Stat. 320, art. 16 (Comp. St. § 7854), held negligent, rendering the vessel at fault for collision with the approaching vessel.</p> <p>2. Collision <@=>100(2)—Ship navigated in narrow channel, in dense fog, held at fault for collision caused! by jits failure to stop engine and proceed with caution, on hearing fog signal, of other vessel.</p> <p>Vessel navigated parallel with and within 50 feet of narrow dredged channel, used, according to the custom of a port, by vessels going in opposite direction, after being warned of approaching fog, and which, on finding itself within the channel after dense fog had set in, proceeded up the middle of the channel, and did not stop its engines and proceed with caution on hearing fog signals of approaching vessel, as required by 26 Stat. 320, art. 16 (Comp. St. § 7854), held at fault for collision with approaching vessel.</p> <p>3. Collision <@=>82 (2)—Difficulty of navigating without sufficient headway not excuse for failure to stop engines and navigate with caution on hearing fog signal of other vessel.</p> <p>Under 26 Stat. 320, art. 16 (Comp. St. § 7854), requiring a vessel, on hearing fog signal of other vessel, to stop its engine and navigate with caution until danger oí collision is over so far as llie circumstances oí tlie case admit, a vessel is not excused irom complying witli rule under, normal conditions, merely because oí tlie difficulty oí navigating witliout sufficient headway, since the loss oí steerageway must have oeen contemplated in adoption oí rule.</p> <p>cgsssFor other cases see same topic & KEiT-NUMBER in all Key-Numbered Digests & Indexes</p> <p>4. Collision @=>144—Itule as to division of damages applied, where negligence on héüi vessels operating to moment oí eonssioii.</p> <p>Where tlie negLigence oí .botli vessels continued to operate up to the moment of collision under circumstances making both vessels equally culpable, the rule as to division oí damages must be applied.</p> <p>other eases ¡seo same topic & KEY-NTJMBEIt in all Key-Numbered Digests & Indexes</p>

In Equity. Suit by E. A. Gardiner and others against the Automatic Arms Company and the Savage Arms Company. On motion to dismiss bill and to strike out certain allegations.

<p>1. Criminal law @=242(4)—¿.Indictment must charge offense to authorize removal of prisoner to another district.</p> <p>To authorize a judge to order a federal prisoner to be removed to another district to answer to an indictment therein under Itev. St. § 1914 (Comp. St. § 1674), he must determine that the indictment is sufficient, and charges an offense.</p> <p>2. Conspiracy @=43 (5) —Charge m indictment cannot be aided by.statement of overt acts.</p> <p>An insufficient charge of conspiracy in an indictment cannot be aided by allegations of overt acts.</p> <p>3. Conspiracy @=43(6)—Indictment held insufficient.</p> <p>An indictment under Criminal Code, § 37 (Comp. St. § 10201), charging that defendants conspired to violate the National Prohibition Act, “in that they would unlawfully, willfully, and knowingly sell, barter, transport, deliver, furnish, and poss ess distilled spirits and intoxicating liquors otherwise than as authorized .¡n the aforesaid act, * * * particularly title 2 thereof,” held insufficient, as too indefinite to charge any offense.</p> <p><§r»For other oases see same topic & KE/-NUMBER in all Key-Numbered Digests & Indexes</p>

At Law. Action by Alice Stephan against the Union Pacific Railway Company. On motion to quash and set aside service of summons.

<p>In Admiralty. Suit by Evelyn Keenan against the steamship Roman Prince and the Prince Line, Limited.</p>

In Admiralty. Suit for collision by the Erie Railroad Company against the schooner S. A. Carpenter, George A. Colgan, Jr., claimant, and cross-libel by George A. Colgan, Jr., against the ferryboat Tuxedo.

<p>Admiralty **3=>36—CotuitereSaint must foe based on same contract, or arise out oí game causo of action, as ©rlg'hial MfeeL</p> <p>Now admiralty rule 50, permitting tlie filing of a cross-libel on a counterclaim “arising out of tlie same contract or cause of action for which the original libel was filed,” does not authorize a counterclaim based on a contract between claimant and libelant in a suit in rein to enforce a maritime lien on a specific vessel, arising out of the ordinary relationship of ship and cargo and not founded on contract.</p> <p><&c»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Master and servant <@=>287(1)—Negligence in directing servant to operate dangerous machine alone held for jury.</p> <p>Where it was dangerous for a servant, operating a machine for reaming holes in plates in shipbuilding, to attempt to ream holes upward without a helper, the question whether the master was negligent in directing the servant to undertake such work pursuant to the mascer’s custom until a helper could be sent held for the jury.</p> <p>2. Master and servant @=>289(27)— Contributory negligence in operating ma-china alone held for jury.</p> <p>Where servant and master know that it was dangerous for the servant, operating a machine for reaming holes in plates in shipbuilding, to operate such machine in drilling holes upward, without a helper, and it was customary when that stage of the work was reached requiring a helper to request one, and continue work until one was sent, the questions whether the servant was negligent in continuing work alone, and whether he had so continued for more than a reasonable time when injured, held for the jury.</p> <p>other cases see same topic & KB Y-NUi\IBEE, in aU Key-Numbered Digests & Indexes</p>

<p>1. Trade-marks and trade-names and unfair competition New, voL 8A Key-No. Series—Evidence to sustain Federal Trade Commission's order must be safiieient to sustain finding- as to each respondent.</p> <p>Order of Federal Trade Commission against food manufacturers, jobbers, and brokers, charged to have conspired and confederated together to deal with a wholesale grocery company on terms and conditions constituting unfair methods of competition in interstate commerce, in violation of Federal Trade Commission Act, § 5 (Comp. St. § 8836e), to be sustained as to a respondent seeking a review of the order, must be supported by evidence sufficient to warrant a finding and conclusion as to such respondent, notwithstanding sufficiency as to other respondents.</p> <p>2. Trade-marks and trade-names and unfair competition ©^SOlá, New, vol. 8A Key-No-. Series—Order of Federal Trade Commission mast conform to charges.</p> <p>The order of the Federal Trade Commission on charges of unfair methods of competition in interstate commerce, under Federal Trade Commission Act, § 5 .(Comp. St. § 8836e), must conform to the charges.</p> <p>3. Trade-marks and trade-names and unfair competition New, vol. 8A Key-No. Series—Evidence held sustaining finding of Federal Trade Commission that a concern was engaged in the wholesale grocery business.</p> <p>In proceeding to review orders of Federal Trade Commission requiring food manufacturers, jobbers, and brokers to discontinue alleged unfair methods of competition in dealings with alleged wholesale grocery concern, evidence that snch concern had from 250 to 275 retail grocers as customers, of which only 75 or 80 were stockholders, and that it had no interest in any retail grocery business, held sufficient to sustain finding of the commission that the concern was engaged in the wholesale grocery business, and was not merely a buyers’ exchange for retail dealers.</p> <p>4. Trade-marks and trade-names and unfair competition <®=>80<lé, New, vol. 8A Key-No. Series—Federal Trade Commission’s finding, supported by legal testimony, conclusive.</p> <p>In proceeding to review orders of Federal Trade Commission, under Federal Trade Commission Act. § 5 (Comp. St. § 8836e), the finding of the commission, if supported by legal testimony, is conclusive.</p> <p>Gsa&or other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>5. Trade-marks and trade-names and unfair competition <@=68—Dealer may refuse to trade with customer, but cannot agree to so do with others.</p> <p>A dealer may select his own customers for reasons sufficient to himself, and may refuse to deal with a proposed customer who, he thinks, is acting unfairly and is trying to undermine his trade, but cannot combine and agree with others not to trade with particular customers.</p> <p>S. Trade-marks and trade-names and unfair competition <@=>80%, New, vol. 8A Key-No. Series—Evidence held not to sustain findings of Federal Trade Commission as to conspiracy of sugar refiners against wholesale grocer.</p> <p>Evidence held insufficient to sustain finding of Federal Trade Commission that sugar refiners entered into a conspiracy to refuse to sell to a particular wholesale grocery company on the same terms and at the same price charged competitors of such company, in violation of Federal Trade Commission Act, § 5 (Comp. St. § S836e), prohibiting unfair methods of competition in interstate commerce.</p> <p>7. Trade-marks and trade-names and unfair competition <@=80%, New, vol. 8A Key-No. Series—Evidence held to sustain finding of Federal Trade Commission as to conspiracy to compel refusal to sell fairly to wholesale grocer.</p> <p>Evidence held to sustain finding of Federal Trade Commission that jobbers entered into a conspiracy to induce, coerce, and compel manufacturers and distributors to refuse to sell directly to wholesale grocery concern on the terms and prices charged competitors of such concern, in violation of Federal Trade Commission Act, § 5 (Comp. St. § 8836e), prohibiting unfair methods of competition in interstate commerce.</p> <p>8. Trade-marks and trade-names ami unfair competition <@=>8(1%, New, vol. 8A Key-No. Series—Evidence held not to sustain finding of Federal Trade Commission as to brokers conspiring to compel refusal to sell fairly to wholesale grocer.</p> <p>Evidence held not to sustain finding of Federal Trade Commission that brokers conspired with others to induce food manufacturers and distributors, by coercion, persuasion, boycott, or threats, to refuse to sell merchandise directly to wholesale grocery concern at the same prices and on same terms as to its competitors, in violation of Federal Trade Commission Act, § 5 (Comp. St. § 8836e), prohibiting unfair methods of competition in interstate commerce.</p> <p>Ross, Circuit Judge, dissenting in part.</p> <p><§5»For other cases see same topic & KEY-NUMBER, in all Key-Numbered Digests & Indexes</p>

