Volume 277 — Federal Reporter

<p>1. In,junction <®=»2S (3)-—Equity held without jurisdiction to enjoin suit for construction of contract.</p> <p>Equity held without jurisdiction to enjoin prosecution oí a suit by taxpayers against a city and its officers to enjoin performance of a contract by the city under which it issued bonds in accordance with what plaintiffs in said suit allege is an erroneous construction of said contract, on the ground that such suit depreciates tlio market value of the bonds owned by complainant, where its title is not challenged and no fraud or corrupt motive, is alleged.</p> <p>2. Courts >S=>508(1)—Federal court cannot enjoin suit in state court, which has priority of jurisdiction.</p> <p>The power of a federal court to protect its jurisdiction by’ enjoining a suit in a state court is limited to cases where its jurisdiction is prior to that of the state court.</p> <p><gi=>For other eases seo same topic & KEJY-NUMBEH in .all Key-Numbered Digests & Indexes</p>

Peck, Judge. Suit by the Dee Line Steamers, Incorporated, against the Memphis, Helena & Rosedale Packet Company. Demurrer to complaint sustained, and complaint dismissed, and plaintiff brings error.

<p>In Error to the-District Court of the United States for the Western District of Michigan; Clarence W. Sessions, Judge.</p> <p>Action at law by the Kreetan Company against the Western Assurance Company. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Trademarks and trade-names and unfair competition ©=>3(4)—“Lather Kreem” held descriptive of a shaving compound, and not the subject of a valid trade-mark.</p> <p>The name “Lather Kreem,” as applied to a shaving cream or paste, hold purely descriptive, and not the subject of a valid trade-mark.</p> <p>2. Trade-marks and trade-names and unfair competition ©=93(3)—Evidence held not to establish unfair competition.</p> <p>Defendant hold not chargeable with infringement of complainant’s copyrighted label, on which its product, a shaving compound, is designated as “Kranks Lather Kreem,” or with unfair competition by the use of label on a similar product, on which it is named “Twilight Lather Cream,” where the labels and packages are not otherwise similar in appearance or coloring, and each shows prominently the name and address of the maker, and there is no evidence of purchasers having been deceived.</p> <p>3. Trade-marks and trade-names and unfair competition ©=93(3)—Evidence as to actual deception to be considered in suit for infringement.</p> <p>In a suit for infringement of trade-mark or unfair competition, while proof of actual deception is not essential, the lack of such proof may properly be taken into account, in connection with the appearance of the alleged infringing product, as not calculated to mislead.</p> <p><g5»For other cases see same togic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>I. Indictment and information <@=>110(18)—Indictment for taking from railroad car goods constituting interstate shipment may be in language of statute.</p> <p>Act Feb. 13,1913, § 1 (Comp. St. § 8603), as to taking from a railroad car goods constituting interstate shipment, fully defines the offense charged, and it is sufficient for the pleader to describe the offense in the language of the statute.</p> <p>ggs&Eor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>2. Criminal law <@=>970(5)—Motion in arrest reaches only defects of substance.</p> <p>Motion in arrest of judgment reaches only defects in the indictment which are in matter of substance, and. not those which are of form; it being sufficient that the indictment is sufficient to support the verdict.</p> <p>3. 'Larceny <@=>34—Indictment for taking interstate shipment from railroad car need not show manner of taking.</p> <p>An indictment under Act Feb. 13, 1913, § 1 (Comp. St. § 8603), as to taking from a railroad car goods constituting interstate shipment, need not show the manner of taking and carrying away of the property described.</p> <p>4. Criminal law <@=>444—Waybills held admissible in prosecution for taking interstate shipment.</p> <p>. In trial for violating Act Feb. 13, 1913, § 1 (Comp. St. § 8603), as to taking from a railroad car goods constituting interstate shipment, waybills made out from markings on the shipment by the express messenger and identified by him held admissible as tending' to show interstate shipment, there being evidence that, where a waybill is not made out for express matter at the point of shipment, it is customary for the messenger on the train or the agent at point of destination to make it out.</p> <p>5. Criminal law <@=>1170Jé (1)—Witnesses <@=>383—Impeachment on immaterial issue held improper, but not prejudicial.</p> <p>In trial for violating Act Feb. 13, 1913, § 1 (Comp. St. § 8603), by taking from a railroad car whisky constituting' interstate shipment, it was error to ask accused if he had not made a trip to another town to buy whisky, and on his negative reply to show by stenographic notes that, he had testified at a former trial that he had gone there for that purpose, accused -not' being on trial for violating any law regulating the sale or transportation of liquor; but the error held not prejudicial.</p> <p>6. Criminal, law <@=>1163(1)—Burden on accused to show prejudice.</p> <p>On writ of error, the burden is on accused to show that error was prejudicial.</p> <p>7. Larceny <@=>33—Proper to describe car as belonging to railway during period of federal control.</p> <p>In indictment for violating Act Feb. 13, 1913, § 1 (Comp. St. § 8603), as to taking from a railroad car goods constituting interstate shipment, it was proper to describe a car from which the taking was committed as belonging to a railway company, even though the transaction occurred during the period of federal control.</p> <p>8. Larceny <@=>9—No defense that-accused owned the property where bailee had lawful .possession.</p> <p>. In trial for violating Act Feb. 13, 1913, § 1 (Comp. St. § 8603), as to taking from a railroad car goods constituting interstate shipment, it was no defense that accused owned the property in question, where it was being shipped C. O. D., as, the property being in the possession of the carrier as bailee, the owner had no right to take the property without satisfying the bailee’s lien for charges.</p> <p>9. Larceny <@=>60—Not necessary to show shipper’s contract in trial for taking interstate shipment.</p> <p>In trial for violating Act Feb. 13, 1913, § 1 (Comp. St. § 8603), as to taking from a railroad ear. goods constituting interstate shipment, it was not necessary to show a contract between the shipper and the carrier involving a delivery of goods by the shipper and an acceptance by the carrier, but a shipment in interstate commerce was sufficiently shown by waybills, together with the fact that shipments were made and accepted by the express company from whose possession it was charged the property was taken and transported by it through arrangement with the carrier, the United States.</p> <p><@=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>10. Indictment and information <3=»199—Variance may be waived at trial.</p> <p>A variance between indictment and proof may be waived orally at the trial by defendant’s counsel.</p> <p>«gs^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Eibel by the Robins Dry Dock & Repair Company against the steamship Flush, with cross-libel by the Bulk Oil Transports, Inc., against Robins Dry Dock & Repair Company. From an order substituting Saul S. Myers for T. Rangland Thompson as attorney for the plaintiff, the ousted attorney appeals. The libelant is a New York corporation and is engaged in the business ol ship repairing. Its shipyard is at the Erie Basin in the borough of Brooklyn in the city of New York.

Action by Emil W. Wagner and others, copartners doing business under the firm name and style of E. W. Wagner & Co., against James Murray, as Property Clerk of the Police Department of the City of New York, and others. Judgment for plaintiffs, and defendants bring error. The judgment below was in favor of plaintiffs there, who are defendants in error here. The parties will be referred to as they were aligned below.

Appeals from the District Court of the United States for the Southern District of New York. Libel in admiralty by the New England Steamship Company, owner of the steamer Boston, against the City of New York, owner of the ferryboat Richmond, with cross-libel by the libelee. Decree for the former, and the latter appeals.

<p>Appeal from the District Court of the United States for the District of Utah; Tillman D. Johnson, Judge.</p> <p>Suit in equity by the Utah Consolidated Mining Company against the Utah Apex Mining Company. Decree for defendant, and complainant appeals.</p>

<p>1. Waters and wafer courses <©=>203(7)—Packing company held party in interest to agreement between water company and city.</p> <p>Where city accepted deed ol' water system, containing a provision that transfer was subject to obligations entered into by the water company with private consumers in the city, which were to be assumed by the city, it must be held that such provision was entered into for the benefit of a packing company having a contract with the water company to receive water at a specified price, and a demand on the part of the packing company and institution of suit against the city to recover the difference between the contract price and the price charged by the city, which was paid under protest, was an acceptance by the packing company of the contract; but the contract between the packing company and the water company would have created no obligation on the part of the city, in the absence of an agreement to be bound thereby and to perform the unexpired term.</p> <p>2. Waters and water courses <©=>183 (3)—City of Omaha had power to purchase waterworks system.</p> <p>The city of Omaha, Neb., bad the unquestioned power under the laws of the state and ordinances passed in pursuance thereof to purchase in 1912 a water system and to pay for the same.</p> <p>3. Waters and wafer courses <©=>203(7)—Assumption of obligations of contracts held consideration on purchase price of waterworks system.</p> <p>City of Omaha, Neb., in purchasing a waterworks system in 1912, had full power and authority to agree as a part of the consideration for the conveyance .that it would carry out and perform contracts between tbe water company and consumers, and, having so agreed, it was not within the power of the city, or a water board, to advance water rates as to a consumer receiving water under a contract.</p> <p><§r»For other cases see same topic & KEY-NUMBER, in all Key-Numbered Digests & Indexes</p> <p>4. Water's and water courses @=>183(3)—Agreement of city to be bound by contracts of water company bn transfer of property was binding on water board.</p> <p>Although a separate corporation, the water board of the city of Omaha, Neb., in 1912, was bound by an agreement by the city to assume obligations of contracts between water company and consumers as part of consideration for conveyance of the water system to the city by the water company.</p> <p>Stone, Circuit Judge, dissenting.</p> <p><§E3>For other cases see sainé topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the District of Utah; Tillman D. Johnson, Judge.</p> <p>Suit in equity by Mary Frances Wall, administratrix, and others, against the Utah Copper Company. From tiie decree, complainants appeal.</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 estate of Camille Weidenfeld, bankrupt. ' On petition by Walter B. Milkman, as trustee, to revise an order of the District Court (271 Eed. 1010), reversing an order of the referee in bankruptcy, which rejected and disallowed a claim filed against the bankrupt estate, for the estate of John Byrne, deceased.

<p>1. Appeal and error <@=996—Construction of contract held one for interpretar . tion by court.</p> <p>Where the ultimate difference between the parties to a contract of sale of ships was no more than differing inferences drawn from the same words, and each party demanded that the court interpret the writings, leaving to the jury nothing but an assessment of damages, a finding of the court that there was no meeting of the minds of the parties must be accepted on appeal; an inference from admitted facts being itself a fact.</p> <p>2. Evidence <@=450 (8)—Ambiguity held to exist in sale contract.</p> <p>A cablegram concerning purchase of ships, "Make payments deposit New York joint names, payable to sellers as follows: First payment hundred thousand dollars immediately; second payment hundred thousand dollars on arrival steamers New York; third payment, four hundred thousand dollars on delivery title deeds”—answered by cable of seller, “Accept your proposal,” held ambiguous, in that it cannot be determined whether seller was immediately entitled to the $100,000, or whether it was to be placed under the joint control of seller and purchaser until delivery of the title deeds, etc., and other evidence was admissible.</p> <p>3. Shipping <@=27—Meaning of contract held for court.</p> <p>.Construction of an accepted offer for purchase of ships to “make payments deposit New York joint names, payable to sellers as follows: First payment hundred thousand dollars immediately,” etc., held a question for the court, and not the jury; the difference between the parties being whether or not the seller was entitled to immediate possession of the first $100,000, the words “joint names” and “immediately” being plain enough, singly considered.</p> <p><@»For otter cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Equity <®=»362—Bill not subject to dismissal on motion because of adequate remedy at law.</p> <p>Where a bill states a cause of action in equity, the objection that complainant has an adequate remedy at law Is not properly raised by a motion to dismiss.</p> <p><£^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Courts <§=>371(1)—Federal court held to have jurisdiction to determine validity of rates fixed by municipal council; “judicial proceeding.”</p> <p>Acts Ark. 1921, No. 124, § 19, provides that any public utility may have tbe action of a municipal conncil or commission fixing rates reviewed as to its legality, fairness, and reasonableness by the circuit court of the county by filing a complaint as in other cases according to the usual rules of pleading, whereupon the court shall proceed de novo and shall determine what rates would afford reasonable compensation for the services rendered and certify the same to the council or commission, which shall thereupon fix rates in conformity with such findings. Held, that such proceeding, though called an appeal, is a judicial proceeding, and where the jurisdictional facts exist, may be brought in a federal court.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Judicial Proceeding.]</p> <p>2. Constitutional law <§=>61—Statutory provision giving legislative powers to court held void under state Constitution.</p> <p>The provision of Acts Ark. 1921, No. 124, § 19, conferring on a court legislative power to fix rates for a public utility on appeal from the action of a municipal council or commission held void as in violation of Const. Ark. art. 4, § 2, which prohibits the exercise by one department of the state government of powers belonging to either of the others, but under its express terms such invalidity does not affect other provisions of the act.</p> <p><gE5>Por other cases see same topic & KEY-NUMBER in .all Key-Numbered Digests & Indexes</p>

<p>At Taw. Action by the Yeliowstone-Merchants’ National Bank of Billings against Rosenbaum Bros. & Co.</p>

<p>At Law. Action by the Zurich General Accident & Liability Insurance Company, Limited, against the Imperial Wheel Company. On motion to set aside the service of summons and to dismiss the complaint on the ground that the court is without jurisdiction.</p>

<p>In Bankruptcy. In the matter of the Empire Grocery Company, alleged bankrupt. On petition to reclaim goods.</p>

In Bankruptcy. In the matter of Nathan S. Horowitz and others, bankrupts. Application to restrain delivery of copy of minutes of a hearing held before a referee.

Tony Falloco and Tony Ross were separately charged with violation of the National Prohibition Act. On separate application of each defendant to suppress evidence against them, obtained by state police officers through a search without warrant.

