Volume 276 — Federal Reporter

<p>In Error to the District Court of the United States for the Northern District of Alabama; William I. Grubb, Judge.</p> <p>Action by J. C. Uimbaugh against the Woodward Iron Company. Judgment for plaintiff, and defendant brings error.</p>

<p>L Patents <&wkey;206 — Contract held' a license, and not an assignment.</p> <p>In a contract by which defendants, owners of a patent for an Index system, granted to complainant “the sole right to use their said patent rights” in certain states and territories “on the conditions hereinafter named so far as the same may be necessary for the successful making and marketing of said index system,” the phrase “so far as may be necessary for the successful making and marketing of said index system” held not to qualify the “conditions” named, but to qualify and limit the 'grant, and the contract held to constitute a license, and not an assignment.</p> <p>2. Patents <&wkey;206 — Grant of anything short of the entire monopoly is a license.</p> <p>Tlio grant of anything short of the entire unqualified monopoly given by a patent, in the territory specified, is a mere license.</p> <p>8. Patents <&wkey;214 — Contract for lieens® may he forfeitable.</p> <p>A provision of a contract, granting fights under a patent that in case of assignment of such rights without consent of the licensors the contract should he terminable at their election, held valid and enforceable.</p>

<p>Bankruptcy <&wkey;274 — Accountant held not to have agreed to forfeit compensation, if report not completed ®n time.</p> <p>In a bankruptcy proceeding, held,- that an accountant, on agreeing to make report of conditions before certain date, did not thereby agree to forfeit all rights to compensation if he did not perform within such time.</p>

<p>1. Indictment and information <&wkey;60 — Test of sufficiency stated.</p> <p>An indictment must embrace every element of the offense charged, and plainly apprise the accused of the proof he must be prepared to meet, and must so state the charge that judgment thereunder can be pleaded in bar of further prosecutions for the same offense.</p> <p>2. Perjury <&wkey;19 (2) — Inffictmjenit ’ held sufficient.</p> <p>Indictments alleging that at time and place stated it was material as to whether defendant M. was at a certain place, or whether in a certain other city, and that defendants willfully, corruptly, and falsely, and contrary to oath, did swear and depose before the court that said M. went from such place to said city, and that they, defendants, and the said M. slept together in the same room in said city'-on stated date, whereas in fact it was not and is not true, etc., held sufficient.</p> <p>3. Criminal law <&wkey;400(2) — Transcript of testimony held best evidence.</p> <p>In prosecution for perjury, the transcript of the testimony in a former criminal proceeding, which the reporter had already testified he had heard, reduced to writing, and correctly transcribed, was the best evidence by which such facts could be proven.</p> <p>4. Criminal law <&wkey;1169 (1) — Perjury <&wkey;32 (8) — Evidence held competent, but its admission harmless, if immaterial.</p> <p>In a prosecution for perjury, in that witnesses had testified that on certain day they’ had taken a train in company with accused, going with him to a certain city, testimony by trainmen that shoes which defendant said he left in the train were not found had some bearing, and was competent to contradict and test the testimony, but of so little importance that wrongful admission was not ground for reversal.</p> <p>5. Criminal law &wkey;>1169 (9) — Rejecting nonexperts on handwriting held harmless.</p> <p>Refusal to permit testimony of nonexperts on handwriting on a hotel register whs harmless, where expert witness was permitted to testify, and the register and other papers involved were admitted in evidence.</p> <p>6. Perjury <&wkey;37(3) — Instructions held to indicate degree of proof required.</p> <p>Instructions did not fail to indicate degree of proof required to convict, where they recited that defendants were charged with perjury, which, “under the law, means that they willfully and maliciously swore falsely in the cause described in the indictments,” ,and that the government is required by law to produce such evidence as will satisfy your mind beyond a reasonable doubt that the defendant is guilty as charged, and that they are under the law presumed innocent, which presumption continues until such time aS the jury believes from the evidence beyond a reasonable doubt that they are guilty, and that the only question that you determine is the guilt or innocence of these defendants of the crime with which they are charged.</p>

<p>1. Appeal and error <&wkey;927 (7) — Favorable view of plaintiff’s evidence taken on review of motion for directed verdict.</p> <p>In reviewing the court’s refusal of defendant’s motion for directed verdict, the court on appeal will take the version of the evidence favorable to the plaintiff.</p> <p>2. Master and servant <&wkey;112(U4) — Coupler required by federal Safety Appliance Act.</p> <p>Federal Safety Appliance Act, § 2 (Comp. St. § 8606), requiring automatic couplers, is not to be construed as permitting the use of a coupler which might require brakeman to go on the tracks at the end of the car, though the approaching train was some distance away, in order to open the knuckles of the coupler, but requires a coupler that will open or may be opened without going between the cars.</p> <p>3. Constitutional law &wkey;>70(3) —Master and servant <£=>279(10) — Evidence of impracticability of complying with federal Safety Appliance Act irrelevant.</p> <p>In an action for negligence in not maintaining automatic couplers required by Federal Safety Appliance Act, § 2 (Comp. St. § 8606), evidence to the effect that it is impracticable to build couplers which can always be opened by the lever at the side of the car, that no such couplers have been made, and that defendant used a generally approved type, is irrelevant, for if the statute is harsh, relief must come from the lawmaking, not the judicial, branch of the government.</p> <p>4. Appeal and error <&wkey;1064(l) — Error in instruction on defendant’s capacity to earn livelihood for himself and family held harmless.</p> <p>Where, in suit for personal injuries, plaintiff’ testified without objection as to his age, and that ho was married and had three children, statement in the charge, permitting the jury to take into account the effect which the injury had on his capacity to earn a livelihood “for himself and his family,” was immaterial and harmless.</p> <p>5. New trial <&wkey;102(l) — Newly discovered rule in railroad’s books held not ground.</p> <p>A railroad company was not entitled to a new trial as for newly discovered evidence, consisting of a printed rule in the company’s books, promulgated long before the accident.</p>

<p>Appeal from the District Court of the United States for the Western District of Oklahoma; John C. Pollock, Judge.</p> <p>Suit for injunction by D. M. Terry & Co. against John A. White-hurst and others, officers charged with enforcement of laws relating to sale of garden seeds. Decree for plaintiff, and defendants appeal.</p>

Evans, Judge. Suit in equity by David Eoewenthal against the Georgia Coast & Piedmont Railroad Company, in which E. D. Aiken and others were named as receivers, John D. Clarke intervened, and the Columbia Trust Company filed a cross-bill against the Georgia Coast & Piedmont Railroad Company. From an adverse decree (265 Fed. 961), the intervener appeals.

<p>In Error to the District Court of the United States for the Eastern, District of Arkansas; Jacob Trieber, Judge.</p> <p>Action by George Leavenworth against the Bank of Gillett and others. From judgment for defendant, plaintiff brings error.</p>

<p>Appeal from the District Court of the United States for the District of North Dakota; Charles S. Amidon, Judge.</p> <p>Suit in equity by the Minneapolis Trust Company against the Northern Dakota Railway Company and others. Jens H. Spangelo appeals from an order of the District Court.</p>

<p>U.rti’i.'ni revenue -ri -•ikeri-k tax on (iy.air heaters repealed by Prohibition Act.</p> <p>The provision of Rev. St I 3242 (Comp, St s SÍ965), making it an offense to carry on the business oí retail liquor dealer without having first paid the special tax therefor held repealed by 'Volstead Act.</p>

<p>1. Judgment <S=»346 — Validity may be considered after dose of term.</p> <p>A motion to set aside a judgment as void may be considered after tbe term at which it was rendered.</p> <p>2. Internal revenue —Provision for, forfeiture of vehicle used to defraud government of tax not repealed.</p> <p>Rev. St. § 8450 (Comp. St. § 6352), was not repealed by the National Prohibition Act, and a vehicle used to remove or conceal distilled spirits subject to tax which has not been paid, with intent to defraud the United States of such tax, is subject to forfeiture thereunder.</p>

<p>In Equity. Proceedings hy the United States against Robert Shar-rock to annul citizenship. Decree for defendant.</p>

<p>Petitions by Cornelius O’Connor and by William Woodcome against Elmer C. Potter and others for return of liquor seized.</p>

<p>Proceeding by the United States to condemn 426 bags of Economy Special Hog Feed. .On motion to strike claimant’s answer and for a decree of condemnation.</p>

<p>In Admiralty. Suit by E. Sjogren and others against the sailing ship Moshulu.</p>

At Raw. Action by Frank C. Bramwell, Superintendent of Banks of the State of Oregon, against C. FI. Owen, brought in a state court. On plaintiff’s motion to remand cause to state court, a.nd defendant’s motion to quash service of summons.

<p>1. Waters and water courses <§=>152(2) — Appropriator from stream can object to diversion from tributary only when actually injured.</p> <p>An appropriator from a main channel can complain of a diversion from a tributary only if and when such tributary would, if not interfered with, make a valuable contribution to the main stream.</p> <p>2. Waters and water courses <@=>140, 151 — Appropriator who has applied water to irrigation is entitled to wastage, so long as not abandoned.</p> <p>An appropriator who has diverted water and devoted it to irrigation purposes is entitled to its exclusive control, so long as he is able and willing to apply it to beneficial uses, and such right extends to what is commonly known as wastage from surface run-off and deep percolation necessarily incident to practical irrigation; nor is it essential to his control that he maintain continuous actual possession of such water, but so long as he does not abandon it or forfeit it by failure to use, áM can identify it he may assert his rights.</p> <p>3. Waters and water courses <@=>130 — Water escaping from irrigation system not subject to appropriation by another.</p> <p>Comp. St. Idaho, §§ 5556, 5558, providing that all of the waters of the state when flowing in their natural channel are the property of the state and that the right to the use of waters of rivers, streams, etc., may be acquired by appropriation, do not apply to wastage water from an irrigation system though flowing in the natural channel of a stream.</p> <p>4. Waters and water courses <§=>130 — Statute regulating use applies only to public waters.</p> <p>Comp. St. Idaho, § 5562, providing that “all ditches * * * constructed for the purpose of utilizing seepage, waste, or spring water of the state, shall be governed by the same laws applicable to ditches * * * constructed to utilize waters of running streams,” has relation only to public waters of the state subject to appropriation, and does not authorize the construction of ditches to utilize seepage or waste water rightfully under the control of another.</p> <p>5. Waters and water courses <@=>1301 — Government project held entitled to so much of its wastage water as could be identified in a creek.</p> <p>Defendant for irrigation of his land diverted water from a creek which had a natural flow only during early spring, the water which it carried later being overflow and seepage from lands irrigated in part by water owned by an irrigation company which had abandoned such wastage, and in part from lands under an irrigation project of the United States which had not abandoned its wastage. Held, that defendant was entitled to the use of the natural flow and of the wastage from the irrigation company lands, but that the government was entitled to such share of the later flow as could be determined as coming from the lands within its project.</p>

<p>At Daw. Action by Cothran & Connally against the United States. Judgment for defendant.</p>

<p>At Law. Action by the Fidelity Trust Company against Ephraim Eederer, Collector o£ Internal Revenue. Sur rule for judgment. Rule discharged.</p>

<p>Iniomal revenue &wkey;2 — Rev. Si. § 3450, not repealed by Prohibition Act.</p> <p>National Prohibition Act, tit. 2, § 35, which expressly provides that the act shall not relieve any one from payment of taxes or other charges imposed on the manufacture or traffic in liquor, held not to repeal Rev. St. § 3450 (Comp. St. § 0352), which provides for the forfeiture of any vessel, boat, or vehicle used to remove or conceal liquor with intent to defraud the United States of the tax thereon.</p>

<p>District and prosecuting attorneys &wkey;>8 — Habeas corpus <&wkey;45 (4) — Federal court without jurisdiction to discharge prisoner held by state officers without color of authority.</p> <p>A United States District Attorney is without even color of authority to order the arrest of a person without a warrant for alleged violation of a federal statute, and a federal court is without jurisdiction to issue a writ of habeas corpus for the discharge of a prisoner arrested for violation of the Volstead Act by state officers by oral direction of a District Attorney; such jurisdiction being in the state courts.</p>

<p>Tracfe-marks and trade-names and unfair competition <&wkey;7I — “Hudson,” as applied to tires, held to have obtained secondary meaning referable to merchandise.</p> <p>In an action to restrain sale of rubber tires in conjunction with the word “Hudson,” facts held to show that the word “Hudson,” as applied to tires and cords, had obtained a secondary meaning referable to complainant’s merchandise, and the fact that defendants had secured a corporate name containing the word “Hudson” from the state of New York did not authorize them to use it in connection with their merchandise.</p>

<p>1. Shipping <&wkey;209(l) — Jurisdiction to limit liability confined to maritime-causes.</p> <p>A District Court cannot take jurisdiction oí a petition to limit liability, under Itev. St. § 4288 (Comp. St. § 8021), where it would not have had jurisdiction In admiralty originally oí the cause of action involved.</p> <p>2. Shipping <&wkey;207 — Part owner of vessel held not entitled to limitation of liability for injury to stevedore on wharf.</p> <p>A part owner of a schooner from which coal was being discharged haul not entitled to limitation of liability under liev. St. § 4283 (Comp. St. § 8021), for injury to a stevedore by the breaking of the hoisting rope of a derrick on the wharf owned by petitioner, where neither vessel nor crew had anything to do with the discharging and no claim was made against the vessel nor against petitioner on account of his interest therein.</p>

<p>Landlord and tenant &wkey;157 (6) — Tenant not “owner entitled to beneficial use” required to erect fire escape, and cannot recover therefor.</p> <p>Under Act Cong. March 19, 3906, as amended by Act Cong. March 2, 3907, requiring the owner, entitled to the beneficial use, rental, or control of specified buildings, to erect fire escapes, which before amendment made the lessee, occupant, or person having possession also liable to its provisions, a tenant is not required to erect a fire escape, and he cannot, in the absence of any action prejudicial to his rights, voluntarily erect fire escapes and recover therefor from the landlord.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Owner.]</p>

<p>1. Kaihoads <&wkey;400(l) — Negligence and contributory negligence held «pics-lions for jury on evidence as to injury to soldier guarding bridge.</p> <p>Plaintiff’s intestate was one of a company of soldiers detailed to guard a bridge on defendant’s railroad. The camp was at the east end of the bridge, and guards were maintained at each end and beneath. There was a double track over the bridge; east-bound trains using the south, and west-hound trains the north, track. Plaintiffs intestate was one of the guards at the west end, and in early morning, while it was somewhat hazy, started under orders to cross to the camp over the north track walking on the ties, there being no flooring, and was struck and killed by an east-bound train using that track contrary to custom. There was a curve west of the bridge, and it could not be seen until a train reached the bridge upon which track it was running. Defendant knew of the presence of the soldiers, the location of the camp, and where the guards were stationed. There was evidence that the train gave no signal of its approach. Held, that the questions of negligence and contributory negligence were for the jury.</p> <p>2. Appeal and error <&wkey;856(l) — Ruling sustained If correct on any ground.</p> <p>The ruling of a trial court may bo sustained on a ground different from that on which the court based it.</p>

<p>1. Corporations <&wkey;40 — In absence of objection to its validity, amendment to articles held sufficient to authorize conveyance.</p> <p>A conveyance by corporation will not be held ultra vires by the Circuit Court of Appeals on ground that amendment to articles of incorporation was not made in compliance with Rem. & Bal. Code Wash. § 3679, requiring majority vote of trustees and vote or written consent of two-thirds of the capital stock, where no objection was made by any stockholder that amendment had not been lawfully made during a long interval between adoption of amendment and conveyance, and where the amended articles were received in evidence on the trial and no objection made that amendment had not been duly authorized and no showing made that requirements of statute had not been complied with.</p> <p>2. Corporations <&wkey;439 — Conveyance held not ultra vires.</p> <p>Where prohibition left a brewing company without funds to pay existing indebtedness and without a continued profitable use for its brewery, its only property, its conveyance thereof to the mortgagee, made in compromising a foreclosure suit on the latter’s agreement to reconvey on payment of the mortgage debt within 18 months, was not ultra vires.</p> <p>3. "Corporations &wkey;>388(2) — Corpora tion and stockholders held -estopped by receiving benefits from asserting conveyance ultra vires.</p> <p>Where corporation and stockholders received substantial benefits from conveyance by corporation of mortgaged property to mortgagee, they are estopped from asserting the conveyance was ultra vires after grantee had paid substantial amounts for delinquent taxes and insurance.</p> <p>4. Corporations <&wkey;426(ll) — Directors held to have ratified unauthorized conveyance.</p> <p>Where directors were advised of an unauthorized conveyance, and at subsequent meetings, at which all were present, and at which they discussed efforts made to dispose of the property, they did not disapprove thereof, the conveyance was ratified.</p> <p>5. Corporations <@=>182 — Agreement held not frarasMent as to minority stock-ílí)l(l6iTS.</p> <p>Where a brewing company, forced to discontinue its business by prohibition and was without funds with which to pay its indebtedness and prevent a mortgage foreclosure, conveyed its property to the mortgagee with option to repurchase on payment of indebtedness within 18 months, the mere fact that mortgagee agreed that the principal stockholder could use the property during such period without rental, of which the stockholder did not avail himself, and released the principal stockholder from his personal guaranty of the indebtedness, did not make the agreement fraudulent as to the other stockholders.</p> <p>6. Corporations <©-'=>182 — Stockholders mot entitled! to cancelation of conveyance »® mortgagee without am offer to return amount of taxes, ete., paid by mortgagee.</p> <p>Stockholders held not entitled to cancellation of corporation’s conveyance to a mortgagee in the absence of a showing of readiness and willingness to return the amount paid by the mortgagee for taxes, insurance, and repairs; the stockholders’ rights in suc-b case being no greater than those of corporation itself.</p>

<p>.In Error to the District Court of the United States for the Eastern District of Missouri; Charles B. Faris, Judge.</p> <p>.Action by Andrew Ñ. Jeffries against the St. Eouis & San Francisco Railway Company,, Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal and Cross-Appeal from the District Court of the United States for Second Division of the Northern District of California; Frank S. Dietrich, Judge.</p> <p>Suit in equity by the United States against Fred W. Cramer, Ira B. Cramer, and the Central Pacific Railway Company. From the decree, both parties appeal.</p> <p>Tbe United States sued to cancel a patent alleged to have been issued without authority to tho Central Pacific Railway Company in 1904. Tho patent was issued under tbe act of Congress approved July 25, 1866 (chapter 242, 14 Stat. 239), making a grant of land to California & Oregon Railroad Company to aid in tbe construction of a railroad from a connection with tbe Central Pacific Railroad at Roseville, Cal., to tbe line between Oregon and California.</p> <p>Tbe government’s position Is that for years prior to 1904 and from time immemorial the Indians occupied and claimed tbe lands, and that none of the Indian rights were extinguished by tbe act of 1866 hereinbefore cited. The defendants denied occupation and use, pleaded tbe statute of limitations, and sale by tbe railroad company to defendants Cramer under executory contracts mads in 1916 and 1917; the sales being subject to leases made by tbe United States for tbe benefit of tbe Indians.</p> <p>Tbe District Court held that from 1859 tbe Indian occupants have been in possession of certain of tbe lands; have fenced between 150 and 175 acres thereof, and improved the same; that they acquired substantial rights respected by tbe government and that such title as tbe railroad company acquired is subject to tbe Indian right of occupancy subject only to interference toy the United States, and made a decree in favor of the right of tbe Indian occupants to remain in possession of the lands and only tbe lands actually inclosed by fence.</p> <p>Tbe defendants below appealed, and tbe United States filed a cross-appeal.</p>

Dietrich, Judge. Suit in equity by Celia Diamond, William Diamond, Bridget Mc-Grail, and John McGrail against Lawrence F. Connolly, administrator of the estate of John Corbett, deceased, and others. Decree for defendants, and complainants appeal.

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

<p>Appeal from the Supreme Court of Porto Rico.</p> <p>Action by Miguel Martorell y Torrens and others against J. Ochoa y Hermano and others. From a judgment of the Supreme Court of Porto Rico, affirming a judgment for defendants, plaintiffs appeal.</p>

<p>1. Infants &wkey;>34 — Power to authorize sale of property of minors exclusive in District Court of district where property situated.</p> <p>Under Civ. Code Porto KIco, 1 229, as it existed in 1910, power to authorize the sale of the property of minors was exclusive in the District Court of the judicial district where the property to bo sold was situated, it being clear that the Legislative Assembly, when it adopted the Civil Code and the Code of Civil Procedure, intended to remove, from the operation of sections 76 and 77 of the latter, applications for authorization to sell the real estate of minors in view of Judicial Proceedings, tit. 5, §§ 80-82.</p> <p>2. Territories <S=»20 — Porto Rico has power to reject provisions of Spanish Civil Code.</p> <p>It was within the undoubted power of the Legislative Assembly^ of Porto Rico to adopt or reject any of the provisions of the Spanish Civil Code in force at the time the American Civil Code was adopted in 1902, under the Organic Act passed by the Congress of the United States for the island of Porto Rico and approved April 12, 1900, § 15 (Comp. St. § 876:5).</p>

Action by Carlota Gonzalez Lugo and others against Jose J. Benitez and others. From a final judgment of the Supreme Court of Porto Rico, reversing a judgment of a District Court for plaintiffs, the latter appeal.

<p>In Error to the District Court of the United States for the Southern Division of the Southern District of California; Benjamin E. Bledsoe, Judge.</p> <p>Criminal prosecutions by the United States ag'ainst William G. Pan-no» and others. Judgments of conviction, and defendants bring error.</p>

<p>In Error to the District Court of the United States for the District of Oregon; Charles E- Wolverton, Judge.</p> <p>Criminal prosecution by the United States against Olaf Hauge. Judgment of conviction, and defendant brings error.</p>

Wade, Judge. Action at law by the Ft. Dodge Portland Cement Corporation against H. E. Monk and Knut Elendal, administrators of the estate of A. J. Thomsen, deceased. From an order granting a new trial, plaintiff brings error.