Ón Petition to Revise and Appeal from the District Court of the United States for the Northern District of Iowa; Henry T. Reed, Judge- ^ In the matter of; the ‘alleged bankruptcy of George U. Flaherty and Clara R. Carter as copartners. Ancillary proceedings by Frederick D. Whisler, trustee in bankruptcy, in which he asked for an order that Ciará R. Carter- be required to file schedule with referee.

<p>1. Constitutional law <3=143-—Municipal corporations <§=955 (1)—Law providing for diversion of ítaifis and discharge of existing assessments Md OT.ecEstáíuticMal, warranting injunction against enforcement at suit of hoMera of municipal bonds.</p> <p>Holders of municipal bonds issued for payment of street improvements under Sess. Laws Okl. 3907-08, c. 10, art. 1, payable in 10 annual installments from a fund created from assessments against improvement district property, made a lien on the property continuing until assessments and interest were paid, held entitled to injunction against the enforcement of Rev. Laws Old. 1910, §§ 7411, 7412, as amended by House Bill 2!> (Laws Old. 1919, c. 130), approved April 5, 1919, providing in effect that such portions of the moneys received, upon resale by the county of property bid in at previous sale, as represented special assessment taxes, should be appropriated to the county common school fund, and that the issuance of a deed at the resale should have the effect of canceling existing assessments; such change in the law impairing the obligations of the bondholders’ contract, and depriving them of valuable contract rights.</p> <p>2. CosistitatloEal law <3=47—Validity of statute tested by what may foe done unde? it.</p> <p>The constitutionality of a law is to bo tested, not by what has been done, but by what may be done, under it.</p> <p>3. Constitutional law <§=143—Existing laws part of municipal bond corin'oi.</p> <p>The laws existing at the time of Ihe issuance of municipal bonds, and under the authority of which they are issued, enter into and become a part of the contract in such a way that the obligation of the contract cannot thereafter be in any way impaired, or its fulfillment hampered or obstructed, by a change in the law.</p> <p>igr^For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>4. Courts <@=369 (3)—In protecting contract rights, decisions of state courts not necessarily followed.</p> <p>In protecting contract rights, such as rights of holders of municipal bonds, the federal courts do not follow state court decisions, if they impair vested rights guaranteed by the federal Constitution. .</p> <p>tg=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Eastern District of Pennsylvania; J. Whitaker Thompson, Judge.</p> <p>Suit in equity by the Eli Filly & Co. against Wm. R. Warner & Co. Decree for defendant, and complainant appeals.</p>

Wade and Page Morris, Judges. Actions by Isabel PI. Johnson against tire Northwestern Mutual Life Insurance Company, and by A. M. Miller, administrator of the estate of George P. Johnson, intervener, against the National Life Insurance Company of Montpelier, Vt. Judgments for plaintiff in each case, and defendants bring error.

<p>1. Patents ©=>157(1)—Patentee’s definition of words, phrases, and terms accepted by court.</p> <p>A patentee may define his own terms, regardless of common or technical meaning, and his definition of words, phrases, and terms will be accepted by the court.</p> <p>2. Patents ©=>328—825,858, for spark plug featured by “soft-metal bushings,” held infringed.</p> <p>Mills patent, No. 825,856, for spark plug featured by “soft-metal bushings” described as tapered or beveled bushing of such length as to ho upset under pressure, hold infringed by manufacture of cold rolled steel bushings, the term “soft-meia.1” not referring solely to the metals sometimes or frequently claimed as soft, but to a particular bushing which possesses the quality of a soft yielding material and will upset under pressure.</p> <p>3. Patents ©=>289—Laches not sufficient to bar rights of patente® as to future infringements.</p> <p>Laches may be one and a most important element in proving estoppel, but ordinarily, where laches alone is shown, patentee should not be barred from asserting his rights under the patent so far as future infringements are concerned, though he may because of that fact alone, be refused damages for past infringements.</p> <p>4. Patents <$=289—Delay in commencement of infringement suit held not to constitute laches or establish estoppel.</p> <p>Delay in commencing of action for infringement of spark plug patent did not constitute laches or estop patentee from complaining of infringement, where defendant had promised patentee to cease manufacturing the spark plugs, covered by patent.</p> <p>5. Patents <©=312 (1)—Burden of proving laches and estoppel on defendant.</p> <p>In patent infringement suit, defendant had burden of proving defenses of laches and estoppel.</p>

<p>1. Master and servant @=110—Bell “appurtenance” within federal Boiler Inspection Act.</p> <p>A bell ringer is a “part” or an “appurtenance” of a “locomotive and tender,” within the meaning of the Boiler Inspection Act (Comp. St. § 8631), as amended in 1915 (Comp. St. § 8639a),'providing that railroads must equip locomotives and tenders with proper appurtenances.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Appurtenance—Appurtenant.]</p> <p>2. Master and servant @=110—Boiler Inspection Act liberally construed.</p> <p>The amendment of March 4, 1915, § 1 (Comp. St. § 8639a), to Boiler Inspection Act, § 2 (Comp. St. § 8631), providing for equipment of locomotives with suitable boilers and appurtenances, should be liberally construed, and its obvious purpose effectuated.</p> <p>3. Pleading @=63—Not necessary to specifically refer to statute.</p> <p>In an action under the Boiler Inspection Act (Comp. St. § 8631), as amended in 1915 (Comp. St. § 8639a), to recover for death of railroad employee, allegations charging defendant with failure to keep its bell ringer in a “proper condition and safe to operate in the service to which the same is put,” etc., was sufficient, without referring to the statute, inasmuch as the facts as set forth disclosed a violation of it.</p> <p>4. Master and servant @=110—Hand operated bell insufficient under Boiler Inspection Act.</p> <p>If a locomotive is equipped with an automatic bell ringer which is out of repair, hand operated bell cord cannot be accepted as a substitute under the Boiler Inspection Act (Comp. St. §§ 8631, 8639a), an act to promote the safety of employees, especially where the hand operated arrangement is utterly insufficient.</p> <p>5. Master and servant @=285 (5) —Proximate cause of injury by locomotive with defective bell held for jury.</p> <p>In an action for death of a fireman struck by locomotive while operating switches at roundhouse, whether defective automatic bell ringer was proximate cause of accident held for the jury.</p> <p>6. Appeal and error @=994 (2), 996—Credibility of witnesses for jury.</p> <p>Questions of credibility, as well as'persuasiveness of facts and inferences, were for the jury.</p> <p>@=For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the District of Kansas; John C. Pollock, Judge.</p> <p>Action at law by Charles E. Schaff, receiver of the Missouri, Kansas & Texas Railway, against the Sinclair Refining 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 Illinois.</p> <p>Proceeding for contempt by the United States against Hector H. Elwcll. From an order adjudging respondent guilty of contempt, he brings error.</p>