<p>Habeas Corpus. In the matter of the petition of Victor Kozlowski for writ of habeas corpus.</p>

<p>1. International law <@-^>10—A government not recognized cannot sue.</p> <p>Libel by, the “Russian Socialist Federated Soviet Republic” and its “agent and representative,” which failed to allege that such republic had ever been recognized as a sovereign state by the United States or that such agent had ever been recognized as an agent or representative of such republic, held properly dismissed.</p> <p>Evidence —Judicial notice taken of recognition of foreign governments and their representatives.</p> <p>Judicial notice will be taken of the action of the political department of the government on such questions as the recognition of foreign governments and their representatives.</p> <p>3. Constitutional law <S=»68(1)—Recognition of foreign governments a political question.</p> <p>Which government in a foreign country is sovereign de jure or de facte is not a judicial, but a political, question, the decision of which by the legislative and executive departments of government binds the judicial department.</p> <p>(g^^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Petition by E. H. Miller to enjoin, set aside, annul, or suspend an order of the Interstate Commerce Commission approving issuance of new securities by the Chicago & Eastern Illinois Railroad Company. On motion of the United States to dismiss petition.</p> <p>Suit under Commerce Court Act (36 Stat. 539) and Urgent Deficiencies Act October 22, 1918 (88 Stat. 219; Comp. St. §§ 992, 994) to enjoin, set aside, annul, or suspend order of Interstate Commerce Commission, February 3, 3921, approving tlie issuance of new securities by Chicago & Eastern Illinois Railroad Company. Hearing on motion of United States to dismiss the petition. Motion sustained.</p> <p>The petitioner in this proceeding asks this court “to set aside and annul an order granted by the Interstate Commerce Commission on or about February 3, 1921, approving the issuance of new securities by the Chicago & Eastern Illinois Railroad Company. * * í! ” The only allegation of any inferest which the petitioner has in the proceeding is ills statement in the petition that “your petitioner represents, in his application, an interest of nearly 8300,000, in the stock of the Chicago & Eastern Illinois Railroad Company.”</p> <p>Tlie original Chicago & Eastern Illinois Railroad Company is in the hands of receivers who were appointed in May, 3913.</p> <p>The petition sets forth that the original application to the Commission for the right to issue securities by a corporation about to be formed, but really previously incorporated, was signed hv Joseph P. Cotton, counsel for the committee protecting the general mortgage bonds of the old company, the Chicago & Eastern Illinois Railroad Company, and by George Wellwood Murray, counsel for the committee protecting the preferred and common stock of the railroad company. The petition goes on to state that under date of January 20, 1921, there was filed with the Commission a petition by the railway company for leave to issue securities in order to purchase property belonging to the old railroad company at foreclosure sale of some of the mortgages securing certain of the bonds above mentioned. This foreclosure suit is pending in me federal court in Chicago. The petition of the new railway company is stated to have adopted as its own the prior application of Messrs. Cottofi and Murray.</p> <p>A deposit agreement was made for the protection of owners of preferred and common stock, dated May 28, 1913, one clause of which is as fóllows:</p> <p>“In order to comply with the rules of the committee on'~stoek list of the New York Stock Exchange, a period of five years is hereby specified as the period within which depositors will be entitled either to receive the new securities resulting from the plan for reorganization or readjustment of the railroad company or its affairs, or to the return of the deposited securities upon the compliance with the terms of this agreement., * * * ”</p> <p>A deposit agreement relating to the refunding and improvements bonds of the old company, bearing date March 25, 1914, was likewise made. This contained no provision as to the withdrawal of the bonds after five years, and vested the committee named in the agreement with the legal title to all the bonds deposited thereunder.</p> <p>A further deposit agreement, bearing date March 15, 1915, and covering certain other indebtedness of the insolvent railroad, was also made. This last agreement provided:</p> <p>“The period of five years is specified as the period within which the depositors will be entitled to the return of the securities which they have deposited hereunder, or the receipt of new securities on reorganization or readjustment.”</p> <p>Certain of .the bonds under the last-mentioned deposit agreement are stated by the petitioner to be first lien bonds issued to pay for coal lands. The petition goes on to say that the coal property was ordered sold by the United States District Court 'in Chicago, but that the foreclosure was not completed as to the Indiana property until December 18,1918, and as to the Illinois property until March 19, 1919. Meanwhile, the petition alleges, the stockholders’ deposit agreement had expired, and the deposit agreement covering the coal bonds had also expired. It further states that the expiration of the latter agreement was “before the committee announced the purchase of the coal properties” and the transfer of the title to the present nominal holding company, the Indiana & Illinois Coal Corporation. * * * ” The charge is made that the equity in these coal lands has been lost to the holders of the stock and securities other than the coal bonds deposited with the committee because of this sale. \</p> <p>It is apparently the case (although the papers do not set it forth with any degree of clearness) that the coal property will not be, or may not be, turned over to the new railway company while the other assets which are in the hands of the receivers of. the Chicago & Eastern Illinois Railroad Company are to be turned over to it upon the issuance of various securities authorized by the Interstate Commerce Commission by its order of the 3d of February, 1921. The petitioner alleges that the proposed transfer is an invasion of the rights of the stockholders and bondholders of the Chicago & Eastern Illinois Railway Company, whom he represents, on either one of two grounds: (1) Because the three committees represented antagonistic interests and were exploiting the coal properties and neglecting to include them in the proposed-reorganization; (2) because the deposit agreements covering the stock and coal bonds liad expired.</p> <p>He further alleges that he is seeking, in a suit in the New York Supreme court, to cancel the sale of the coal lands.</p> <p>The petition then proceeds to ask that the order of the Interstate Commerce Commission be set aside:</p> <p>(a) Because the Commission did not examine the reorganization plan before making an-order authorizing the issue of securities by the new company which proposes to purchase at the foreclosure sale.</p> <p>(b) Because the application to the Interstate Commerce Commission, signed by Joseph P. Cotton and George Wellwood Murray, was legally invalid (ap patently on account of the alleged expiration of the deposit agreement), and could not be cured by the filing of a second application by the new company.</p> <p>(c) Because the Interstate Commerce Commission, if they had learned that it was proposed to disregard the coal lands, might have, and apparently it is claimed should have, insisted upon a modification of the schedules of securities to be issued by the new company.</p> <p>By an order of Judge Mach, copies of the. petition were served upon the secretary of the Interstate Commerce Commission, and the Attorney General of the United States, and notice was given also to George O. Yan Tuyl, Jr., .Joseph P. Cotton, George Wellwood Murray, and W. H. Lyford, of the hearing on the present petition.</p> <p>The United States attorney, appearing on behalf of the respondent, moves to dismiss the petition upon substantially three grounds: (1) That the</p> <p>petitioner shows no interest entitling him to maintain the petition; (2) that no order of the Interstate Commerce Commission is involved which is subject to the injunction process of this court: (3) that no causo of action against the United States is set forth.</p>

<p>1. Shipping <§=>137—SMp loading cargo for unlicensed voyage unseaworthy.</p> <p>A ship of United States registry, licensed only for coastwise business, which loaded a cargo at New York for Mediterranean ports, held unseaworthy for the voyage, and the owner not entitled to any of the exemptions from liability provided by Harter Act, § 3 (Comp. St. § 8031).</p> <p>%. Shipping @=>133—lien between sMp and cargo attaches when cargo is loaded.</p> <p>The mutual lien between ship and cargo attaches when the cargo is loaded on the vessel, and whenever any event happens which renders tho lien enforceable, it relates hack to that time.</p> <p>3. Shipping @=>125—Delay from seisnre by marshal of imseawortíiy vessel after loading held deviation.</p> <p>Whore a ship, after loading for a voyage for which she was unseaworthy, was seized and held by the marshal on process, the incident delay constituted a deviation from the voyage, which rendered the owner liable for damage to the cargo from a fire which occurred during tho custody of the marshal and the sinking and subsequent salving of the vessel, and entitled the cargo owners to a lien, dating from the time of loading, for all such damage, for freight prepaid, and for the cost of loading and unloading.</p> <p>4. Maritime Hens @=>37—liens for repairs amfl supplies Held superior to those for damage to cargo.</p> <p>Furnishers of repairs and supplies to fit a vessel for a voyage have a lien superior to that of cargo owners for damage to cargo resulting from deviation from the voyage; but liens for freight prepaid, which put tho vessel in funds for the voyage, stand on a parity with those for repairs and supplies.</p>

<p>In Equity. Suit by Isabelle Barnette against the Wells Fargo Nevada National Bank of San Francisco and Fred G. Noyes, individually, and as receiver.</p>

<p>In Admiralty. Cross-libels by the Carmichael Ship Company against the steamship Creole, and by the Southern Pacific Steamship Company against the schooner James William, to recover damages for collision.</p>

Cross-libels by the Carmichael Ship Company against the steamship Creole, of which the Southern Pacific Steamship Company was claimant and by the Southern Pacific Steamship Company against the schooner James William, in which the Carmichael Ship Company was claimant, to recover damages for a collision. From a decree finding the steamer solely at fault (277 Fed. 119), the Southern Pacific Steamship Company appeals.

<p>At Daw. Action by George V. Massey against Ephraim Eederer, Collector of Internal Revenue.</p>

<p>William M. Dobson, George McCann, Jr., W. John Dubree, Ralph Lovell, and William Burlingham were indicted for defrauding or conspiring to defraud a corporation in which the United States owned stock.</p>

<p>In Bankruptcy. In the matter of P. C. Ellsworth and others, bankrupts. On petition to stay proceedings in state court.</p>

Anderson, Judge. Habeas corpus' by Mofris Katzeff, on relation of William T. Colyer and others, against Henry J. Skeffington, Commissioner of Immigration. From a decree (265 .Fed. 17) discharging the petitioners, the respondent appeals.

• Appeal from the District Court of the United States for the Southern District of Florida; Rhydon M. Call, Judge. Suit by C. L. Williams, as receiver of the Heard National Bank of Jacksonville, against S. F. Travis and others. From a decree dismissing the bill, complainant appeals.

Tuttle, Judge. Action by Charles C. Corey against the Atlas Coal & Coke Company. Judgment for defendant, and plaintiff brings error.

In Error 'to the District Court of the United States for the Eastern District of Oklahoma; R. E. Williams, Judge. Action hy the Southern Trust Company against the Yellow Rose •Mining Company, T. H. Vaughn, and others on a promissory note. Judgment for plaintiff against the corporate defendant only, and plaintiff brings error.

Western District of Michigan;-Clarence W. Sessions, Judge. Action by Charles E. Cartier and Edward M. Holland, copartners as the Cartier-Holland Lumber Company, against Emanuel J. Doyle, Collector of Internal Revenue. Judgment for defendant (269 Fed. 647), and plaintiffs bring error.

<p>1. Highways @=>113 (4) —County held without authority to pay more than the contract price for work ion®.</p> <p>The commissioners’ court of a Texas county entered into a contract with defendant to do certain road work in accordance with specifications, for which the county agreed to pay $15,000, as the “contract price-” Held that, where no more work was done than that provided for in the contract, the court was without power to afterward allow a further sum in pay-meat therefor, under article 3, § 53, of the state Constitution, which provides that no county shall be authorized “to grant * * * any extra compensation * * * to a contractor after * * * a contract has been entered into, and performed in whole or in. part.”</p> <p>^sFor other cases see same topic & KEY-NUMBEXt in all Key-Numbered Digests & Indexes</p> <p>2, Judgment <§=»521—Suit to restrain enforcement held direct attack on judgment.</p> <p>A suit commenced in a state district court of Texas to restrain enforcement of an order of a county commissioners’ court allowing a claim in favor of defendant, and directing issuance of warrants in payment hereof, which order, under the state decisions, constitutes a judgment, held a direct and not a collateral attack on the order, and properly brought; the district court being given general supervisory control over commissioners’ courts by Const. Tex. art. 5, § 8.</p> <p><@c»For other cases see same topic & KEY-NUMBER in all Kej-Numbered Digests & Indexes</p>

<p>1. Wills <@=>246—Under statute, courts , of Kansas without jurisdiction to determine validity of foreign probated will.</p> <p>Under Gen. St. Kan. 1915, § 11807, providing that no proceedings shall be had in the state to contest a will which is executed and proved according to the law of the state of domicile of the testator, a decree of a Kansas court declaring invalid a will executed by a testator domiciled in Missouri held void for want of jurisdiction over the subject-matter.</p> <p>2. Wills <@=>733(6,7)—Devisee under foreign will acquires no title to land in Kansas until copy of will is recorded.</p> <p>Under Gen. St. Kan. 1915, §§ 11779, 11784, providing for the admission to record in that state of authenticated copies of wills executed and proved according to the laws of another state, and that no will is effectual to pass title to real or personal estate until admitted to probate or recorded as therein provided, a devisee of land in Kansas by the will of a testatrix domiciled in Missouri, prior to the proving of such will and the admission of a copy to record by the probate court in Kansas held to have no title which could be asserted or determined in an action in ejectment in Kansas.</p> <p><g=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Salvage <§=>26—Elements to be considered in determining compensation of salvors stated.</p> <p>Tbe amount of salvage is to be determined by considering salvors’ labor expended, tbe promptitude, skill, and energy displayed in saving the property, the value of tbe property employed by salvors, tbe danger to which it was exposed, the risk incurred in securing tbe property from the impending peril, the value of tbe property saved, and tbe degree of danger from which it was rescued.</p> <p>2. Salvage <§=>51—Award of District Court will be interfered with for abuse of discretion, where extravagantly excessive.</p> <p>The Circuit Court of Appeals may reduce or increase salvage awards of the District Court; but, as such awards are matters of discretion, they will not be interfered with, unless tbe amount awarded indicates abuse of discretion.</p> <p>3. Salvage <§=>29—$25,000 salvage compensation to tows assisting vessel to shift position held excessive in a harbor case, and reduced to $10,000.</p> <p>Where two vessels, valued at $1,000,000 and $400,000, respectively, and a loss to tbe former of $10,135 and to the latter of $6,391 was caused by tbe larger dragging her anchor, and two tugs, valued at $40,000 and $60,000, assisted tbe larger to shift position, and tbe labor was not great, and occupied not to exceed two hours, tbe tugs responding with promptitude and displaying commendable energy, but tbe situation not calling for unusual skill and involving no great risk, and no great danger arose from weather conditions, and tbe work was in harbor where tugs were numerous, held, that an award of $25,000 is excessive, where the ordinary charge for the use of such tugs is from $15 to $20 an hour, and the award gave them each more than $6,000 an hour, and the captains recovered $1,500 each, which is assumed to be above six months’ pay, for two hours of work, and the owners received between them $15,000, held, that the award should be reduced to $10,000 as ample compensation.</p> <p>(§r=oFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Appeals from the District Court of the United States for the Eastern District of New York. Eibels by the Mears Towing Company, Inc., by Andrew H. Mills, Inc., by the Red Hook Towing Company, by Edward M. Timmins, as managing owner, etc., of the steam tug John J. Timmins, and by Edward M. Timmins, as managing owner, etc., of the steam tug Mutual, against the steamship West Mount, in each of which the United States was claimant.

Suit by the Philadelphia Rubber Works Company against the United States Rubber Reclaiming Works and others for infringement of a patent. From a decree fixing the amount of damages for the infringement after an accounting (276 Fed. 600, 613), both parties appeal.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Libel by the Jova Brick Works, Inc., against the City of New York, which brought in the Shamrock Towing Company and another. From a decree for the libelant, the City appeals.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit for -infringement of a patent by the Thomas Tasting Wave Company, Inc., against E. Fredericks, Inc., and another. Decree for defendants, and plaintiff appeals.</p> <p>' Appeal from a decree-dismissing the original and supplemental bills for noninfringement of certain claims of three patents: (1) No. 1,164,101, dated December 14, 1915, granted upon an application filed December 4, 1913, to George Kremer and Ernest Unger, for an apparatus for curling hair. (2) No. 1,164,102, dated December 14, 1915, granted upon an application filed October 15, 1914, to George Kremer and Ernest Unger, for process for permanently waving hair. (3) No. 1,103,506, dated July 14, 1914, granted upon an application filed January 3, 1914, to Ernest Unger, as assignee of Grosert, for a hair-steaming device.</p>

Proceedings for habeas corpus and certiorari by Sit Sing Kuril and another to procure their discharge from warrants of deportation. From an order dismissing the writs, petitioners appeal.

Suit by the Mallory Steamship Company against Julius Thalheim and others, trustees doing business as the International Credit Trust:, and others. From an order denying an injunction pendente lite, petitioner appeals. Tlie petitioner is a corporation organized under the laws of the state of Maine, but has an office for the transaction of business in the city and Southern district of New York. It is a common carrier.

On Petitions for Review of Orders of Federal Trade Commission. ■ Origina] petitions by D. A. Winslow and others, a partnership doing business as D. A. Winslow & Co., and by the Nordcn Ship Supply Company, Incorporated, for review of orders of the Federal Trade Commission. Orders set aside and annulled.

<p>In Error to the District Court of the United States for the District of Minnesota; Page Morris, Judge.</p> <p>Criminal prosecution by the United States against Saul Goldberg. Judgment of conviction, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the District of Minnesota; Page Morris, Judge.</p> <p>■ Criminal prosecutions by the United States against Frank Bank and against David Posnick. Judgments of conviction, and defendants bring error.</p>

, Suit by the Morgan Construction Company against the Donner Steel Company, Inc., for infringement of a patent. Decree for plaintiff (269 Fed. 389), and defendant appeals.