Lynch, Judge. Action by Sarah Scliauffele, administratrix of the estate of George SdiatnTele, deceased, against the Director General of Railroads, as Agent. Judgment for defendant, and plaintiff brings error.

John McCauley brings error from an order, made on motion of the First Trust & Savings Bank, sentencing him to imprisonment for criminal contempt for violation of an injunction.

<p>Maritime liens <S==>29 — Furnisher of supplies on order of agent of charterer held entitled to lien.</p> <p>A furnisher of supplies to a vessel on orders of the authorized local agent of the charterer, nothing appearing to give notice that because of the terms of the charter party he was without authority to bind the vessel, held entitled to a lien therefor under Act June 23, 1910, §§ 1-3 (Comp. St. §§ 7783-7785).</p>

<p>In Error to the District Court of the United States for the First Division of the Northern District of California; Maurice T. Dooling, Judge.</p> <p>.Criminal prosecution by the United States against P. J. Camou, Judgment of conviction and defendant brings error.</p>

<p>War <§=»33 — Prosecution for violation of Espionage Act not abated by termination of hostilities.</p> <p>The termination of war hostilities held not ground for abatement of prosecutions for violations of the Espionage Act or other war acts committed during hostilities, especially in view of Act March 3, 1921, expressly so providing.</p>

<p>Indictment and information @=110(31) — Indictment for maintaining nuisance held sufficient.</p> <p>An indictment under National Prohibition Act, tit. 2, § 21, for maintaining a nuisance, which follows the language ot the statute, is sufficient, and it is not necessary to allege that defendant was in possession or control of the building wherein the nuisance was maintained.</p>

<p>1. Courts ©=>366(14) — Bankruptcy court held bound by decisions of state court as to construction ®f contract.</p> <p>As to whether a contract is a purely conditional sale or an absolute sale with reservation of title for security, in which latter case contract would be void within the statutes of the state where the contract is to be performed, a bankruptcy court is bound by. a decision of the highest court of that state.</p> <p>2. Chattel mortgages <®=»6 — Instrument held a chattel mortgage, not a conditional sale.</p> <p>A contract under which a cash register was sold held, an absolute sale reserving a lien by way of security; that is, a chattel mortgage, and not a conditional sale, though it reserved title in the vendor until payment of the purchase price and taxes.</p> <p>3. Courts ©=368 — Binding effect of state court decisions not affected by prior inconsistencies.</p> <p>The binding effect on the bankruptcy court of a decision by the highest state court is not affected by prior inconsistent decisions of the state court, in the absence of any showing that the cause of action in the bankruptcy court accrued in reliance on the prior decisions of the state court establishing a settled rule of property, abrogated by the later decision to the extent or impairing a vested right.</p> <p>On Petition for Rehearing.</p> <p>4. Evidence <@=»461(1) — Preliminary intentions merged in written contract.</p> <p>The undisclosed, or even the orally disclosed, purpose or intention of the parties in entering into a written contract, cannot be considered in construing such contract, at least where it is not claimed that the parties have, by acts or conduct subsequent to the making of the contract, put a binding construction thereon.</p>

In Equity. Suit by Frank E. Polk and another, as executors oí Josephine Brooks, deceased, against Frank A. Page, individually and as Collector of Internal Revenue, to enjoin distraint for collection oi a tax before time fixed by statute, in which defendant files motions to dismiss.

<p>In Equity. Suit by the W. S. Tyler Company, a corporation, against the Deutsche Dampfschifffahrts Gesellschaft Hansa, Bremen, Germany, and others. On defendant’s motion to dismiss.</p>

<p>In Admiralty. Libel by Mills & Knight, Limited, and another, against the motor schooner Snetind. Decree for libelants.</p>

<p>1. Corporations <&wkey;4V7 (2) —Resolution held to authorize mortgage.</p> <p>Where a corporation was organized to carry out the terms of an agree-inent to acquire certain tugs and barges to be paid for by an issue of stock and an issue of bonds, a resolution of the directors, providing for such acquisition and for an issue of bonds, was to be read in the light of the agreement, and thereby understood to provide for a “first mortgage” bond issue.</p> <p>Z. Corporations <&wkey;433 (4) —Presumed seal was affixed by authorized person.</p> <p>In the absence of evidence that the corporate seal affixed to the corporation’s mortgage was affixed by an unauthorized person, it is presumed to have been affixed by an authorized officer or agent.</p> <p>3. Pledges <&wkey;S35 — lien dependent on possession.</p> <p>The lien of a pledgee continues only so long as he retains possession of the pledged property.</p> <p>4. Liens <&wkey;7 — Equitable lien created by acquisition of property under agreement to give mortgage therefor.</p> <p>Where a corporation acquired tugs and barges under an agreement to give a mortgage thereon, the promisee acquired an equitable lien on such property.</p> <p>5. Bankruptcy <&wkey;li>l(2), 188(3) — Trustee vested with title freed from Mesas enforceable only against bankrupt; prior equitable lien not - a “transfer”; “present consideration.”</p> <p>By the 1910 amendment to Bankruptcy Act, § 47a (2), being Comp. St. § 9631, the trustee is vested with title to the bankrupt estate freed from all liens that were enforceable only as against the bankrupt, which includes equitable liens; hence an equitable lien created by an agreement to mortgage, made more than four months before bankruptcy, is not such a “transfer,” under section 60b (section 9644), as to validate a mortgage within the four months period, otherwise voidable as a preference, nor was such mortgage one for a “present consideration,” under section 67d (section 9651) ; the title to the property having passed when it was delivered some four months prior to the mortgage, and the fact that the mortgage purported to be a purchase-money mortgage not being controlling.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Transfer; Second Series, Present Consideration.]</p>

In Equity. Suits by the Westinghouse Electric & Manufacturing Company and by the Central Union Trust Company of New York, respectively, against the Brooklyn Rapid Transit Company and others. Respective rights of trustees under mortgages determined.

<p>1. Patents <§=328 — For methods of making synthetic gums or resins valid and infringed.</p> <p>The Baekeland patents, No. 942,699, claims 1, 2, and 4, No. 942,852, claims 5 and 6, and No. 939,966, claims 1, 2, and 3, relating to processes for producing an infusible and insoluble material as a condensation product of the chemical union of phenol and formaldehyde, and the products of such processes, which material when molded or formed is used for insulating and many other purposes, held valid and infringed.</p> <p>2. Patents <©=165 — No broader than claims.</p> <p>A patent can be valid for no more than is covered by the claims of that patent.</p> <p>3. Patents <§=167 (1), 179 — Claims limited by disclosure andl prior art.</p> <p>The claims of a patent, whea limited by the disclosure of the specifications and by the condition of the prior art, may be valid, even though the language of the-claims be so broad as to cover other matters, if viewed out of their proper context.</p> <p>4. Patents <§=168 (1) — Procedure in Patent Office may limit claims.</p> <p>The procedure in the Patent Office and the acts of the patentee with respect thereto may be used in determining limitations on his claims and in discovering the precise meaning of a claim as allowed.</p> <p>5. Patents <§=168 (2) — To determine state of ant, disallowed claims may be looked to.</p> <p>The claims of a patentee which are disallowed, and the extent of acceptance of the ruling will frequently show what point the prior art had disclosed to the examiner and the patentee, and in this way create a limitation of possible broad language in the claims or indefiniteness in the specifications.</p> <p>6. Patents <§=160 — File wrapper may be resorted to.</p> <p>The file wrapper in a patent application may be resorted to, in order to throw contemporary light ón the development of the prior art, and to determine whether or not the patentee has attempted to enlarge his claims, or to modify the scope of his invention as subsequent discoveries come to the notice of the patentee. 0</p> <p>7. Patents <§=157 (2) — Claims construed narrowly to give validity.</p> <p>Patent claims, if ambiguous, or capable of a broad and a narrow meaning, should be construed narrowly, if they may thereby be held valid, and a broad interpretation should not be used if the result is to cause invalidity.</p> <p>8. Patents @=»66, 129 — Separate patents may be secured for process and the product, and one does not anticipate the other.</p> <p>If applications for process and its product are copending, separate patents may issue therefor. The earlier patent issued is not an anticipation of the other.</p>

<p>At Law. Action by Mary A. Davis, administratrix of the estate of Earl P. Davis, deceased, against the Philadelphia & Reading Railway Company. On motion to fake off nonsuit.</p>

<p>Patents &wkey;S28 — 834,165, for a glass drawing and shaping machine, held void for inoperativeness.</p> <p>The Raspillaire patent, No. 834,165, for a glass drawing and shaping machine, held void as covering a machine consisting of both a drawing implement and former, which is inoperative. Claim 15, for a drawing implement in a machine for drawing glass, adapted to be dipped into a glass hath and to draw glass therefrom, said implement provided with a groove to receive the molten glass, cannot be construed separately from the machine of which it forms a part as intended to cover the invention of a cold bait or drawing implement.</p>

<p>1, Patents <&wkey;U2 (3) — Patent, Office decisions reinforce presumption of validity.</p> <p>The legal presumption of validity of a patent is strengthened by decisions of successive tribunals of the Patent Office sustaining it on contested interference proceedings.</p> <p>t. Patents <&wkey;62 — Oral testimony held insufficient to establish prior use.</p> <p>Oral testimony of witnesses speaking from their recollection of a brief experiment made ten years previously, and unsupported by any record or exhibit evidence, held, insufficient to establish prior use.</p> <p>;j. Patents <&wkey;120 — Essentials of double patenting stated.</p> <p>While an inventor may not sustain a subsequent patent for an invention actually claimed and secured in a prior patent nor for an essential element of an invention secured by a former patent, without which that invention would not have been patentable, the maker of several patentable inventions resulting in a new and useful machine or process may at his option secure all these inventions by a single patent or each patentable invention by a separate patent, and the fact that he may describe all oí them in an application for an earlier patent to secure one of them does not invalidate a subsequent patent to him for those inventions therein described but not claimed.</p> <p>4. Patents &wkey;328 — 1,308,851, claims 1-4, for method of drawing glass cylinders, held valid, but not infringed.</p> <p>The Spinasse patent, No. 1,208,851, claims 1-4, for a method of drawing glass cylinders by the use of a cold bait, held valid against tbe defenses of anticipation and double patenting, but not infringed.</p>

Seizure Proceedings under Trading with the Enemy Act. Rib el by Francis P. Garvin, Alien Property Custodian, against certain shares of International Agricultural Corporation, registered in the name of Max Winter and Gertrude von Metzsch, with three other similar cases. Decrees for libelant. Libels under section 17 of the Trading with the Enemy Act (Comp. St. 1918, Comp. St. Ann.

McCall and Andrew M. J. Cochran, Judges. Suit in equity by Cora A. Dunaway and husband against J. N. Pur-year and others. Decree for defendants, and plaintiffs appeal.

<p>Appeal from the District Court of the United States for the Southern Division of the Southern District of California; Oscar A. Trippet, Judge.</p> <p>Suit in equity by William H. Cochran and William H. Cochran, as trustee, against the Big Sespe Oil Company. Decree for complainant. and defendant appeals.</p> <p>This is an appeal from a final decree against the Big Sespe Oil Company, involving right to the possession of certain oil lands in California. Cochran, plaintiff below and appellee here, sued the Big Sespe Oil Company, and Mc-hlartin, sheriff, alleging that plaintiff is a citizen of New York; that plaintiff’s assignor, the Pacific Crude Oil Company, is a citizen of Delaware, and the Big Sespe Oil Company a citizen of California. The bill alleges that in 1917 in the state court in California, the Big Sespe Oil Company recovered judgment against the Pacific Crude Oil Company for $15,000 and interest; that in March, 3917, upon execution, the sheriff of Ventura county in California sold all the interest of the judgment debtor in and to the certain lands to the Big Sespe Oil Company for $17,310.50, and a certificate of sale was given to the purchaser, and it took possession; that the moneys and profits received by the oil company are a credit upon the redemption money required to be paid. It is alleged that before the expiration of the time for redemption the judgment debtor, Pacific Crude Oil Company, demanded from the Big Sespe Company a statement of moneys and profits, but failed to receive any such statement; that demand was made upon the sheriff and Ihat, as provided by section 707 of the Code of Civil Procedure of California, the sheriff was notified that the time for redemption of the real property was extended, and that until such time was expired the sheriff should not deliver conveyance to the Big Sespe Oil Company.</p> <p>Further allegations are that about August 29, 1918, the sheriff made an instrument purporting to convey to the Big Sespe Oil Company the title and interest of the Pacific Crude Oil Company to the real property described therein; that when such conveyance was made the lawful time for the redemption of real property had not expired; that the certificate was of no effect; that the sheriff claimed that he delivered the instrument unto Big Sesne Oil Company pursuant to a writ of mandate issued August 29, 1918, out of the superior court of the state, directing the sheriff to make and execute the deed, but that neither the assignor of Cochran, nor Cochran, was a party to the proceeding in which the writ of mandate was issued, and that the writ is not legal warrant for the making or delivery of the instrument of the 29th of August; that the facts relevant to the question of the legal issuance of the writ of mandate were suppressed by the oil company; that the allegation in the petition for the mandamus falsely stated that the period for the redemption of the property from the sale under execution one year from March-3, 1917, had expired; that the court was deceived and misled, and that all the proceedings, including the written instrument of conveyance from, the sheriff, were of no effect as against the rights of the Pacific Crude Oil Company, or it assignee, Cochran; that on June 11, 1919, the Pacific Crude Oil Company assigned and conveyed unto Cochran all of the described redemption and right of redemption which the judgment debtor at any time had or might have unto the real property from the sale under execution, and that since the 11th of June, 1919, Cochran is entitled to make redemption and desires to do so, but cannot determine the amount required until the oil company has given account of money and profits since March, 1917. Accounting is prayed for, also that the proceedings in the mandate proceeding referred to be declared inoperative as against the rights o.f Cochran, and that the deed of the sheriff be declared void ab initio.</p> <p>Defendants admitted the extraction of oil, and the realization of about $13,-000, denied that such moneys were a credit upon the redemption money, denied the demand for an accounting, and pleaded that from March 30, 1917, Cochran was the holder of the legal title of the real property as trustee for the Pacific Crude Oil Company, and that neither he nor the oil company did the assessment work upon the placer claims described in the complaint for the year 1914, nor paid the taxes due irpon the said property for 1914, .1915, and 1916; that in August, 1914, the oil company commenced an action against Cochran as trustee for the Pacific Crude Oil Company, and the Pacific Crude Oil Company, to foreclose this vendor’s lien upon the real property described; and that from the beginning of such action to August, 1918, the date of the execution by the sheriff’s deed to the Big Sespe Oil Company, Cochran was informed of all proceedings relating to the title to the said property. Tlfe answer pleads laches on the part of the Pacific Crude Oil Company and Cochran, and that on June 11, 1919, the Crude Oil Company had no legal existence and possessed no right of redemption.</p> <p>Interlocutory decree was made in favor of Cochran, and the case was referred to a special master for an accounting. The court adopted the report of the special master and decreed that Cochran had a right, of redemption, and that certain sums were due by the Big Sespe Oil Company to Cochran; that the instrument in 'writing dated August 29, 1918, by the sheriff, purporting to grant the property to the Big Sespe Oil Company under the execution on March 3, 1917, should be set aside and held for naught, and that the Big Sespe Oil Company should surrender the instrument to be canceled. The Big Sespe Company was also restrained in the decree from claiming any right to the premises, the premises were ordered to be surrendered free of ail liens and incumbrances, and Cochran was held entitled to recover certain amounts.</p>

Rudkin, Judge. Action at law by James B. Blum and another, as executors of the last will and testament of Rosa Blum, deceased, against Justus S-Wardell, as Collector of Internal Revenue for the First District of California. From a judgment overruling demurrer to complaint (270 Fed. 309), defendant brings error.

<p>Appeal from the District Court of the United States for the Northern District of Ohio; D. C. Westenhaver, Judge.</p> <p>Suit in equity by the Van Kannel Revolving Door Company against the Winton Hotel Company. Decree for defendant, and complainant appeals.</p>

<p>Appeal from the District Court of the United States for the Western District of Pennsylvania; Charles P. Orr, Judge.</p> <p>Suit in equity by Ella F. Schell and another against the Minnetonka Oil Company, P. O. Laughner, C. A. Cooper, and others. Decree for complainants, and defendants Laugluier and Cooper appeal.</p>

<p>L False mprisenmeEii @=>15(1)-— Joint liability not dependent on conspiracy.</p> <p>All persons knowingly joining in a party which falsely imprisoned another are liable jointly and severally, regardless of the extent of their personal participation or of whether or not there was a prior conspiracy.</p> <p>J¡„ false imprisonment Forcible removal from state held actionable.</p> <p>Defendants, who, with others, to the number of 75 or more, went to a house where plaintiff was and by a sli.ow of force compelled him to go with them, taking him in an automobile across the line into another state and ordering him pot to return to the county in which he had resided for many years, held chargeable with false imprisonment.</p> <p>3. False imprisesmrairf; 'Extrajudicial restraint constitutes “false imprisonment.”</p> <p>Prima facie any restraint put by fear or force on the actions of another is unlawful and constitutes a “false imprisonment” for which damages are roeoverable, and it is not necessary to allege or prove malice or want of probable cause where the detention is extrajudicial.</p> <p>[Kd. Note. — For other definitions, see Words and Phrases, First and Second Series, False Imprisonment.]</p> <p>4. False imprisonment @=>10 — Consent no defense.</p> <p>In an action for false imprisonment, it is not a defense that plaintiff consented to what was clearly an unlawful restraint of his liberty.</p> <p>5. False imprisonment @=>15(1) — Persons chargeable liable for acts of others in execution of common purpose.</p> <p>Where defendants and others unlawfully seized plaintiff and forcibly carried him. to the state line, where he was delivered to mashed men, who assaulted, beat, and otherwise maltreated him, defendants held liable for the acts of such masked men committed in the execution of a common purpose.</p> <p>6. False imprisonment @=>10 — Intent to prevent similar wrong by others no defense.</p> <p>In an action for false imprisonment and the assaulting and beating of plaintiff, it is not a defense that defendants’ unlawful acts were committed to protect plaintiff from similar action by others which might have resulted in his greater injury or death.</p> <p>7. False imprisonment @=25 — Evidence of reputation of parties held incompetent.</p> <p>In an action for false imprisonment and assault and battery, the admission, over objection, of evidence that plaintiff had the reputation of being disloyal during the war, that he refused to buy Liberty Bonds to the amount others thought he should, and that defendants had a reputation for loyalty and good character, held error.</p>

<p>In Error to the District Court of the United States for the Northern District of Ohio; John M. Killits, Judge.</p> <p>Criminal prosecution by the United States against John Reid, Ralph E. Hay, and Fred Kriss. Judgment o£ conviction, and defendants bring error.</p>

Appeal and Cross-Appeal from the District Court of the United States for the District of Oregon; Charles E. Wolverton, Judge. Suit in equity by the Selectasine Patents Company and another against the Prest-O-Graph Company and others. Decree for complainants with limitation of claims, and complainants appeal and defendants file cross-appeal.

<p>Appeal from the District Court of the United States for the District of Nebraska; Joseph W. Woodrough, Judge.</p> <p>In the matter of the Missouri Valley Cattle Doan Company, alleged bankrupt. Involuntary petition of Thomas M. Alexander and others, alleged creditors. From an order of adjudication the company appeals. Reversed. Also appeal by Bank of Cartersville from an order denying its petition to set aside the adjudication.</p>

<p>1. Trade-marks and trade-names and unfair competition <&wkey;59(5). — “Meje” held infringement of “Hebe.”</p> <p>The use of the trade-name “Me.je,” as applied to a compound of skimmed milk and vegetable fat, infringed the trade-name of “Hebe,” applied to the same compound.</p> <p>2. Trade-marks and trade-names and unfair competition <&wkey;93(l) — Proof of confusion of customers unnecessary where names suggest it.</p> <p>In action for infringement of trade-name, evidence of actual confusion on the part of customers is not necessary, where the words themselves suggest it.</p> <p>t. Trade-marks and trado-names and unfair competition <&wkey;55 — Good faith in selecting infringing trade-name no bar to relief.</p> <p>Good faith in choosing a trade-name will not bar one already having a similar trade-name from proper relief, if there is in fact infringement.</p> <p>4. Goad will <&wkey;5 — -Trade-marks and trade-names and unfair competition &wkey;> 34 — Assignment held to transfer business as well as good! will.</p> <p>An assignment reading that, whereas H. Company is desirous of acquiring the trade-mark and “all the business and good will associated therewith,” now therefore in consideration, etc., the C. Company has sold, assigned, and transferred to the H. Company the entire right, title, and interest in and to said trade-mark and certificate of registration, “together with all the good will of the business connected with said trade-mark, picture and certificate of registration,” held intended to convey the business as well as the good will and trade-mark, under 33 Stat. 727, § 10 (Comp. St. § 9495).</p> <p>5. Trade-murk-? and trade-names and unfair competition &wkey;>98 — Good faith in selection of infringing trade-name does not affect actual damage.</p> <p>The fact that one using an infringing trade-name acted in good faith in its selection and use could have a bearing on the question of punitive damages, but would not affect the proposition of actual damage, if any, occasioned by use of the name.</p> <p>8. Trade-marks and trade-names and unfair competition <&wkey;109- — Reference decree held to leave open liability for infringement.</p> <p>Tn an action for damages for infringement of trade-name, an interlocutory decree referring the causo to a master for an accounting of profits and damages held to leave wholly open the nature and extent of defendant’s pecuniary liability growing out of his ascertained infringement.</p>

<p>Appeal from the District Court: of the United States for the Eastern District of Michigan; Arthur J. Tuttle, Judge.</p> <p>Suit in equity by the Diamond; Power Specialty Company against the Merz Capsule Company. Decree for defendant, and complainant appeals.</p>

<p>In Error to the District Court of the United States for the Northern District of Alabama; William I. Grubb, Judge.</p> <p>Action at law by Harris, Cortner & Co. against the Louisville & Nashville Railroad Company. Judgment for defendant, and plaintiffs bring error.</p>

<p>In Error to and Appeal from the District Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge.</p> <p>Actions by James K. Cochran and another against Coulton M. Becker. From a judgment and decree in favor of defendant, plaintiffs brought error, and appealed. The appeal and writ of error were dismissed, and plaintiffs moved for leave to file bill of review.</p>

<p>1. Conspiracy &wkey;»46 — Evidence held competent to show overt act.</p> <p>Under an indictment under Cr. Code, § 37 (Comp. St. § 1020L), for conspiracy to defraud the United States iu respect to its trust duties toward members of certain Indian tribes by inducing the Secretary of the Interior by means of fraud and deceit to believe that certain Indian heirs were competent, and to cause the issuance to them of unrestricted patents for allotments held in trust:, and by thereafter procuring conveyances of the lands from the patentees to defendants or others, the procuring of such conveyances after issuance of the patents held to constitute overt acts within the conspiracy charged, proof of which was competent.</p> <p>%. Conspiracy <&wkey;48 — Evidence held competent to prove coespiraey.</p> <p>Under an indictment for conspiracy, evidence of overt acts, though committed prior to the period of limitation, may be considered as bearing on the question of conspiracy.</p>

<p>Appeal from the District Court of the United States for the District of New Jersey; Charles F. Lynch, Judge.</p> <p>Suit in equity by the Macomber & Whyte Rope Company against the American Steel & Wire Company. From the decree, both parties appeal.</p>

<p>Appeal from the District Court of the United States for the Southern District of Georgia; Beverly D. Evans, Judge.</p> <p>Action by Mary E. Greer Conklin against the Augusta Chronicle Publishing Company and others, finally prosecuted against the named defendant alone. From an adverse judgment, plaintiff appeals.</p>

Bean, Judge. Criminal prosecution by the United States against John Basich. Judgment of conviction, and defendant brings error. The indictment in this case contains three counts, upon the first and second of which a verdict of guilty was returned.