In the matter of the F. G. Borden Company, bankrupt. Miles Rice, Town Treasurer, and others, and the State of Wisconsin were enjoined from collecting income tax, and the State appeals.

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Action by the East Jordan Furnace Company against the American Car & Foundry Company. Judgment for plaintiff, and defendant brings error.»</p>

<p>In Error to the District Court of the United States for the Southern District of Georgia; Beverly D. Evans, Judge.</p> <p>Action by John A. Graham against Allen W. Jones. Judgment of dismissal, and plaintiff brings error.</p>

<p>1. Evidence <@=»460(11)—Parol evidence not admissible to vary quantity of goods sold.</p> <p>Where written contract for sale of steel rods specified the maximum and minimum quantities to be delivered, parol evidence was inadmissible to show that the rods contemplated by the contract were to be manufactured by the seller at its factory, and were to be in quantity only the surplus over and above the seller’s requirements of rods in its own business.</p> <p>2. Appeal and error <§=>1031 (2)—Ir-, absence of bill of exceptions it will not be presumed that overruling of daonner to paragraph of answer was not prejudicial because of evidence io sustain other part of answer.</p> <p>Where, after overruling of demurrer to a paragraph of the answer pleading a parol agreement varying the terms of the written contract of sale sued on, the case was tried and there was a general finding and judgment for defendant, the Circuit Court of Appeals would not presume, Tn the absence of a bill of exceptions, that there was evidence on the trial to sustain any proper theory of defense admissible under any other part of the answer, so as to render the error in overruling the demurrer harmless.</p> <p>@s»3Tor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>l; Copyright <®=4-—News not subject of copyright</p> <p>News, as such, is not the subject of copyright; but in so far as an article involves authorship and literary quality and style, apart from the bare recital of facts or statement of the news, it is protected by the copyright law.</p> <p>%. Copyright <S^>57—Cojjyrigidea mews item beM InfringedL</p> <p>An article stating news concerning Germany’s hope o£ succeeding in the war by reason of her submarines held infringed under the copyright law.</p> <p>8. Copyright <2^=>58—-What constitutes substantia! part of copyrighted a rile! a not determined alone by measurement.</p> <p>Whether an appropriated publication constitutes a substantial portion of that which is copyrighted canuot be determined alone by lines or inches which measure the respective articles.</p> <p><©=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Action by the Indian Refining Company against the American Steel Foundries. Judgment for plaintiff, and defendant brings error.</p> <p>The parties will be designated as they appeared in the court below. Plaintiff, Indian Refining Company, brought this action to recover an alleged balance due for fuel oil shipped defendant pursuant to a written agreement, .the material portions of which are as follows:</p> <p>Memorandum of Sales Contract.</p> <p>Indian Refining Company, hereinafter called “seller,” agrees to sell, and American Steel Foundries, of Chicago, Illinois, hereinafter called “buyer,” agrees to purchase during the period from January 1, 1915, to March 31, 1916, the following petroleum products at the following prices:</p> <p>Requirements or Quantity. Grades. Price.</p> <p>Maximum of 15,000,000 gallons * * *</p> <p>Minimum: To be actual requirements at East St. * * *</p> <p>Louis, 111.—Granite City, 111.—Indiana Harbor,</p> <p>Ind.—Hammond, Ind.—Alliance, Ohio,—Sharon,</p> <p>Pa.—Franklin, Pa., Plants. * * *</p> <p>**********</p> <p>Shipments: Shipments are to be made in fairly equal monthly quantities upon specifications furnished by the buyer before, the 20th day of the month preceding the month in which such shipments are to be made. Shipment within five days before or after the date specified will be deemed compliance herewith.</p> <p>**********</p> <p>Each shipment shall be deemed to be a separate and independent contract, but if buyer fails to fulfill the terms of this contract, or of any other contract of buyer with seller, or if buyer’s financial responsibility shall become impaired in the judgment of the seller, seller may, without prejudice to other lawful remedy, defer shipments until payment be made or terms oí contract be complied, with, or may demand cash payments, or may cancel this contract.</p> <p>The proposed contract as originally submitted contained two paragraphs which were stricken from it. The two paragraphs road:</p> <p>“If buyer fails in any one month to take his monthly proportion of the above stated requirements or quantity, buyer cannot thereafter, without the written consent of seller, take the balance of Hie proportion for that month, tout may toe required by seller to take such balance. For the purposes of this contract, the failure of the buyer to furnish specifications for at least the minimum requirements or quantity deliverable hereunder monthly, shall excuse tender oí performance hereunder on the part of the seller.</p> <p>“Buyer agrees to receive shipments and unload same with reasonable promptness, and return empty tank cars as per instructions from seller, 48 hours being deemed reasonable time for receiving, unloading and releasing tank cars. Buyer agrees to pay seller $1 per day rental for time tank cars are held over 48 hours after delivery to buyer.”</p> <p>Shipments were made pursuant to the purchaser’s orders for the first 10 months: that is to say, defendant asserted a rpcrairem''nt of 5,334,783 gallons of fuel oil for this period, and such amount plaintiff shipped. Such controversy as exists arises out of plaintiff’s alleged failure to deliver defendant’s asserted requirements for the next 5 months which were 7,161,899 gallons. During this period, defendant furnished 5,162,799 gallons.</p> <p>Although (here was a marked increase in defendant’s requirements in the 15 month's’ period, during which time the market price for this oil rose rapidly and exceeded the contract price, there is no claim of “padding” presented by the record. In other words, it is conceded that the requisitions were the actual bona fide requirements of defendant. Plaintiff recovered judgment for the sum w itbhelcl by defendant because of the alleged failure to deliver the oil demanded.</p>

Action by August H. Cohlmeyer against John Barton Payne, Director General of Railroads. Judgment for plaintiff, and defendant brings error. Defendant in error, herein called plaintiff, a deputy marshal of the United Slates in the performance of his official duties, was riding in a passenger car of the Wabash Railroad Company operated at the time by plaintiff in error, herein called defendant, when he received injuries fixed by the jury at $15,000.

<p>In Error to the District Court of the United States for the Eastern District of Illinois.</p> <p>Action by Dominick Conto against the County of Eranklin. Judgment for defendant, and plaintiff brings error.</p>

R. Williams, Judge. Ribel in the United States to forfeit an automobile as having been used in introducing intoxicants into Indian country, in which T. C. Wilson, as claimant, intervened. Judgment of condemnation, and claimant brings error.