<p>1. Pledges <@=>56 (1)—Where railroad delivered bonds for advances to plaintiff, who pledged them, he could not complain that bonds were sold) by pledgee after receiving credit on his indebtedness to pledgee in amount greater' than that dtie from railroad.</p> <p>Where railroad, to secure advances, delivered bonds to plaintiff, who •delivered bonds to defendant to secure his indebtedness to defendant, and where it was agreed between the railroad, plaintiff, and defendant that the railroad should make note for advances to plaintiff, which plaintiff should indorse to defendant, who agreed to collect note from the railroad for the account of the plaintiff, and credit his personal account with such amount, and where such note was in fact executed to plaintiff, and indorsed by plaintiff to defendant, pursuant to such agreement, but was not paid by the railroad, and where, on plaintiff’s failure to pay indebtedness, the collateral, including such bonds, was lawfully sold, and plaintiff given credit on his indebtedness to defendant for amount of proceeds of bonds in an amount greater than the face and interest of the note, the plaintiff, having suffered no damage by reason of the sale of the bonds, could not complain thereof.</p> <p><®=>For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>2, Witnesses <®=246(1)—Jurors should not be permitted to interrupt witnesses with unnecessary questions.</p> <p>Jurors should, not be permitted to interrupt witnesses with unnecessary questions, since a jury should listen to evidence and counsel should elicit it.</p> <p><3=>For other cases see same topic & KE 7-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Western Division of the Southern District of Ohio: John E. Sater, Judge.</p> <p>Action by the Dayton Brass Castings Company against A. C. Gillsgau, Collector of Internal Revenue. Judgment for defendant, and plaintiff brings error.</p>

Libel in admiralty by Alfred S. Walling and another against the steam tug Neptune, her engines, etc., in which one Hans Swensen (libel-ant in another cause against the same vessel) intervened. Decree for libelants, and intervener appeals.

Lewis, Judge. Action by Frank Baker, by his next friend and special guardian, Monett Baker, against the Town of Manitou, Colo. Judgment for defendant, on sustaining demurrer to the complaint, and plaintiff brings error.

<p>In Error to the District Court of the United States for the Eastern District of Pennsylvania; J. Whitaker Thompson, Judge.</p> <p>Action by the Du Pont National Bank of Washington, D. C., against Edward B. Chase. Judgment for plaintiff on directed verdict (272 Fed. 1016), and defendant brings error.</p>

<p>1. Shipping <3=54—Towage <@=11 (8)—Duty of master to examine barge, and neither charterer nor tug were liable for his failure.</p> <p>It was the duty of a captain of a chartered barge, as a part of the husbandry thereof, to examine her at the end of a trip through a channel broken through ice 30 feet wide, before leaving her, and neither the charterer nor the tug owner was chargeable with the loss of the barge, which sunk by reason of slight injuries about even with the load water line.</p> <p>2. Shipping <3=54—Tee damages to barge held reasonable wear and tear.</p> <p>A man who charters his vessel for harbor navigation in New York in the winter time must regard careful proper navigation through ice fields as a use reasonably to be expected, and the damage caused by knocks from floating ico is chargeable to reasonable wear and tear, in the absence of unusual conditions and no negligence in the towing.</p> <p><©s»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Petition to Superintend aud Revise from the District Court of the United States for the Northern District of Mississippi; Edwin R. Holmes, Judge. Jn the matter of C. G. Walton, bankrupt; J. T. Garrett, trustee. On petition by bankrupt to revise order of District Court.

Habeas Corpus. In the matter of the application of Tsunetaro Machida for a writ to secure release from detention for deportation.

<p>In Admiralty. Libel by the City of Beaumont Ship Company against the steamship Ascutney, the steam tug Marie Olsen, and other vessels. Decree for libelant against the Olsen Water & Towing Company, Inc., claimant of the above-named steamship and tug.</p>

<p>Appeal from the District Court of the United States for tbe Southern District of New York.</p> <p>Libel by tbe City of Beaumont Ship Company against the steamship Ascutney and other vessels. From a decree for libelant against the Olsen Water & Towing Company, Inc., claimant, ele. (277 Fed. 242), it appeals.</p>

<p>Receivers <§=>139—Sale of personal property improperly divided into lots set aside.</p> <p>Under an order requiring receivers to offer personal property for sale in bulk and also in lots, a sale made in lots, but so divided that the lots were not calculated to, and did not, bring an adequate price, held prejudicial to creditors and set ¿side.</p> <p><§zs>For other cases see same topic & KEY-NUMBER in .all Key-Numbered Digests & Indexes</p>

<p>1. Pleading <§=17—Allegation of receipt of goods held insufficient as allegation of agency.</p> <p>In a statement of claim, an allegation that goods were received by a warehouse company “on behalf of the defendants” was insufficient as an allegation of agency, and renders the averment of the receipt of the goods insufficient.</p> <p>2. Pleading <§=21—Cause of action for nonaeeeptance of goods sold and damages claimed held inconsistent.</p> <p>Where plaintiff, in an action for nonaeeeptance of Hour, sued for the difference between the contract price and the market price, according- to section 64 of the Sales Act of 1915 (P. L. 543; Pa. St. 1920, § 19712), and contended that the goods had been delivered and accepted, and that defendant had refused to pay for them, in which case the damages, under section 63 (Pa. St. 1920, § 19711), would be tbe price of tbe goods, the cause of action alleged is inconsistent with tbe damages claimed.</p> <p><?r»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>3. Pleading <©=»350(3)—After two unsuccessful attempts to allege a good cause of action, judgment may be entered for the defendant.</p> <p>After a failure in two attempts to set out a good cause of action, judgment may be entered for tbe defendant.</p> <p><§gjFor other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Bill by Arthur H. Ingle against the Dandis Tool Company and another. On petition by defendant, on reversal on appeal, to reopen and admit supplemental answer.</p>

<p>1. United States <§=>125—United States Shipping Board Emergency Fleet Corporation suable on contracts like other corporations.</p> <p>The United States Shipping Board Emergency Fleet Corporation is a separate entity, notwithstanding all its stock is owned by the United States, and where it enters into contracts is suable in the same manner as other corporations.</p> <p>2. Corporations <$=484 (1)—In absence of statute or charter conferring power, corporation cannot become guarantor or surety, or lend its credit.</p> <p>The general rule is that, in absence of statute or charter conferring the power, no corporation can become a guarantor or surety, or otherwise lend its credit to another person or corporation.</p> <p>3. Pleading <$=350 (3)—Sufficiency of defense of ultra vires cannot be determined without charter of corporation.</p> <p>On rule for judgment against a corporation for want of a sufficient affidavit of defense, based on a claim that a contract was ultra vires, hehl that, in the absence of defendant’s charter from the record, the question could not be determined, and the rule would be discharged.</p> <p><®=For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Bankruptcy <§=>140 (3)—Special deposit by corporation, from; which it paid interest coupons, held not a trust fund for benefit of bondholders.</p> <p>Whore interest coupons attached to bonds of a corporation recited that they were payable at the office or agency of the corporation, the fact that for its own convenience the corporation, prior to each maturity date, made a special deposit in a bank, on which it drew checks in payment of coupons when presented, held not to constitute such deposit a trust fund for the benefit of coupon holders, but, on the bankruptcy of the corporation, the amount remaining in such deposit held a part of the general, assets of the estate.</p> <p><J^sFor other cases see same topic & KEY-NUMBER in all Key-Nuinhorea Digests & Indexes</p>

Tu Admiralty. Suit by W. Everett and others against the United States, the United States Shipping Board Emergency Fleet Corporation, and Tory Hedemark, heard with five other cases by Walter Starkey and others, by E. Gaupholm, by G. IT. Beauchamp and others, by L. E. Oblom, and by P. Sognefest against the same respondents. Decrees for libelants against respondent Hedemark only. These several causes were consolidated for trial.

In Equity. Suit by the American Brake Shoe & Foundry Company against the New York Railways Company. On determination of certain questions of lien and amount of mortgage debt.

<p>1. Patents <@=328—1,180,159, for an incandescent lamp, held valid and infringed.</p> <p>The Langmuir patent, No. 1,180,159, for incandescent lamp, claims 4, 5, 12, and 13, hold valid and infringed.</p> <p>"2. Patents <@=328—1,018,502, fox' filament for electric incandescent lights, held valid and infringed.</p> <p>The Just and Hanaman patent, No. 1,'018,502, for filament for electric incandescent lights, claims 1, 2, and 8, hold valid and to cover an invention of the highest order; also held infringed.</p> <p>3. Patents <@=97—Foreign patent for process does not invalidate United States patent for product which discloses different process; “same invention.”</p> <p>A patent for a process and one for the product of such proeess are for the same invention within the meaning of Rev. St. § 4887, as amended by Act March 3, 1897, 29 Stat. 692, under which a United States patent cannot be granted for an invention patented in a foreign country on an application filed more than seven months prior to the filing of the application in this country (now 12 months, Comp. St. § 9431), but a United States patent for a product which discloses a process for its manufacture is not invalidated by a foreign patent to the same patentee for a nonoperative process.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Same Invention.]</p> <p>4. Patents <@=312 (1)—Burden oh defendant to prove that foreign patent for process is identical with United States patent.</p> <p>Where, in a suit for infringement of a patent for a product, defendant seeks to avoid validity of complainants patent, in that the application therefore was filed more than 7 months after filing of application for foreign patent for a proeess, contrary to Rev. St. § 48S7, as amended by Act March 3, 1897, 29 Stat. 692 (now 12 months, Comp. St. § 9431), the burden rests on defendant to prove that the process, of the foreign patent will produce the. product of the United States patent.</p>

<p>At Raw. Action by the Federal Reserve Bank of Minneapolis against the First National Bank of Eureka, S. D., Paul C. Keyes, receiver.</p>

<p>Criminal prosecution by the United States against the Port Washington Brewing Company and others. On petition of defendant Herbert C. La Bahn for writ of error coram nobis.</p>

<p>In Equity. Suit by Horace G. Johnson and another against Browning King & Co. for infringement oí a patent.</p>

In Equity. Suit by the Twin Falls Canal Company against Frank B. Damman and others for injunctive relief. Acting under the provisions of what is popularly known as the Carey Act (Comp. St. § 4685), the plaintiffs predecessor in interest constructed a large irrigation system diverting water from the Snake river for the reclamation ol’ a segregated area of public lands of the United States aggregating more than 200,000 acres.

<p>1. Carriers <§=>157—Liability after arrival is controlled] by bill of lading.</p> <p>Tbe conditions of a carrier’s liability, while goods are retained after arrival, as stipulated in the bill of lading, are controlling.</p> <p>2. Carriers <§=*157—Notice of arrival, duly mailed, but not received, is “duly sent,” within bill of lading, limiting liability to that of warehouseman.</p> <p>Within the provision of a bill of lading limiting liability to that of a warehouseman after a notice of arrival had been duly sent or given, tbe expression “duly sent” means sent in a regular and approved manner, so that it is sufficient if notice of a letter stamped and addressed is deposited in the post office, though it was not received.</p> <p>3. Carriers <§=*157—Bill of lading held not to require receipt of notice of arrival.</p> <p>A bill of lading requiring notice of arrival of the goods to be duly sent or given does not make actual notice necessary, since the words “or given” are qualified by the words “duly sent,” and proof of cither the due sending of the notice or actual notice is sufficient.</p> <p><®=>For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Habeas corpus proceeding by Colly Watts against Maurice Splain. as United States Marshal in and for the Districl of Columbia. From a judgment denying the relief sought, petitioner appeals.</p>

J. Cochran, Judge. Action by the R. E. Hamilton & Sons Company against the East Harlan Coal Company. Judgment for plaintiff, and defendant brings error. On January 12, 1917, II.

<p>1. Patents <@=>328'—Reissue 14,183, for reinforced concrete construction, held invalid as too broad as to one claim and not infringed as to another.</p> <p>The Vandenburgh reissue patent, No. 14,182 (original No. 841,741), for reinforced concrete construction, claim 1, held invalid, as too broad. Claim 3, if conceded validity, as limited by the prior art, held not infringed.</p> <p>2. Patents <@=>324(5)—Finding by trial court as to prior date of invention presumptively correct.</p> <p>The burden rests on a complainant to establish an asserted earlier date of invention to the satisfaction of the court, and the conclusion of the trial court on such question of fact must be accepted by the appellate court, unless the evidence decidedly preponderates against it.</p> <p><g3^Far other cases see same topic & KEY-N CT'MBER in all Key-Numbered Digests & Indexes</p>

<p>1. Sales @=28(4)—Betuna of offer marked accepted tat with changed terms Is rejection.</p> <p>Where an offer to sell machinery was returned to the seller marked by the buyer as accepted, but containing material modifications of the terms interlined by the buyer, the offer was rejected, and no contract was consummated.</p> <p>2. Frauds, statute of @=>113(3)—Memorandum of sale omlttiug time o>f delivery which was an essential (dement held insufficient.</p> <p>Where the seller of machinery submitted a written proposal, which called for delivery on a stated date, but the parties negotiated as to terms, until long after the stated date of delivery, and then, ¿s the buyer claimed, orally agreed on the contract as stated in the proposal, except for a future date of delivery, and evidence showed the date of delivery was an essential element, the proposal of the seller was not a sufficient memorandum to comply with Acts Mass. 1908, c. 237, pt. 1, § 4, since it did not contain the essential element, so that the contract was partly written and partly oral.</p> <p>3. Frauds, statute of @=>82—Contract of sale of machinery of standard type required to be in writing by statute, though excepting goods “specially manufactúreos.”</p> <p>Though Acts Mass. 1908, c. 237, pt. 1, § 4, requiring written contracts of sale of goods, provides that it shall not apply to goods “specially manufactured” by the seller for the buyer, and not suitable for sale to others in the ordinary course of the seller’s business, it applies to a sale of machinery of a standard type manufactured by the seller of less value to others than the buyer, and th.e contract must he in writing.</p> <p><§=»lfor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Insurance @=»553(l)—False statement oí loss held “attempt” to defraud insurer under fire policy.</p> <p>Where a fire policy provided that it should be void “if the insured has made any attempt to defraud the company, either before or after the loss,” service by insured of a verified false statement and excessive overvaluation of loss after a fire constituted an attempt to defraud, notwithstanding the insurer had knowledge of the actual amount of the loss anti that no actual fraud was consummated; an “attempt” being an endeavor to do an act, carried beyond mere preparation, but short of execution.</p> <p><2=s>For otter eases see same topic & KEY ■NUMBER ia all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Attempt.]</p> <p>2. Insurance <@=5553(1)—latent to deceive insurer implied by willful false statement in proof of less.</p> <p>Where insured knowingly and willfully makes a false statement as to a material fact in its proof of loss, or in its testimony regarding the value of the property insured, or the loss thereto by fire, the intention to deceive insurer is necessarily implied as the natural consequence of such act, under a policy void if the insured attempts to defraud the insurer.</p> <p><S=»For other oases see same topic & KEY-NUMBER in-all Key-Numbered Digests & Indexes</p>

Evans, Judge. Suit in equity by J. F. Matthews and others against the Thronateeska Pecan Company and another. Decree for complainants, and defendants appeal.