<p>Petition to Revise Order of the District Court of the United States for the Eastern District of Michigan; Arthur J. Tuttle, Judge.</p> <p>In the matter of Edward Shuman, bankrupt. On petition by bankrupt to revise order of District Court.</p>

<p>In Error to the District Court of the United States for the Western. Division of the Northern District of Ohio; John M. Killits, Judge.</p> <p>Criminal prosecution by the United States against Samuel Morenkow. Judgment of conviction, and defendant brings error.</p>

<p>Courts &wkey;!40s> (3) —Order denying ap^ication to be afinattecS to citkensMp not appealable to Circuit Court o£ Appeals.</p> <p>An order denying an application to be admitted to citizenship pursuant to Act June 29, 1906, as amended (Comp. St. § 4351 et seq.), is not a denial or adjudication of any right on the part of the applicant, and the Circuit Court of Appeals has no jurisdiction of an appeal therefrom, there being no case involved.</p>

In Equity. Suit by Hans Karluf Hanssen against the Pusey & Jones Company, for appointment of a receiver for defendant. Receivers were appointed ex parte. On rule to show cause why the receivership should not be continued, during pendency of the cause.

<p>In Equity. Suit by the Marblehead I,and Company against the County of Los Angeles and others.</p>

<p>1. Courts <&wkey;'3?S — 'Local laws govern limitations.</p> <p>Subject-matter of a suit in a federal court being a Michigan contract, it is governed by the statutes of limitation of that state.</p> <p>2. Llmitafiom of actions <&wkey;39(2), 46 (6) —Causo of action for balance of royalty due for each year hold to aeran® after end thereof; tem-year statute applicable.</p> <p>Where royalties were due under a Michigan contract under seal “within a reasonable time after defendant's monthly report showed that the aggregate oí solder savings payments were less than the annual minimum,” right of action to recover each year’s balance of minimum royalty accrued after the 1st of January of the following year, and action would not be barfed by limitations until ten years after such day under Comp. Laws Mich. 1837, § 9734, How. Ann. St. Mich. § 14141, notwithstanding Ccmp. Laws Mich. 1915, §§ 12323, 12350, in view of section 12319, providing that all actions shall be governed in respect io limitations according to the law under which the right accrued.</p> <p>8. Limitation of ajáioiss <&wkey;4 (2) — Statute absolutely barring right t© bring action imvaiid.</p> <p>A legislative enactment which, by shortening period of statute of limitations, would absolutely deprive a person having a right of action from bringing it, would be unconstitutional.</p> <p>4. Election of remedies <&wkey;M — •Assmipsit for royalties barred by UmátaUons as to items held not t® right to sue In debt.</p> <p>The bringing of an action in assumpsit to" recover royalties due in a number of consecutive years, subsequently determined to be unavailable as to royalties due for certain years by reason of statute of limitations, was not such an election of remedies so as to prevent the bringing of another action in debt on contract under seal to recover for such years, which was not barred by limita!ions.</p> <p>5-, JuifesKsmt <&wkey;59®(4) — Judgffiseití Im assumpsit held not res judicata so subsequent action to recover roya-Mies for certain years.</p> <p>Judgment in an action in assumpsit for royalties due for a number of consecutive years, which action was unavailable as to certain years by reason of the statute of limitations, was not res judicata in a subsequent action in debt under the contract, which was under seal, to recover the royalty for such years; first action presenting no question nor issue concerning the nature or extent of the right of the plaintiff to recover for breach of a contract under seal.</p> <p>Judgment —.Lulsment on one cause of actio» not res judicata upon different cause of action.</p> <p>A judgment on one cause of action is not res judicata upon a different cause of action in another suit between the same parties, where the questions involved and determined in the latter suit were not determined nor involved in the former.</p>

<p>1. Bankruptcy <^339 — Payment Involved where claim is tiled in bankruptcy court.</p> <p>One presenting a claim in the bankruptcy court for payment necessarily asks the court to adjudicate it, which involves the question of validity and payment, and trustee in bankruptcy may set up payment, notwithstanding claimant claims to have in the records, offered in its support, conclusive evidence of its validity and amount.</p> <p>2. Pledges >3^38 (i>) —Pledgee, selling property, must comply strictly with terms of contract.</p> <p>A pledgee of securities, in soiling the same, must comply strictly with the terms of notes which constitute the contract under which the pledge is sold, because the pledgee is a trustee of the property pledged, first for himself to the extent of his claim, and for the pledgor for the remainder, if any.</p> <p>8. Pledges —Local laws govern.</p> <p>The law governing sale of pledges is local, and the law of the state where a pledge is given and sold applies.</p> <p>4. Pledges €=>56(6) — Authority ©f pledgee to become purcha-ser to be m plain terms.</p> <p>Authority , of pledgee to become the purchaser of the pledge at a sale thereof must be given in very plain terms in Pennsylvania.</p> <p>5. Pledges <S=>58 (5) — Public sale contemplates eompetetive bitMiiig.</p> <p>A public sale of a pledge contemplates competitive bidding, and a sale of a pledge in the office of pledgee’s attorney, where there was only present the attorney, pledgee, and a third person, who did not desire to bid, was not 'a public sale.</p> <p>Pledges @=>56(1) « — Pledgee cannot sacrifice property to injury of credit-ore of pledgor.</p> <p>Pledgee, selling property, must exercise good faith, taking no undue advantage of his trusteeship, to Ms own benefit and the injury of creditors of the pledgor.</p> <p>7. Judgment <@=516 — Against bankrupt could be attacked collaterally by creditors defrauded thereby.</p> <p>A collusive judgment, obtained against bankrupt before proceedings in bankruptcy were begun, may be attacked collaterally by judgment or execution creditors defrauded thereby.</p> <p>8. Bankruptcy <@=5339 — Judgment may be collaterally attacked by trustee in bankruptcy.</p> <p>Where judgment was obtained against bankrupt before bankruptcy proceedings on mortgage foreclosure, and the land was sold by trustee in bankruptcy, and mortgagee filed claim for unpaid portion of judgment, which he claimed constituted a lien on the proceeds in the hands of the trustee, the trustee, as a defense, could claim that such judgment had been paid, in that the mortgagee had sacrificed securities held by him, and had purchased them at an illegal sale for a nominal amount, and that to allow him a lien on the funds in the hands of the trustee would amount to payment twice of his debt.</p>

In Admiralty. Libel by the Atlantic Fruit Company against the Red Cross Line. On exceptions to the defense that the charter required appellant first to resort to arbitration.

<p>Sales <S=>83 — Sote feaW t© have DgM to suhsttlote vessefl mote ©Gmimst for delivery oí sugar. . ..</p> <p>Under a contract for sale of sugar by weight and quality, r,o be shipped from Java within a specified period by “steamer or steamers” to Philadelphia, “names of such steamers lo be declared later,” the sellar helé to have the right to substitute another steamer for one provisionally declared, where the substituted vessel sailed within the time specified.</p>

Bill by the Potomac Electric Power Company, and cross-bill by the Washington. Railway & Electric Company, against the Public Utilities Commission of the District of Columbia and others, to review the findings of the Commission as to the value of the property o£ the plaintiff actually used for the convenience of the public. From a decree dismissing the bill and the cross-bill, the plaintiff and cross-complainant appealed;

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Action by Emma G. Callahan, as administratrix of the estate of Hugh R. Callahan, against the Washington Terminal Company. Judgment for the plaintiff, and defendant appeals.</p>

<p>In Error to the District Court of the United States for the Middle District of Alabama ; Henry D. Clayton, Judge.</p> <p>Action at law by M. J. Newberry against the Central of Georgia Railway Company. Judgment for defendant, and plaintiff brings error.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Kentucky; Andrew M. J. Cochran, Judge-</p> <p>Suit in equity by the Haley Coal Company against H. H. Combs and others. Decree for complainant, and defendant Combs appeals.</p>

<p>In Error to the District Court of the United States for the Western District of Oklahoma; John H. Cotteral, Judge.</p> <p>Criminal prosecution by the United States against Isaac Trope. Judgment of conviction, and defendant brings error.</p>

<p>1. Patents <S=x>lG5 — Claims aro measure of right to relief.</p> <p>The claim of a patent is the measure of the patentee’s right to relief.</p> <p>2. Patents <®=r»16‘í (3) — (Claims to ho omMI to ligM of qndScsttn.</p> <p>The claims of a patent are to bo construed in the light of the specification, and general language in a claim which points to an element or device more fully described in the specification is limited to such an element or device as is there described.</p> <p>3. Patents <gs»l®5 — Patent is ¿Ksdstoies.* as tí» asiyicMng stotwar and mat daiin;.!.</p> <p>A patent is a complete and legal notice to every one that he may freely use any combinations or improvements therein shown which are not clearly pointed out and distinctly claimed as the patentee’s discovery or invention.</p> <p>4. Patents (2) — -Claims narrowed 8m Patent ©ffike cannot ib® ©xpamdksd to cover wiiat was rejected!.</p> <p>Wliero claims in an application have been narrowed by amendment to-meet requirements of the patent office, the patentee cannot insist on a construction of the claims allowed which would cover what was rejected.</p> <p>5. Patents <§^>338 — 1,153,977, for booi-tep, Md not infringed.</p> <p>The Tweedie patent, No. 1,153,977, for a boot-top, as limited by the prior art and amendment of claims in the Patent Office, held not infringed.</p>

Suit in equity by the Piston Ring Company against the Burd High Compression Ring Company and the liberty Foundries Company. Decree for defendants, and complainant appeals.

<p>Appeal from the District Court of the United States for the Southern District of Georgia; Beverly D. Evans, Judge.</p> <p>Action by the American National Bank of Macon against the Commercial National Bank of Macon and others. From a decree granting a petition to make certain shareholders of a third corporation parties, L. O. Benton and others, as shareholders, appeal.</p>

<p>1. Banks and banking <&wkey;250 (5) — Evidence held to show bank a creditor of another bank entitled to'enforce stockholders5 liability.</p> <p>Evidence held to show that an agreement by which one national bank took over the assets of another for purpose of liquidation constituted a loan and not a purchase of the assets by the bank receiving them, and that consequently it was a creditor entitled to enforce the liability of the shareholders of the liquidating hank.</p> <p>2. Appeal and error <&wkey;323 (2)— Shareholders’ liability being several, any may appeal without joining others.</p> <p>In a suit against a bank and shareholders to enforce a debt and shareholders’ liability, defendants’ liability being several and not joint, decree against them may be appealed from by one or more without joining others.</p>

Suit in equity by the Nye Tool & Machine Works against the Crown Die & Tool Company. Decree for defendant, and complainant appeals. Reversed. This is an appeal from a decree dismissing on appellee’s motion appellant’s bill for alleged infringement of patent No. 1,033,142, July 23, 1912, to Reed Manufacturing Company, assignee oí: the inventors Wright and Howard, for a machine for forming screw thread-cutting devices.

<p>Appeal from the District Court of the United States for the Western District of Missouri; Arba S. Van Valkenburgh, Judge.</p> <p>Suit in equity by the Electro Bleaching Gas Company against William, G. Miller and others. 'Decree for complainant, and defendants appeal.</p>

<p>Appeal from the District Court of the United States for the First Division of the Northern District of California; Maurice 1\ Dooling, Judge.</p> <p>Libel in admiralty by Adolph Johanson against the Brookings Commercial Company, claimant of the American steam schooner, Frank D. Stout. Decree for claimant, and libelant appeals.</p>

Youmans, Judge. Suit by W. B. Tucker against G. W. Canfield and others, to have defendants held to be trustees for the benefit of plaintiff of an oil and gas lease. From a decree dismissing the bill, plaintiff appeals. The plaintiff below brought this suit seeking to have the defendants Can-field held to be trustees for his benefit of an oil and gas lease, which had been executed to the Canfields as lessees.

Evans, Judge. Suit in equity by the Banco Mercantil Americano de Cuba against the Taggart Coal • Company and others. From an order dismissing the bill and transferring the cause to the law side of the court, complainant appeals.

<p>Bankruptcy <&wkey;409 (2) — Refusal of discharge proper where books of corporation controlled by bankrupt not produced.</p> <p>In a bankruptcy proceeding, where the evidence disclosed that the bankrupt previously had been practically the sole owner of a corporation which had transferred to its successor all its property, and that the operations of such former corporation were of such magnitude that they must have been entered on the books and evidenced by various papers which the debtor had destroyed or failed to produce, hold, that a discharge was properly refused, the statute not being confined to the books of the bankrupt, but including destruction or concealment of books of account or records of the company, from which the debtor’s financial condition might be ascertained.</p>

<p>1. Master and servant <&wkey;129(6) — Defective automatic couplers held "proximate cause” of injury to brahman coupling by hand.</p> <p>Where a bralteman was injured while between cars making a coupling because the automatic coupler after three trials failed to work, the defective coupler held the “proximate cause” of the injury within the Safety Appliance Act (Comp. St. §§ 8605-8612).</p> <p>[Ed. Noie. — For other definitions, see Words and Phrases, First and Second Series, Proximate Cause.]</p> <p>2. Master and servant <&wkey;lll(Dá) — Safety Appliance Act applicable to cars om curve.</p> <p>The fact that cam were on a slight curve when a brakeman was injured in making a hand coupling because the automatic coupler failed to work held not to render Safety Appliance Act (Comp. St. §§ 8605-8632) inapplicable.</p> <p>3. Appeal and error <&wkey;216(l), 263(1) — Failure to except to charge or to request an Instruction waiver of error.</p> <p>A party cannot assign error on the charge given whore he did not except to it nor request an instruction on the issue.</p>

<p>In Error to the District Court of the United States for the Northern District of Ohio; John M. Killits, Judge.</p> <p>Criminal prosecution by the United States against William J. Gray. Judgment of conviction, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the District of New Jersey; Charles E. Eynch, Judge.</p> <p>Joseph Schwartz was convicted of manufacturing intoxicating liquor in violation of the National Prohibition Act, and brings error.</p>

Appeals from the District Court of the United States for the Southern District of Georgia; Beverly D. Evans, Judge. Suit in admiralty for collision by the Coastwise Transportation Company, owner of the steamship Hampden, against the steamship Anversoise, the Société Anonyme Anversoise, claimant, with cross suit. Decree in each case in favor of the Hampden, and claimant of the Anversoise appeals.

<p>Carriers <§=>160 — Action for short delivery held barred by limitation in bills of lading.</p> <p>An action by the holder of bills of lading for cotton, issued by the Director General of Railroads, for short delivery, held barred by the provision in the bills requiring suits for loss, damage, or delay to be brought within two years and one day after delivery, or, in case of failure to make delivery, within two years and one day after a reasonable time for delivery has elapsed.</p>

<p>At Law. Action by Hammond J. Dugan and another, executors, against Joshua W. Miles, Collector of Internal Revenue for the District of Maryland. On demurrer to the declaration.</p>

<p>In Bankruptcy. In the matter of Rouis A. Abbruzzo, bankrupt. On review of order of referee.</p>

<p>Rib el by the United States of America against one Buick roadster.</p>

<p>Bankruptcy <§=*413 (3) — Objections to discharge must conform to rules of court.</p> <p>Specifications of objection to discharge of a bankrupt, not verified as required by a local rule of the court, nor filed within the time prescribed by such rule, will not be considered.</p>

<p>In Admiralty. Suit for salvage by the Manchester Liners, Limited, owner of steamship Manchester Brigade, against the United States, owner of steamship Davidson County. Decree for libelant.</p>

In Admiralty. Libel by the Compagnie Franco Indochinoise against the steamship Nyanza, her engines, etc., opposed by the Moore & McCormack Company, Inc., owner, with petition by the latter inter-pleading the United States.

Ill Admiralty. Libel by the John B. Harris Company and others against: the steamship Poznan and others. Cause referred to special commissioner. This case comes up upon a great number of libels filed by shippers of cargo upon the S. S. Poznan against the ship in rem and the owner and charterer in personam.

<p>1. Patents @=»328 — 809,582, for vegetable peeling machine, claims 1, 2, 3, and 4, held infringed,.</p> <p>, The Robinson patent, No. 809,582, for a vegetable peeling machine, held for a pioneer invention, and the claims entitled to a broad construction. Claims 1, 2, 3, and 4 held, infringed by a machine having a bowl-shaped disc with raised portions.</p> <p>2. Patents <©=157 (1) — “Flat” used in patent claims broadly construed.</p> <p>The word “flat,” as used in patent claims, held not to be construed as a limitation to a literally plane, surf ace, where not required for any functional purpose and where a variance would not affect the operation of the machine.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Flat.]</p> <p>3. Judgment <©=527 — When opinion may be read to ascertain issues determined.</p> <p>Where a decree dismisses a bill in general terms, without setting forth the ground of such dismissal, the opinion of the court may be referred to in order to determine what issues were decided.</p> <p>4. Patents @=>327 — Prior decree held not to render construction of patent daims res judicata.</p> <p>The question of a limitation of patent claims held not res judicata because of an opinion expressed by the court as to such limitation in a prior suit between the parties, where the issues and the alleged infringing device'were not the same as in a later suit, and where such opinion was not determinative of the suit.</p> <p>5. Patents @=’289 — Patentee held not estopped from maintaining suit for infringement.</p> <p>Defendant for ten years made and openly advertised and sold machines which infringed complainant’s patent, but complainant delayed bringing suit for several years after it had knowledge of such facts, presumably because of a construction of its patent by one Circuit Court of Appeals under which defendant did not infringe. Seld, that complainant, owning a pioneer patent, and which was the pioneer in the manufacture of practical machines in the art, was not estopped to maintain a suit to enjoin further infringement by defendant, but that it was not entitled to recover damages or profits for past infringement.</p>

<p>In ffquity. Suit by tbe Wilcox & White Company against Prank J. Reiser. On motion for preliminary injunction.</p>

<p>1. Trade-marks and trade-names and unfair competition <§=>45 — Trade-mark cannot tie given validity by classification in Patent OiSce.</p> <p>Validity of a trade-mark cannot depend alone on classification or indexing by the Patent Office, and a valid trade-mark cannot be obtained by two different manufacturers for goods in the same general class, having the same descriptive properties and similar essential characteristics, so that the general public would he misled, though they are placed by the patent office in different classes.</p> <p>2. Trade-marks and trade-names asid unfair competition <§=>71 — Unfair competition by use of name on articles of similar genera! characteristics.</p> <p>The registration and use by complainant for years of the word “Wear-ever” as a trade-mark for aluminum articles, though stated to be particularly intended for use on cooking utensils, hold to preclude the obtaining of a valid trade-mark in the word as applied to tin wash boilers, which are sold in the same stores and alongside of complainant’s aluminum ware, and the use of such name by defendant stamped on the paper covering of its tin boilers, together with a picture resembling one used by complainant in its advertising, held, to constitute unfair competition.</p>

<p>Railroads New, vol. 6A Key-No. Series — Director General not suable for malicious prosecution.</p> <p>An action for malicious prosecution cannot be maintained against the Director General of Railroads, as such, for an act of one of the employees of a railroad system under his control.</p>

<p>At Raw. Action by the Drexel Furniture Company against J. W. Bailey, individually and as Collector of Internal Revenue. Judgment for plaintiff.</p> <p>This suit is brought by the plaintiff, a manufacturing corporation of this district, against the defendant, a former collector of internal revenue for the district of North Carolina, to recover a tax assessed against it under the provisions of the Revenue Act of February, 1919 (Comp. St. Ann. Supp. 1919, §§ 6336%a-6336%h), imposing or seeking to impose a l'O per cent, tax additional to all other taxes on the profits arising from the sale or disposition of the products of mines, mills, workshops, factories, or manufacturing establishments which at any time during the year shall have employed or permitted to work children under certain prescribed ages and for periods longer than specified in the act. The assessment, amounting to $6,312.79. was paid under duress and with notice of protest and the purpose to sue to recover it back, upon the ground that the law under which it was assessed and collected is unconstitutional. The conditions required t)y law with respect to blinking suit, such as filing claim for refund, etc., were duly complied with by ilie plaintiff before the suit was brought. An amended complaint was filed by permission of the court, to which wore attached as exhibits the notice of assessment and other papers relating to the payment of the tax under protest. claim for refund, etc. A demurrer was filed by the defendant, and upon consideration of the case the court, being of opinion that the tax was illegally assessed and collected because the law under which this was done is unconstitutional, overruled the demurrer and gave judgment in favor of the plaiuliff for the amount of the tax paid.</p>

Interference proceedings between John C. Wahl and Walter Wright. From a decision of the Commissioner of Patents awarding priority as to all counts in issue to Wright, Wahl appeals as to those counts found to read upon his machine. Reversed.