<p>1. Bankruptcy <5=>293 (2) —Federal court held to have jurisdiction to try issue of preference.</p> <p>Under the amendment of Bankruptcy Act of .Tune 25, 1910, the federal court had jurisdiction to try the issues on a petition by a trustee in bankruptcy, charging payments by the bankrupt constituted preference, and requesting an order requiring the creditor to show cause why the money should not be turned over to the trustee.</p> <p>@s»For other cases see same topic & KEY-NUMBER m all Key-Numbered Digeste & Indexes</p> <p>2. Bankruptcy <§=287 (1)—Creditor charged with preference held entitled to plenary trial.</p> <p>A creditor charged by bankrupt’s trustee with receiving preference is entitled to a plenary suit, if objection be timely made.</p> <p>3. Bankruptcy <@=287 (1)—I’wal on trustee’s petition to recover preference held not a summary proceeding; “summary proceeding.”</p> <p>While a summary proceeding ordinarily implies one begun without summons or subpoena, usually tried on affidavits and on short notice or determined even as an ex parte matter, a proceeding by a trustee in bankruptcy to recover alleged preference from a creditor, begun by petition and rule of court, but treated as a suit in equity, with a reply in every way meeting requirements of an answer, and amendment permitted as to an answer, with the cause set for trial and heard in open court as a suit in equity, to which both parties presented testimony and had cross-examination, held plenary, rather than a “summary proceeding.”</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Summary Proceeding.]</p> <p>4. Bankruptcy <@=288 (1)—Creditor held to have consented to trial as to preference on petition and rule.</p> <p>A creditor, of a bankrupt, who, on being charged by petition and rule at the instance of the trustee with having received a preference, by answering, ¿mending, and proceeding to trial as on a suit in equity, could not object that such proceeding could not be heard on petition and rule.</p> <p><§z5>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes»</p>

Bill by Charlotte T. P. Ullman, in her own right and as executrix, against Julius F. Smietanka, Collector of Internal Revenue, to require acceptance of Liberty Bonds at face value in payment of transfer tax. From a judgment for complainant, defendant appeals.

<p>1. Master and servant <@=>288(32)—Negligence as to air inspector held for jury.</p> <p>In an action by an air inspector injured when 16 loaded ears were shunted at great speed down grade against the ears which ho was inspecting, whether defendant railroad was guilty of negligence held for the jury.</p> <p>2. Master and servant <@=>289 (35)—Existence of blue signal rule held question for jury.</p> <p>The question whether a rule requiring blue signals to indicate the presence of workmen under or about cars was in force at the time of injury to plaintiff air inspector held one for the jury on evidence of abandonment or modification by custom.</p> <p>3. Negligence <@=>101—Contributory negligence of railroad employee reduces recovery.</p> <p>Contributory negligence of employee of a railroad does not bar recovery for injuries occasioned by railroad’s negligence, but simply reduces the damages.</p> <p>4. Master and servant <@=>285(11), 289(39)—Proximate cause of injury to inspector omitting blue signal held for jury.</p> <p>In an action by an inspector for injuries received when working between ears against which loaded cars were shunted, whether plaintiff’s disobedience of a rule requiring blue signals or the negligence of the railroad was the proximate cause of the injury held for the jury.</p> <p>other ea-.-es see same topic & KEY-NUMBER in all Key-Numbereü Digests & Indexes</p>

Petition for Revision of Proceedings of the District Court of the United States for the District of Massachusetts; James M. Morton, Judge. In the matter of Abraham Jaffee, bankrupt. Petition of Robert Safran and others to revise the action of the court on the referee’s appointment of trustee.,

<p>Bankruptcy <§=>288(1)—Summary proceeding not available to trustee to recover bankrupt’s assets held by bankrupt’s landlord.</p> <p>A summary proceeding will not lie to determine the right of a trustee in bankruptcy to recover possession of the bankrupt’s property held in good faith by the landlord of the bankrupt to enforce his lien reserved in the lease for rent; but such right can be determined only by a plenary proceeding.</p> <p><§==jFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Petition to Superintend and Revise Proceedings of the District Court-of the United States for the Northern District of Georgia, in Bankruptcy; Samuel H. Sibley, Judge.</p> <p>In the matter of the Farmers’ Supply Company, bankrupt. Petition by J. F. M. Alexander to set aside an adjudication in bankruptcy and for the appointment of a receiver. There was a decree in part denying the prayers, and petitioner petitions to superintend and revise.</p>

In the matter of Arthur Gould, bankrupt. From an adverse decree, on objections by the J. W. Butler Paper Company -to his discharge, the bankrupt appeals.

In the matter of the Rogers Palace Laundry Company, bankrupt. Matthew Taaffe, executor of the estate of Edwin Henning, deceased, sought a lien on funds in the possession of the Central Trust Company of Illinois, trustee of the bankrupt estate. From a decree denying lien, the executor appeals.

<p>Sales <§=82 (1)—Provision for approval of terms of payment by seller held not to continue ©pen during the life of the contract.</p> <p>A sales contract for materials to be delivered during four months, a certain amount every month, “terms strictly 2 per cent, cash 10 days from date of invoice or 80 days net, f. o. b., * * * application of these terms subject to the approval of [seller’s] credit department,” did not mean that the terms of payment were subject to the approval of the seller’s credit department at will during the running of the contract, but gave a right to be exercised only before it performed by making deliveries, and credit having become an established term of the contract by proceeding thereunder, an attempt to impose new terms was an abandonment, warranting buyer’s rescission.</p> <p><g^?For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In the matter of Marley-Morse Company, a copartnership, bankrupt. The claim of H. E. Kanter and another, copartners, was allowed, and Henry E. Wilson, trustee of the bankrupt estate, appeals.

<p>Bankruptcy @=>413(9)—Application for discharge need not be pressed, pending motion to vacate adjudication.</p> <p>A motion to dismiss a bankrupt’s application for discharge for laches in not pressing such application pending a motion to vacate the adjudication of bankruptcy on his voluntary petition was properly denied.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Petition to Superintend and Revise, and Appeal from, the District Court of the United States for the Northern District of Georgia; Samuel H. Sibley, Judge. Action by the Bank of Madison against Austin Beil, trustee in bankruptcy of W. A. Smith, bankrupt. Petition by Bank of Madison to superintend and revise, and appeal from, an adverse decree.

<p>Collision <S=>85(4)—Steamer aiwl tow meeting in Hell Gate.</p> <p>A steamer passing down through Hell Gate, which was swung so far northward by the strong flood tide that she was unable to round the south side of Man O’War Rock as intended, and in maneuvering to regain her position got in the way of a meeting tug and tow, held in fault for a collision with one of the barges of the tow.</p> <p><g^>For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>, At L,aw. Suit by Francis P. Garvan, as Alien Property Custodian, against the Commercial Trust Company of New Jersey. On rule to show cause why certain moneys and securities should not be turned over to the Alien Property Custodian.</p>