<p>Appeal from the District Court of the United States for the District of New Mexico; Colin Neblett, Judge.</p> <p>Suit in equity by Thorpe Bros., a corporation, against John Looney. Decree for complainant, and defendant appeals.</p>

<p>Appeal from the District Court of the United States for the District of New Mexico; Colin Neblett, Judge.</p> <p>Suit in equity by Thorpe Bros., a corporation, against John Looney. Decree for complainant, and defendant appeals.</p>

Riner, Judge. Suit by the United States against Arthur W. Ide and others to enjoin interference with the construction of a ditch, in which Christopher Althoff and others were allowed to intervene as parties defendant. From a decree dismissing the complaint, awarding damages to defendants, and enjoining the United States from interfering with defendants’ appropriation and use of certain waters, the United States appeals.

Riner, Judge. Suit in equity by the Lincoln Land Company and others against Frank E. Weymouth and others. Decree for complainants, and defendants appeal.

<p>1. Guaranty <§=»30—Limited to person to whom addressed.</p> <p>A guaranty addressed to a particular person is a contract limited to the person addressed.</p> <p>2. Guaranty <©=330—Guarantor held not bound by a guaranty transferred by the addressee to another.</p> <p>Defendant bank telegraphed to another bank a guaranty of drafts drawn on a commission house covering cars of produce to he shipped under certain conditions. The addressee, having no business relations with the shipper, turned the telegram over to plaintiff bank, which had, and which cashed the drafts, though they did not comply in all respects with the conditions. Held that, the guaranty not having been accepted and acted on by the addressee, defendant was not liable thereon.</p> <p>3. Guaranty @=6—Guarantor not bound to accept or reject proposed modification.</p> <p>Notice by the addressee of a telegram of guaranty to the guarantor that it would not act thereon, but had turned the telegram over to another, held in effect a new offer which the guarantor was not called on to either accept or reject, and its failure to answer held not an acceptance of the substitution.</p> <p><5c»For other cases see same topic & KEY-NTJMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Maritime liens <§=>26—Are strict! juris.</p> <p>A maritime lien, being a jus in re, which goes with the thing into the hands of purchasers, and so is embarrassing to commerce, is strict! juris.</p> <p>2. Maritime liens <§=>60—Right to proceed in rem must be pursued in admiralty.</p> <p>The right of one making repairs or furnishing supplies to a vessel to proceed in rem against the vessel must he pursued in the admiralty courts, hut the right to proceed in personam against the shipowner for money damages alone is within the concurrent jurisdiction of the common-law courts.</p> <p>3. Admiralty @=>26—Not courts of equity, but proceed according to principles of equity.</p> <p>Courts of admiralty are not courts of equity, but in respect to certain matters within their jurisdiction proceed according to the principles of equity.</p> <p>4. Maritime Kens @=>59—Admiralty cannot deny relief in rem for fraudulent conduct not defeating right at law.</p> <p>A court of admiralty, though administering justice on equitable principles, cannot refuse to enforce a maritime lien for repairs or supplies because the lienor has fraudulently claimed to have done more work than he did, or fraudulently charged for the labor or supplies in fact furnished; such fraudulent conduct not extinguishing his right to proceed in a common-law court in personam.</p> <p>C. Admiralty @=>ll&~rAppollaie court may examine testimony and reach its own inclusions on the facts.</p> <p>While the decision of a trial court in admiralty on a question of fact based on conflicting testimony, or the credibility of witnesses examined before the judge, is entitled to great respect, and will not be lightly reversed on appeal, unless there is a decided preponderance of evidence against it, or a mistake is clearly shown, the whole case is open for trial de novo, and where the judge did not see and hear all of the witnesses, the appellate court may examino the testimony and reach its own conclusions.</p> <p>6. Shipping @=>76—Duty of person contracting to make repairs to disclose that he was acting for himself, and not for another.</p> <p>Where the master of a steamship, in employing libelant to make repairs, supposed he was dealing with a third person, for whom libelant had previously been foreman and solicitor, and the libelant knew the master thought so, it was his duty to disclose that he was no longer associated with such third person, hut was acting for himself, and his omission to do so amounted to fraudulent deception.</p> <p><g=>Por other cases sec same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>7. Fraud <$=>16—May consist of silence.</p> <p>Fraud may consist of silence as well as actual outspoken misrepresentation, and under some circumstances silence may be as reprehensible as false representations.</p> <p>8. Maritime liens <§=>65—Evidence held to show charges grossly inflated^ and to require reduction of amount recovered.</p> <p>In a suit to enforce a maritime lien for repairs on a vessel, evidence as to the prevailing rate of wages and the number of hours worked held to show that the libelant’s charges were grossly inflated, and to require a reduction from $2,494.35, allowed by a commissioner and the trial judge, to $1,700.</p> <p><g^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Receiving stolen goods <§=>9(1)—Whether defendant bought and transported stolen car with knowledge of theft held a jury question.</p> <p>Evidence hold sufficient to make a ease for the jury as to whether defendant bought and transported an automobile knowing the same to have been stolen, in violation of Act Cong. Oct. 29, 1919, known as the National Motor Vehicle Theft Act.</p> <p>2. Commerce <§=>33—Stolen ear, driven across state line, held transported in “interstate commerce.”</p> <p>One who purchased an automobile with knowledge that it had been stolen, and drove it across a state line under its own power for bis own purposes, or for the purpose of an ultimate future sale of It, was guilty of transporting such automobile in interstate commerce, within Act Cong. Oct. 29,1919, known as the National Motor Vehicle Theft Act.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.]</p> <p>3. Commerce <§=>3—Congress may prohibit interstate transportation of stolen motor vehicles.</p> <p>Congress may prohibit the interstate transportation of motor vehicles known to have been stolen.</p> <p>4. Criminal law <§=>822(1)—Charge to be judged as a whole.</p> <p>The charge in a criminal case is to he judged as a whole, and not by some incidental statement which, taken by itself, might be misleading.</p> <p>5. Criminal law <§=>829(12)—Erroneous refusal to charge as to possession of stolen goods held cured by given charge.</p> <p>If it was error, in a prosecution for transporting in interstate com-, merce a stolen automobile, knowing the same to have been stolen, in violation of Act Cong. Oct. 29, 1919, to refuse to charge that “the mere possession of stolen goods, without proof that the accused received them knowing them to have been stolen, raises no presumption that the goods were stolen property, and is insufficient to establish guilty knowledge,” it was harmless, where the fact that the car had been stolen was not in dispute, and the court instructed that the real question for the jury to determine was whether, under all those circumstances, testified to by defendant and others, the defendant must have known that the automobile was stolen.</p> <p>6. Criminal law <§=>829(12)—Refusal of instruction as to proof of guilty knowledge held harmless, in view of charge given.</p> <p>In a prosecution for transporting in interstate commerce an automobile known to have been stolen, in violation of Act Cong. Oct. 29, 1919, if it was error to refuse to charge “that mere inadequacy of price is insufficient proof of guilty knowledge,” it was harmless, where the refusal was coupled with the statement, “I charge you, however, that inadequacy of price may be one of the circumstances from which the jury may infer guilty knowledge,” which properly defined the bearing and limited the testimony relating to the price paid by accused for the car.</p> <p>7. Criminal law <§=>1170 (1) —Exclusion of testimony as to hostility of witness to accused held harmless.</p> <p>Accused cannot complain of exclusion of testimony offered to show that witness was influenced by personal hostility to the defendant, where such witness testified to nothing which was the subject of dispute.</p> <p><$=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>8. Criminal law <®=»1170(3)—Exclusion of evidence cured by subsequent admission.</p> <p>Improper exclusion of testimony is cured by its subsequent admission.</p> <p>,<§=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Rib el by the United States against 2,000 cases' of whisky, 25 barrels of whisky and 253 barrels of wine claimed by Giovanni Aquino, Inc. From a decree dismissing the libel, and ordering the United States marshal to return the goods libeled to claimant, the United States appeals.</p>

<p>In Error to the District Court of the United States for the Jackson Division of the Southern District of Mississippi; Edwin R. Holmes, Judge;</p> <p>Action at law by Mary E. Cox against Mary A. Phillips. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Evidence ©=441(1)—Evidence of prior negotiations not admissible to alter written contract.</p> <p>In tbe absence of fraud or mutual mistake, no representation, promise, or agreement made, or opinion expressed, in the previous parol negotiations, as to the terms or legal effect of tbe resulting written contract can be permitted to prevail, either in law or in equity over the plain provisions and proper interpretation of the written contract.</p> <p>2. Corporations <0=448(1)—Not bound by representations. or agreements of promoters.</p> <p>A corporation is not bound by the representations, promises, or agreements of its promoters.</p> <p>3. Corporations ©=82—Agreement by promoters intended to deceive subscribers to stock of corporation void for fraud.</p> <p>An agreement by promoters of a corporation that, if defendant would subscribe for stock to influence others to do so, they would later return his notes held void as a fraud on other subscribers.</p> <p>4. Corporations <2=482 (6)—Evidence held not competent to establish agency for corporation.</p> <p>Evidence that an oral agreement with defendant that, if he would assign certificates of stock of a corporation issued in defendant’s naine, but not delivered, his notes given therefor would be returned, was made by a director, who had the certificates in his possession held not competent to prove his authority from the corporation to make such agreement.</p> <p>©as>For other eases see same topic & KEY-NUMBER in all Key.Nuinbered Digests & Indexes</p>

<p>Tublie lands @=»19—Suit for unlawful inclosnre and occupancy dismissed without prejudice.</p> <p>In a suit brought by the United Slates under Act Feb. 25, 1885 (Comp. St. § 4998), for unlawful inclosure and occupancy of public lands, where the evidence shows that none of the defendants were at the time of suit maintaining such inclosure, so a.s to warrant an injunction, but that it may have been built and maintained by some of them in the past, a dismissal of the bill should be without prejudice to the right to sue at law for damages for'use and occupation.</p> <p>«Sr^For other canes sec same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Grubb, Judge. Action at law by Laura Hale and William E. Hale, her husband, against the Western Union Telegraph Company. Judgment for plaintiffs, and defendant brings error.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in equity by the A. B. Dick Company against Bouis A. Barnett. From an order granting a preliminary injunction, defendant appeals.</p>

A¡ypeal from the District Court of the United States for the Western District of Missouri; Arba S. Van Valkenburgh, Judge. In the matter of ISugenus H. Bennett, bankrupt. The Acme Harvesting Machine Company appeals from order granting the discharge.

<p>Appeal from the District Court of the United States for the Southern District of Florida; William I. Grubb, Judge.</p> <p>Suit for specific performance by Daniel R. Henderson against A. A. Geitgey and another. Decree for plaintiff, and the named defendant appeals.</p>

Riner, Judge. Action at law by D. W. Buttars and E. S. Merrill, partners as But-tars & Merrill, against Dominique Etcheverry .and Claudia Etcheverry. Judgment for defendants, and plaintiffs bring error.

<p>Appeal and error <§=»501 (4) —Record showing exception is essential to refusal of the charge.</p> <p>A judgment cannot be reversed because of rulings in the court’s charge to tlie jury, or its refusal to give requested charges, where the record does not show that any exception was reserved to the charge or to the refusal.</p> <p>©s»For other eases see same topic & KEY-NUMBER In all Key-Numbered Digests & Indexes</p>

<p>Banks and banking New, vol. 11A Key-No. Series—Federal Reserve Bank held without authority to require nonmember bank to remit without charging exchange.</p> <p>A state bank, not a member of the Federal Reserve Bank, held entitled to charge its customary exchange on remittances to the reserve bank of the district, and a practice of the reserve bank to send checks on the state bank received by it for collection to the drawee bank indorsed “for collection only and remittance in full without deduction for exchange,” and on their return unpaid to return them to its correspondents, advising them in effect that the checks were dishonored, held unauthorized, and enjoined, where it appeared that such practice was adopted for the purpose of coercing the state bank.</p> <p><Sz=?For otber cases see same topic‘& KEY-NUMBER in all Key-N.umbered Digests & Indexes</p>

<p>At Law. Action by the Shelton Electric Company against the Victor Talking Machine Company to recover treble damages by reason of an alleged unlawful restraint of trade.</p>

<p>In Admiralty. Libel by John Hildebrandt against Flower Lighter-age Company.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Libel by John Hildebrandt against the Flower Lighterage Company, and the steam tug President, her engines, etc.; the Clyde Steamship Company, claimant. ’ From an adverse decision, libelant appeals.</p>

<p>1. Maritime liens <@=^24—Not in issue if subcontractor gave credit to contractor and not to ship.</p> <p>Where a subcontractor gave credit to the contractor and looked to it, and not to the ship, it is unnecessary to inquire whether a subcontractor can acquire a lien upon a ship.</p> <p>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>2, Maritime liens <§=»17, 29—Subcontractor held not entitled to maritime lien, the contractor not representing the owner.</p> <p>Act .Tunc 23, 1910, § 5 (Comp. St. § 7787), re-enacted by Merchant Marine Act June 5, 1920, supersedes all provisions of the state statutes so far as they purport to create rights of action enforceable in reni against vessels lor repairs, supplies, and other necessaries, and, if a subcontractor ever had a right to a lien therefor on a vessel, it was based upon the contractor’s agency for (lie owner, and cannot now exist, in view of Act June 23, 1910, § 2 (section 7784), which ('numerates the persons presumed to have authority from the owner to procure repairs, supplies, and other necessaries, but does not mention the contractor.</p> <p><2=>For other eases see same topic & KEY-NUMBKIl in all Key-Numbered Digests & Indexes</p>

<p>Maritime liens <©=>24—Subcontractor giving credit solely to contractor cannot claim lien on vessel.</p> <p>Whore at the time a contractor gave a subcontractor specifications for material, there was present a foreman of carpenters in the employ of the owners of the vessel who had for years at intervals ordered materials for the owner’s ship from the subcontractor, and who assisted in making up the specifications, but where, as a matter of fact, the subcontractor contracted solely with the contractor and extended credit solely to it, the subcontractor could not maintain a lien.</p> <p>other cases seo same topic & KEY-NUMBER, in. all Key-Numbered Digests & indexes</p>

<p>Salvage <®=»38—Distribution of award between ship, master, and crew.</p> <p>A salvage award, fixed by amicable agreement, for saving a burning steamship by another steamship, the service rendered being of a high order of merit and involving danger to the salving vessel and her crew, distributed between the ship, master, and crew; the master and chief engineer being given increased compensation for responsibility assumed and efficiency shown.</p> <p>i@E5>For other cases see same topic & KEY-NXJMBER, in 'all Key-Numbered Digests & Indexes</p>

<p>At Law. Action by the New York Canal Company, Limited, against the United States.</p>

<p>In Equity. Suit by the United States against Patrick Dougherty.</p>

<p>3. Corporations ©=>583—Statute governing consolidation is read into slock contract.</p> <p>Business Corporation Law N. Y. § 7, which was in force when preferred stock in a corporation was acquired, and which authorized a consolidation of the corporation with another with consent of two-tliirds of the stockholders, must bo read into the contract between the stockholders and the corporation.</p> <p>2. Corporations €=>584—Action does not lie to recover value of stock of corporation consolidated with another.</p> <p>An action at law or suit in equity will not lie to recover the value of stock iu a corporation which has consolidated with another corporation.</p> <p>3. Corporations <§=>584—Preferred stock of a corporation consolidated with another has no lien for accumulated dividends on assets not segregated.</p> <p>The preferred stock of a corporation, which had consolidated with another corporation with the consent of two-thirds of the stockholders, as required by statute, at a time when several of the dividends on such preferred stock had accumulated unpaid, gives to holder, who did not avail herself of the statutory procedure to have her stock appraised and the value allowed to her, no lien on the assets of the original corporation in the hands of the consolidated corporation, which had never been segregated for the payment of the preferred stock dividends.</p> <p>«SssFor oilier oases see same topic £ KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Criminal prosecution by the United States against J. M. Page and another. On demurrer to indictment. '</p>