Proceedings by Louis Brownlow and others, as Commissioners of the District of Columbia, against Amanda Beyer to condemn land for public use. From an order entered on motion of the Commissioners of the District directing the impaneling of a jury to assess the damages, the defendant appeals.

Suit by Sherman Kellogg against Fred A. Winchell and others. From a decree dismissing the bill for failure to state a cause of action, plaintiff appeals.

Dietrich, Judge. Suit in equity by the Layne & Bowler Corporation against the Western Well Works, Inc., and others. Decree for complainant, and defendants appeal. This suit was brought for infringement of claims 9, 13, and 20 of letters patent No. 821,653, issued May 29, 1906, on an application filed April 28, 1903, to Mahlon E. Layne for “well mechanism”; ,the plaintiff and appellee being the assignee of said Layne.

<p>Courts <&wkey;405 (5) — Appeal, from District Court’s decree dismissing suit for infringement of patent Held properly taken to Circuit Court; of Appeals.</p> <p>Where suit to enjoin infringement of patent was brought in district of federal court in which it was admitted that the defendant had a regular and established place of business, and in which defendant had concededly sold the goods claimed to infringe the plaintiff’s patent, appeal from decree of dismissal “for want of jurisdiction” on the ground that the goods sold by defendant did not in fact infringe plaintiff’s patent, and that therefore there was no infringement in the district, was properly taken to the Circuit Court of Appeals instead of to the Supreme Court, since the question decided by the District Court was not one going to its jurisdiction under Jud. Code, § 48 (Comp. St. § 1030), but was a question depending for its determination upon general principles applicable alike in any jurisdiction.</p>

<p>1. Boundaries &wkey;>3(4) — Calls for liver as natural boundary prevail over calls for courses and ¿¡stances.</p> <p>In the absence of mistake or fraud, calls for courses and distances in a survey yield to calls for a. river as a natural boundary.</p> <p>2. Boundaries <&wkey;3 (4) —Survey «ailing for river as boundary sustained.</p> <p>Title under a survey calling for a river as one of the boundaries 7held to prevail over a title derived under a later survey purporting to be of a tract lying between the earlier survey and the river.</p>

<p>In Error to the District Court of the United States for the Northern District of Texas; Robert T. Ervin, Judge.</p> <p>Action at law by R. M. Waggoner against the Southern Oil Corporation. Judgment for plaintiff and defendant brings error.</p>

<p>In Error to the District Court of the United States, for the Western Division of the Southern District of Ohio; John W. Peck, Judge.</p> <p>Action at law by the Lalance & Grosjean Manufacturing Company against Neil Macneale and others. Judgment for plaintiff, and defendants bring error.</p> <p>The plaintiffs in error were directors of the Toledo Electric Welder Company, an Ohio corporation, at the time that corporation was dissolved by the voluntary surrender of its charter and the distribution of its assets, January 9, 1917, and as such directors became trustees for creditors and stockholders of the dissolved corporatipn to the extent of the assets coming into their hands.</p> <p>On the 4th day of March, 1915, and prior to its dissolution, the Toledo Electric Welder Company sold the Lalance & Grosjean Manufacturing Company, the defendants in error, three spot welding machines of different sizes and specifications. The terms and conditions of each written contract of sale contained among other provisions the following:</p> <p>“The company agrees that it shall, at its own expense, defend any suits that may be instituted by any party against the purchaser for alleged infringement of any electrical or mechanical patents relating to the machinery furnished under this proposal, provided the purchaser shall have made all payments then due therefor and gives to the company immediate notice in writing of the institution of such suits, and permits the company, through its counsel, to defend the same, and gives all needed information, assistance and authority to enable the company to so do, and thereupon in case of final award of damages in such suit the company will pay such award.”</p> <p>On June 12, 1917, the American Electric Welding Company and me Thomson Electric Welding Company filed in the District Court of the United States for the District of Massachusetts a bill of complaint against the Lalance & Grosjean Manufacturing Company for the infringement of letters patent No. 1,046,066, known as the Harmatta patent, alleging that the defendants in that suit had sold electrically welded articles covered by said Harmatta letters patent and embodying the invention therein recited and included within the aforesaid field of articles under said patent exclusively granted by mesne assignment to the American Electric Welding Company, and praying for an injunction and an accounting of profits.</p> <p>The Lalance & Grosjean Manufacturing Company filed a motion to quash the service of process and dismiss the bill of complaint for the reasons that it had no regular and established place of business within the district of Massachusetts; that it did not appear that its acts of infringement had been in said district; that service had not been made on any agent of the defendant conducting business for it in said district; and that the service of the order to show cause against a preliminary injunction was insufficient. Affidavits in support of this motion were also filed.</p> <p>On tlie litli day of August, 1917, tliis motion came on to be heard with plaintiff’s motion for a preliminary injunction, which hearing resulted in an order and decree by that court sustaining the motion of the defendants to quash the service and dismissing tlie bill of complaint for want of jurisdiction of the defendant.</p> <p>This defendant in error expended in defending against that suit in the District Court of Massachusetts the sum of $6,572 in costs and expenses and payment of counsel fees.</p> <p>On the 7th day of October, 1920, the defendant in error, Lalance & Grosjean Manufacturing Company, filed its petition in the United' States District Court for the Southern District of Ohio, Western Division, against these plaintiffs in error, to recover, among other things, the money it had expended as above slated, in defending itself against the infringement suit brought against it by the American Electric Welding Company and the Thomson Electric Welding Company in the District Court of the District of Massachusetts. It also sought to recover in this action money expended by it in defense of an action brought by the American Welding Company against the Jordan Marsh Company of Boston, Mass., one of its customers, for a like infringement; but that District Court held that it was not entitled, under the terms and conditions of its written contract, to recover the expense of that suit, and the defendant in error has not prosecuted a cross-petition to reverse that juagment.</p> <p>In addition to the facts above stated, the petition of the Lalance & Grosjean Manufacturing Company further averred that it had made all payments due under these contracts; that it had given immediate notice in writing of the institution of said suit to the Toledo Electric Welder Company, and would permit it to defend the same and would give it all needed information, assistance, and authority to enable that company to do so; and that thereafter it gave to each of the defendants like notice, but that the Toledo Electric Welder Company and the defendants failed, neglected, and refused to defend said suit.</p> <p>The plaintiffs in error filed an answer to this petition admitting the corporate capacity of the plaintiff and the Toledo Electric Welder Company; tlie dissolution of the Toledo Electric Welder Company on February 7, 1917; that these defendants and Frank Warren, now deceased, were directors of the Toledo Electric Welder Company acting last before the time of dissolution of said company; that assets of said company in excess of $30,000 came into the hands of said defendants and said Frank Warren as such directors; that in the year 1915 the Toledo Electric Welder Company sold certain electric spot welding machines to plaintiff and that the plaintiff had paid in full therefor; that plaintiff advised these defendants and attempted to advise the Toledo Electric Welder Company, after its dissolution, of the institution of the suit by the American Electric Welding Company and the Thomson Electric Welding Company against the plaintiff in the District Court of the United States and that plaintiff advised these answering defendants and attempted to advise the dissolved corporation that it would permit them through their counsel to defend said suit and would give all needed assistance and authority to enable it to do so, and for want of information sufficient therefor to base belief, denied each and every other allegation of the petition not expressly admitted. Upon the issue so joined the jury returned a verdict for the plaintiff for the sum of $6,572. A motion for new trial was overruled and judgment was entered upon the verdict.</p> <p>The plaintiffs in error are now asking a reversal of this judgment for the reasons:</p> <p>(1) The Ilarmatta patent was not one relating to tlie machinery furnished.</p> <p>(2) The machinery furnished was adapted to uses within the field of electric welding outside of the limited field of electric welding known as spot welding.</p> <p>(3) The I-Iarmatta patent did not cover the whole field of electrical spot welding, but only single processes within that field. The machines were adapted to do electric spot welding not covered by Harmatta patent.</p>

Peck, Judge. Criminal prosecution by the United States against George Yaffee. Judgment of conviction, and defendant brings error.

<p>1. Sales <&wkey;53(l) — Whether defendant ordered shipments of coal as purchaser or as agent for seller held question for jury. , \</p> <p>Whether in a sale of 100 cars of coal, delivered on defendant’s written order to a third party, defendant was the purchaser and liable for the price or acted as agent for the seller, the price stated in the order being “less 10c commission to us,” field a question for the jury in view of the fact that, as requested in the order, the invoices were sent to defendant, and the coal charged to its account, and that it sent its check in payment for the first month’s shipments, on which, however, it stopped payment on the bankruptcy of the company to which the coal was delivered.</p> <p>2. Evidence <&wkey;459(2) — Evidence held admissible on question of construction of contract.</p> <p>On an issue as to whether defendant was the purchaser or acted as agent for the seller in a sale of coal delivered to a third party, a written order for the coal given by such third party to defendant, which was. stamped as received and retained by defendant, held competent evidence.</p> <p>3. Subrogation <&wkey;'i(l), 41(4) — Guarantor paying debt of another may maintain action at law thereon.</p> <p>Where plaintiff for a valuable consideration guaranteed the accounts of a coal company, and under such guaranty paid an account against defendant, it was subrogated to the right of the company to maintain an action at law to recover the account, which action it might bring in its own name, without joining the original creditor, where under the laws of the state an action is required to be brought in the name of the real party-in interest.</p> <p>4. Trial <&wkey;59(2) — Order of proof is within discretion of court.</p> <p>The order of proof is within the judicial discretion of the trial judge.</p>

<p>1. Appeal anti error <©=>99 ? (3) — Verdict directed <ra request of both parties net it viewable if sustained by any evidence.</p> <p>Where both parties request direction of verdict, if sustained by any evidence the judgment will be affirmed unless error of law is shown.</p> <p>3. Sales €=>288(4) — -Failure to give notice of objection to machinery within, time required by contract held acceptance.</p> <p>Under a contract to furnish and install ice-making machinery, requiring plaintiff to give written notice when the plant was ready to charge, a provision that unless defendaut gave written notice within 30 days thereafter, specifying any defect or failure to operate it, defendant should be deemed to have accepted the plant as complying with the contract, held valid and enforceable, and a failure to give such notice within 30 (lays after plaintiff’s notice of completion held a complete acceptance, and to preclude defendant from claiming breach of a warranty that the plant would produce a stated quantity of ice per ton of coal consumed.</p> <p>3. Courts <§=»347 — Allowance of amendments largely discretionary.</p> <p>The allowance of amendments in the federal courts is governed by Rev. St. § 954 (Comp. St. § 1591), and is largely a matter of discretion, which ordinarily will not be controlled.</p>

<p>In Error to the District Court of the United States for the District oí Utah; Tillman-D. Johnson, Judge.</p> <p>Action by Domenico Bianco, as administrator, etc., against the Bing-ham Mines Company. Judgment for the plaintiff, and defendant brings error.</p>

Peck, Judge. Suit in equity by the Portsmouth Refractories Company against the Harbison-Walker Refractories Company. Decree for complainant, and defendant appeals. On the 11th day of May, 1907, the York Portland Cement Company, a corporation, was the owner of a tract of land containing 720 acres in Washington township, Lawrence county, Ohio, and was then and there engaged in stripping operations on this land for limestone, which it used in the manufacture of cement.

<p>Appeal from the District Court of the United States for the District of Nebraska; Joseph W. Woodrough, Judge.</p> <p>Suit in equity by the Rouden Machinery Company against the Hudson Manufacturing Company, impleaded as the Hudson & Thurber Company. Decree for complainant, and defendant appeals.</p>

Killits, Judge. Suit in equity by the Prest-O-Uite Company, Inc., against the Auto Acetylene Dight Company and others. On appeal by defendants from an order adjudging a contempt.

<p>Appeal from the District Court of the United States for the Northern District of Ohio; John M. Killits, Judge.</p> <p>Suit in equity by the Prest-O-Lhe Company, Inc., against the Auto Acetylene Light Company and Llewellyn Young. Decree for complainant, and defendants appeal.</p>

<p>Appeal from the District Court of the United States for the Western District of Kentucky; Walter Evans, Judge.</p> <p>Suit in equity by the Small Grain Distilling & Drug Company against Elwood Hamilton, Collector of Internal Revenue, and another. Decree for defendants, and complainant appeals.</p>

<p>1. Husband and wife <&wkey;>4!)M (6) — -Gift to wife not invalidated by subsequent joint use of property.</p> <p>A gift by a husband to his wife where there is evidence of delivery is not rendered ineffective by the fact that during the marriage the property was jointly used.</p> <p>%. Appeal and error &wkey;>304(l) — Admission of evidence not objected to not ground of reversal.</p> <p>A judgment for conversion is not subject to reversal because some of the evidence as to value was subject to an objection which was not made.</p>

<p>In Error to the District Court of the United States for the Northern District of Texas; Robert T. Ervin, Judge.</p> <p>Action at law by Mrs! Annie Yoes and others against the Pierce Oil Corporation. Judgment Jor plaintiffs, and defendant brings error.</p>

Orr, Judge. Suit, for infringement of patent by Jacques Rousso against Reuben E. Barber and another. From an order denying a motion for preliminary injunction, complainant appeals.

<p>Bankruptcy @=>217(1) — Court held without power to enjoin foreclosure suit in state court.</p> <p>A federal court held without authority at suit of a trustee in bankruptcy to enjoin prosecution in a state court to foreclose a mortgage given by third parties on real estate afterward purchased by bankrupts subject to the mortgage, where, while the trustee was made a party, no relief was asked against him.</p>

<p>Shipping <g=»141 (1) — Failure to deliver cargo held due to restraint of princes.</p> <p>A steamship bound for Copenhagen, with contraband cargo on board, was seized and taken to a British port, where the contraband was found, but was allowed to proceed to deliver her passengers and other cargo on an agreement by the agent of the steamship company to return the contraband cargo to England. On arrival at Copenhagen, it refused to deliver such cargo to the consignee and returned it to England on another vessel, where it was condemned by the prize court. Held, that, in so carrying such cargo from and back to a British port, the company acted as agent of the British government, which did not lose its possession, and that the failure to make delivery to the consignee was due to restraint of princes within the exception of the bills of lading.</p>

<p>1. Highways €=5113 (4) —-Assignments of moneys due contractor on road held properly filed.</p> <p>Assignments of moneys due a road contractor from a state and county, filed with the state commissioner of highways, as the head of the department haring charge of the construction of such improvement, and the state comptroller, as the officer charged with the custody and disbursement of the funds applicable to the contract therefor, and with the county treasurer, were filed as required by Dion Law N. Y. § Hi, though not filed with the state treasurer, though the latter should file such assignments when requested.</p> <p>2. Bankruptcy €=393 (3) — Evidence iieid insufficient to show assignments of moneys due bankrupt made to defraud creditors.</p> <p>In a suit by a trustee in bankruptcy to set aside assignments of moneys due the bankrupt from a state and county on road contracts, evidence held insufficient to show a mutual plan of the bankrupt and defendant assignee to defraud creditors.</p> <p>3. Bankruptcy €=393(3)- — Evidence held to show bill of sale security for loan, not absolute transfer.</p> <p>In a suit against a national bank by a trustee in bankruptcy to set aside a bill of sale of road machinery of the bankrupt, the conduct of the parties, together with the great disparity between the value of the property and the consideration therefor and the fact the transferee was a national bank not authorized to engage in business other than banking, though it might take property in good faith in payment of banking' debts previously contracted, held to show that the bill was given as security for money loaned and was not intended as an absolute transfer.</p> <p>4. Bankruptcy <$=302(4) — Bill of sale not set aside because not filed in town . clerk’s office or followed-by early transfer of possession.</p> <p>A court, on petition of a trustee in bankruptcy, cannot cancel a bill of sale of road machinery of tlie bankrupt on the ground it was not filed in the proper town clerk’s office or followed by such early transfer of possession as the state statute requires, in the absence of a prayer for such relief and allegations that the instrument was intended to be a chattel mortgage.</p> <p>5. Bankruptcy <$=3(13(3) — Evidence bald insufficient to show bill of sale executed to defraud creditors.</p> <p>In a suit by a trustee in bankruptcy to set aside a bill of sale of road machinery of the bankrupt and for an accounting for the proceeds of the subsequent rental and sale thereof, evidence held insufficient, even though the instrument were intended as an absolute transfer, to show an intent to defraud creditors.</p>

<p>At Law. Action by P. N. Gray & Co., Inc., against Michael N. Cavalliotis, trading as the 2Egean Trading Company. Trial to court. Judgment for plaintiff.</p>

<p>1. Bankruptcy ®=>293(1) — Banlaraptey court has- jurisdiction of any proceeding to recover property of estate taken from its constructive possession.</p> <p>A. court of bankruptcy held to have jurisdiction of an ancillary suit by a trustee, based on the alleged conversion and concealment by bankrupt and the other defendants of assets of the estate, which were in possession of bankrupt at the time of the filing of the petition against him, and thus passed into the constructive possession of the court.</p> <p>2. Bankruptcy <5=»117(2) — All parties to concealment of property by bankrupt are liable to «state.</p> <p>While a bankrupt, between the filing of a petition against him and. adjudication, may maintain suits and may settle the same, any proceeds received by him he holds as trustee for his creditors, and whore he converts or conceals sums received by him in settlement of suits, both he and any party making payment with reasonable ground to believe that he intended such conversion are liable to the estate therefor.</p> <p>3. New trial —Verdict, not sustained by evidence showing liability of all defendants, set aside.</p> <p>Tn an action against a number of defendants, whose liability depended on different facts, a directed verdict for plaintiff held not sustained by the evidence as to some of the defendants, which necessitated the granting of a new trial.</p>

<p>1. Game <§=»7 — Treaty regulating killing of birds deals only with migratory birds.</p> <p>The treaty with Great Britain regulating the hunting and killing of migratory birds deals only with migratory birds and does not cover others in an effort to protect migratory birds.</p> <p>2. Game <@=>7 — Mourning doves protected by migratory bird treaty, though particular doves do not migrate.</p> <p>The treaty with Great Britain regulating the hunting and killing of migratory birds, and providing that it shall cover birds therein specified including doves and wild pigeons, covers the killing of mourning doves, which are migratory in certain parts of the country, though there may be individuals or families that do not migrate and though they may not be migratory at all in a particular part of the country, as the treaty amounts to an agreement that such doves are migratory.</p> <p>3. Treaties —Migratory bird treaty not beyond treaty-making powers, though there be doubt whether birds included have migrated.</p> <p>The migratory bird treaty with Great Britain does not transgress the limits of the. treaty-making power as applied to mourning doves as to which the evidence raises a doubt as to whether they have migrated or not.</p> <p>4. Game —Migratory character of mourning doves held not a question for the jury.</p> <p>The treaty between the United States and Great Britain for the protection of migratory birds declares that doves are migratory, and where the evidence fails to establish that they, or any distinct variety of them, are clearly nonmigratory, it is established as a matter of law that they are migratory birds within the meaning of such treaty, and in a prosecution for hunting or killing mourning doves in violation of the Migratory Bird Treaty Act of July 3, 1918 (Comp. St. Ann. Supp. 1919, §§ 8837a-8837m), the question whether the mourning doves hunted or killed may have been resident in any particular state cannot be heard by a jury.</p> <p>9. Game <®=»7i — No defense that particular birds of migratory group did not migrate.</p> <p>In a prosecution for unlawfully hunting or killing birds of a species which migrates between the United States and Canada, and which is included within the terms of the treaty between the United States and Great Britain for the protection of migratory birds, it is no defense that the individual bird hunted or killed was not migratory.</p> <p>6. Game <£=>7 — Mourning doves of Georgia are migratory birds.</p> <p>The effect of the treaty between the United States and Great Britain for the protection of migratory birds, ratified by the Senate and backed by the Migratory Bird Treaty Act of July 3, 1918 (Comp. St. Ann. Supp. 1919, §§ 8837a-8837m), and then reinforced by the interpretation of the Secretary of Agriculture, who was the executive officer selected to enforce it, is to say expressly that the mourning doves of Georgia are migratory.</p> <p>Charge to the Jury.</p> <p>7. Game <S=>7 — In prosecution for killing mourning doves, question whether they in fact migrated not in issue.</p> <p>In a prosecution under the act carrying the migratory bird treaty with Great Britain into effect for killing mourning doves during the closed season specified in the act and treaty, the question whether the doves killed actually went out of Georgia or were raised in that state, or whether they came from Canada or anywhere else, is not in issue; the treaty being conclusive that mourning doves are migratory birds.</p> <p>8. Game No conviction for killing migratory birds unless they were mourning doves as charged in indictment.</p> <p>In a prosecution under the act carrying the migratory bird treaty with Great Britain into effect for killing mourning doves within the closed season, defendant cannot be convicted unless the birds killed were mourning doves as charged in the indictment.</p>

<p>1. Collision <2=12(1) — Between vessels at anchor due to faults of both.</p> <p>A collision during a high wind between the steamship West Cherow, light and high out of the water, and the steamship Pendrecht, which was low in the water, both, at anchor in an open roadstead where there was abundant room, held due to faults of both vessels, the primary fault being that of the Pendrecht, which anchored last, in failing to give the West Cherow sufficient berth room, and the West Cherow being in fault for failing to move Tip on her anchor chain or to take other precautions when danger oJ: collision became imminent because, owing to her height above the water, she began to be driven by the wind against the tide and toward tlie other vessel, which was held by the tide.</p> <p>2. Admiralty <§=4 — Court lias jurisdiotiosi of suit iu rein for collision ooeur-ring in Portuguese waters.</p> <p>A court of admiralty of the United States held to have jurisdiction of a suit in rein against a foreign vessel found within its jurisdiction for a collision which occurred in Portuguese waters, but in an open roadstead largely used in world commerce, though the law of Portugal, while recognizing the liability of a vessel to a lien for a maritime tort arising from collision, provides for establishment of such liability primarily by a suit in personam against the owner or master.</p>

At Law. Action by the Walton N. Moore Dry Goods Company, Inc., against the Commercial Industrial Company, Limited. On motion to quash service of summons and dismiss. Motion to quash service of summons and dismiss the action for want of competent service upon defendant, a foreign corporation.