<p>1. Internal revenue <@=>2—Provision for civil remedy and criminal punishment held valid.</p> <p>A provision assessing a tax, and with a penalty declared not to absolve from criminal liability, is not invalid as to provision for both civil remedy and criminal prosecution.</p> <p>2. Internal revenue <@=>2—Provisions of Internal Revenue Act for collections held not repealed by National Prohibition Act.</p> <p>Procedure for collecting the taxes assessed under the National Prohibition Act for illegal manufacture or sale of liquor with additional penalty is governed by the Internal Revenue Law; such procedure not being inconsistent with the Prohibition Act and not repealed by implication.</p> <p>On Rehearing.</p> <p>3. Internal revenue <§=>28—Collection of taxes and penalty for illegal manufacture and sale cannot be enjoined.</p> <p>As the provisions of the Internal Revenue Act for collection apply to the taxes and penalty under the National Prohibition Act for illegal manufacture and sale, collection thereunder cannot be restrained; there being adequate remedy by proceedings to obtain a refund, and subsequent suit, if necessary, for recovery.</p> <p>4. Internal revenue <§=>28—Existence of other license as defeating tax and penalty cannot be determined on application for injunction, which does not lie, to restrain collection.</p> <p>As injunction does not lie to restrain collection of tax and penalty under the National Prohibition Act by the internal revenue collector, the contention that the petitioners owed no tax, because they had paid annual retailers’ license fee, which bad not expired, was not determinable in a suit for injunction.</p> <p><a=oFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In the matter of the disposition of certain intoxicating liquors. . On petition of the United States Attorney and answer claiming ownership by Julius B. Press.</p>

<p>At Law. Action by the National City Bank of New York against the United States.</p>

<p>In Equity. Suit by the C. G. Blake Company against the United States.</p>

<p>In Bankruptcy. In the matter of Harrison Parker and others, alleged bankrupts. Heard on motion to dismiss the involuntary petition.</p>

<p>1. Monopolies ®=>9—1Mining amá loading coal for interstate shipment field within protection oí the Shemam Anti-Trust Act.</p> <p>A conspiracy to destroy the competition of a company which was engaged in the mining of coal in one state and placing it on cars for shipment to other states was in contravention of the Sherman Anti-Trust Act, | 1 (Comp.'St. § 8820), forbidding combination or conspiracy in restraint of trade or commerce among the several states.</p> <p>2. Monopolies <8=»12(1) —Seafiag money to dtestroy eompeiiMon im another state, whether spent for feoS os? im asms, asid the “eheeh-off system,” held subject to injunction.</p> <p>Where mine operators and a miners’ organization were charged with conspiring in unlawful efforts to unionize and destroy competition of mines in another state,-it was no reason to refuse to enjoin sending ot funds by the miners’ organization to advance such efforts that such funds were spent for food, and not for arms and ammunition purchased by the miners in such other state; and the raising of such funds by the “checiioff system”'—the retention thereof by the operator from the wages of the miner and paying over sums retained to the miners’ union—held subject to injunction.</p> <p>Z, Confemanra® <§=»4íí—Properly refuse,$ for proiiudtai! of evidence where ctefeiid'aat refused to preserva states jju®.</p> <p>Where, on application for temporary injunction against an unlawful conspiracy by mine operators and mine owners to destroy competition by enforcing the unionization of mines in another state, defendant, moving for time to introduce explanatory evidence as to expenditure of money in Hie mining fields of such other state, refused to accede to the condition that it preserve the status quo, the application was properly denied.</p> <p>4. Go. its <S=»262 (4)—Federal District Corari may enjoin those within its district from furiheefeg conspiracy a,gainst trade in another district.</p> <p>The federal District Court in Indiana may enjoin the unlawful activities of parties in Indiana under the jurisdiction of the court in attempting to further a conspiracy and destroy the competition of a company in another state and district.</p> <p>^£>For other capes see same topic & KUY-MUMBFIt in all Key-Numbered Digest? & Indexes</p>

<p>Public lands @=>135(2)—Transfer after final proof held valid.</p> <p>Where final homestead proof was made before a United States commissioner, and later the same day the homesteader conveyed the land to defendants, and a few days earlier a departmental agent filed in the land office a protest against the entry and making of final proof, and when the proof was received the entry was suspended, and the issuance of final receipt stayed “pending further proof” by the homesteader “as to residence and pending a field examination” by the department, and these were accomplished, final receipt issued, and patent issued 14 months after proof made, defendants’ deed was valid, for, if conditions precedent have been performed, that final proofs in some particulars may he defective does not debar the entryman from alienation of the land, as they or their vendees may furnish supplemental proof.</p> <p><@S5>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Admiralty. Libel by Victor Greenwood against the steamship Nacoochee.</p>

At Law. Action by William H. Baldwin and others against Charles L. Guss and others. On rule for judgment for want of sufficient affidavit of defense.

<p>1. Frauds, statute of >§=>118(1)—Sal.® contract evidenced by unsigned memorandum not taken out of statute fty application by buyers for shipping permit.</p> <p>A sale contract, evidenced by a memorandum not signed by the buyers and so not enforceable under Sales Act Pa. May 39, 1915 (P. L. 543),2 is not taken out of the statute by a signed application by the buyers for a shipping permit, which was made to á third party and would require oral evidence to connect it with the unsigned memorandum.</p> <p><§=s>For other oases see same topic & KEY-NUMBER in 'all Key-Numbered Digests & Indexes</p> <p>2. Francis, statute of <§s=*89(3), 90(2)—Requests by buyers granted by seller held not acceptance or receipt of goods taking centra et out of statute.</p> <p>Bequests to extend the time for payment of drafts, and to allow merchandise to remain in a warehouse for a considerable time, made by buyers and granted by seller, do not constitute an acceptance or receipt of goods, so as to take a contract out of the statute.</p> <p>^s>I'or other eases see same topic & KEY-NUMBER in ail Key-Numbered Digests & Indexes</p>

<p>In Bankruptcy. In the matter of Archer G. Crosby, bankrupt.</p>

<p>1. Evidence <©=147—Testimony of various car men that they did not see plaintiff attempt to board street ear held admissible.</p> <p>Where, in an action for personal injuries occasioned by attempting to board a street car, the particular ear had not been identified, it was permissible for defendant to call the motormen and conductors on cars that had passed the place of injury at or near the time thereof, to testify that they did not see the plaintiff, and knew nothing about the accident.</p> <p>2. Camera <©==233—Eolation »f passenger drperMfs on contract.</p> <p>The relation of passenger and carrier depends on contract, express or implied.</p> <p>3. Cawiers <©=247 (3)-—Plaintiff, who ram after car and seised it a-s it started, not a passenger.</p> <p>The relation of carrier and passenger was not created, where plaintiff was not waiting for the car which stopped, but was running after it-, and seized the handle bar just as the car was starting.</p> <p>4. Appeal and error <©=1038(3)—Plaintiff not entitled to recover held not harmed by instructions.</p> <p>Where there was no proof sustaining finding of relation of carrier and passenger in plaintiff’s action for injuries as a passenger, question oi error in the instructions was immaterial,</p> <p>iotteral, District Judge, dissenting.</p> <p>(gs^For other cases see same topic & KB'X-NUMBBK in all Key-Numbered Digests & Indexes</p>

Sawtelle, Judge. Bill for injunction by the Yuma County Water Users’ Association and others against W. W. Schlecht and another. From a decree dismissing the bill, complainants appeal.