<p>1. Commerce <§=>51—State has power to exact reasonable fees only for inspection of articles entering in interstale commerce.</p> <p>A state has power to enact proper inspection laws and provide for the collection of the necessary expense of inspection, and is not required to fix with exactness the fees which will cover such expense, but as applied to articles of interstate commerce the fees must reasonably approximate such cost, and not be so excessive as to render the law a revenue measure.</p> <p>2. Commerce <§=>51—Ohio oil inspection law held invalid, as imposing an unlawful burden on interstate commerce.</p> <p>Gen. Code Ohio §§ 844-868, as amended by 105 Ohio Laws, p. 309, providing for inspection of petroleum products and fixing fees to be charged therefor, which aggregated in the first year 63 per cent, greater than the inspection costs, and have since constantly increased, until, in each of the two years ending in 1920, they were more than double such cost, no distinction being made between oil produced in the state and that brought from other states, held invalid, as imposing an unlawful burden on interstate commerce, in violation of article 1, §§ 8 and 10, of the Constitution.</p> <p>3. Commerce <§=>41 (1)—Interstate shipment protected until sale of original packages.</p> <p>Where goods are transported into one state from another in original packages, interstate commerce therein is not completely terminated, and they are protected by the commerce clause of the Constitution against excessive inspection fees, until after their sale at the point of destination.</p> <p>4. Commerce <§=>51—Law held not valid as applied to articles of interstate and Intrastate commerce.</p> <p>Under the rule that, in the interpreting of statutes levying taxes, their provisions cannot be extended by implication beyond the clear import of the language used, where an inspection law prescribes excessive fees, without discriminating between the interstate and intrastate character of the commodity, the court cannot separate the two classes, and attribute the excess of fees collected to an excise tax on the domestic product.</p> <p><&=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Patents <3=328—1,134,025, for oil hole cover, held valid and infringed.</p> <p>The Tucker patent, No. 1,134,025, for an oil bole cover, for automobile oilers, held not anticipated and valid as a new combination of old elements producing a new and useful result; also held infringed.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Admiralty. Suit by Luzzato & Sons against the steamship Pesaro, and by Berizzi Bros. & Co. against the same. On objections to jurisdiction.</p>

<p>Searches and seizures <S=>7—Search warrant issued without evidence of probable cause held illegal.</p> <p>A search warrant issued solely on an affidavit that affiant “has good reason to believe and does verily believe” that evidence of a crime against the United States “is stored and concealed in certain farms and buildings thereon.” without the statement of any facts tending to establish, or finding of probable cause, held illegally issued, in violation of the Const. 1L S. Amend. 4, and of Act June 15, 1917, tit. 11, §§ 4-6 (Comp. &t. 1918, Comp. St. Ann. Supp. 1919, §§ 10498%d-10496J4f).</p> <p><®=»For other eases see same topic & KEY-NUMBER in all Key-Numherea Digests & Indexes</p>

<p>In Equity. Separate suits by Joe Middleton, by Erank M. Lawler; by Henry Schoberl, by Lee Schoberl, by Andrew Anderson, by Emil Mutschelknaus, by Charles Rosenbaum, Sr., by Charles Rosenbaum, Jr., by Henry Goehring, and by Matt Evans against J. W. Mee, Col-' lector of Internal Revenue. On motion for preliminary injunction and motion by defendant to dismiss.</p>

<p>1. Public lands <®=?81(1)—Land occupied by homestead claimant when selected held not to pass under railroad grant.</p> <p>The right of a railroad company to select indemnity lands, under Act Aug. 5, 1892, does not include land held, at the time of its selection and when subsequently surveyed, by a bona fide homestead settler, nor does it pass under such selection on its subsequent relinquishment by the homesteader.</p> <p>£ Public lands <S=>108(1)—Ruling that land was not subject to homestead entry held not to conclude subsequent applicant.</p> <p>The rejection of a homestead application on the ground that the land had passed under a railroad grant is not res judicata as between the railroad company and the United States, and does not bind a purchaser of the applicant's improvements, and in whose favor he executed a relinquishment, who may institute a new homestead entry, if the land is in fact public land and subject to entry.</p> <p><©=For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Equity. Suit for infringment of a patent by the A. Mecky Company against the Garton Toy .Company. On .exceptions to report of the special master in the accounting proceeding pursuant to the decree.

<p>1. Bankruptcy <§=>191 (Jé)—State purchase-money lien statute held not to confer lien superior to trustee’s claim.</p> <p>Where shoes were sold to a retail dealer, who subsequently became bankrupt, the seller held not to have a lien superior to the claim of the trustee in bankruptcy, under Code Miss. 1906, § 3079 (Hemingway’s Code, § 2436), conferring a purchase-money lien on personal property while in the hands of the first purchaser, or one deriving title or possession through him with notice that the purchase money was unpaid, where the sale was made to the retail dealer for the purpose of resale with the knowledge and consent of the seller.</p> <p>2. Bankruptcy <§=>209(3)—Attachment suit held discharged by bankruptcy.</p> <p>Where seller, claiming purchase-money lien under Code Miss. 1906, § 3079 (Hemingway’s Code, § 2436), sued the buyers and attached the goods, within 4 months of the buyers filing petition in bankruptcy, the property was “wholly discharged and released” by the adjudication in bankruptcy, and passed to the trustee as part of the bankrupt’s estate under Bankruptcy Act, § 67f (Comp. St. § 9651) ; the goods sold being intended for resale, and hence not coming within the protection of the statute.</p> <p>. 3. Bankruptcy <§=>143(1)—Title and rights taken by trastee stated.</p> <p>Since a trustee in bankruptcy takes, not only the title of the bankrupt to all property which, prior to the filing of the petition, he could by any means have transferred, or which might have been levied on and sold under judicial process against him, but hlso the rights of a creditor holding a lien by legal or equitable proceedings thereon, under Bankruptcy Act, § 47a2, as amended, and section 70 (Comp. St. §§ 9631, 9654), shoes sold to a bankrupt pass into the trustee’s possession as property which the bankrupt “could by any means have transferred”; the shoes being intended for resale to customers under the implied consent of the seller.</p> <p>4. Bankruptcy <§=>189—Deeds fraudulent as against creditors are also fraudulent as against trustee.</p> <p>Where shoes are sold to a retail dealer, who subsequently becomes a bankrupt, any deed of trust or other contractual lien on such shoes, where fraudulent and void as against creditors, would also be fraudulent and void against the trustee in bankruptcy.</p> <p>5. Bankruptcy <§=>188(1)—To be preserved by Bankruptcy Act, lien must have been given or accepted in good faith.</p> <p>In order for a lien to be preserved by Bankruptcy Act, § 67d, as amended by Act June 25, 1910 (Comp. St. § 9651), it must have been given or# accepted in good faith, and not in fraud on the act.</p> <p>6. Sales <§=>301—Purchase-money lien statute held not to apply to merchandise held for resale with vendor’s consent.</p> <p>Code Miss. 1906, § 3079 (Hemingway’s Code, § 2436), giving a purchase-money lien on personal property, does not give a lien by operation of law on merchandise’held for resale with the knowledge and consent of the vendor.</p> <p>1. Bankruptcy <3=191 (%)—Consent to resale of merchandise held.waiver of lien as against trustee.</p> <p>By consenting to a resale of goods prior to tlieir delivery to the merchant, and soiling them to him for that purpose, a vendor of merchandise waives the benefit! of Code Miss. 1906, § 8079 (Hemingway’s Code, § 2486), giving a purchase money lien on personalty, so that lie' can acquire no lien which can prevail as against the trustee in bankruptcy of the purchaser. ’</p> <p>8. Bankruptcy <S=»215—Burden to establish lien as against trustee is on claimant.</p> <p>Where a seller of merchandise to a retail dealer, who subsequently becomes bankrupt, claims a lien on the merchandise under á state statute which has no extraterritorial effect, the burden is on the claimant to establish the lien, and such burden is not sustained where it does not appear that the salo was uot consummated and title perfected in the purchasers in another state.</p> <p>©=»Eor other eases see same topic & KIOV-NtTMBEJt in all Key- Numbered nigestTJ Imlexei</p>

<p>1. Bankruptcy @=>184(2)—No lien under unrecorded contract retaining title in seller.</p> <p>Where one who bad sold flour to a bankrupt claimed a lien for the purchase money under a contract whereby it retained title, held, that there could be no lien where the contract was not recorded.</p> <p>2. Bankruptcy @=>1(58(2)—No lien w'iere merchandise delivered to bankrupt for resale in usual course of business.</p> <p>Where a seller of flour delivered it to the bankrupt for the purpose of resale in the usual course of business, the seller could retain no lien thereto, notwithstanding an unrecorded contract whereby the seller sought to retain title.</p> <p>3. Bankruptcy @=>188(2)—No lieu against trustee as to property delivered for resale.</p> <p>A vendor of personal property, held by a merchant or trader to whom he has delivered it for the purpose of being resold, has no lien thereon for the purchase money which he can assert against, the trustee in bankruptcy of the buyer, in view of the Mississippi sign statute (Code Miss. 190(5, § 4784).</p> <p><3S=>For other cases seo same topic & KKY-NTIMBKR in ail Key-Nnmhered Digests & Indexes</p> <p>4. Bankruptcy <S=»151—Trustee held vested with rights of creditor.</p> <p>The trustee in bankruptcy not only takes the title of the bankrupt, but is vested with all the rights of a creditor holding a lien by legal or equitable proceedings, and also a judgment creditor holding an execution duly returned and unsatisfied.</p> <p><§ss>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Bankruptcy. In the matter of S. J. Shumaker, bankrupt. On review of an order of the referee denying the claim of the International Shoe Company to a lien on certain property.</p> <p>The petitioner, the International Shoe Company, doing business in the state of Missouri, sold certain shoes to S. J. Shumaker amounting to $3,-193.05. Thereafter the said Shumaker was adjudicated a bankrupt and a trustee appointed, whereupon the said shoe company filed its duly verified claim alleging that certain shoes on hand were sold by it to the said Shumaker, and that it was entitled to a lien on said shoes by virtue of section 3079 of the Mississippi Code of 1906. It was conceded that Shumaker was a merchant doing business in Mississippi, and that said shoes were sold by the petitioner to him for the purpose of resale and that said Shumaker bought said shoes with the intention of reselling them in his mercantile business in Mississippi, all of which was known to the seller of the shoes, and impliedly consented to. It was further .conceded for the purpose of this hearing that the said Shumaker was doing business in Mississippi under the sign “S. J. Shumaker,” and that the petitioner, International Shoe Company, had no sign displayed at or about Shumaker’s place of business, nor did they have any instrument on record with regard to the shoes; the only lien claimed being a statutory lien under section 3079 of the Mississippi Code of 1906. It does not appear from the record whether said shoes were bought in the state of Missouri or the state of Mississippi, nor when nor where they were delivered to the said Shumaker by the said International Shoe Company. The referee, S. P. Clayton, denied the petition. His opinion is as follows:</p> <p>“This is a suit brought by the Peters Branch of the International Shoe Company, commonly called the Peters Shoe Company, and it will be referred to by me as the Peters Shoe Company. The substance of the claim is that the petitioner claims a purchase-money lien on a certain lot of shoes now in the possession bf the trustee by virtue of section 3079 of the Code of 1906 of the state of Mississippi, which is section 2436 of Hemingway’s Code. The shoes, by agreement, were sold by the trastee separately and brought $225, and the litigation is with reference to the proceeds.- The question involved in this case has already been decided by Hon. Edwin R. Holmes, District Judge, in the case of Brown Shoe Co. v. Wright & Weissinger, 277 Fed. 511, which case went up from the Delta Division. In his opinion. Judge Holmes held that the title of the trustee was superior to that of petitioning creditors. In that case, however, Judge Holmes did not consider the question of the effect upon this matter of what is known as our “business sign statute,” which is section 4784 of the Code of 1906 and section 3128 of Hemingway’s Code, and in view of the request of counsel to that effect I am going to give my views as to what effect this statute has upon a case like the present.</p> <p>“The present counsel for the Peters Shoe Company also represented the Brown Shoe Company in the case of Brown Shoe Co. v. Wright & Weissinger, above cited. In their brief in that case, and which they have made their brief in this ease, they stress the point that under ihe decision of the Supreme Court of Mississippi in the case of Dodds v. Pratt, 64 Miss. 12% 8 South. 167, Judge Campbell in deciding that case held that this business siga statute was not intended to derange the order of priority among the creditors of a merchant. It is true that judge Campbell used that language in that ease, and as applied to the facts of that case his decision and statement was unquestionably correct. An examination of ihe Dodds Case and the case of Paine v. Hall Safe Co., 64 Miss. 175, 1 South. 50, also decided by Judge Campbell, and the case of Tufts v. Stone, 70 Miss. 54, 11 South. 792, will disclose the fact that in the Dodds Case the deed of trust upon the stock of merchandise from Kizer to Dodds as trustee was recorded, and of course was prior to the judgment lien. This fact is not disclosed in the statement of facts in the Dodds Case, but a reading of the Dodds Case in connection with the other cases mentioned 'a hove will disclose that fact. Then ihe case of Dodds v. Pratt simply held that when a creditor has a prior lion which is recorded, then his lien c-annot be disturbed by the business sign statute. This is clearly shown by the decision of Judge Woods in the Tufts Case, cited in 70 Miss. 58, 11 South. 793, in which he says: ‘While the tra-</p> <p>der must unite in himself title and possession of property used in his business. he may surely incumber tile same by mortgage, and, with the instrument acknowledged and recorded, his mortgagee musí; not he stripped of his rights under the mortgage. See Dodds v. Pratt, 61 Miss. 123, 8 South. 167.’</p> <p>“Does not this show the real meaning of Dodds v. Pratt? Certainly Judge Woods would not have cited it as he did unless it meant that the trust deed in that case was recorded. And again, referring to Paine v. Hall, 61 Miss. 175, 1 South. 56, you will see on page 57 of' 70 Miss., page 792 of 11 South., that, the counsel for Mrs. Stone say that the Tufts Case only differs from the case they yore briefing in that in the Paine Case the retention of the safe was not recorded I think this disposes of Dodds v. Pratt. As to .the case of Norris v. Trenholm. 209 Fed. 827, 126 C. O. A. 551, 31 Am. Bankr. Tiep. 353, it is sufficient to say that in that ease only fixtures were involved, and besides that the business sign statute was not mentioned or considered. The purpose of this business sign statute has been set out time and time again by the Supreme Court of this state as being intended to cut off all secret claims, so as to prevent the assertion against the creditors of the trader, to unite in him both possession and title. One of the most recent cases is that of Fitz Gerald v. American Mi'g. Co., 114 Miss. 580, 75 South. 440.</p> <p>“So far as I have been able to find, there is only one state in the Union which has a statute practically the same as ours, and that is Virginia. I think our statute must have been practically copied from theirs. This Virginia statute has been construed by the Circuit Court of Appeals of the Fourth Circuit on several occasions. In the recent case of Virginia Book Co. v. Sites, Trustee, 251 Fed. 46, 105 C. O. A. 456, it again passed' upon their statute, which is therein set out in full. One Magee was a book seller, and had consigned to him books for sale under an unrecorded contract, by which the title to the books remained in the book company. Two days before the petition in bankruptcy was filed the book company took possession of its books then on hand, as it had a right to do under its contract. The court, after setting out the business sign statute, held that this property did not belong to the book company, but passed to the trustee.</p> <p>“With this construction before me I am therefore of the opinion that the business sign statute of this state, in a case like the one in question before me would cut off any claim under a purchase-money lien, unless the claim was duly recorded, and, if recorded as to merchandise, it would be invalid. There will be an order therefore dismissing the petition.”</p>

<p>Libel by the United- States against one Paige automobile, one lot of intoxicating liquor, sixty-two glass bottles, one skiff, and two pistols. Judgment forfeiting and condemning the vehicles, and establishing as valid a lien asserted against the automobile.</p>

At Law. Action by George W. F. Green against the Commercial Bank & Trust Company. On plaintiff’s motion to strike portions of defendant’s answer and for judgment on the pleadings.