<p>In Equity. Suit by Alfred Springer against Francis P. Garvan, Alien Property Custodian, and another. Decree for complainant.</p>

<p>1. Patents <&wkey;319(1, 3) — Rule for recovery for infringement stated.</p> <p>In equity the rule for recovering for infringement is that where the net profits earned by reason of the infringement do not sufficiently compensate the owner of the patent for its infringement, there may, in a proper case, be awarded damages in addition to the ascertained net profits, and punitive damages may be awarded in the court’s discretion, but, ordinarily, the pecuniary gains arising from sales of an infringing article disclose the usefulness and commercial value of the thing invented, as well as its disadvantages, and may well constitute a guide to the true measure of damages.</p> <p>2. Patents <&wkey;318(3) — Rule of recovery for process infringement stated.</p> <p>In suit for infringement of patent for process for reclaiming rubber from vulcanized rubber waste, defendants would be required to account for profits made from the use of the invention, less the cost of production, such profits being ascertainable on comparison with any other method of obtaining substantially similar results which were either in public use at the time of the infringement or available to defendants.</p> <p>3. Patents <&wkey;318(3) — Patented processes, not available to defendants, not proper standard of comparison to ascertain defendant’s profits.</p> <p>In suit for infringement of patent for a process, patented processes used by other manufacturers, not open to the public nor available to defendants, could not be used as a standard of comparison in ascertaining defendant’s profits from infringement.</p> <p>4. Patents <&wkey;318(3) — Substitute process, not complete prior to date of infringement, not available standard of comparison to ascertain profits.</p> <p>In suit for infringement of patent for a process, a process temporarily adopted by defendants when plaintiff’s process was held infringed by the courts, could not be used as a standard of comparison to ascertain defendants profits from infringement, where it was not shown to have been a completed process prior to the date of the infringement, for an infringer cannot avail himself, to mitigate the damages, of devices developed either by himself or others after the infringement.</p> <p>5. Patents <&wkey;318(3) — Accounting limited to the precise advantage derived.</p> <p>In suit for infringement of a patent for a process, the accounting must be limited to the precise advantage derived, and, if another process is available to an infringer wliich produces substantially tlie same result, but not so efiiciently, then the advantage ordinarily is found in the increase of efficiency.</p> <p>6. Patents <&wkey;318(3) —Increased value oi product dependent on process infringement held profits to be accounted for.</p> <p>In suit for infringement of patent for a process for reclaiming rubber from vulcanized rubber waste, where defendants contended that a large part of their profits from rubber treated by plain tilt’s process were attributable to their special treatment of tlie rubber after devulcanization, by adding compounds to impart greater abrasive resistance and tensile strength to it, and that such treatment was an operation separate from the devuleanizing process, while plaintiff claimed that tlie special treatment was made possible solely by tlie appropriation of its devuleanizing process, and it appeared that upon .devulcanization certain physical properties were imparted to the material, such as plasticity and an ability to absorb compounds, and that it was necessary to the salability of defendants’ article that it should possess such special characteristics, which could only bo acquired by the infringing process without regard to the subsequent addition of compounds, the principle applied that when the commercial value of an. article is due to a patented improvement the owner of tlie patent may recover the total profits derived from its sale.</p> <p>7. Patents <&wkey;318(6) — Deduction from infringement profits of extra payments to officers not allowed.</p> <p>In suit for infringement of patent for a process, payments made to officers of defendant corporations beyond their regular salaries could not be deducted from the profits to be accounted for, it not appearing that defendants received any consideration for such expendituras.</p> <p>8. Patents <&wkey;3I.8(fi) — Deduction from infringement profits of legal and reorganization expenses not allowed.</p> <p>In suit for infringement of patent for a process, amounts paid by defendants to attorneys for conducting the litigation and for reorganization of defendants’ business held not deductible from the profits to be accounted for.</p> <p>Patents <&wkey;318(6) — Apportioning general expenses measurably discretionary.</p> <p>In suit for infringement of patent for process for reclaiming rubber from vulcanized rubber waste, held that there was reasonable fairness in apportioning the general expenses equally between two mills of, de-' fendants, one using the infringing and the other a noninfringing process, under the rule that where the evidence is meager or where the existing circumstances seem to require a reasonable division of the total expenses of conducting a business, the court; will exercise a reasonable discretion.</p> <p>10. Patents <&wkey;318(fi) — Interest on capital invested to be deducted from profits.</p> <p>In suit for infringement of patent for a process, interest on the capital invested would be allowed as a credit to defendants, such invested capital Including, not merely plant investment, but also cash on hand, accounts receivable and bills receivable.</p> <p>11. Patents <&wkey;319(3) — Infringement held not willful and wanton.</p> <p>In suit for infringement of patent for a process, where the validity of the patent was debatable, and one district judge bad held it invalid, held that willful and wanton infringement could not be successfully urged, nor could malicious infringement, even though there was a continuance oi infringement after decision by tlie lower court holding the patent valid and infringed, where, upon affirmance of the decree, the defendants at once ceased using the infringing process.</p> <p>12. Patents <&wkey;312(l) — Defendant infringers have burden of showing separable profits.</p> <p>In suit for infringement of patent for process for reclaiming rubber from vulcanized rubber waste, where- defendants claimed deduction from profits because of gains from skillful services in the business and special treatment involving factory secrets unconnected with the process, defendants had the burden of proving that the gains were attributable to some other things used, by it.</p> <p>13. Patents &wkey;318(5) — Interest allowed from date of decree awarding profits.</p> <p>Where infringement'was not wanton or malicious, interest would be allowed, not from the date- of affirmance of interlocutory decree, but from the date of the decree awarding profits.</p> <p>On Second Supplemental Bill.</p> <p>14. Corporations <&wkey;590(4) — Patents <&wkey;287, 290 — Successor of defendant purchasing its assets and assuming its debts pending accounting for infringement of patent could be joined as defendant.</p> <p>■ In suit for infringement of patent for a process, where it appeared that another company had, while accounting proceeding was pending and with knowledge thereof, bought the assets and assumed the liabilities of a defendant company, plaintiff could, under rule 26 (198 Fed. xxv, 115 O. C. A. xxv)have the successor corporation included as a defendant, by supplemental bill, even though the patent in suit had expired before the successor-company came into existence, for the assets acquired from the predecessor constitute a trust fund for the paymént of the latter’s debts.</p>

<p>1. Corporations <&wkey;590(4) — Patents <&wkey;287 — Pleading <&wkey;8(8) — Successor of defendant pending accounting for infringement of patent liable notwithstanding denial of obligation.</p> <p>Where, pending accounting for patent infringement, a successor company bought the assets and business of a defendant, agreeing to “assume and pay all debts, obligations and liabilities whatsoever” of the selling company, and was joined as defendant in the infringement suit, it was properly made liable by the decree in that suit for the recoverable profits, although it denied in its answer any obligation to pay the judgment recovered against its predecessor, that being a. mere legal conclusion, and though the debt or liability was unliquidated, the language of assumption being sufficiently comprehensive to include plaintiff’s claim, and though it paid a full consideration for the property transferred to it.</p> <p>2. Contracts @=»187(4) — Party assuming grantor’s liabilities may be proceeded against by creditor of grantor.</p> <p>If a grantee has agreed with a grantor to be primarily liable for the grantor’s obligations to a creditor, the creditor is entitled in equity to be substituted in the place of the grantor and to sue the grantee the same as the grantor might have sued him; it being immaterial whether the contract was made and intended for the benefit of the grantor or the creditor.</p>

<p>1. Bankruptcy <$=5288(3) — Referee had jurisdiction in summary proceeding to divest title of trustee under deed of trust where bankrupt in possession.</p> <p>Where a bankrupt who had executed a deed of trust for the benefit of creditors, providing that the trustee might take possession upon nonpayment of a note, was in possession when the petition in bankruptcy was filed, and the trustee in bankruptcy took possession through tenants of the bankrupt, collected rents, and sold 'growing crops, the referee had jurisdiction in a summary proceeding to divest the title of the trustee under the deed of trust.</p> <p>2. Bankruptcy <&wkey;178(3) — Deed of trust granting extension of time and made subject to first mortgage to one creditor held void as evading Bankruptcy Law.</p> <p>Where a deed of trust for the benefit of the grantor’s creditors other than a bank was accompanied by a note for the amount of the creditors’ claims due over 10 months thereafter, and provided that it was in consideration of an extension of time, and that it was subject to a first mortgage given to the bank, thereby compelling creditors to grant an extension of time during which the mortgage to the bank would become immune from attack, it was void as given to evade the provisions of the Bankruptcy Daw.</p> <p>3. Assignments for benefit of creditors <&wkey;34 — Deed accompanied by note reciting extension- of túne, and subject to mortgage, held void.</p> <p>A deed of trust for the benefit of creditors other than a bank, accompanied by a note due in about 10 months, and providing that it was in consideration of an extension of time, and was made subject to a first mortgage given to the bank, was void as hindering and delaying creditors under the statutes of Alabama, and particularly under Code 1907, § 4294, declaring every such deed of trust fraudulent and void if creditors are required to do any act impairing existing rights before participating .therein.</p>

<p>Appeal from tlie Supreme Court of the District of Columbia.</p> <p>landlord and tenant proceeding by F. F. Davis and another against Rose C. Taylor and others. From a judgment of the Supreme Court on appeal from the municipal court, overruling landlords’ motion for judgment, the landlords appeal.</p>

<p>Appeal from the Supreme Court oí the District of Columbia.</p> <p>Petition for mandamus by the United States, on the relation of Herbert C. Harden, against Albert B. Pall, as Secretary of the Interior. Prom a judgment dismissing the petition, relator appeals.</p>

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Suit by William S. Phillips against Charles D. Sager and another. From an order refusing an injunction pendente lite to restrain the sale of certain real estate under a deed of trust, plaintiff appeals.</p>

<p>1. Homicide &wkey;300(3) — Charge on self-defense held correct.</p> <p>A charge that, if defendant’s situation was such that he honestly believed, and had reasonable grounds to believe, that he could save himself from serious bodily harm only by killing deceased, he had the right to kill him, is a correct and sufficient charge on the, right of self-defense, since an honest belief implies reasonable grounds for the existence of such belief.</p> <p>2. Criminal law <&wkey;829(5) — Requested charge on defense of habitation held covered by charge on self-defense. -</p> <p>A requested charge that defendant had the right to use necessary force to eject deceased from his house, and, if, in ordering deceased from his house, the deceased approached the defendant so as to give reasonable grounds to believe defendant was in danger, defendant had the right to defend himself, did no more than raise the question of self-defense, where the defendant himself testified that the immediate cause of the shooting was his fear of bodily harm, so that the request was covered by the court’s charge on self-defense.</p> <p>3. Criminal law &wkey;>767 — Court need not apply law to the facts.</p> <p>In a prosecution for homicide, where court had correctly defined the different degrees of murder and manslaughter,, it was unnecessary for him to apply the law to the evidence, since that was the province of counsel, and the court’s attempt to do so might have invaded the province of the jury.</p> <p>4. Homicide <&wkey;302 — Request to charge on right to have pistol held not required by facts.</p> <p>In a prosecution for homicide, which occurred in defendant’s own home, where defendant’s right to have a pistol in the house was not in any way questioned, and the issue. was whether the killing was justifiable, requests for charges that defendant had a right to have the pistol in his house, and, if necessary, to use it, were properly denied.</p>

Appeal, from the Supreme Court of the District of Columbia. Action by the Standard Steel Car Company, a corporation, against the Tri-State Motor Corporation and another. From an orde.r over-, ruling a motion to dissolve an attachment, defendants appeal.

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Suit by William R. Harr and another against the Chas. McCaul' Company, a corporation, and others. From an order granting an injunction pendente lite to restrain the payment by the Treasury Department of a sum of money to the named defendant, the defendants appeal.</p>

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Suit by O’Donoghue Bros., Inc., against Bouis Brownlow and others, as Commissioners of the District of Columbia and personally, to enjoin defendants from closing an entrance to plaintiff’s place of business. Decree for plaintiff, and defendants appeal.</p>

<p>1. Equity <&wkey;48 — Remedy at law for breach of warranty and of contract to build a house is adequate.</p> <p>'A bill whose ¿negations show that the relief sought by plaintiff- was based upon breach by defendant of a special warranty in a deed and of an oral contract to build a house for plaintiff discloses no equity, since thq remedy at law for such breaches is adequate.</p> <p>Z. Trial <&wkey;11(3) — Where plaintiff might have remedy at law, he can transfer to law side.</p> <p>Where plaintiff’s bill disclosed he had no right of action under a written contract set out, but also alleged an oral contract under which he would have a right of action for damages, he will be permitted to apply for a transfer of the case to the law side under law rule 76 of the trial court.</p>

Writ of Error to the Juvenile Court of the District of Columbia. Charles Walter Moreland was convicted by the juvenile court of willfully neglecting or refusing to provide for the maintenance and support of his minor, children, and he brings error.

<p>Appeal from the District Court of the United States for the Northern District of Texas; James C. Wilson, Judge.</p> <p>Suit in equity by Mrs. Kate Miller against J. M. Rusli and Claude McCauley. Decree for defendants, and complainant appeals.</p>

Sanford, Judge. Action at law by Sam Van against the Atlantic Ice & Coal Corporation. Judgment for plaintiff, and defendant brings error. The plaintiff in error seeks the reversal of a judgment rendered against it in the District Court of the United States for the Eastern District of Tennessee in favor of the defendant in error, Sam Van, for damages for personal injuries sustained by him while in its employ.

<p>Petition to Revise an Order of and Appeal from the District Court of the United States for the Southern Division of the Eastern District of Tennessee; Edward T. Sanford, Judge.</p> <p>In the matter of the Hitt Dumber & Box Company, bankrupt; Silas Williams, Trustee. On appeal and petition to revise by H. M. Evans to review an order of the District Court holding him liable for losses incurred in operation of bankrupt’s business by him as receiver.</p>

<p>In Error to the District Court of the United States for the District of Colorado; Robert E. Lewis, Judge.</p> <p>Action at law by the Consolidated Coal & Coke Company against the Rocky Mountain Fuel Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Charities ©=45(2) — Association maintaining hospital as charity not liable for negligence of employes.</p> <p>An association which maintains a hospital as a charity is not liable for the malpractice of the physicians or the negligence of the attendants it employs, but is responsible only for its own want of ordinary care in selecting them, and this though a charge for services rendered is made to those who are able to pay,</p> <p>2. Principal and! agent <§=>28 (1) — Agency cannot be established by declarations of alleged agent.</p> <p>Agency cannot be established by the declarations of the alleged agent to third persons.</p>

Action by Leonard A. Wilson against Charles W. Davis and others. Judgment for plaintiff and defendant named, and defendants Goering and Emmons bring error.

<p>Appeal from the District Court of the United States for the Second Division of the Northern District of California; Frank S. Dietrich, Judge.</p> <p>Suit in equity by the Majestic Electric Development Company against the Westinghouse Electric & Manufacturing Company (two cases). Decrees for defendant, and complainant appeals.</p>

Dietrich, Judge. Suit in equity by the Majestic Electric Development Company against the Westinghouse Electric & Manufacturing Company. Decree for defendant, and complainant appeals. “This is a suit to restrain alleged infringement of the appellant’s patent No. 1,245,084, which is for improvement in electric heaters.

<p>Monopolies <&wkey;17(l) — Trade-marks and trade-names and unfair competition <&wkey;801á, New, vol. 8A Key-No. Series — Leasing containers for gasoline purchased from lessor for nominal rental held not “unfair method of competition.”</p> <p>The leasing by a dealer in gasoline for a nominal rental to retail dealers of pumps and tanks to be used solely for the storage and handling of gasoline purchased from the lessor does not constitute an unfair method of competition within Clayton Act Oct. 15, 1914, § 3 (Comp. St. § 8835c), or within Federal Trade Commission Act Sept. 26, 1914, § 51 (Comp. St. § 8S36e), and, where there is no attempt by the contract to limit the right of lessees to buy or handle the product of competitors, the Federal Trade Commission has no authority to prohibit such practice.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Unfair Competition.]</p>

<p>In Error to the District Court of the United States for the District of New Jersey; Joseph F. Bodine, Judge.</p> <p>Suit by the New River Collieries Company against the United States. Judgment for plaintiff, and defendant brings error.</p>

Bledsoe, Judge. Al. Vesely was convicted of unlawful sale of intoxicating liquors, and of maintaining a place for the sale thereof, and brings error.

<p>Appeal from the District Court of the United States for the District of Massachusetts; George W. Anderson, Judge.</p> <p>Suit in equity by the National Safety Lift Company, Inc., against Isabel Anderson. Decree for defendant, and complainant appeals.</p>

<p>1. Larceny <&wkey;40(4) — -Stealisng goods moving to Interstate commence; diversion of shipment immaterial.</p> <p>In a prosecution for stealing from a railroad car goods moving in interstate commerce, where the evidence showed that, when stolen, the goods were still in possession of the carrier, in course of transportation from one .state into another, the fact that, after reaching the state of destination, the point of destination had been changed from that alleged in the indictment to another point in the same state, held, not to constitute a variance.</p> <p>2. Criminal law <&wkey;73© (10) — Improper remarks of prosecuting attorney held not ground of reversal.</p> <p>Improper comment by an assistant district attorney in argument, in the fact that defendant did not take the stand, held, not ground for reversal, where the court sustained an objection and fully instructed the jury as to defendant’s privilege, and that the remark was improper and should not be considered.</p>

<p>Indians <&wkey;27 (5) — United States may maintain replevin for personal property held in trust for Indian.</p> <p>Where the Indian Department, from money awarded to a Cherokee Indian in lieu of an allotment of land, pursuant to Act April 26, 1906, §§ 2, 17, and the regulations of the Secretary of the Interior, made thereunder, and held in trust for the Indian, purchased a team of mules, taking a bill of sale to the United States, reciting that the property was held for the Indian, the United States held to have title, which would support an action of replevin for the team against a purchaser from the Indian.</p>

Petition to Revise Order of the District Court of the United States for the Southern District of New York. In the matter of'Harris Rosenstein, bankrupt. The bankrupt petitions to revise an order vacating a previous order staying an action in the state court.

Dooling, Judge. Libel by R. J. Nelson and others against the United States to recover for salvage services rendered the steamship City of Omaha. Decree for libelants, and the United States appeals.

<p>In Error to the District Court of the United States for the Northern, District of Texas; Robert T. Ervin, Judge.</p> <p>Action by Fuller, Reaser & Co. and others against the North Texas Oil Company to recover commissions for the sale of property. Judgment for plaintiffs, and defendant brings error.</p>

<p>1. Appeal and error <&wkey;76(1) — “Final decree,” reviewaMe by appeal, defined.</p> <p>Under Judicial Code, § 128, as amended (Comp. St. § 1120), giving the Circuit Courts of Appeals jurisdiction to review final decisions of the District Courts, a decree is final when it terminates the litigation between the parties on the merits of the ease, and leaves nothing to be done but to enforce by execution what has been determined.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Final Decree or Judgment.]</p> <p>2. Appeal and error <&wkey;80(6) — Order dismissing one or more of several causes of action not appealable.</p> <p>An order of a District Court, dismissing one or more of several causes of action alleged in a bill, but leaving a cause or causes of action pending, is not a final decision between the parties, from which complainant may appeal.</p>

<p>Criminal law <&wkey;980 (1) —Intoxicating Impmk's Jitaformaiiosi held to charge transportation; iscateiBce hcM a»t a«t*>5)M¡íec? under M’cmaa.tlon.</p> <p>An information charging that defendant did “unlawfully transport in a Buiek automobile certain intoxicating liquor” charges the offense specifically described in National Prohibition Act Oct. 28, 1819, tit. 2, § 3, for which the punishment prescribed by section 29 is a fine of not more than §500 for a first offense, and on a plea of guilty defendant cannot lawfully be sentenced to imprisonment for maintaining a common nuisance by keeping liquor in a vehicle in violation of section 21.</p>

<p>In error to the District Court of the United States for the Middle District of Pennsylvania; Charles B. Witmer, Judge.</p> <p>Criminal prosecution by the United States against Elmer Daley and John Letcher. From the judgment, defendants bring error.</p>

<p>In Error to the District Court of the United States for the Middle District of Pennsylvania: Charles B. Witmer, Judge.</p> <p>Criminal prosecution by the United States against Jack Felmun. From the judgment, defendant brings error.</p>

Cushman, Judge. Joseph Rosenthal was convicted of having stolen property in his possession with knowledge that it was stolen, etc., and he brings error. The plaintiff in error was, together with Morris Kosenthal and Arthur IT.