<p>1. Receivers ©=>175—Employee’s claim under federal Employers’ Liability Act determinable on intervention in equity proceedings.</p> <p>Where a railroad employee, injured before a receiver was appointed, after such appointment petitioned for leave to sue and did sue the receiver, and subsequently moved to amend his motion.for leave to sue by substituting a petition to intervene, proceedings on intervening petition were in equity, though the claim be in tort and statutory, and the employee’s claim under the federal Employers’ Liability Act (Comp. St. §§ 8657-8665) could be adjudicated in such proceedings and in accordance with equity procedure, without a trial by jury, if the court so decided.</p> <p>2. Limitation of actions ©=127(5)—Amendment held not new case, barred by limitation under federal Employers’ Liability 'Act.</p> <p>Plaintiff railroad employee, being injured in September, 1915, while employed by a railroad for which a receiver was appointed in August, 1916, claiming under the federal Employers’ Liability Act (Comp. .St. §§ 8657-8665), petitioned for leave to sue and did sue the receiver in August, 1917, and in October, 1918, moved to amend his motion for leave to sue by substituting a petition to intervene, which was granted in March, 1919. Held, that the petition to intervene, filed as an amendment of the motion to sue the receiver, being based on the same claim as that set out in the motion, related back to the time of the filing of the motion and constituted the commencement of an action, not barred by the limitation of two years in section 6 of said act.</p> <p>if. Master and servant ©=111(1)—-Placing gondola car in train with drop end unfastened held negligence.</p> <p>A railroad company was negligent in placing in a train with other cars a so-called gondola car—which had ends arranged so as to drop on being unfastened—with its drop ends standing, but unfastened.</p> <p>4. Master and servant ©=217 (20)—Risk of negligence im placing gondola car ini train wMfa drop ends unfastened held not assumed.</p> <p>A trainman did not assume the risk of railroad company’s negligence in placing in a train with other cars a so-called gondola car with drop ends standing, but unfastened.</p> <p>QzaFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Petitions to Revise an Order of, and Appeals from, the District Court of the United States for the Middle District of Tennessee; Edward T. Sanford, Judge.</p> <p>In the matter of the bankruptcy of J. H. Sedberry; Thomas G. Walker, trustee. Order entered concerning attorney’s fee of Jordan Stokes, Jr.- Jordan Stokes, Jr., and others and Sedberry and others separately petition to revise and appeal.</p>

<p>In Error to the District Court of the United States for the Eastern District of Michigan; Arthur J. Tuttle, Judge.</p> <p>Action by the Ontario Cartridge Company, Limited, against the Michigan Lubricator Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Exchange of property 'S^S (4)—Misrepresentation as to quality of land not shown.</p> <p>In a proceeding to set aside an exchange of farm lands, burden of showing active misrepresentations as to quality of a certain part of the land ■ held not sustained.</p> <p>2. Exchange of property <^=»8(4)—Misrepresentations as to boundary not shown.</p> <p>In an action to set aside an exchange of lands, plaintiff held not to have sustained the burden cast upon him of showing misrepresentations as to the location of the boundary.</p> <p>3. Exchange of property '@^3 (1)—Fiduciary relationship held to exist between plaintiff and agent for defendants.</p> <p>In an action to set aside an exchange of land, held, that there was a fiduciary relation between plaintiff and one representing defendants, which entitled plaintiff to know the nature and extent of the employment of the agent by defendant.</p> <p>4. Receivers <S=>96—Acts and Eoiowledge of agent of receiver imputable to receiver.</p> <p>Acts and knowledge of an agent appointed by receiver to carry out an exchange of lands are imputable to the receiver.</p> <p>5. Exchange of property <§=»3(1)—Misrepresentation as to classification of soil held established.</p> <p>In an action to-set aside an exchange of lands, wherein defendant’s agent represented that there were 400 acres of plow land, when in fact there were less than 300 acres, held, that there was substantial misrepresentation of the quality and classification of the soil, warranting a rescission, though plaintiff went on the land.</p> <p>6. Exchange of property 4^3 (1}—Plaintiff had right to rely on statement of defendant as to acreage of plow land.</p> <p>One exchanging land with another through an agent of the latter had the right to assume that such agent knew the farm’s acreage in certain qualities of land, and had the right to rely on a statement as to the number of acres that could be plowed.</p> <p>7. Vendor and purchaser <§=>37(5)—Knowledge of falsity of statement of fact immaterial.</p> <p>Material misrepresentations, though without knowledge of their falsity on the part of the vendor, if relied on by the vendee, give right of rescission in equity.</p> <p>@c»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the District of Delaware; Hugh M. Morris, Judge.</p> <p>Suit in equity by the Standard Roller Bearing Company and Brown Brothers & Co. against the Hess-Bright Manufacturing Company. Decree for defendant, and complainants appeal.</p>

<p>1. Explosives <3^>8—Instruction properly refused as imposing on tamer of explosives liability as insurer a gainst accidents.</p> <p>A requested instruction that a carrier of explosives, though complying with the regulations of the interstate Commerce Commission, was under the duty to provide such additional means or measures of care “as might be necessary to prevent a fire or explosion” held properly refused, as imposing on the carrier liability as an insurer against accidents.</p> <p>2. Explosives <S=»8—Regulation requiring1 storage of explosives held not to apply to carload lots awaiting unloading for transshipment.</p> <p>Section 1643 of the regulations of the Interstate Commerce Commission for the transportation of explosives providing that “suitable provision must be made, outside the station when practicable, for the safe storage of explosives,” held not to apply to explosives in carload lots which had reached their destination and were awaiting unloading for transshipment on vessels.</p> <p>3. Explosives <3=8—Duty of car© in transportation of explosives.</p> <p>In actions against a railroad company to recover damages caused by an explosion of munitions, resulting from fire which reached the munitions while in cars standing in defendant's terminal yards in a city awaiting transfer to vessels, instructions that defendant was under no legal duty to maintain fire hydrants or provide men and equipment to fight fire in its yards in addition to those furnished by the city held, not erroneous, when clearly qualified by a statement of the rule that defendant’s duty with reference to the custody of explosives was to exercise care commensurate with the risk of danger.</p> <p>tíjx^sFor qther cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>4. Appeal arid error <®=»83'3,(2)—Blwgent verüid® of diEemit juries do not evidence error in Instractions.</p> <p>The fact that different verdicts have been rendered by different juries on the same issues is "not persuasive of erroneous instructions on the law, but rather tends to show that, the issues were, because of conflicting inferences which might be drawn from the facts, peculiarly within the province of juries to determine, and that, having determined them, their verdicts must stand, in the absence of errors of law.</p> <p>fgcsFor other cases see same topic & KEY -NUMBER in all Key-NimbOTedDigests&lñao»»</p>

<p>In Error to the District Court of the United States for the District of Minnesota; Page Morris, Judge.</p> <p>Action by O. K. Earle against the Yellow Cab Company. Judgment for plaintiff, and defendant brings error.</p> <p>That part of the instruction as to damages referred to in the opinion is as follows:</p> <p>“Now, as to the amount of damages, gentlemen. They demand something’ like $30,000 in this complaint; and if you feel that damages should be awarded, why, it is for you to say what that amount is. You will consider all those things I have indicated to you; but you must make the amount a fair and reasonable compensation to the party injured, as far as you can judge of such compensation in money. You must not make it on the basis of what you would take to have such an injury, what you would suffer such an injury for. X take it there isn’t a man on this jury that would suffer an injury of this kind for any amount of money, however much might he offered them. The basis is a reasonable compensation in money for the injuries that the party has received; and in determining that reasonable compensation, you will take into consideration all the elements that I have indicated.”</p>

Libel in admiralty by the C. W. Hunt Company against Car Float No. 17, her tackle, etc.; Marine Operating Company, Inc., claimant. From an adverse decree and order, libelant appeals.