<p>In Equity. Suit by the Bay State Wholesale Drug Company against Elmer 'C. Potter, Federal Prohibition Director.</p>

• Motion by Elizabeth C. Seaman for injunction pendente lite restraining Thomas W. Miller, as Alien Property Custodian of the United States, and others, from transferring stock of a corporation.

Appeal í rom the Supreme Court of the District of Columbia. Action by A. C. Smith, against Samuel C. Redman, revived in the name of Edwin J. Smith after the death of the original plaintiff. Judgment for plaintiff, and defendant appeals.

<p>1. Courts <©=>522—Jurisdiction first to attach is exclusive.</p> <p>Where another federal court had obtained jurisdiction over a suit to determine which of two railroads was entitled to a fund, that jurisdiction is exclusive, and the District of Columbia courts will not entertain certiorari to compel the Interstate Commerce Commission to credit the amount of that fund as part of the operating revenue of one of the railroads, in determining the compensation to which it was entitled while under federal control, which would involve the determination of the right of that railroad to the fund.</p> <p>other eases :-rr- same topic & KJ5Y-NUMBKR in all Key-Numbered Digests & indexes</p> <p>2. Certiorari <§=29—Not issued to review decision of administrative bodly within jurisdiction.</p> <p>Certiorari will not issue to an administrative officer or body to review a decision in a mátter over which the officer or body had jurisdiction.</p> <p>8. Commerce <§=85—Derision of right to deduct from operating income held within Interstate Commerce Commission’s jurisdiction.</p> <p>Under Act. March 21, 1918, § 1 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3115%a), making it the duty of the Interstate Commerce Commission to ascertain the average annual operating income on which the compensation of a railroad during federal control was to be based, it was necessary for the Commission to determine what items should be included in the income, and a decision deducting from the income the item in controversy was within its jurisdiction, and not reviewable by certiorari.</p> <p>4. Commerce <§=<88—Certiorari does not issue to review decision of Interstate Commerce. Commission.</p> <p>A writ of certiorari should not issue to review a decision of the Interstate Commerce Commission, even if such decision was beyond its jurisdiction, especially where the Commission’s action was not final under the statute.</p> <p><®=For other cases see same topic & KEY-NUMBER in all Key-Numberea Digests & Indexes</p>

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Petition for mandamus by the United States, on the relation of the members of the Waste Merchants’ Association of New York, Voluntary Association, against the Interstate Commerce Commission. Prom a judgment dismissing the petition, relators appeal.</p>

' Interpleader by the American Security & Trust Company against Constance Schaclc Gracie and Dunbar B. Adams and others, in which Constance Schaclc Gracie filed a cross-bill, asking, among other things, for the probate of a lost will. From a decree dismissing the cross-bill, in so far as it sought the probate, the cross-complainant appeals.

Petition for certiorari by Carl Vicory against Carmelo Totaro and others, to bring up for review the action of a municipal court in setting aside its approval of an appeal undertaking. From a judgment quashing the writ of certiorari, petitioner appeals.

Suit for injunction by the Commercial Solvents Corporation against Andrew W. Mellon, Secretary of the Treasury, and others. From a decree dismissing the bill, plaintiff appeals.

<p>Appeal from the Commissioner of Patents.</p> <p>Interference proceedings between Prank J. Baumgardner and Arthur J. Hudson. From a decision of the Commissioner of Patents awarding priority to Hudson, Baumgardner appeals.</p>

Proceeding before the Rent Commission by Annie Gardner, owner, against Chester A. Porter, tenant. From a decision in favor of the owner, the tenant appeals. On petition for writ of prohibition.

<p>1. Licenses <§=11 (1)—Agreement as to operation of motor vehicles by person from other state held not to exclude driver, whose District license was revoked.</p> <p>An agreement between the District of Columbia and the state of Virginia providing that any one legally entitled to operate a motor vehicle in Virginia might operate such vehicle in the District without a District license tag or driver’s permit, did not exclude from its protection one whose District driver’s permit had been revoked.</p> <p>2. Statutes <§=219—When meaning doubtful, great weight given construction by department charged with execution.</p> <p>When the meaning of a statute is doubtful, great weight should be given to the construction placed on it by the department charged with its execution.</p> <p>3. Licenses <§=11 (1), 14(1)—Statute as to operation of motor vehicles by nonresidents held to exempt operator as well as vehicle. '</p> <p>Act March 3, 1917, providing that motor vehicles, owned or operated by nonresidents having complied with the laws of the state of their residence requiring the registration of motor vehicles or licensing of operators, shall not be required to be licensed or registered under the laws and regulations of the District of Columbia, dispenses with the operator’s license as well as the registration of the vehicle, the words “licensed or registered” in the latter part of the statute being used in the same relation as their noun forms in the first part of the act, especially where this was the construction placed thereon by an agreement between the District of Columbia and' the state of Virginia.</p> <p>4. Statutes <§=206—Every clause and word to bo given effect, if possible.</p> <p>In construing a statute, it is the duty of the court, to give effect, if possible, to every clause and word of the statute.</p> <p>5. Statutes <£=>189—Literal interpretation rejected, when contrary to evident meaning of whole statute.</p> <p>If a literal interpretation of a statute would be contrary to the evident meaning of the statute, taken as a whole, it should be rejected.</p> <p>6. Statutes <§=181 (1)—Construed in case of doubt to serve legislative design.</p> <p>Where there is doubt concerning the meaning of a statute, it should be construed, if possible, so as to serve the legislative design.</p> <p>7. District of Columbia <§=22—Nonresident operator of motor vehicle subject to traffic regulations.</p> <p>Notwithstanding Act March 3,1917, providing that motor vehicles owned or operated by persons complying with the laws of the state of their residence need not be licensed or registered under the laws and regulations of the District of Columbia, such a nonresident operator is amenable to valid traffic regulations, and may be punished for negligence or other infraction of the law.</p> <p>^^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Suit by the United States, on the relation of Margaret C. Smith, against William W. Stewart, to recover the penalty of a ne exeat bond. Judgment for plaintiff on directed verdict, and defendant appeals.

Proceeding by Harry A. Walsh against Peter C. Harris, Adj'utant General of the United States Army, to compel the Adjutant General to produce an affidavit which was in his official possession. From a judgment requiring production of the affidavit, or committing for contempt, the Adjutant General appeals.

Petition for mandamus by the United States, on the relation of the McAlester-Edwards Coal Company, against Albert B. Fall, Secretary of the Interior, and others. From a judgment denying the writ, relator appeals.

<p>Appeal from the Rent Commission of the District of Columbia. _</p> <p>_ Appeal by James D. Karrick and another against James E. Cantrill and others to review an order of the rent commission fixing rental rates upon apartments.</p>

Appeal by James D. Karrick against William A. Colman from an order of the rent commission finding appellant guilty of refusing to furnish electric current.

Interference proceeding between Charles E. Goodrum, Edward E. Clement, and Harry G. Webster, and interference proceeding between Harry G. Webster and Edward E. Clement. From a judgment in the three-party interference in favor of Clement; the other parties appeal; and. from a decision in the other proceeding in favor of Clement, Webster appeals. Decision in the three-party case reversed, and priority awarded to Goodrum.

<p>Appeal from a Decision of an Assistant Commissioner of Patents.</p> <p>Interference proceeding between Harry G. Webster and Herbert P. Fish. From a decision in favor of Fish, Webster appeals.</p>

<p>1. Army and navy <@=11—Officer, not objecting to proceedings before court of inquiry, cannot object in mandamus proceeding to compel reinstatement.</p> <p>Where an army officer, at whose request a court of inquiry was convened, to pass upon his classification under National Defense Act, § 24b, was not furnished with a full copy of bis record in the War Department, as required by the statute, but was permitted to examine all the original records in the presence of the court, and interposed no objection to the proceedings, it is too late to raise the objection in a mandamus proceeding to compel the Secretary of War to vacate an order discharging him, and to restore him to his former rank.</p> <p>2. Army and navy <@=11—Board convened to determine cause of officer’s unsatisfactory classification not confined to record of court of inquiry.</p> <p>Under National Defense Act, § 24b, providing for the classification of army officers, for an opportunity to any officer classed in class B to appear before a court of inquiry, and for the forwarding of the record of such court to a final classification hoard, and providing that, when an officer is placed in class B, a board shall be convened to determine whether his classification was due to his neglect, misconduct, or avoidable habits, its finding to determine whether he shall be discharged or placed on the retired list, the board convened to determine whether his classification was due to his neglect, misconduct, or avoidable habits is not confined to the record made by the court of inquiry.</p> <p>3. United States <@=28—President may not delegate judicial duties.</p> <p>Where a duty imposed upon the President is judicial in character, it may not be delegated away.</p> <p>4. Army and navy <@=11—President’s duty to act on findings of classification board may be delegated to Secretary of War.</p> <p>Under National Defense Act, § 24b, providing for the classification of army officers, the proceedings are purely administrative, and do not partake in any sense of a judicial character, and the President’s duty with respect to reviewing the findings of the final classification board and issuing an order of approval or disapproval is purely executive, and can be lawfully delegated to the Secretary of War.</p> <p>6. Army and na,vy <@=11—Officer lias no property or contract rights in office, and holds subject to revocation at will.</p> <p>An army officer has no property right or contract right in his office, and the office he holds is revocable by the sovereignty at will.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>6. United States ©=>28—President-’» duty may be delegated to department beads, unless exercise of power expressly or impliedly made judicial.</p> <p>The President, as commander-in-chief of (he army and navy is vested with wide administrative and executive powers, and unless the.exercise! thereof is made judicial by express provision of statute, or is such by clear implication, authority may he given by the President to the proper head of a department to act for him and in his name, especially in view of Rev. St. § 216 (Comp. St. § 318), relative to the duties of tile Secretary of War.</p> <p>7„ Army and navy ©=>12—Order dbieharging officer must be vacated before mandamus lies to compel reinstatement.</p> <p>An order discharging an army officer receiving an unfavorable classification under National Defense Act, § 24b, whether made personally by the President or by the Secretary of War under delegated authority, is an order of the President, and must he vacated as a condition precedent to the reinstatement of the officer by mandamus.</p> <p>8. Mandamus <®=»64—Will not lie to compel vacation of order discharging army officer.</p> <p>Mandamus will not lie to compel the vacation of an order of the Secretary of War, under authority delegated to him by the President, discharging an army officer receiving an unfavorable classification under National Defense Act, § 24b, as the executive and administrative action of the President cannot be controlled by mandamus.</p> <p>4£c»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Mandamus by the United States, on the relation of John W. French, against John W. Weeks, Secretary of War. From a judgment for the relator, defendant appeals.</p>

<p>Appeal from decisions of the Patent Office.</p> <p>Interference proceedings between Henry T. Doulett and Lorenz Muther, between Henry T. Doulett and Frederick S. Glines, between Frederick S. Glines and Henry T. Doulett, and between Albert F. Deitsch and Alfred B. Wales, with three proceedings between Alfred F. Deitsch and Henry T. Doulett, and two proceedings between Alfred F. Deitsch and Robert B. Smith. From adverse decisions Doulett, Deitsch, and Glines appeal.</p>

<p>Appeal from a Decision of the Commissioner of Patents.</p> <p>Application by Charles U. Glafcke for a patent. From a decision rejecting the application, the applicant appeals.</p>

<p>Appeal from the Commissioner of Patents.</p> <p>Interference proceedings between John H. Shoemaker and Henry Bruck, patentees, and Henry C. Huntington, junior applicant. From a decision awarding priority of invention to the junior applicant, the patentees appeal.</p>

Interference proceedings between Arturol tlerna/idez-Mejia and William V. D. Kelley. From a decision of the Commissioner of Patents, awarding all the claims to Kelley, Hemandez-Mejia appeals.

<p>Appeal from the Commissioner of Patents.</p> <p>Interference proceedings between Ezra E. Clark and Herbert H. Bullurn. From a decision awarding priority to Buifum, the junior applicant, Clark, appeals.</p>

<p>1. Trade-marks and trade-names and unfair competition <©=>43—Canned pineapple has same descriptive properties as canned peas or corn.</p> <p>Within Act Feb. 20, 1905, § 5 (Comp. St. § 9490), prohibiting the registration of trade-marks identical with a registered trade-mark used by another on merchandise of the same descriptive properties, or so nearly resembling it as to cause confusion or deceive purchasers, canned pineapple lias the same descriptive properties as canned peas and corn, and a trade-mark used on canned peas or corn cannot bo registered by another for use on canned pineapple.</p> <p>2. Trade-marks and trade-names and unfair competition <@=>43—Confusion to purchasers relying on first impression defeats trademark.</p> <p>Where there is such a resemblance between trade-marks that confusion would result in the case of a purchaser relying on his first impression, registration should be denied, though there would be no confusion if the purchaser made a careful examination of all that appeared on the containers of the goods.</p> <p>3. Trade-marks and trade-names and unfair competition <@=>43—That goods are put up at distant points does not justify similarity in trade-mark sought to be registered.</p> <p>That the goods of the owner of a registered trade-mark are put up in Hawaii, while those of one applying for registration of a similar trademark are put up in Chicago, is immaterial, as the goods of both might come into the same market, and be handled by the same jobber or retail grocer.</p> <p>«gr^For other cases see same topic & KEY-NTJMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the Commissioner of Patents.</p> <p>Application by B. F. Trappey for the registration of a trade-mark, opposed by the Mcllheuny Company. From a decision dismissing the opposition, the opposer appeals.</p>

Interference proceedings between Homer S. Rogers, inventor, John K. Bali, assignee, junior applicant, and Burton S. Aikman, senior applicant. From a decision of the Commissioner of Patents, awarding priority to Aikman, Rogers and Ball appeal.

<p>Patents <§=>91 (4)—Evidence held not to show conception of invention by junior applicant prior to filing of senior application.</p> <p>Where the counts in interference were for a utensil for ehemical use, or a chemical resistant ware formed of an alloy which had been previously used for other purposes, evidence that the junior applicant had used the alloy before the date of the senior application as a solder, as weights, and as electrodes, does not establish his prior conception of the invention in issue.</p> <p>otter cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Writ of Error to the Police Court of the District of Columbia. Lucretia Lewis was convicted in the police court of being a vagrant, and she brings error.

<p>Writ of Error to the Police Court of the District of Columbia.</p> <p>Hilda Rose was convicted of being a vagrant, and she brings error.</p>

<p>Patents —Whcss experiment abandoned, and reasonable diligence not exercised in complete invention, patent properly denied.</p> <p>■Where tho applicant’s use of nonelasrtic material for an envelope in Which to place meat during smoking’ was an abandoned experiment, and he liad failed to couple his prior conception with reasonable diligence to his completion of the invention, a patent was properly denied.</p> <p><3^>Eor other eases see same topic & KEY -NUMBER in all Key-Numbered Digests & Indexes;</p>

<p>Appeal from a Decision of the Commissioner of Patents.</p> <p>Interference proceeding between Alfred R. Huntington and Edmund N. Brown. Erom a decision in favor of Brpwn, Huntington appeals.</p>

Youmans, Judge. Action by Fremont Stokes against the Arkansas Anthracite Coal & Fand Company and another. Judgment for plaintiff, and the defendant named brings error..