<p>Petition by Thomas W. Miller, Alien Property Custodian, against Harry G. Rouse and Mortimer Rouse, as executors of Callman Rouse, deceased. On motion for summary order.</p> <p>Motion on petition by the Alien Property Custodian to compel the summary payment by the executors of Callman Rouse of certain claims alleged to be due from Ruth Marcuse, formerly an alien enemy. One was for $4,500, found by the Custodian to have been due as a debt, and the other, $10,000,_ found to be due as a legacy.</p>

In Equity. Suit by Edward W. Reiss against the National Quotation Bureau, Inc. On motion to dismiss bill. This is a motion under the equity rules to dismiss a bill of complaint upon a copyright.

In Admiralty. libel by. one Revello, master of the steamship Ansaldo Savoia, against the steamship Ripogenus, with cross-bill by the master of the steamship Ripogenus against the steamship Ansaldo Savoia. Decree finding both vessels at fault. Hughes, Little & Seawell and Henry H. Little, all of Norfolk, Va., for the Savoia.

<p>in Bankruptcy. In the matter of Ollie E. Dukes and another, trading under the firm name of Dukes & Melson, and Ollie E. Dukes and another, in their individual and personal capacity. Petition by Henry K. Greene to review an order of the referee directing petitioner to assign to the trustee in bankruptcy a judgment obtained by petitioner within four months prior to the filing of the petition in bankruptcy.</p>

In Equity. Bill by Henry D. Doherty and another, doing business under the firm name of Henry D. Doherty & Co., against Jesse C. McDowell and others. On motion to vacate the order of service and dismiss the bill.

<p>In Equity. Suit by the New Jersey Zinc Company against the American Zinc, Dead & Smelting Company and another.</p>

<p>In Equity. Suit by Stephen D. Murray and the Murray Company against Wesley A. J. Hodo. Decree for defendant.</p>

<p>1. Patents <&wkey;328 — -923,225, fez player pian®, hold valid and infrniged.</p> <p>The Weser patent, No. 923,225, for player xúano» h,elA not anticipated and valid, and claims 1, 2, 4, 5, and 26 infringed.</p> <p>2. Patents <&wkey;178 — •Description of preferred construction not limitation.</p> <p>The description in a specification or drawings, or even in a claim of the form or construction of a mechanical clement, when that form or construction is not essential to the invention, is to be taken merely as a preferred form or construction, and not as a limitation which excludes mechanical equivalents.</p>

<p>Indians <&wkey;38(2) — United States has jurisdiction of offenses committed on site pi Indian school.</p> <p>Under Const. art. 1, § 8, providing that Congress shall have power to exercise exclusive legislation “over all places purchased by t.ho consent of the Legislature of the state in. which the same shall be, for the erection of forts * * * and other needful buildings,” the United States held to have jurisdiction o£ criminal offenses committed on the site of an Indian school, to the purchase of which by the government the Legislature of the state assented by joint resolution.</p>

<p>At Law. Action by Keeler Bros, against School District No. 25 of Gilliam County, Or., and others.' On demurrer to the complaint.</p>

<p>Bankruptcy °&wkey;60 — Application for receiver by insolvent corporation held an “act of bankruptcy.”</p> <p>Application by an insolvent corporation to have trust mortgage do-dared void and a cloud upon the corporation’s title, to enjoin defendant, who claimed to act as trustee under such mortgage, from proceeding as such, for an accounting by such defendant to the corporation, and for the appointment of a receivin’ to hold property covered by mortgage for preservation thereof pending determination of the case on the merits, held an’" “act of bankruptcy,” under Bankruptcy Act, § 3a (Comp. St. § 9587). making an application by an insolvent person for a receiver or trustee for his property an act of bankruptcy, though the corporation’s application for the receiver did not arise from and was not based on its insolvency, and though the application was for a temporary rather than a permanent receiver.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Act of Bankruptcy.]</p>

<p>1. Action &wkey;>25 (4) —In action on note, defendant may set up equitable defense.</p> <p>In a suit against makers of a promissory note, defendants may set up an equitable defense, and pray for cancellation of tlie note, under Judicial Code, § 274b (Comp. St. § 1251b), and Practice Act Pa. J915 (P. L. 483) § 14 (Pa. St. 1920, § 17194).</p> <p>2. Dismissal and nonsuit <&wkey;43 (4)- — Pleading .&wkey;268 — Affidavit ef defense, though not indorsed, field to entitle defendant t© reinstatement after discontinuance.</p> <p>Failure to indorse an affidavit of defense, setting up an equitable defense, with the required notice to the plaintiff provided by Practice Act Pa. 1915, § 15 (Pa. St. 1920, § 17195), while imperative, is a matter of practice, which is not necessarily fatal, and an order of discontinuance entered may be stricken, and leave be given defendants to indorse their affidavit and to serve a copy on the plaintiff.</p>

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>John McHenry was convicted of murder, and he appeals.</p>

<p>In Error to the District Court of the United States for the First Division of the Northern District of California; Maurice T. Dooling, Judge. _ . -</p> <p>_ . Louis Cabíale and Andrew Donizello were convicted of violation of the National Prohibition Act, and they bring error.</p>

Grubb, Judge. Action at law by Buena Dill McKinney, Nola Dill Shurbet, and Allen Dill, suing for the use of Buena Dill McKinney and Nola Dill, Shurbet, against the Southern Railway Company. Judgment for plaintiffs, and defendant brings error.

Appeals from the 'District Court of the United States for the District of Massachusetts; James M. Morton, Judge. Suits in admiralty by the Boston Towboat Company and by Charles F. Adams and others, against the Darrow-Mann Company. Decrees for respondent, and libelants appeal. .

<p>In Error to the District Court of the United States for the District of Porto Rico; Peter J. Hamilton, Judge.</p> <p>Action at law by Société Anonyme des Sucreries de Saint Jean against the Bull Insular Line, Inc. Judgment for defendant, and plain tiff brings error.</p>

la Error to the District Court of the United States for the District ox New Jersey; Joseph L. Bodine, Judge. Action at law by the General Supply Company and others against the Warden, Orth & Hastings Company, Inc., and another. From the inclgment, plaintiffs bring error.

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Harry Friedman was convicted of fraudulent importation of feather goods, and he brings error.</p>

<p>Customs duties <®=»120 — Act of smuggling held fully executed.</p> <p>Where, after a steamship passenger’s baggage declaration had been given to the customs inspector, he replied, in answer to questioning, that he had declared everything, and was searched and diamonds found concealed on his person, held, that the act of smuggling was fully executed ; it not being necessary to the completion of the crime that he should have left the customs inclosure.</p>

<p>Tn Error to the District Court of the United States for the District of Arizona; Jeremiah Netterer, Judge.</p> <p>Suit by Andre Drazich against the Ray Consolidated Copper Company. Judgment for defendant. Plaintiff’s motion for ne.w trial was denied, and plaintiff brings error.</p>

<p>In Error to the District Court of the United States for the Western District of Texas, Del Rio Division; William R. Smith, Judge.</p> <p>Proceeding by the United States against F. J. Rheiner and others for forfeiture of bail bond. From a judgment of forfeiture (U. S. v. Davenport, 266 Fed. 425), defendants bring error.</p>

Dooling, Judge. Binger Stewart Herine, also known as Binger Stewart Horine, was convicted under the National Prohibition Act of maintaining a common nuisance, by unlawfully keeping alcoholic liquor for beverage purposes, and he brings error.

<p>In Error to the District Court of the United States for the First Division of the Northern District of California; Maurice T. Dooling, Judge.</p> <p>Benjamin Kathriner and James Sullivan were convicted of violating the National Prohibition Act, and they bring error.</p>

<p>Appeal from the District Court of the United States for the Northern District of Texas; Edward R. Meek, Judge.</p> <p>Suit by Nelson T. Burroughs against the City of Dallas to enjoin the obstruction of a portion of a street. From a decree refusing the injunction without prejudice to an action at law, complainant appeals.</p>

<p>Appeal from the District Court of the United States for the Northern District of Texas; Edward R. Meek, Judge.</p> <p>Suit by Nelson T. Burroughs against the City of Dallas and others to restrain the operation of a scenic railway. Decree for defendants, and complainant appeals.</p>

<p>Collision <§=*125 — Evidence held to support a finding as to identity of tug which collided with barge while attempting to move it.</p> <p>In a suit for damages to a barge, which was lying alongside a steamship at- a pier, and which was struck by a steam tug attempting to move the barge to a point between the pier and the steamer, evidence hold to warrant tin; trial judge’s finding as to the identity of the tug which did the damage.</p>

<p>Habeas corpus <®=>3, 4 — Sufficiency of indictment not considered, where no objection below, nor writ of error.</p> <p>Where one was convicted of manufacturing intoxicating liquors without registration, etc., in violation of internal revenue laws (Kev. St. §§ 3258, 3281, 3282 [Comp. St. §§ 5994, 6021, 60221), without testing the sufficiency of the indictment by demurrer or otherwise, and without filing a motion in arrest, or otherwise questioning the conviction, or seeking writ of error, a petition for habeas corpus on the ground that conviction was illegal, in that such statutes had been repealed by the Eighteenth Amendment and the National Prohibition Act, will be dismissed; the District Court having jurisdiction of the class o£ offenses charged, and to decide whether they were a violation of the internal revenue laws or the National Prohibition Act.</p>

<p>Customs duties <S=»129 — Master of ship not liable for failing to indulte intoxicating liquor in manifest.</p> <p>The master of a ship is not liable for the penalty imposed by Rev. St. § 2809 (Comp. St. § 5506), by omitting goods and chattels from the manifest that are not in a legal sense ádapted to or susceptible of entry in the custom house, and hence is not liable for failure to include intoxicating liquors, which is not merchandise in a legal sense, unless imported in a manner authorized by the provisions of the Prohibition Act.</p>

<p>In Equity. Suit by the United States against John Jacob Kichin to cancel a certificate of naturalization. Decree for the United States.</p>

<p>1. Shipping <@=»108 — Measure of damages for breach of contract stated.</p> <p>Libelant, an exporter of grain, contracted with respondent for cargo space on a designated steamship for 5,000 bushels of wheat from Baltimore to Hamburg, but before doing so, in accordance with the custom of the trade, contracted for the sale of the grain in Hamburg to arrive by such steamship. Respondent desired to substitute another vessel, but the Hamburg buyer refused to consent, except at a stated reduction in the price of tlie grain, and as respondent would not agree to stand the loss and refused to accept the shipment on the vessel named, libelant sold the grain in Baltimore and brought suit for breach of the contract. Jlelcl, that its damages recoverable were limited to the amount it would have lost if it had shipped by the other vessel and accepted Ihe reduced price.</p> <p>2. Customs and usages <S=»12(1) — Contract to carry grain to foreign port construed with reference to known custom of the trade.</p> <p>Where a shipowner, contracting to carry a cargo of grain to a foreign port, had knowledge of the custom of shippers of grain to contract in advance for sale of the cargo to arrive, it contracts with reference thereto, and on breach of its contract to carry is liable for the resulting loss to the shipper, arising from his failure to deliver under his contract of sale.'</p>

<p>Trade-marks and trade-names and unfair competition <S=>95 (1) — Temporary restraint of use of family name not granted) on conflicting affidavits.</p> <p>A preliminary injunction restraining defendant from using a family name in liis business should nor be granted on conflicting affidavits, in the absence of compelling necessity and where the plaintiff has delayed bringing action.</p>

<p>Pleading ®=»348 — Affidavit, of defense held sufficient against motion for judgment.</p> <p>In suit for price of furniture sold at different times up to June 4, 1920, the complainant alleging some complaints by defendant as to goods which it had neverthless retained for an unreasonable time- until December 8, 1920, an affidavit of defense, denying the correctness of the account and alleging that on its order for certain pieces of specified dimensions plaintiff sent other and unsuitable pieces, and that plaintiff’s agent agreed such pieces did not comply with the order, but requested defendants to retain them until he could dispose of them to save reshipment, which they did until October, 1920, when they notified defendant, presented trial questions as against a motion for judgment.</p>

<p>At Raw. Action by Rouis Hecht, Jr., against John F. Malley.</p>

<p>1. Patents <@=>338 — 1,340,423, for parachute, claims 1, 4, 6, 10, and 13, held valid and infringed.</p> <p>The Smith patent, No. 1,340,423, for a parachute for the use of aviators, claims 1, 4, 6, 10, and 13, held for a combination not anticipated, valid, and infringed.</p> <p>2. Patents <§=>109 — Substituted claims held within specification and not requiring supplemental oath.</p> <p>Where the specification in an application described a “fabric material,” claims later substituted, more specific and limited to “a sheet of flexible material,” held within the description and not requiring a supplemental oath.</p> <p>3. Courts <3=518 — Infringement by articles made for government not subject of suit in District Court.</p> <p>Under Act June 25, 1910, as amended by Act July 1, 1918 (Comp. St. Ann. Supp. 1919, § 9465), providing that, where a patented invention shall be used by or manufactured by or for the United States without lawful right, the remedy of the patentee shall be by suit in the Court of Claims, a District Court is without jurisdiction to award damages for infringement by articles made for the United States under a contract by which it agreed to protect the manufacturer against damages for infringement, but it may award an injunction and damages where defendant has also sold such infringing articles to individuals.</p>

<p>1. Internal revenue —Reserved interest of decedent in securities transferred only held subject to estate tax.</p> <p>A decedent, several years before bis death, made an absolute transfer of certain securities, the transferee by a contemporaneous agreement binding itself to pay the net income to the wife of the transferor during her lifetime, and after her death, in ease he survived her, to him during his lifetime. Held, that the estate was not subject to tax on the value of the securities themselves, under Act Sept. 8,1916, § 202 (Comp. St. § 6336%c), but at most on the value of the reserved contingent interest of decedent therein.</p> <p>2» Internal revenue <S=>8 — Estate Tax Act not retroactive as to property transferred.</p> <p>Act Sept. 8, 1916, § 202b (Comp. St. § 633614c [b]), providing for a tax with respect to property of which a decedent has at any time made a transfer, is not retroactive, and does not apply to transfers made prior to its enactment; the words “at any time” being limited to a time subsequent thereto.</p>

At Raw. Action by John J. Curley and others, executors of the will of Helen M. Grafflin, deceased, against Galen R. 'I'ait, Collector of .Internal Revenue, and others. On demurrer to declaration.

<p>Clerks of courts <®=^54 — Clerk, receiving commission on transmuting money into government certificates, may not have further commission oni distribution.</p> <p>Where proceeds of sale of property, being paid into court, was expended by the clerk in purchase of United States certificates of indebtedness, be was not entitled to a 1 per cent, commission as for a payment, under Rev. St. § 828 (Comp. St. § 1383), but, having taken such commission, It might be treated as an advance under section 1320, Revenue Act Feb. 24, 1919 (Comp. St. Ann. Supp. 1019, § 3301a), entitling the clerk to 1 per cent, for care of Liberty Bonds, etc., deposited; the clerk, however, being entitled to but a single commission of 1 per cent, on bonds deposited.</p>

Appeals from the District Court of the United States for the Western District of Pennsylvania; W. H. Seward Thomson, Judge. Suits in equity by the Window Glass Machine Company and another against the Pittsburgh Window Glass Company and others, and by the Pittsburgh Plate Glass Company against the American Window Glass Company. Decrees for defendants, and complainants appeal. No. 2663: No. 2684:

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Bill by Enrique De Arraga Vidal against the South American Securities Company and others, in which cross-bills were filed. From adverse decrees, the named defendant appeals.</p> <p>The appeal is from a decree of Judge A. N. Hand, entered on March 28, 1916, and from a decree of Judge Mayer, entered on October 30, 1917.</p> <p>The case was tried before Judge Hand and was decided by him in an clab orate opinion. He. however, directed a reference to a special master to in vestígate and report on certain facts. The master filed a comprehensive report which came before Judge Mayer, who confirmed it as is hereinafter more fully stated.</p> <p>The complainant is an alien, being a citizen of Uruguay.</p> <p>The South American Securities Company, named as a defendant, is alleged to be a New York corporation, and to have its principal office and to be doing business in the Southern District of New York. It is hereinafter referred to as the Securities Company.</p> <p>The Pan-American Transcontinental Railway Company, another defendant, is alleged to be a Maine corporation, and to have its principal office and to be doing business in the Southern District of New York. It is hereinafter referred to as the Railway Company.</p> <p>The National Railway Construction Company, also a defendant, is alleged to be a Maine corporation, and to have its principal office and to be doing business in the Southern District of New York. It is hereinafter referred to as the Construction Company.</p> <p>The defendants, Charles Bright (hereinafter called Bright), Frederick R.. Bright, John Jay McKelvey, and Alpheus H. Favour sued individually and as copartners doing business under the firm name of McKelvey & Favour; Charles R. Demarest, Edward L'. Thompson, Warren G. Thompson, and Ralph H. McKelvey are all alleged to be citizens of the state of New York; and they are all alleged to be of the city of New York except Warren G. Thompson, who is said to be of North Tonawanda in this state. In his answer Bright denied that he was a resident of the state of New York or that he was served within the Southern District. He admitted himself to be a citizen of the United States and alleged that he was domiciled in the city of Buenos Aires, in the republic of Argentine, where he was engaged in business as a merchant. And Frederick R. Bright in his answer denied that he was a citizen of the state of New York and alleged that he was a citizen of the state of California, but he admitted “that he now resides in the Southern District of New York.”</p> <p>The defendant William F. Piper is alleged to be of Tenafly in the state of New Jersey.</p> <p>The other defendants are alleged to be citizens of foreign states: Thomas B. Holoway is alleged to be a citizen of the Argentine Republic; Fanny Yaure-guiberry de Castro, sued individually and as administratrix of Juan Jose Castro, is alleged to be a citizen of the republic of Uruguay, as are the defendants Enrique Castro, Marta Castro, Juan Jose Castro, and Fanny Maria Castro.</p> <p>The complaint allege^ that the Railway Company is the owner of certain rights and franchises under a concession granted by the republic of Uruguay, on July 15, 1909, for the construction of the Interior Railway of Uruguay. It alleges also that the Construction Company is engaged in the construction of the said Interior Railway, under a contract with the Railway Company aforesaid.</p> <p>The complaint sets out in minute detail the relations of the various defendants to the enterprise, and alleges that the defendant Bright either directly, or indirectly through his agents, obtained possession of a large amount of securities for his services.</p> <p>. The cause of action, briefly stated, is that defendant Bright agreed with the complainant that if the complainant would co-operate with and aid him, Bright, in procuring certain concessions from the government of Uruguay to the Railway Company, he (Bright) would pay to the complainant 30 per cent, of his profits. That the complainant did so co-operate and did obtain the concession as agreed, and that the complainant is entitled to the promised 30 per cent, of Bright’s profits.</p> <p>The relief demanded in the complaint is:</p> <p>1. An injunction restraining the defendants from disposing of any of the securities of Bright or of the Securities Company which any of the defendants have in their possession or control.</p> <p>2. A discovery in respect to all matters and things concerning the securities.</p> <p>3. An accounting from Bright and the Securities Company.</p> <p>4. That the rights of the complainants in the securities be fixed and determined, and that an order of distribution be entered.</p> <p>5. That an injunction be issued restraining ail other suits and proceedings in the premises.</p> <p>6. That Bright be adjudged the beneficial owner of all o£ the stock of the Securities Company.</p> <p>That defendants Frederick R. Bright and Favour bo enjoined from disposing of any of said stock. That it be adjudged that the said stock and all securities so far as the same are a part of the securities in which Bright and the Securities Company, or either of them hold (he beneficial interest, held in the names of defendants Piper, Demurest, Thompson, and Ralph M. McKelvey is a part of the said Bright's receipt from the railway enterprise, and is subject to the claims of the complainant and to the claims and liens of such other parties as may establish the same to the satisfaction of the court.</p> <p>The Securities Company and the two Brights filed pleas in which they asserted that the court was without jurisdiction up on the ground that Bright was not a resident of the state of New York and was not served within the Southern District of New York, and that the action was not one to enforce any legal or equitable lien upon or claim to, or to remove any incumbrance or lien or cloud upon title to property within the Southern District of New York.</p> <p>The motion for judgment on the pleadings came before Judge Ooxo sitting in the District Court and was disposed of by him in an opinion filed on April 2, ISIS. Ho overruled the motion and permitted the defendants to answer within 20 days.</p> <p>Thereafter elaborate answers were filed. The answer of Bright occupies 158 printed pages of the record; that of the Securities Company, 67 pagos; and that oí Frederick It. Bright, 24 pages. The answers all allege that the bill of complaint is wholly without equity and that the court is without power to grant the relief asked for.</p> <p>The answers interposed by the two Brights and by the Security Company each assert, that the complainant by false and fraudulent representations made by him for the purpose induced Charles Blight to enter into the alleged agreement in the words and letters as follows:</p> <p>“London, July 22, 1907.</p> <p>"Charles Bright, Esq.,— Dear Sir: Under the terms of a letter signed by Juan Jose Castro, concessionaire of fhe Interior Railway of Uruguay, I am entitled to a commission of §100,000, Uruguayan gold, in case T negotiate the concession.</p> <p>•T hereby agree to pay to you one-third of this sum or any other commission that T may receive from the heirs or successors of the said Hr. Castro in consideration of your agreeing to pay to me for myself anil the people whom I represent thirty por cent. (30%) of the net profits that you may make in negotiating the said concession, after paying out or deducting all expenses, obligations or commissions, or other sums whatsoever that you may incur in connection with the said business, and a further sum of £5,000 to be deducted for your i>ersonal expenses.</p> <p>"This letter as agreed by you will have full legal effect in Montevideo.</p> <p>•‘Yours faithfully, [Signed] H. D, Arraga Vidal.</p> <p>“I agree to the above terms.</p> <p>“O. Bright.”</p> <p>The answers also set forth in detail the alleged false and fraudulent representations by which it is asserted that Bright was induced to enter into the pretended agreement, and it is alleged that tho complainant knew that they were false.</p> <p>The answers also deny that the complainant did anything under the pretend ■ od agreement which entitled him to the 30 per cent, or any portion of either the securities or the profits realized by Bright from the enterprise referred to in the complaint.</p> <p>By a cross-bill the Railway Company and the Construction Company sought a decree rescinding and canceling two contracts, both dated February 8, 1010, between the Railway Company and the Securities Company, and between the Securities Company and the Construction Company, providing for the issuance to the Securities Company of certain second mortgage bonds, known as 5 per cent, gold debenture bonds, and certain common and preferred stock of the Railway Company, and certain common stock of the Construction Company. The grounds for the rescission and cancellation as alleged were fraud and failure of consideration on the part of the Securities Company and of Bright.</p> <p>The Securities Company in its answer also set up a counterclaim in which it alleged ownership of bonds and common and preferred stock of the Railway Company aggregating more than $1,000,000 par value and $900,000 par of the common stock of the Construction Company, and that it had come wrongfully, fraudulently, and unlawfully into the possession of the defendants McKelvey and Favour who refused to deliver the same to it. It alleged that through its ownership of the stock of the Railway and of the Construction Company it had a controlling interest in those companies, but that it was prevented from voting the stock by the wrongful acts of McKelvey to its great loss. It asked judgment against the defendants McKelvey and Favour individually and as copartners, and that they be directed to turn over to the defendant the securities as described and that they pay in addition the sum of $500,000 in damages.</p> <p>The defendant John MacDonald Henderson was not named as a party in the original complaint. He petitioned to be made a party on the ground that he was the trustee in bankruptcy in Great Britain of the estate of Bright adjudicated a bankrupt in the courts of that country, and the prayer of his petition was granted.</p> <p>An injunction was issued on October 16, 1912, pursuant to an order of Judge Learned Hand, restraining the defendants pending the suit from in any manner dealing with or disposing of any of the securities as complained of in the bill which were then held by them or either of them on behalf of Bright or of the Securities Company.</p> <p>An order was entered on July 18, 1913, by Judge Coxe, sitting in the District Court, appointing a receiver of all stocks and bonds in the possession of the defendants kicKelvey and Favour for the account of Bright and for the account of the Securities Company. The receiver was directed to hold the same pending the litigation or until the further order of the court. 1</p> <p>It appears that in 1907 Bright employed the defendant John Jay McKelvey to incorporate the Railway Company, and it was in that year incorporated under the laws of Maine. In the same year he incorporated the Construction Company under the laws of the same state. In the following year Bright employed McKelvey to incorporate the Securities Company, and it was so incorporated under the laws of New York. The stock of the Securities Company consisted of 1,000 shares, of which 670 shares stand in the name of Bright and the remaining 330 shares in the name of his brother Frederick. The trial judge found that these 330 shares belonged to Charles who furnished the consideration and that he was the absolute owner of all of the stock of the Securities Company, and that he paid for it by turning over shares of the common stock of the Railway Company having a par value of $500,000, which had been issued to him by a resolution of the board of directors of the Railway Company adopted on September 20, 1907, “as compensation for investigations, surveys, and reports in connection with corporate enterprise.”</p> <p>It further appears that on October 24, 1908, the Securities Company entered into an agreement with Bright which recited that “Bright has obtained * * * rights and franchises under a concession originally granted to Castró, Petty & Co. and subsequently transferred” all these rights to the Securities Company, and that thereafter the concession became vested in the Railway Company, and that it had been agreed that certain considerations consisting of cash and stocks should be paid to Bright for obtaining the same. It went on to provide that the Securities Company should pay to Bright £60,-000 in cash upon ratification of the ad referendum agreement by the Legislature, and £60,000 in shares of the Pan-American Transcontinental Railway Company, said shares to be preferred shares in case the Railway Company should issue any part of its capital in the form of preferred stock, and to be delivered at the same time as the cash payment.</p> <p>On tlie same day that the foregoing agreement was made, an agreement was also entered into between tlie Securities Company and the Railway Company. The Securities Company, it recited, liad acquired control of the Castro Franchise as modified in the ad referendum agreement and had assigned the same to the Railway Company, and it, provided for the construction of the railway by the Securities Company or a Construction Company to be furnished by it.</p> <p>The last-named agreement was canceled on February 8, 1910, by a new agreement between the Securities Company and the Railway Company, and It was agreed that the Railway Company should cause to be issued to the Securities Company the following securities:</p> <p>$1,200,000 of its 5 per cent, gold debenture bonds.</p> <p>800,000 par value of its preferred stock.</p> <p>1,000,000 par value of its common stock.</p> <p>—said securities to be issued and delivered upon the completion and signing by the Railway Company of a satisfactory contract with a contractor to be furnished by the Securities Company. The Securities Company agreed to execute any further papers necessary to perfect the title of tlie Railway Company in all of the rights and franchises granted to it and to furnish a contractor to construct the railway in accordance with the requirements of the concession in consideration of the payment to such contractor of the following securities of the Railway Company:</p> <p>$9,000,000 par value of its 5 per cent, first mortgage gold bonds.</p> <p>2,000,000 par value of its 5 per cent, gold debenture bonds.</p> <p>1,200,000 par value of its preferred slock.</p> <p>1,500,000 par value of its port income bonds.</p> <p>On tlie same day, February 8, 1910, the Railway Company entered into a contract with the Construction Company for the construction of the line. By this agreement, the Construction Company agreed to pay tlie obligations which liad been incurred by Bright for preliminary surveys amount,ing to $25.000, and it. also agreed to construct tlie railway in accordance with the government concessions and decrees, and to furnish the railroad with an initial operating capital of $250,000. There were to be delivered upon the execution of the agreement:</p> <p>$2,000.000 par value 5 per cent, gold debenture bonds.</p> <p>1,200,000 par value of preferred stock.</p> <p>5,000,000 par value of common stock.</p> <p>1,500,000 par value of the port income bonds.</p> <p>It provided also that the Construction Company upon the completion of each section of road should receive first mortgage bonds in proportion to the extent of the section so approved.</p> <p>On the same day, February 8, 1910, an agreement was also signed between tin- Securities Company and the Construction Company. It provided that the Securities Company should:</p> <p>1. Procure the execution of a construction contract between the Railway and the Construction Company.</p> <p>3. Procure for the latter an advance of $100,000 upon the security of a note of the Construction Company.</p> <p>Negotiate an advantageous arrangement for the disposition of the securities to be received by tlie Construction Company from the Railway Company as consideration for the construction work.</p> <p>4. Provide as working capital cash subscriptions at par to the stock of the Construction Company amounting to $500,000.</p> <p>In consideration of the above agreements the Construction Company contracted to issue and deliver to the Securities Company $1,000,000 par value of tlie capital stock of the Construction Company, the aggregate of which authorized capital stock was $1,500,000.</p> <p>It thus appears that Bright owned all the stock of the Securities Company, that the Securities Company was to have the majority of the stock of the Construction Company, and that that company was in turn to control the Railway Company by holding $5,000,000 of common and $1,200,000 of preferred stock out of a total issue of §6,500,000 of common and §4,500,000 of preferred stock. •</p> <p>The decree of March 28, 1916, found that in 1889 a concession was granted by the government of Uruguay to Juan Jose Castro to build a railroad in that republic. That that concession on December 31, 1907, although then regarded as of doubtful value, was transferred to the Railway Company. That in February, 1908, the executive power of the republic of Uruguay entered into what is referred to as an ad referendum agreement by which the government granted the concession to one Holoway as the representative of the Railway Company. That in July, 1909, a law was passed which authorized .the executive power to contract for the construction of the railway, and under which the original Castro concession was granted. That in September, 1909, the heirs of Castro and other owners of an interest in the old concession contracted with Bright as attorney in fact of the Railway Company for the sale of all their rights in the concession. That in October, 1908, Bright entered into a contract with the Securities Company, which he had caused to be incorporated, in which it was stated that Bright had transferred to the Securities Company the concession originally granted to the Castros, and that thereafter the Securities Company, in accordance with its understanding with Bright,-had transferred the concession to the Railway Company; it having been agreed that certain securities and cash should be paid therefor to Bright or to such person or persons as he might direct for obtaining the concession. That the decree also found, among much other detail which need not now be recited, that the basis of the entire enterprise was the transfer by Bright or the Securities Company to the Railway Company of a concession the title to which should be perfect and without incumbrances; ' and that this was the consideration for all the securities which Bright or the Securities Company received with the exception of §500,000 of the common stock of the Railroad Company originally issued to Bright. That no concession was in fact ever transferred by the Securities Company to the Railway Company, but that the latter obtained the concession direct from the Castro interest, and that the concession was charged by Bright with various incumbrances which the Railway Company had to assume and discharge in order to obtain the benefit of it. It referred to the special master the question whether the concession had a net value after deducting the disbursements, obligations, and incumbrances which the Railway Company was obliged to pay or incur, or was reasonably justified in paying or incurring in order to obtain the concession unincumbered. And if it should be found that after such deductions had been made the concession had no net value, it decreed that the receiver should restore to the Railway Company and to the Construction Company the securities in his hands which had been issued by these companies respectively as a consideration for the valid and unincumbered concession which Bright and the Securities Company had agreed to turn over but had failed to perform. If, however, upon the coming in of the report it should be found that there was a net value in the concession, after making the deductions, the receiver was to turn over the securities on payment to him of the net value of the concession so ascertained and found.</p> <p>The decree found that the complainant, Vidal, was entitled to 30 per cent, of any amount which the Railway Company might be found liable to restore under the contract between Vidal and Bright dated July 22, 1907, and which represented the net profits to Bright as a result of his negotiating the railway concession, less any amounts in money or securities which it might' appear Bright had paid to Vidal on account of the contract between them; and that the net profits were to be determined after paying out or deducting all expenses, obligations, or commissions or other sums which Bright had incurred in negotiating the concession, and a further sum of £5,000 to be deducted for his personal expenses, so far as any such obligations, commissions, or expenses, whether personal or otherwise, remained unpaid. The' decree dismissed the cross-claim which had been made by the Securities Company against John Jay McKelvey and Alpheus H. Favour individually and as copartners doing business under the firm name of McKelvey & Favour for §500,000 damages, there being no evidence whatsoever as to any injury done to the Securities Company by them. It also directed that the amended bill of complaint be dismissed as to the defendants Frederick R. Bright, William F. Piper, Charles It. Demurest, Edward L. Thompson, Ralph H. McKelvey, and Warren G. Thompson: they having no right, title, or Interest in or to any of the securities forming the subject-matter of the suit.</p> <p>The decree found that Bright had been adjudged a bankrupt by the High Court of Justice of the United Kingdom of Great Britain and Ireland, and that that court having jurisdiction of Bright and of the matter of the adjudication of his bankruptcy had appointed the defendant Henderson a trustee in bankruptcy of his estate, and that he had duly accepted the appointment and duly qualified as such trustee and claimed any net profits which might exist up to the sum of §150,000; that being the total of Bright's liabilities in bankruptcy.</p> <p>The decree further found that there was a complete breach in limine on the part of the Securities Company of the contract between it and the Railway Company of such a fundamental and essential character that the Railway Company is entitled to rescission and cancellation of the said contract, and to a return of all the securities delivered to the Securities Company or to Bright for its account and held by either of said Securities Company or the said Bright, upon the restoration of the net value of the concession as herein pro. vided, except the $500,000 common stock of the Railway Company separately delivered to the said Bright for his own personal account, together with a)! coupons originally attached to any of the said securities.</p> <p>The decree .further found that there had been a complete breach of the contract between the Securities Company and the Consi ruction Company, and it adjudged that the Construction Company was entitled to a rescission and can-, collation of the contract and to a return of the securities in the hands of the receiver, or delivered to the Securities Company or to Bright for account of the Securities Company, subject to an exception which need not here be noted.</p> <p>The decree contained certain other findings and adjudications which need not be set forth herein.</p> <p>But as any net profits which might be ascertained to exist would be claimed by the Securities Company and by John McDonald IXcnderson, as trustee in bankruptcy in Great. Britain of Bright, and as 20 per cent, of such of the net profits as belonged to Bright were likewise claimed by McKelvey, the master was directed to report upon those various and conflicting rights. He was to report whether the interest in the concession received from the Railway Company from Bright was of any net value. And he was to report what'obliga-lions the Railway Company had to assume or was reasonably justified in assuming in order to obtain an unincumbered title to the concession.</p> <p>The master made a most careful and painstaking investigation of the subject submitted to him. On the coming in of his report the cause was further heard before Judge Mayer, who approved and confirmed the report in all respects. A decree was entered by him on October JO, 191V. It adjudged that the concession had no not value after deducting the obligations the Railway Company had to assume or was reasonably justified in assuming in order to obtain the benefit o£ the concession and to secure an unincumbered title. The receiver was ordered to deliver to the Railway Company the shares of preferred and common stock and the debenture bonds issued by it, and to the Construction Company the shares of slock issued by it, all of which were in his hands. It also adjudged that the Railway Company was entitled as against the Securities Company and the two Brights to the participation in what, is known as the “Johnson Syndicate” aggregating §64,200, and the receiver was directed to deliver to the Railway Company any and all documents in his hands representing the said syndicate participation. It further adjudged that the Railway Company was entitled to the delivery to it from the defendant Bright and the Securities Company of 374 debenture bonds of the Railway Company, and of 2,000 shares of preferred stock and 3,110 shares of common stock, which had been heretofore delivered to them, and they were ordered to deliver the same forthwith to the Railway Company.</p> <p>The Railway Company was also adjudged to he entitled to 150 debenture bonds then in the hands of the Construction Company, and to 1,000 shares of preferred stock of the Railway Company then in the hands of Antonio Maria Rodriguez, and to debenture bonds of the Railway Company of the par value of $8,000 then held by J. A. Barbosa Garavia, and to certificates for the common stock of the Railway Company of the par value of $98,000 then held by the Castro interests, and it was decreed that all of these should be delivered to the Railway Company.</p>

Lee Estes, Judge. Suit in equity by McCornick & Co., Bankers, against the Texas Loan & Trust Company and others. On supplemental cross-bill by Fred P. Wilson and others, executors of the will of J. B. Wilson, deceased, against'C. H. Alexander. From the decree cross-complainants appeal.

<p>1. Appeal and error &wkey;>1050 (1) —Evidence &wkey;>317 (11) — Testimony as to analysis of water, held hearsay and prejudicial.</p> <p>In an action for loss of cotton by fire on the ground that defendant was grossly negligent in failing properly to open and flush hydrants to keep them from becoming clogged, testimony of a plumber that the city water contained 106 pounds of mud to the thousand gallons “according to the analysis I had made of it,” that he did not make the analysis himself, but had it made by another, was bald hearsay and prejudicial, in the absence of proof as to who made the analysis or his qualifications.</p> <p>3. Bailment <&wkey;>31 (3)! — Evidence held insufficient to show gross negligence In providing equipment for putting out fires.</p> <p>In an action against a compress company to recover for cotton lost by fire, evidence held insufficient to warrant court in charging the jury that they might return a verdict for the plaintiff if they found that the defendant was guilty of gross negligence in providing equipment to prevent loss by fire.</p> <p>3. Trial <&wkey;139 (1) — Scintilla of evidence not enough to take case to jury.</p> <p>The rule in the federal courts is that in each case tried by a jury the question of law always arises at the close of the evidence whether or not there is such substantial evidence of the plaintiff’s cause of action as will sustain a verdict in his favor and warrant the trial court in refusing in the exercise of its judicial discretion to set a verdict in his favor aside, if rendered, and any evidence, a scintilla of evidence, is not sufficient to warrant such a refusal, and the question of law arises on a request for a peremptory instruction made before the case goes to the jury.</p> <p>4. Appeal and error <&=»9!)7 (3) — Appellate cowl; must review ruling refusing peremptory instruct ion.</p> <p>On request for a peremptory instruction before case goes to the jury, the jurisdiction is conferred and the duty is imposed on the trial court to decide it, and, on exception, on the appellate court to review that decision, and, the jury having no jurisdiction of this issue of law, its verdict after the trial court has decided it does not deprive the appellate court of its jurisdiction,” or relieve it of its duty to review its decision by the trial court.</p> <p>5. Bailment @=1.4(1) — Compress company held only liable for gross negligence for loss occasioned by lire.</p> <p>Compress company, keeping cotton on platform under contracts providing that it was “not responsible for loss by damage, fire, flood, or other agencies, unless caused by the willful act or gross negligence of this company,” was not liable for loss of cotton by fire for mere negligence, but owner must show gross negligence.</p> <p>6. Bailment @=31(8) — Evidence insufficient to support finding of "gross negligence” of compress company in maintaining system to protect cotton against fire.</p> <p>In an action against a compress company to recover for loss of cotton by fire, based on gross negligence only, held that there was no substantial evidence that defendant was guilty of gross negligence, in view of Rev. Laws Old. 1910, §§ 2937, 2919, defining gross negligence as want of slight care or diligence.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First'and Second Series, Gross Negligence.]</p>

<p>1. Judgment <®=>951(4) — Evidence held not to show wife estopped by judgment against husband.</p> <p>As respects contention that plaintiff's wife, to whom her husband had conveyed land 23 months before he brought action as owner in the state court against defendant and others for possession of the land, was bound by the judgment for defendants in that action, evidence held, not to show that she authorized him to bring the prior action so as to bind her.</p> <p>2, Champerty and maintenance <®=>7(4) — Deed by one out of possession invalid only against adverse occupants.</p> <p>A deed by one out of possession, under Rev. Laws Okl. 1910, § 2260, is valid as against all parties except those who were in possession claiming adversely at the time of the execution and delivery of the deed, and is Invalid as to them only if their possession was open, visible, continuous, and exclusive, with a claim of ownership such as to notify parties seeking information that the premises were not held in subordination to any title or claim of others, but against all titles and claimants.</p> <p>3. Appeal anil error <$=>1201 (7) — Amendment to substitute real party in interest as plaintiff allowable after reversal.</p> <p>Where plaintiff appellant sued for the use of his wife, and the wife at the trial testified that the suit was her suit, brought for her use and benefit, the trial court had power to allow an amendment to the complaint, and a substitution of the wife, as the real party in interest, for her husband as the plaintiff, and it would still have such power after reversal of its judgment for defendant, under Comp. St. § 1591.</p>

<p>Landlord and tenant <§=>112 (2) — Right to forfeit lease not waived! by landlord by acceptance of accrued rent after due.</p> <p>Acceptance by a lessor under protest of accrued rent after the time it became due and payable, where at the same time he made public declaration before a notary that he reserved his rights under the lease, held not a waiver of his .right to enforce a forfeiture of the lease under its terms for failure to mate the payment when due.</p>

<p>In Error to District Court of the United States for the Southern District of Texas; J. C. Hutcheson, Judge.</p> <p>Action by the United States against James A. Baker, receiver of the International & Great Northern Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Collision <@=>90 — Duty to another vessel obstructing navigation stated.</p> <p>A vessel, even while obstructing navigation, does not, for the purposes of civil suit, become an outlaw, but other vessels must exercise care-for her safety according to the circumstances; hut the duty to exercise such care does not require insuring the safety of the obstructing vessel, and the carelessness or obstinacy of her navigators is a circumstance to be considered in determining such care.</p> <p>2. Collision <@=>70 — Need not cease navigating until obstructing vessel is removed.</p> <p>A lighter, which tied up in a position which obstructs navigation in a slip, cannpt insist that all navigation cease until the lighter is removed.</p> <p>3. Collision Vessel movable by hand cannot require tug to be furnished.</p> <p>A lighter, moored at a slip in such a way as to obstruct navigation by steam vessel, but which could be and customarily was moved by hand, cannot refuse to move out of the way of the approaching vessel, and require a tug to be furnished to take her where she desired to go, even though the easiest direction to move her by hand would be back into the slip, where she might become pocketed.</p> <p>4. Collision <@=>71 (2) — A gentle contact with lighter obstructing navigation held not a fault.</p> <p>Where a lighter was moored at the entrance to a slip, in such a position as practically to obstruct navigation by an incoming steamer, and refused to move unless a tug was furnished to take her where she desired to go, the steamer was not at fault for striking against the lighter so gently as not to injure the hull, in an effort to push her to one side.</p> <p>5. Collision <@=>74 — Evidence held not to show vessel had! anchor projecting.</p> <p>Though it would be a fault for a steamship to attempt to enter a slip occupied by other vessels with her anchor projecting from her side, she will not be held at fault in that respect, where there was very little evidence that her anchor was projecting, the point was given no attention in the court below, and fault in the carriage of her anchor was not specifically assigned for error on appeal.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Libel by the United States against the steamship Parthian, her engines, etc., claimed by the Olympia Shipping Corporation. Prom a decree for the United States, the claimant appeals.</p>

<p>- In Error to the District Court of the United States for the District of New Jersey; Joseph R. Bodine, Judge.</p> <p>Criminal prosecution by the United States against Emanuel Einziger and Joseph Brenna. Judgment of conviction, and defendants bring error.</p>