<p>1. Master and servant @=>280(11)—Negligence in using defective track field for jury.</p> <p>In an auto truck driver’s action against employer for injuries sustained when the truck left the highway, employer’s negligence in using a truck with defective steering gear and defective brakes held a question for the jury.</p> <p>2. Master and servant @=>289(15)—Contributory negligence of track driver held for jury.</p> <p>In an auto truck driver’s action against employer for injuries sustained when a truck with defective steering- apparatus left the highway and rolled down the embankment after he turned off beaten path to pass another automobile, contributory negligence held a question for the jury.</p> <p>cgmaFor other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>At Law. Action by the United States against the Waddell Investment Company.</p> <p>This is an action against the defendant to recover a special excise tax for the years 1909 to 1912, inclusive, with respect to carrying on and doing business by it, imposed and provided for in Act Cong. Aug. 5, 1909, c. 6, § 38. The plaintiff claims that the defendant was not lawfully entitled to deduct from its income interest received on mortgages and notes which it had placed with a trustee to secure payment of mortgage certificates issued to purchasers, for the reason that defendant was not a bank, banking association, or trust company, and for the further reason that defendant, in its return, under the heading “Deductions,” and item 0 (a) of the printed form thereof, being, to wit, “Total amount of interest, January 1 to December 31, on bonded or other indebtedness to an amount not to exceed amount of paid-up capital at close of year,” had already deducted from its gross income the total amount of interest paid by it within the year on its bonded or other indebtedness, to an amount of such bonded and other indebtedness, not exceeding its paid-up capital stock at the close of each year, and was therefore not lawfully entitled to deduct the sums in question from its gross income.</p>

<p>1. Sales <3=»272 (1), 428—Manufacturer of seine held- under Sales Act impliedly to warrant its fitness; breach of warranty prevents recovery and subjects to action for damages.</p> <p>Under Massachusetts Sales Act, § 17, the seller oí a purse seine, which it contracted to manufacture for a fishing vessel for use in mackerel fishing, hold to impliedly warrant its fitness for such use, and not entitled to recover the price of the purse line, which was defective and repeatedly broke when the seine was first used, whether it made the line itself or purchased it from another, and also held liable for damages for breach of contract.</p> <p>2. Admiralty <§=»14—Contract to furnish seine to fishing vessel held a maritime contract.</p> <p>A contract to furnish a seine to a fishing vessel held a maritime contract, and a suit thereon within the admiralty jurisdiction.</p> <p><®=»For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1, Monopolies <&=»24 (2)—Extent of burden of proof on government; stated.</p> <p>In proceedings by the government against an alleged combination under the Sherman Anti-Trust Act (Comp. St §§ 8820-8823, 8827-8830), it is incumbent on the government to show illegal combination by the clear preponderance of the evidence, and, in absence of direct proof and in face of denial under oath, the government must show that what defendants did necessarily had the result of restraining trade, and, if depending on circumstantial evidence, must show that the circumstances are entirely inconsistent with the supposition of innocence.</p> <p>2. Monopolies @=>12 (3)—Association under open price plan bold not obnoxious to anti-trust laws.</p> <p>An association of dealers in linseed oil under so-called “open price plan,"' with a bureau proposing to collect and furnish to the various members current quotations, record of sales, statistics as to stock on hand, crop condition's, and other information, with agreement by members to furnish information as to daily prices and to make no sudden change without notice; held, in absence of direct evidence of acts hurtful to trade, not a combination in restraint thereof contrary to the Sherman Anti-Trust Act (Comp. St. §§ 8820-8823, 8827-8830).</p> <p>©^oEor otter eases see same topic & KEV-NUMBEit in all Key-Numbered Digests & Index®»</p> <p>3. Evidence <®^18—Judicial notice taken of price decline.</p> <p>In proceedings against alleged combination in restraint of trade, the court may take judicial notice that a general decline in prices has been going on for several months. „</p> <p>4. Monopolies <S=ri2(3)—Meaning of “stabilized market” in agreement of associated dealers defined.</p> <p>The admission in books oE defendant, charged with conspiring in restraint of trade contrary to the Sherman Anti-Trust Act (Comp. St. §§ 8820-8823, 8827-8830), that the bureau furnishing news to the association brought about a “stabilized market,” did not necesarily mean nothing other than uniform prices, but, in view of the circumstances, meant the obtaining and distributing of accurate information that would enable dealers better to understand the conditions of the market of the article dealt in, to the end that speculative hazards might be minimized or eliminated.</p> <p>5. Monopolies ®=’24(2)—Evidence of opportunity to control prices not alone sufficient.</p> <p>Evidence showing a combination of dealers in linseed oil under agreement to furnish and receive information as to prices, conditions of market, etc., showing opportunity alone for control of prices, was not sufficient.</p> <p><§Z7?For other cases see same topic & KKY-NUMBER in .all Key-Numbered Digests & Indexes</p>

<p>L Wills ©=>681(2)—Trustees held Tested with absolute title after beneficiary's death.</p> <p>Under a will creating a spendthrift trust for a daughter, held that, on the death of the daughter, the trustees retained absolute legal title to the trust property, with full discretion and power, subject only to the express terms of the trust, either to deliver the trust property to, or withhold if from, the spendthrift’s children.</p> <p>2. Perpetuities ©=6(2)—Will held not attempt to impose restraint on power of alienation.</p> <p>A will creating a spendthrift trust, and providing that the trustees, on the death of the spendthrift, should hold the property in trust for spendthrift’s children, and to withhold as much thereof as they thought best until such time as they wished to surrender it to the children, held not an attempt to impose an unlawful restraint on, or suspension of, the power of alienation.</p> <p>X Wills ©=680— Trust held active, and not passive.</p> <p>A spendthrift trust created by a will, whereby trustees were to relain trust funds as long as they thought proper for the benefit of spendthrift’s children after her death, held an active one, and not passive, after the death of the spendthrift.</p> <p>©ssFor oilier cases see same topic & KEY-NUMBER in all Key-Numbered Digests & indexes</p>

<p>In Bankruptcy. In the matter of the alleged bankruptcy of the Standard-Detroit Tractor Company. On involuntary petition and answer thereto, involving issue of preference and acts of bankruptcy.</p>

In Bankruptcy. In the matter of the Wayne Realty Company, bankrupt. On objection by Re Grande Chase, one of the creditors, to confirmation of the composition offered by the bankrupt.