<p>1. Corporations '3=155 (S) action for dividends, defendant may deny plaintiff’s title or the declaration of dividends or plead sot-off.</p> <p>In an action for dividends alleged to have been declared on corpoi'ate stock, defendants may make an issue as to plaintiff’s title to the stock or the declaration of dividends, or may plead a set-off or counterclaim against their liability.</p> <p>2. Action ®=24—Action for dividends properly tried at law, notwithstanding' allegations of debits and credits with third person, claimed to be the owner.</p> <p>An action against a corporation for dividends alleged to have been declared on stock to which plaintiff asserted title, where defendant alleged title in a third person and that there were many transactions, debits and credits, between it and such third person, necessitating an accounting, was properly tried and determined at law, as the primary issue was</p> <p>r other casca see same topic & KEY-NUMBER in ail Key-Numbered Digests & Indexes whether plaintiff owned the stock, and, if she did, there was no occasion for an accounting.</p>

Van Fleet, Judge. Suit by Waldemar Gnerich and another, copartners doing business under the firm name and style of the B. & S. Drug Company, against F. C. Yellowley, as Acting Prohibition Director in and for the District of California. From a decree dismissing the bill, complainants appeal.

<p>Appeal from the District Court of the United States for the Western District of Pennsylvania; W. H. S. Thomson, Judge.</p> <p>Suit by the Mechanical Construction Company against the Locomotive Stoker Company. Decree for plaintiff (274 Fed. 411), and defendant appeals.</p>

Grubb, Judge. Action by the Great Atlantic & Pacific Tea Company against Mortie J. Gillespy, as executor, etc., and others. Judgment for plaintiff for an insufficient amount, and it brings error.

<p>1. Railroads <$=344 (5)—Petition held to charge negligent speed.</p> <p>The petition in an action against a railroad company- for the killing of plaintiff’s intestate on a crossing, which alleged that “the accident was caused solely and directly by the negligence of the defendant as herein set forth,” followed by an allegation that defendant’s train approached the crossing at “a high and dangerous rate of speed,” held to sufficiently charge that the rate of speed was negligence.</p> <p>2. Courts <©=352—Federal judges not required to conform to state practice in charging jury.</p> <p>Judges of federal courts are not required by the conformity statute (Rev. St. § 914 [Comp. St. § 1537]) to charge a jury before argument on request to conform to a requirement of the state statute.</p> <p>3. Courts <©=406 (1)—Judgment not reversible by Circuit Court of Appeals for error in fact.</p> <p>Under Rev. St. § 1011 (Comp. St. § 1672), providing that a judgment shall not be reversed for any error in fact, a Circuit Court of Appeals is without authority to review and reverse a judgment on the weight of the evidence.</p> <p>4. Negligence <©=135—Contributory negligence must be established! by preponderance of evidence. '</p> <p>The burden of proof is on the defendant to establish the defense of contributory negligence by a preponderance of the evidence, direct or circumstantial. '</p> <p>5. Negligence <®=136(30)—Contributory negligence of automobile driver not necessarily imputable to passenger.</p> <p>Conceding that- the driver of an automobile in which deceased was riding when struck and killed on a railroad crossing was chargeable witli contributory negligence, it does not necessarily follow that deceased herself’ was so chargeable, nor that the driver’s negligence was imputable to her.</p> <p>6. Trial <©=142,178—Court cannot weigh evidence on motion to direct verdict, and motion must be denied, if different conclusions possible.</p> <p>In disposing of a motion to direct a verdict, the trial court cannot weigh the evidence, but must take that view of the evidence which is most favorable to the party against whom the motion is made, and deny the motion if, from the evidence when thus viewed, fair-minded men might honestly draw different conclusions.</p> <p>'<§=s>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Johnson, Judge. Creditors’ bill, in which a receiver was appointed for the D’Arcy & Sons Company, and in which James C. Davis, Director General of Railroads, sought to have his claims given priority, which was opposed by William I,. Pullen, receiver, and others. From an adverse decree, the Director General appeals.

<p>Petition to Revise Order of Federal Trade Commission, Sitting at Washington, D. C.</p> <p>Separate petitions by the Wholesale Grocers’ Association of El Paso, Tex., and.others, and by the H. Resinsky Company, against the Federal Trade Commission to revise an order.</p>

<p>1. Evidence ©=113(7)—Crop and sale thereof as evidence of market value of land.</p> <p>In an action for damages to orchard from fumes of smelting plant, evidence of the crop produced and the sale thereof held admissible, not as showing the market value of the land itself, but as proving its adaptability to special purpose, in corroboration or support of evidence of market value.</p> <p>2, Evidence <©=544—One assisting expert held mot qualified as expert.</p> <p>In action for damages to orchard from fumes of smelting plant, a witness who merely assisted an expert in determining the effect of fumes on the surroundings, and who had no technical training, was not qualified as an expert.</p> <p>3, Trial <©=133 (0)—Improper argument of counsel held cured by the action of the court.</p> <p>In an action for damages to orchard from fumes of a smelting plant, argument of counsel that plaintiff was poor and helpless, down and out, broke and ruined, though improper, was not reversible error, whore court, on objection, reprimanded counsel by saying that he must not try to prejudice the jury, and in the charge told the jury that it must not be swayed by prejudice, nor go outside of the evidence In determining the facts.</p> <p>4. Appeal and error ©=1067—Refusal to modify instruction as to limitations held, on the record, harmless.</p> <p>Where, in an action for damages to orchard from fumes of smelting plant, there was no evidence that any injury occurred to the orchard before 3 years prior to suit, though plant had been in operation 14 years, and there was evidence that at time injury was first noticed change in plant liad occurred and a new chimney built, refusal to modify an instruction on the 5-year statute of limitations, that the invasion of rights of plaintiff began when defendant sent over his property gases which inflicted damages, and, if this occurred prior to the 5-year period preceding commencement of suit, the right of action was barred, by- adding the words “irrespective of whether it committed any actual injury” to vegetation or trees on plaintiff’s property, was harmless, conceding that the Illinois rule, as charged, was applicable.</p> <p>©=For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Petition to Review and Revise Proceedings of, and Appeal from, the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Proceeding by Charles S. Winston to vacate an adjudication in bankruptcy against Eugene M. Hoyne and others. The petition was dismissed, and the petitioner appeals and files a petition to review and revise.</p>

Holmes, Judge. Uibel by Charles Nicklas, master of the American schooner Rosemary, against the Talge Mahogany Company, with libel by the 'I'alge Mahogany Company against the schooner Rosemary and others. P'rom an adverse judgment, the Talge Mahogany Company appeals.

<p>Appeal from the District Court of the United States for the District of Nebraska; J. W. Woodrough, Judge.</p> <p>In the matter of the Brown Consolidated Milling Company, Bankrupt. From a decision of the District Court, allowing in part the claim of Damson Bros. & Co., against O. F. Turner, as trustee in bankruptcy, and allowing an offset in favor of the trustee against the portion of the claim allowed, claimant appeals.</p>

<p>1. Trial <s=48—Written statement held admissible, though containing inadmissible matter.</p> <p>in an action by one who exchanged a tract of land for various parcels of defendant’s land, for damages for false representations, a typewritten list of defendant’s property furnished by him at the time of the trade was admissible in evidence as far as it described defendant’s property, even though it included figures representing values that were incompetent, and proper procedure was to admit the paper, with proper instructions.</p> <p>2. Appeal and error <3=!)30(2)—Presumed that jurors disregarded evidence as directed.</p> <p>The legal presumption is that the jury followed instruction to disrega; ,1 evidence which had been erroneously received, or had after its receipt become immaterial in the progress of the cause, except in unusual cases, where to indulge such presumption would permit injustice.</p> <p>3. Evidence <©=>558(1)—Cross-examination as to amount paid for land held admissible to test opinion as to value.</p> <p>In an action for damages for false representations in exchange of land, where defendant testified as to market value of some property exchanged, and that he had bought and sold live or six pieces in the locality, plaintiff on cross-examination could ask him what lie paid for one of the parcels of property exchanged, to test the weight that the jury ought to give to his testimony as an expert as to values.</p> <p>4. Exchange of properly <©=8(5)—Measure of damages for false representation.</p> <p>The measure of damages for false representations In exchange of lands is the difference between tlie reasonable value of what the defrauded party parted with and the reasonable value of what he received; and this is true where the defrauded party has placed a certain value upon his property, and has taken a number of parcels of defendant’s property at a lump sum, without an agreement as to the value of the respective parcels.</p> <p><3^>For other ceses see seme topic & KLY-NUHiiBR in 'all Key-Numlxn’cd Digests & Indexes</p> <p>5. Exchange of property <@=>8(1)—Remedies of defrauded party.</p> <p>Where an exchange of properties is induced by .fraudulent representations as to part of a number of parcels of property exchanged by one of the parties, the defrauded party has the same right to a rescission or damages as when fraudulent misrepresentations relate to all the property, and he may rescind, restore what he has received, and recover back what he has parted with, or retain what he has received and recover what he has lost, though an agreed price is. placed on the property of the defrauded party and the property of the other party collectively.</p> <p>Stone, Circuit Judge, dissenting.</p> <p>tg^For other cases see same topic & KEY-NUMBER in .all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Action by J. Edward Blackmore against the Eastman Kodak Company. Judgment for plaintiff, and defendant brings error.</p> <p>Writ of error to the District Court for the Southern District of New York to review a judgment for $25,127.30 in favor of defendant in error (hereinafter called plaintiff) against plaintiff in error (hereinafter called defendant).</p> <p>The action was brought to recover damages under section 7 of the .so-called Sherman Anti-Trust Act (Comp. St. § 8829), -which now, as amended by the Clayton Act, reads as follows: “Any person who shall be injured in his business or property by reason of anything forbidden in the anti-trust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to Hie amount in controversy, and siiail recover three fold the damages by him sustnined, and the cost of suit, including a reasonable attorney’s fee.” Act Oct. 15. 1914, c. 323, § 4. 38 Slat. 731 (Comp. St § 8835d).</p> <p>The record is voluminous but the facts may be stated with comparative brevity in view of the grounds upon which decision is based.</p> <p>The amended complaint alleged and the evidence showed without dispute that defendant had violated the provisions of Hie so-called Anti-Trust Act of July 2, 1890. On January 20, 1910, the United States District Court for the ■Western District of New York entered its decree in a suit brought by the United States adjudging that defendant and others had “combined, conspired, and participated in various transactions directly affecting” interstate commerce “in photographic supplies * * * with the purpose and intent of unduly and unreasonably suppressing competition and restraining and monopolizing, such trade in violation of the act of July 2, 1890.” (D. C.) 230 Fed. 522.</p> <p>The decree further adjudged that defendant, among other things, had monopolized between 75 and 80 per cent, of such trade, and accordingly had attained and held an illegal monopoly thereof, and that such monopoly was induced “by wrongful contracts with regard to raw paper slock, by preventing the trade from obtaining such stock, by acquiring competing plants, business, and stockhouses, dismantling acquired plants, and restraining the vendors from re-entering the business, by imposing on photographic dealers arbitrary and oppressive terms of sale and other regulations inconsistent with fair and free dealing and arbitrarily enforcing the same through the establishment of a system of espionage and the keeping of records of violations with a view of penalizing dealers, by limiting the number of dealers, and in general by suppressing competition by the foregoing and other means.”</p> <p>Uat.er, in the same year of 1916, plaintiff brought this action, and his amended complaint was verified December 30, 1916. The cause came on for trial and resulted in a verdict in plaintiff’s favor for $5,000. After this amount had been trebled and $10,000 had been allowed for attorney’s fee, under the provisions of section 7, supra, judgment was entered for the amount above stated.</p> <p>As early as 1894 plaintiff became a regular customer of defendant. From that time until and including July. 1914, he was continuously engaged, under various trade names, at Newark, N. .T., In the business of selling photographic and art supplies and of enlarging, printing, and developing photographs.</p> <p>Down to November, 1911, as to goods manufactured under secret, processes, and down to .Tune, 1913, as to goods covered by letters patent, defendant carried on its business under restricted contracts known as “terms of sale,” according to which the goods could be resold only at prices fixed by defendant, while the customer also agreed not to handle goods which competed with those sold to him by defendant.</p> <p>Tn June, 1913, defendant finally and completely abandoned the restrictive system, and since that date it is undisputed that the goods manufactured and sold by the defendant have been sold free of any restrictions whatever. The changes in the. policy of defendant’s methods of doing business were practically coincident with the decisions of the Supreme Court of the United States in Dr. Miles Medical Co. v. Park & Sons Co., 220 TJ. S. 373, 31 Sup. Ct. 376, 55 U. Ed. 502, decided April 3, 1911, and Bauer & Cie, v. O’Donnell, 229 U. S. 1, 33 Sup. Ot. 616, 57 D. Ed. 1041, 50 L. R. A. (N. S.) 1185, Ann. Cas. 1915A, 150, decided May 26, 1913.</p> <p>As early as January 6, 1897, or in any event December 2, 1897, plaintiff agreed actively to participate in and took the advantages of defendant’s restrictive sales system and of the contracts and agreements in furtherance thereof. This sales system impaired free competition in certain goods in which defendant dealt and was designed to keep up the prices at which the retail dealers with whom defendant dealt directly could and would in turn sell to the buying public.</p> <p>In 1899 defendant suspended plaintiff from its list of customers but on plaintiff’s urgent application and request this suspension was lifted, and in September, 1899 (Plaintiff’s Exhibit 23A), plaintiff agreed to maintain prices and comply with other regulations of defendant, and on October 2,1899 (Plaintiff’s Exhibit 23), plaintiff signed a contract with defendant agreeing not to handle photographic' papers other than those manufactured by the General Aristo Company, which was one of defendant’s associated companies. On November 6, 1899, plaintiff was reinstated as one of defendant’s dealers under a notification that the. restrictive policy would be maintained as theretofore. From October, 1899, until April 24, 1902, plaintiff was active in reporting to defendant alleged violations by other dealers of defendant’s “terms of sale,” and these reports involved espionage on the part of plaintiff.</p> <p>By reason of the refusal of plaintiff to cease handling certain competitive goods in violation of the terms of sale, defendant refused to allow plaintiff the conditional credits allowed for compliance with the “terms of sale,” and, upon his refusal to pay these deductions, an action was brought by "defendant against plaintiff in the New Jersey Supreme Court, which resulted in defendant’s favor. . Thus in June, 1902, the plaintiff was off defendant’s list of customers and did not participate in the restrictive sales system; but after the plaintiff paid the New Jersey judgment he was reinstated on defendant’s list in January, 1905, first, however, having disposed of all independent or competitive-goods in his hands.</p> <p>From January, 1905, to and including July, 1914, plaintiff did business with defendant, and defendant sold him goods under restrictive contracts to the extent that the restrictions applied at the various dates. In other words, from January, 1905, until November, 1911, the restrictive features included goods manufactured under secret processes, and until June, 1913, goods covered by letters patent.</p> <p>On November 15, 1911, defendant addressed a circular letter “To the Trade” (Defendant’s Exhibit 18) explaining the Supreme Court decision and stating the following: “We consider this an opportune time to obtain an expression from the trade as to the desirability, from its standpoint, of our continuing our price restriction and exclusive sale policy so far as patented goods are concerned. We are therefore inclosing herewith a post card which we ask that you use in recording your view of the matter. If, as a result of the vote of the trade,, we do not find a strong sentiment in favor of a maintenance of these restrictions on patented goods, we shall remove them without delay.”</p> <p>The postal card inclosed was on a printed form with the words “In favor of” and the words “Not in favor of” and blanks for date and signature. Plaintiff signed this card, stating: “We are in favor of a continuance of your price restriction and exclusive sale policy as applied to your patented goods, such as films and kodaks.”</p> <p>From November, 1911, until June, 1913, plaintiff was at liberty to sell secret process goods without restriction and at any price he pleased, and, in respect of the only class of goods in regard to which .the restrictive system applied after November 1911—i. e., patented goods—the signed postal card supra is undisputed evidence of plaintiff’s active consent that such goods should remain under this restrictive system.</p> <p>In addition to the foregoing the evidence shows that plaintiff, whenever requested, signed credit memoranda stating, in substance, that plaintiff had complied with all the requirements of defendant’s system, and upon signing such memoranda plaintiff received the benefit of refunds, known as conditional credits. These credit memoranda were not used after January 1, 1908.</p> <p>The trial court held that plaintiff was barred by the statute of limitations from any recovery prior to October 15, 1908, so that the cause of action, as thus limited, became one for damages from October 15, 1908, to July, 1914.</p> <p>Under the ruling of the court the damages were to bo ascertained by measuring the difference between the actual average net profits which plaintiff claimed to have made between October 15, 1908, and July, 1914, and the average net profits which plaintiff claimed to have made during the period prior to the time when he was excluded froip defendant’s list of customers in 1902. This period antecedent to 1902 was thus taken as the standard of comparison, and testimony was received as to sales and profits during that period upon the theory that the jury could ascertain as a fact the damages which plaintiff had suffered by tbe comparison above stated.</p> <p>In addition to the foregoing, the only acts of any consequence which plaintiff in his pleading or testimony claims, even by inference, have caused him injury were those connected with the acquisition by defendant of various properties consisting either of letters patent or secret processes which carried with them the exclusive right to make and to sell certain goods theretofore made and sold by competitors of defendant or the stock control of certain corporations which wore alleged to have been competitors of defendant and the acquisition of which control brought with it the exclusive right to make certain products.</p> <p>The record is barren of any proof showing specifically any damage which resulted to plaintiff by virtue of these acquisitions, and substantially all of the goods the exclusive right to make which was obtained by defendant in pursuance of its monopolistic effort (except photographic plates) were as soon as acquired added to the “terms of sale,” and hence thereafter acquiesced in and agreed to by the plaintiff.</p> <p>At the end of the plaintiff’s case and of the whole case defendant duly moved to dismiss the complaint, and at the end of the case also moved for a directed verdict on the ground, inter alia, that there was no cause of action. These motions were denied. Exceptions were duly taken, and defendant has now brought this writ of error.</p>