<p>In Error to the District Court of the United States for the Eastern District-of New York.</p> <p>Action by Benjamin D. Wright against Joseph Elias for breach of contract. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Patents @=>36 — Prior efforts to fill want essential to commercial success as guide to invention.</p> <p>Commercial success is an unsafe guide to invention, unless prior efforts to fill the want are shown.</p> <p>2. Patents @=>16 — Mere novelty is not invention.</p> <p>Articles may be new in- a commercial sense, when they are not new in the sense of the patent law, and novelty, however great, can never be put in place of invention.</p> <p>3. Patents @=>328 — 1,365,855, claims 1-4, for chip receptacle for pencil sharpener, held to lack invention.</p> <p>Wilson patent, 1,305,855, claims 1-4, for a chip receptacle for pencil pointers, having celluloid sides and metal ends, held not to disclose invention, in view of the use in the prior art of both celluloid windows and celluloid receptacles.</p>

<p>Collision <®=>95(1) — Botin tugs held at fault for collision in Hudson river.</p> <p>As respects damages from collision at night in the Hudson river, oft' Ho-boken, between two tugs and their tows, due to misunderstanding of signals or failure to hear signals until the boats and their tows were too close for an exchange of signals to pass safely, where one tug admitted a share of liability, and it appeared that on the other tug the deckhand, who was charged with the duty of lookout, was sitting in the pilot house at the time of collision, and therefore had no better opportunity for seeing tlie lights of tlie other tug than did the master who was navigating the boat, and that the collision could have been avoided, had efficient lookout been maintained, hold, that both tugs were at fault.</p>

<p>1. Criminal law <2=130(1), 823(1) — Statement of district aiioniey in argument amel court in instructions held not prejudicial.</p> <p>In a prosecution for failure to register under Selective Draft Act, § 5 (Comp. St. 1918, Comp. St. Ann. Supp. 1939, § 2044o), defendant was not prejudiced because the district attorney in ills argument, and the judge in his instructions to jury, stated that the penalty for the offense charged might be only a fine, where the judge corrected this misstatement by further instructions before submitting the ease to the jury.</p> <p>2. Criminal law <3=762 (2) — Judge in federal court may express opinion on facts.</p> <p>In the United States courts the judge may comment on the evidence, call the jury’s attention to parts of it that ho thinks are important, and may express his opinion upon the facts, provided he Anally leaves the decision of the questions of fact to the jury.</p>

<p>Appeal from tlie District. Court of the United States for the Southern District of New York.</p> <p>Uibel by McWilliams Bros., Inc., against John Barton Payne, Director General of Railroads, etc. Decree for libelant, and respondent appeals.</p>

<p>1. Injunction <§=26 (3) — A defendant held not entitled to an injunction to restrain art-ion at law.</p> <p>A litigant insistent on formal proof of facts easily ascertained and ordinarily disposed of by stipulation cannot urge the resulting waste of labor, time, and money as a ground for removing the controversy, with the parties reversed into a court of equity.</p> <p>2. Injunction <$=>26 (6) —Action at, law will not he enjoined where the issues can as well be determined therein as in equity.</p> <p>Equity will not enjoin prosecution of an action at law where the issues tendered by defendant can be as efficiently and economically presented and determined therein as in equity.</p> <p>3. Appeal and error <5=1176 (6) — Appellate court may direct dismissal of bill on appeal from interlocutory order.</p> <p>Whore it is apparent from the pleadings and record that complainant is not entitled to equitable relief, the Circuit Court of Api>eals may direct dismissal of the hill on appeal from an interlocutory order.</p>

<p>1. Words and phrases — “Lead,” “rule,” “slug,” “point,” and “pointwise dimension” defined.</p> <p>As used in the printing trade, a “lead” is a strip^of metal used to separate lines o! type; a “rule” is a thin plate or strip' of metal, of the same height as the type, used for printing lines, as in tabular work or between columns of the same page; a “slug” is a thick lead; the “point” is the standard unit of measure of type bodies, it being .0138+, or approximately Vts, of an inch; and the “pointwise dimension” of a lead, rule, or slug is its thickness.</p> <p>[Ed. Note. — For other definitions, see Words- and Phrases, First and Second Series, Lead; Point; Rule.]</p> <p>2. Patents 4>->338 — Cutting mechanism for easting machine held not infringed.</p> <p>The Bancroft & Indahl patent. No. .1,193,841, claim 13, and the Hockmau patent, No. 1,193,388, claims 32 and 38, each for cutting mechanism for machines for casting printer’s leads and rules, hold not infringed.</p> <p>3. Patents <Sv=>338 — 1,223,415, claims 1 and 2, and 1,237,058, for machine and process for making type-metal elements for printing forms, held not infringed.</p> <p>The Knight patents, No. 1,222,415-, claims 1 and 2, for apparatus for casting type-metal elements for printing forms, and No. 1,237,058, for the X>roeess and product of such casting, heM not infringed.</p>

<p>In Bankruptcy. In the matter oí Morris Gurvitz and others, bankrupts. Petition by claimant for restoration of goods sold to bankrupts.</p>

In equity. Action by the Sussex Rand & l ive Stock Company against the Midwest Refining Company for damages and for an injunction. Decree for plaintiff, with provision for an injunction, if payment not made.

<p>In Equity. Suit by Edwin W. Poe and others, as receivers of the United Surety Company, against the Munich Reinsurance Company, a corporation, and Francis P. Garvan, Alien Property Custodian. Decree rendered for an accounting.</p>

<p>Habeas Corpus. On petition of David M. Aird for writ to secure discharge from custody under deportation warrant.</p>

<p>In Equity. Suit for an injunction by the Postal Telegraph Company against the State Highway Commission and others.</p>

In Equity. Suit by the Bowling Green Trust Company, trustee, against the Virginia Passenger & Power Company and others, in which Charles Hall Davis intervened: and by the Metropolitan Trust Company of the City of New York against the Richmond Passenger & Power Company and others. Decree for intervener.

<p>1. Patents <&-»314 — Petition to reopen case in infringement suit ctonied.</p> <p>A petition by defendant in an infringement suit, filed after an interlocutory decree for complainant, and after an accounting of profits lias been taken and reported, for leave to reopen the entire ease to introduce evidence of anticipating patents, will not he granted, where no good reason is shown why such evidence could not have been known at the lime of the hearing.</p> <p>2. Patents <3=»31S(6) — Defendant h»id not entitled to interest on. capital invested in manufacture of infringing articles.</p> <p>A defendant, on accounting for profits of infringement, is not entitled to an allowance of interest on tho capital invested in tho manufacturo of the infringing articles, where that was only a part of- its business, and it is impossible to satisfactorily apportion the interest between the kinds of business.</p> <p>3. Patents <3=»318(6) — Credit allowance to infringer for excess profit taxes paid.</p> <p>A defendant, on accounting for profits of infringement, where manufacture and sale of tho infringing article was only part of its business, held entitled to allowance for excess profit taxes paid, computed on the amount of the profits found at tho same rate that its entire tax paid bore to all its taxable profits, but with a proviso in the decree securing to complainant a reduction of said allowance by any sum that might thereafter be deducted from the taxes defendant would otherwise have to pay by reason of its payment of the decree.</p>

<p>At Raw. Action by William J. Crittenden against Samuel Barkin (the name “Samuel” being fictitious, the real first name of the defendant being unknown to plaintiff). On rule nisi to compel witness to attend examination.</p> <p>The witness was the defendant in an indictment in the state court, had pleaded, and had been released on bail. His residence was Des Moines, Iowa, and the prosecution coming on for trial he came from there to New York to attend upon it and in discharge of his bail. While here a subpoena was served upon him after an adjournment of court, but before the termination of the trial. The service Was in all respects regular, but the fees offered and refused by him were $1.50 attendance fee and 25 cents mileage. The witness resists, urging two objections: First, that he is privileged because of his attendance at the trial; second, because the mileage tendered was not enough.</p>

<p>In Equity. Suit by the Public Service Railway Company against the Board of Public Utility Commissioners. On application for preliminary injunction.</p>

<p>1. Gas <&wkey;14(1) — Cost of reproduction not sole basis of value.</p> <p>The valuation of a gas plant on which the rates arc to be based is the reasonable value of the property employed at the time it is being used for the public, and the cost of reproduction at the time of the use, less depreciation, is not necessarily that value, but such cost is only one of several factors to be considered in determining the value.</p> <p>2. Gas <&wkey;14(l) — Valuation must be based on reasonable judgment under all circumstances.</p> <p>There can be no mathematical certainty in fixing the valuation of a gas plant on which the owner is entitled to a fair return, nor can any formula be used in all cases; but the question is to be determined by a reasonable judgment based on proper consideration of all relevant facts.</p> <p>3. Gas <&wkey;14(l) — Valuation by master based on cost of reproduction held excessive.</p> <p>The valuation placed by the master on a gas plant, which was based on the cost of reproduction of the plant, less depreciation, field excessive under the evidence, especially in view of the tendency toward lower cost prices manifest since the master considered the ease and which was still continuing.</p> <p>4. Gas <&wkey;14(l) — Normal price not basis for valuation.</p> <p>In ascertaining the value of a gas plant on which the company is entitled to a fair return, the cost of reproduction is not to be figured on a normal price for materials and labor, since experience shows there is no such thing as a normal price to which the costs of material and labor tend to return after each departure.</p> <p>5. Gas <&wkey;14(l) — Depreciation should be determined by inspection, not by theory.</p> <p>The depreciation of a gas plant which is to be deducted from its cost in determining the present value should be the actual depreciation as determined by an inspection of the plant to ascertain its present efficiency, and not any theoretical depreciation.</p> <p>6. (Jas &wkey;M(l) — Cost of financing not element of value without evidence of expenditure.</p> <p>In determining the cost of reproduction of a gas plant to aid in fixing a reasonable rate, where there was no evidence of any expenditure in financing the original construction of the plant, no item for cost of financing should be included In the cost of reproduction, though such item would be proper if the evidence showed such cost had been originally incurred.</p> <p>7. Gas <&wkey;14(l) — Overhead items included in the cost of reproduction with out evidence of expenditure.</p> <p>In estimating the cost of reproduction of a gas plant, overhead items which were of such a nature that it was practically certain they were actually incurred in the original construction of the plant may be allowed, though there was no evidence they were incurred.</p> <p>8. Gas <&wkey;14(l) — Cost of rate litigation not considered in determining rate.</p> <p>The cost of the litigation by which the rate a gas company is entitled to charge is fixed should not ho considered in determining the rate.</p> <p>9. Gas i&wkey;14(l) — Quarterly adjustment of rate based on net holder cost approved.</p> <p>In the report of a master fixing the rate which a gas company is entitled to charge, a provision that the rate thereby fixed should be adjusted quarterly on the basis of the variation in the net holder cost is proper.</p> <p>10. Gas <&wkey;14(l) — Provision for revaluation every five years proper.</p> <p>A decree fixing the price a gas company is entitled to charge for its gas, with a provision for a revaluation of the gas plant every five years) is practicable and fair.</p>

<p>1. Constitutional law <&wkey;48 — Every presumption favors legislative act fixing gas rate.</p> <p>When application is made to the statutory court, pursuant to Judicial. Code, § 266 (Comp. St. § 1243), for a temporary injunction to restrain the enforcement of a gas rate made by the Legislature, every presumption is in favor of the validity of the legislative action.</p> <p>2. Gas <&wkey;14(l) — Temporary injunction should) not provide remunerative income for utility.</p> <p>When the rate fixed by the Legislature for charges by a gas company is attacked as unconstitutional, the only relief that should be granted on preliminary injunction is one that will relieve the more .acute cruelties of the situation, and yet not give the plaintiff a remunerative income.</p> <p>3. Gas <&wkey;14(l) — Rate injunction can be dissolved for inequitable charges.</p> <p>After a final decree restraining the enforcement of the statutory rate for gas charges, the Legislature should adopt a new schedule of charges which will be valid; but, if it fails to do so, and the gas company takes advantage of the situation to collect an inequitable rate, the injunction can be vacated, under the power reserved in the decree to vacate or modify.</p> <p>4. Gas <&wkey;14(l) — Defendant has harden of showing rate substituted for enjoined rate is inequitable.</p> <p>On motion to vacate a permanent injunction against the enforcement of the statutory rate for gas, the burden is on defendant, who made the motion, to show that the rate charged by the gas company in lieu of the statutory rate is inequitable.</p> <p>5. Gas <&wkey;14(l) — Inequitable rate, requiring dissolution of injunction, must shock the conscience.</p> <p>A rate charged by a gas company in lieu of the statutory rate, against which injunction was issued, which would entitle the defendant to a vacation of the judgment because it is inequitable, must, he a rate so obviously wrong that it shocks the conscience.</p> <p>6. Gas <&wkey;14(D — Bate yielding 25 per cent, profit held not unconscionable.</p> <p>After a gas company had obtained a permanent injunction against the enforcement of a statutory rate as conliseatory, the establishment of a new rate which yields a 25 per cent, profit is not so grossly inequitable as to shock the conscience of a decent man, and does not require the vaca: Gon of the injunction.</p>

<p>In Equity. Suit by the Coca-Cola Company of Delaware against Lewis G. Stevenson and others. Decree for complainant.</p> <p>The Coca-Cola Company of Georgia, substituted pending the action by the Coca-Cola Company of Delaware, sued to enjoin the defendants, John D. Fletcher, a citizen of the state of Texas, and the National Carbonating Syrup Company, a Delaware corporation, doing business at the city of Evansville, Inch, from further infringing upon the trademark of the plaintiff; also, seeking an order directing the Secretary of State of the State of Illinois, Lewis G. Stevenson, and his successor Louis L. Emmerson, to cancel the registration of the purported trade-marks of defendants Fletcher and the National Carbonating Syrup Company, on the ground that the registration was falsely and fraudulently procured.</p> <p>The plaintiff and its predecessors had been engaged in the manufacture of a syrup for an aerated beverage and had caused the beverage itself to be bottled under direction and supervision by the plaintiff known as “Coca-Cola,” since 1886. A vast sum of money had been expended in advertising the trade-mark “Coca-Cola” as indicating plaintiff’s syrup and the aerated beverage bottled therefrom. In the year Í9I6, ,81,943.178.40 had been expended in bringing the syrup and the beverage manufactured and sold under the trade-mark “Coca-Cola” to the attention of the trade in interstate commerce. The production of the syrup increased from 25 gallons in 1886 very rapidly until the annual output had, in 1916, reached 9,715.892 gallons; the trade-mark “Coca-Cola” bad become favorably and familiarly known everywhere; and the rights of the plaintiff were repeatedly affirmed by adjudications in the United States courts. The trade-mark was the subject-matter of two registrations in the United States Patent Office and prior thereto and since had been used by the plaintiff in interstate commerce.</p> <p>On March 16, 1916, plaintiff made application to the Secretary of State of Illinois for the registration of its trade mark “Coca-Cola” under the provisions of the Revised Statutes of Illinois (Chapter 140), fully complying with all the terms and provisions of that statute. The application, however, was rejected by tlie Secretary of State because of prior registrations by defendant John D. Fletcher, as follows:</p> <p>“John D. Fletcher’s Coca and Cola Carbonating Syrup, Chicago, Illinois,” the same being inclosed in a red circular band and registered July 24, 1914. Also, the words,</p> <p>■‘John I). Fletcher’s Carbonated Syrup, A Genuine Coca and Cola Flavor,” the same being inclosed in a broad corrugated wheel or circular bond of blue and registered October 6, 1914. Also,</p> <p>“Tri-Pure. A Genuine Coca and Colo flavor. 7 FI. Oz. Purest Drink in the World” — inclosed in a broad corrugated wheel or circular band and registered March 10, 1916. Also,</p> <p>“Trico. Genuine Coca and Cola Flavor. Oi/, FI. Oz. Purest Drink in the World”- — inclosed in a red corrugated wheel or circular band and registered September 25, 1916: all of said registrations being in the office of the Secretary of State of Illinois.</p> <p>And the registrations of John D. Fletcher were permitted to remain on record in the office of the Secretary of State, thereby becoming clouds upon the title and the exclusive right of the pl»intiff to the enjoyment of its trademark in Illinois.</p> <p>Defendant Fletcher was formerly a resident of Nashville, Train., and on or about February 15, 1911, organized a corporation under the laws of Tennessee, under the name of Nashville Syrup Company. He was president, general manager, and one of the principal stockholders of the company. Priot to the registrations in Illinois, a bill of complaint was filed in the Circuit Court of the United States for the Middle District of Tennessee by the plaintiff against the Nashville Syrup Company, praying an injunction against the defendant for infringing plaintiff’s trade-mark “Coca-Cola ” Upon a hearing upon the pleadings in the case, on July 29, 1912, a final decree was entered perpetually enjoining the Nashville Syrup Company, its agent, servants or employes, from further infringing plaintiff’s trade-mark. An appeal was prosecuted from tho decree to the Circuit Court of Appeals for the Sixth Circuit, and on June 13, 1914, the decree of the Circuit Court was affirmed. Coca Cola Co. v. Nashville Syrup Co. (D. O.) 200 Fed. 157: Nashville Syrup Co. v. Coca Cola. Co.. 215 Fed. 527, 132 C. C. A. 39, Ann. Cas. 1915B, 358.</p> <p>Fletcher knew of the suit and the adjudication in the United State Circuit Court in Tennessee and aided in the defense interposed to the bill. At the tíme lie filed his several applications for registration of trade-marks In Illinois, defendant Fletcher knew that the trade-mark “Coca-Cola” belonged to the plaintiff and referred to and meant to the trade plaintiff’s syrup and the nonalcoholic beverages made therefrom under plaintiff’s supervision, and that the use of the alleged trade-marks by Fletcher was unlawful and his acts and representations in procuring the registrations of his alleged trade-marks in Illinois, embodying the trade-mark “Coca-Cola” in various forms, was a fraud upon plaintiff’s rights.</p> <p>The National Carbonating Syrup Compány’s rights to the trade-marks registered in Illinois were acquired through defendant Fletcher.</p> <p>The applications of Fletcher for the registration of the trade-marks in question- with the Secretary of State of Illinois were in due form of law. The statute authorizing the registration of trade-marks, labels, etc., required the applicant to make a showing under oath that he had the right to the use of the trade-marks, the registration of which he sought, and that no other person, firm, organization, union, or corporation had the right to such use either in the identical form or in any such near resemblance thereto as might be calculated to deceive. In making this representation required by the statute, defendant Fletcher disregarded plaintiff’s rights to the trade-mark “Coca-Cola.” The registrations procured were procured by reason of the representations made, and upon a hearing the court found that the representations were untrue and fraudulent, and that they are a cloud upon the title to plaintiff’s property.</p> <p>It was contended upon the part of defendants Fletcher and National Carbonating Syrup Company that the plaintiff was without remedy in equity on the ground of unclean hands, for the reason that at one time, many years ago, it had been convicted of marketing a syrup that contained slight traces of ingredients offensive to the pure food laws, and citing, after submission, the opinion of the Circuit Court of Appeals for the Ninth Circuit in Koke Co. of America' v. Coca Cola Co., 255 Fed. 894, 167 C. C. A. 214; • that plaintiff had no trade-mark rights in the name “Coca-Cola” for either syrup or beverage; that the mark was appropriated by plaintiff for a beverage and never was applied; that it could have no common-law trade-mark because the name arose and was used to describe the ingredients in plaintiff’s product, i. e., extracts of coca leaves and cola nuts, and being descriptive, even if registered by plaintiff under the Act of February 20, 1905, it would only remove it on the class of merchandise to which it had been appropriated by the declaration and actually used; the declaration appropriated the mark to the class known as beverages and as it was never used on beverages, the descriptive disability has never been removed; that whatever rights the plaintiff may have had in the trade-mark had become a nullity; that plaintiff’s trade-mark never attained a secondary meaning as the name of plaintiff’s product; that defendants have always acted in good faith; that their product is distinctively and truly flavored with coca and cola, which are common products of the soil; that defendants’ product is Trico, and their trade-mark distinctive; that the state or any other sovereignty has the right to say how, when, and under what terms a mark may be used within the limits of that sovereignty; that plaintiff’s product is not a beverage.</p> <p>Defendant Secretary of State attacked the multifariousness of the bill.</p>

<p>At Raw. Action by the Philadelphia & Reading Railway Company and John Barton Payne, Director General and Agent for the Philadelphia & Reading Railway Company, against the Raurel Coal Mining Company, On statutory demurrer for misjoinder of plaintiffs. Statutory demurrer sustained, with leave to amend statement of claim.</p>

In Bankruptcy. In the matter of Buel G. Brayton, bankrupt. On review of an order of the referee holding a chattel mortgage given by the bankrupt to the Glens Falls Trust Company to be valid.

<p>In Error to the District Court of the United States for the Southern District of New York. Proceeding between the Bayles Shipyard, Inc., and James O. Persons. Judgment for the latter, and thq former brings error.</p>

<p>In Error to the District Court of the United States for the Western District of Texas; Duval West, Judge. Thomas C. Gonzales was convicted of conspiracy to receive and conceal imported intoxicating liquors and of receiving and concealing such liquor, and he brings error.</p>

<p>In Bankruptcy. Order of referee denying petition of claimants to reclaim certain goods sold by them to alleged bankrupts.</p>

Petition to Revise Order of the District Court of the United States for the Eastern District of New York. In the matter of the Locust Building Company, Incorporated, bankrupt. On petition by the American Trust Company to revise order (272 Fed. 988) denying motion to vacate stay of proceedings for foreclosure of a third mortgage.

Prosecution by the United States against John Murray (alias Michigan Shorty), John O’Brien (alias Hostile Johnny), and another. From an order dismissing a writ of habeas corpus, defendants appeal.