<p>1. Carriers <@=160—May require liability to be asserted and claim to be instituted within particular tíme.</p> <p>A common carrier may limit or qualify his common-law liability by special contract as to the timo within which the liability may be asserted and suit instituted, provided the limitation or qualification agreed on is just and reasonable, and does not exempt the carrier from losses or responsbilities arising from its own negligence.</p> <p>S. Shipping <§=142—Stipulation in bill of lading as to written notice of cíala act? commencement of suit within particular time held valid.</p> <p>Stipulation in bill of lading, requiring written notice of claim to carrier before removal of goods from wharf, and commencement of suit to recover for loss or damage within 8 months after giving such notice, held valid.</p> <p>So Shipping <3=142—Shipowner’s opportunity to ascertain damage to cargo while .'repairing ship did not relieve shipper of obligation. to give written notice of claim for damage sustained on subsequent voyage.</p> <p>Where cargo was unloaded and ship repaired before completion of voyage, the fact that steamship owner had opportunity to ascertain extent of damage to cargo after cargo had been unloaded, ponding the repair of the ship, did not relieve shipper from obligation of giving owner notice of claim of loss, ascertained on completion of voyage, after goods had been reloaded, a condition precedent to the commencement • of suit to recover damage, where shipper had commenced suit for damage theretofore sustained while ship was being repaired.</p> <p>4, Shipping' <@=142—Shipper's commencement of suit for damages during voyage hold not to entitle ham to bring other suit after completion of voyage, without notice of ©Mi».</p> <p>Where cargo was unloaded and ship repaired before completion of voyage, the commencement of suit to recover damages to cargo at the time when such repairs were being made did not entitle shipper to bring suit after completion of voyage for damage sustained during voyage, without giving shipowner notice of claim for such damage required by bill of lading, on theory that commencement of former suit dispensed with necessity of such notice, where the second suit was not instituted within 90 days after first suit, under provision of bill of lading requiring commencement of suit within 90 days after notice of claim.</p> <p><@=s>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1, Collision @=»95 (4)—Vessel which eontinuod! to back toward piers after assenting to signal of approaching tag1 for ¡larboard passage held at fault.</p> <p>Vessel, which continued to back across channel toward piers alter assenting to tug’s request for starboard passage, thereby narrowing the space between its stern and the piers, held at fault for the collision with the tug’s car float, caused by narrowness of. passage between the vessel’s stern and the piers.</p> <p>2. Collision <S=»19—Vessel must be plainly at fault» if other vessel’s fault was sufficient in itself to bring about collision.</p> <p>Where one vessel is guilty of fault sufficient in itself to bring about the result, the other should not be lightly called on to participate therein, on-less for obvious and plain violation of the laws of navigation in bringing about the collision.</p> <p>oilier cases see same topic & KEY-NÍJMBDIt in all Kej -Numbered Digests & Indexes</p> <p>3, Collision @=95(2)—Tug attempting to pass between piers and stem of steamship held at fault for collision with steamship.</p> <p>Ocean-going tug, which continued at full speed toward passage between piers and stern of steamship, though steamship did not at first answer the tug’s signal for starboard passage under Rules to Prevent Collisions of Vessels, art. 18, rule 1 (Comp. St. § 7892), and though the steamship, notwithstanding subsequent assent to other signal, continued to back toward piers, thereby narrowing tbe passage, held at fault for collision with steamship, in view of rules 3 and 9 and General Prudential Rules, arts. 27 and 29.</p> <p>4. Collision <§=>144—Damages divided, where both vessels are at fault.</p> <p>Where collision was brought about by the combined negligence of two vessels, they should be held to divide the damages resulting therefrom.</p> <p><@=x>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Collision @^91—Held fault of steamer.</p> <p>Where steamer, proceeding down a river at seven knots an hour without a lookout, collided with schooner coming up the river, held, the steamer was solely responsible for collision, in view of Inland Hules of Navigation, arts. 20, 21, 22, 23, 27, 29 (Comp. St. §§ 7859-7862, 7806, 7868).</p> <p>2. Evidence <®=^77 (5)—Failure to produce members of crew as witnesses may be considered.</p> <p>In a collision ease, the failure of a ship to produce members of her crew, who could or should have been able to throw light on the case of the collision, is noteworthy.</p> <p>^=s>For other cases sed same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Ralph B. Lydecker and Chauneey E. Weir were indicted, and the former petitions to require the United States to show cause why the indictment should not lie quashed.

Habeas Corpus. Petitions by Thomas Caplis, Jr., and by Joseph Caplis against Col. John W. Heard, United States Army. Hearing on order to show cause why the writs should not issue. Ordered that re-, spondent deliver petitioners to the United States marshal to a.wait further orders of the court.

<p>In Admiralty. Libel by A. O. Andersen & Co., Inc., against the Susquehanna Steamship Company, Inc., for breach of charter party.</p>

<p>Criminal prosecution by the United States against Walter Moore and others. On demurrer to indictment.</p>

<p>1. Internal revenue Hotel company held subject to corporation tax, as “carrying on or doing business.”</p> <p>A corporation organized under Comp. Laws, Mich. §§ 9017, 9018, to purchase land and “construct thereon a modern fireproof hotel, and to operate, manage or lease, mortgage, or sell the same,” which, immediately after its organization, acquired land and constructed a hotel thereon, which was immediately leased to an operating corporation, which paid a rental dependent on profits, held subject to tbe corporation excise tax as “carrying on or doing business,” within Corporation Excise Tax Act, § 38.</p> <p><g^For other cases see same topic & KFY-N UMB1J3Ü. iu all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—Eor other definitions, see Words and Phrases, First and Second Series, Carry on Business.}</p> <p>%. Internal revenue <S=»38—Action to recover taxes not maintainable against collector's successor.</p> <p>Action to recover internal revenue taxes as illegally collected does not lie against the successor of the collector to whom the taxes were paid; the successor not having received the taxes, so as to be liable, under Rev. St. § 3220 (Comp. St. § 5944).</p> <p><g=s>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Shipping <§=141 (1)—Commandeered ship relieved from carrying out contract.</p> <p>Owner of ships were relieved of their obligations under contracts of affreightment, providing that carrier should not be liable for loss occasioned by restraint of princes, etc., where they were commandeered by the government in time of war.</p> <p><S=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Bankruptcy. In the matter of the bankruptcy of Lewis L. Gannon. Proofs of claim of the Maine Grain Company and others were disallowed by the referee, and they petition for review of the orders of disallowance.

<p>Proceeding by the United States, in the matter of seizure of certain liquor, against Ray & Schultz and others. On petition by the named defendants for an order for the return of liquors.</p>

<p>At Law. Action by Roy P. Parham against the Standard Oil Company of Louisiana. On demurrer to complaint.</p>

At Law. Action by May Rebmann, as executrix of Philip Rebmann, deceased, against the Delaware, Lackawanna & Western Railroad Company. Verdict for plaintiff, and defendant moves for a new trial.

<p>Bail @=»79(l)—Partial remission of penalty whore no “willful default*</p> <p>Rev. St. § 1020 (Comp. St. § 1681), allowing remission in whole or in part of penalty on forfeiture of recognizance, where there has been no “willful default,” is remedial, and should be liberally construed, and the words “willful default” mean more than a default arising from ignorance, inexperience, inattention, thoughtlessness, or even carelessness and negligence; and indicate a default knowingly, intentionally, and deliberately made; bence, where accused’s default was attributable to ignorance or inattention, or at most to negligence, and he later appeared and was sentenced, but the government was put to some expense and inconvenience by the default, that portion of the penalty exceeding $100 would be remitted.</p> <p><§=»For other cases see same topic & KEY-NUMBER in nil Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, Second Series, Willful Default.]</p>

At Law. Actions by the United States against the Frederick E. Atteaux Company, Inc., and against Frederick E. Atteaux. On motions by the United States for leave to enter writs late.

<p>Appeal from the Supreme Court oí the District of Columbia.</p> <p>Action by William L. Symons against Helen Dent Symons and another. Decree for defendants, and plaintiff appeals.</p>

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Bill by William A. Clark against the United States Realty Company and others, in which Nathaniel R. Gaines, trustee, petitioned to be allowed to become a party. From an adverse decree, intervener appeals.</p>

Proceeding by the National Savings & Trust Company, executor, etc., of Joseph Gerrers, deceased, against Mike Athan and another. From a judgment for plaintiff, defendants appeal.

<p>In Error to the District Court of the United States for the Eastern Division of.the Northern District of Illinois. Victor L. Berger, Adolph Germer, William F. Kruse, Irwin St. John Tucker, and J. Louis Engdahl were convicted of violating the Espionage Act, and they bring error. Reversed and remanded, with directions, pursuant to Supreme Court’s answers to certified questions. 255 U. S. 22, 41 Sup. Ct. 230, 65 L. Ed. —.</p>

Action by the Exporters of Manufacturers’ Products, Inc., against the Butterworth-Judson Company. Judgment for defendant, and plaintiff brings error. On motion to strike bill of exceptions. Question certified to the Supreme Court.

<p>In Error to the District Court of the United States for the Northern District of Texas; Robert T. Ervin, Judge. Criminal prosecution by the United States against E. W. McHenry. Judgment of conviction, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the Southern District of Texas; Joseph C. Hutcheson, Jr., Judge. Criminal prosecution by the United States against G. T. Spearman. Judgment of conviction, and defendant brings error.</p>

Libel by the Bouker Contracting Company against the steam tug Walter B. Pollock, her engines, etc., the Egerton Towing Company, claimant, and others. Deeree for libelant, and claimant appeals.