Youmans, Judge. Suit by the United States against Bessie Wildcat and others, in which D. A. McDougal and the Black Panther Oil & Gas Company and others intervene. From the judgment rendered, D. A. McDougal and others appeal.

<p>Appeal from the District Court of the United States for the Western District of Arkansas; Frank A. Yon mans, Judge.</p> <p>Suit by the Kansas City Southern Railway Company and another against Will F. Thomas, Sheriff and Collector, etc., and others. Decree for plaintiffs, and defendants appeal.</p>

<p>1. Insurance @=>425—Policy held not to cover robbery from vault already open.</p> <p>A policy insuring against loss by robbery from within the general inclosure reserved for the use of officers or employees, from an officer while transferring money from a vault outside the inclosure to the inclosure, or by compelling an officer to unlock or open the safe or vault, does not cover money taken by robbers from the safe or vault which had been previously opened preparatory to taking the money to the inclosure for the day’s business, since the inclosure within the first clause cannot, in view of the second clause, include the vault.</p> <p>3. Courts @=>!)(!(1)—Decision of Court of Appeals for another circuit should bo followed1 unless different conclusions required.</p> <p>The decision of the Court of Appeals for another circuit upon the exact question is ordinarily followed unless there are other circumstances requiring a different conclusion.</p> <p>3. Insurance @=>425—Clause specifying amount of insurance against certain risks held not to enlarge provisions defining loss.</p> <p>Where a theft insurance policy had specifically defined the causes of loss insured against, a subsequent clause stating that the Insurance attached in the amount of 820,000 to loss by robbery does not make the policy cover all loss by robbery, since that clause was made merely to limit the amount insured as to each hazard.</p> <p>4. Insurance @=>645(3)—Iowa, statute does not prevent defense under general denial that lass was not covered.</p> <p>Code Iowa 1897, §§ 3620, 3628, providing that an answer to an allegation of performance of all conditions precedent is not sufficient if it controverts by mere contradictions, but that it must specifically state the facts relied on, and section 3621, requiring a party who claims a right founded on an exception to state such exception particularly, do not preclude insurer whose answer was in effect , a general denial from relying on the claim that the loss was not one covered by the policy.</p> <p>Stone, Circuit Judge, dissenting.</p> <p><§saFor other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes-</p>

, Judge. Libel in admiralty by R. Erichsen, as master of the Norwegian steamer Stortind, against the British steamship War Pointer with cross-libel by Arthur W. Melling, as master and claimant of the British steamer War Pointer, against the Stortind. From a decree against the War Pointer for all the damages resulting from the collision (264 Fed. 1013), the master and claimant of that vessel appeals.

Watkins, Judge., A. H. Miller was convicted of conspiracy to conceal a bankrupt’s assets, and aiding, abetting, and counseling the commission of the offense of concealment, and he brings error.

Henry F. Maresca and others were convicted under an indictment charging them with a violation of the provisions of various acts of Congress respecting distilled spirits, and bring error. This cause comes" here on writ of error to the District Court for the Southern District of New York.

<p>1. Patents <©=>173—Improvement on electric cooking apparatus held not pioneer invention.</p> <p>A patent for an electric cooking apparatus, which combined in different form elements previously well-known in the art, and the specification for which expressly declared it was an improvement on the prior art, does not embody a pioneer invention, so as to be entitled to á generic claim.</p> <p>2. Patents <©=>226—Device substantially differentiated does not infringe.</p> <p>If the device embodied in the patent can be substantially differentiated from' defendant’s device, the charge of infringement is not sustained.</p> <p>3. Patents <©=>236—Transformation of parts effecting substantially different operation avoids infringement.</p> <p>Though a change in the relative position of the parts of a machine does not avoid infringement, where the parts perform the same respective functions after the change as before, tbe change of those positions which changes tbe functions of tbe several parts, so as to give tbe machine a substantially different mode of operation, does avoid infringement, though the ultimate result remains the same.</p> <p>4. Patents <@=>46—Claim for combination must disclose operative combination.</p> <p>A claim for combination, to be valid, must be for an operative combination, so that there cannot be eliminated therefrom an element without which the device would not operate.</p> <p>8. Patents <©=>328—1,214,486, claims 5 to 9, for electrical cooking device, held not infringed.</p> <p>The Wright patent No. 1,214,486, claims 5 to 9, for electric cooking apparatus, held not infringed by a device effecting substantially the same result, but without using one element of the claims which, according to the declaration of the patentee, was one of the principal parts of his invention.</p> <p><S=>For other eases see same topic & KEY-NUMBER in .all Key-Numbered Digests & Indexes</p>

<p>Depositaries —Decree adjudging construction contract void did not justify depositary of fund guarantying' performance in paying fund to owner.</p> <p>Where a contract between a construction company and a terminal company provided that 15 per cent, of value of work and material should be paid by the terminal company to a bank to hold as a guaranty of performance by the construction company, a decree in a suit by the construction company on the contract, merely adjudging it void, and not passing on the rights to the guaranty fund, "held not to justify the bank in paying the deposit to the terminal company.</p> <p><3*=i>.For other cuset- see same topic & KEY-NUMBER in all Key-Numbered Digests & indexes</p>

<p>Appeal from the District Court of the United States for the Southern Division of the Southern District of California; Benjamin E. Bledsoe, Judge.</p> <p>Albert Sicliofsky, also known as Abram Sicliofsky, was convicted of an offense, and he appeals.</p>

Dooling, Judge. Habeas corpus proceeding by Chang Sim and another against Edward White, as Commissioner of Immigration for the Port of San Francisco, after their deportation was ordered. From an order denying the petition, petitioners appeal.

Woods and Edmund Waddill, Jr., Judges. Bill by the United States for injunction, on the relation of the Red Jacket Consolidated Coal & Coke Company, against John L,. Lewis and others, wherein injunction was granted. Thereafter Henry Wright, Joe Smith, Ade Clark, Will Moore, and John Patrick were convicted of contempt of court in violating said injunction, and they, bring error.

<p>1. Receiving stolen goods <S^>7(5)—Indictment held to sufficiently describa property and allege ownership.</p> <p>Indictment charging that defendant had possession of 13 bundles of hides, of specified value, which had been stolen from a railroad car bearing specified initials and number, and which had constituted a part of an interstate shipment of freight, which, at the time so stolen, was in possession of the President of the United States, by and through the Director General of Railroads, held sufficient as against contention that properly was not described and that ownership was not alleged.</p> <p>@==>For other cases see same topic & KBY-NUJIBEIl in all Key-Numbered Digests & Indexes</p> <p>2. Receiving stolen goods <S=59 (1) —Whether defendant knew goods found in his possession to have been stolen held for jury.</p> <p>In prosecution for having possession of goods stolen from railroad while constituting a part of an interstate shipment, with the intent to convert goods to own use, whether defendant knew goods to have been stolen held for the jury.</p> <p>3. Receiving stolen goods <@=>9(1)—Whether defendant had possession of goods stolen from railroad while constituting a part of interstate shipment held for jury.</p> <p>In prosecution for having possession of goods stolen from _ railroad while constituting a part of an interstate shipment, with the intent to convert goods to own use, a question of whether the goods were in defendant’s possession held for the jury.</p> <p>4. Criminal law <@=51038 (1), 1056(1)—Defendant cannot complain of instructions, in absence of objections and exceptions.</p> <p>Defendant cannot complain on writ of error that erroneous instructions were given, where no objections were made and no exceptions were preserved to any part of the instructions.</p> <p>i@zz>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Southern District of Mississippi; Edwin R. Holmes, Judge.</p> <p>Action by the St. Louis Bank Equipment & Fixture Company against the Bank of Rolling Fork. Judgment Cor defendant, and plaintiff brings error.</p>

<p>1. Criminal law <9=351 (3) —Evidence of flight not inadmissible, as too remote.</p> <p>Where defendant was indicted on May 1st, arraigned on May 4th, and his trial set for June 8th, evidence that, some time before the date set for trial, he fled to Canada, was not Inadmissible, as too remote from the time of his arrest and indictment to have any hearing on his guilt.</p> <p>2. Criminal law <9=351 (3)—Evidence of flight admissible in prosecution for using mails to defraud.</p> <p>The admissibility of evidence of flight is not limited to homicide cases, and such evidence was admissible in a prosecution for using the mails in aid of a fraudulent scheme, since its probative value is to indicate a consciousness of guilt.</p> <p>3. Criminal law <9=351(3)—Admissibility of evidence of flight not dependent on whether other evidence is direct or circumstantial.</p> <p>Where the witness is eligible, his testimony not privileged, and the subject-matter not excluded by law, admissibility of evidence of flight, like other matters, depends on whether it has or lacks probative value in support or denial of an issue, and not on the faet that the other evidence may be direct, circumstantial, or mixed.</p> <p>4. Post oiiiee <9=35—Issue on trial l'or using mails to defraud is whether defendant thought he was making honest offer, which could only be judged by what he did.</p> <p>On a trial for using the mails In aid of a scheme to defraud, by selling rabbits and guinea pigs at $5 a pair, and buying back their progeny from customers at $2.50 a pair, the issue for the jury to determine was whether defendant believed be was making an honest business offer, though in fact incapable of performance, and this could only be judged by how he dealt with his customers, and what he did with the money received.</p> <p>©snFor other eases see same topic & KEY-NITMBEIi in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States, for the Southern District of Mississippi; Edwin R. Holmes, Judge.</p> <p>Suit in equity by S. D. Redmond against the Buckeye Cotton Oil Company. Erom the decree, complainant appeals.</p>

<p>Patents <®=214—Inadvertent delay in payment of royalty held not to warrant cancellation of license contract.</p> <p>Under a license contract for use of an invention, providing that it might be canceled by the licensor for failure to make payment of royalties as agreed upon, and at the limes specified, where the licensee had expended a large sum and three years’ time in perfecting the invention before it was commercially successful, and had invested $1,000,000 in the undertaking, the licensor hold, not entitled, to cancel the contract because, through inadvertence, and not intentionally, a payment of royalty was delayed.</p> <p><gs^For other eases see same topic & KEY-NUMBER jn all Key-Numbered Digests & Indexes</p>

<p>Master and! servant @=>301(1)—Railroad construction contractor held not liable for clamases to railroad’s property by negligence of work train employee under railroad’s control.</p> <p>Under a contract with a receiver for a railroad company for the doing of construction work on the line, which provided that the contractor should pay all damages to the receiver’s property and gave the receiver control over the method of using the main line in doing the work, where he required that no work train should go on the main line unless in charge of a pilot and such pilot was employed, paid, and controlled by him, though the contractor was charged with the expense, the contractor held not liable to the receiver for damage to a freight train in a collision caused by the negligence of the pilot.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Indictment and information <§=>125 (4) —Prostitution <§=>3—Indictment held to sufficiently charge single offense under Mann Act.</p> <p>Under Mann White Slave Act, § 5 (Comp. St. § 8816), the District Court had jurisdiction of a prosecution under an indictment charging, in a Single count, procuring transportation for a woman in interstate commerce for immoral purposes, and procuring a ticket to be used by her for transportation from Chicago to Los Angeles for such purposes, though the first clause did not state where op in what district he procured such transportation; such indictment charging a single transaction and being sufficient to charge'an offense.</p> <p><©zs>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Rudkin, Judge. Bill of interpleader by the New York Life Insurance Company against Charles Paganini, as administrator of the estate of David K. Marlow, deceased, and Herta Marlow. Decree for the administrator, and Herta Marlow appeals.

<p>Appeal from the District Court of the United States for the District of Colorado; Robert E. Lewis, Judge.</p> <p>Habeas Corpus by Eyitaro Nishimura against William R. Mansfield, Inspector in Charge of the Immigration Bureau at Denver, Colo. From an order denying the writ, petitioner appeals.</p>

<p>Appeal from the District Court of the United States for the Northern Division of the Southern District of California; Benjamin F. Bledsoe, Judge.</p> <p>Suit in equity by the People’s Development Company against the Southern Pacific Company and others. Decree for defendants, and complainant appeals.</p>

<p>1. Appeal and error <§=»1054(1)—Admission of opinion evidence not prejudicial in trial to court.</p> <p>Admission of the opinion of a witness on a legal question held not prejudicial in a trial to the court.</p> <p>2. Appeal and error <§=»231 (6) ■—Limitation of review on trial to court.</p> <p>On trial of an action at iaw to the court, where no finding or ruling was-asked on the conclusion of the evidence, assignments that the court erred in directing judgment for one party and in not directing judgment for the other present no question for review under Rev. St. § 700 (Comp. St. §• 1668).</p> <p><£=»For other cases see same topic & KEY-NUMBER in .all Key-Numbered Digests & Indexes-</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Libel filed by the Pennsylvania Railroad Company against the James McWilliams Towing-Line. Decree for libelant. Respondent appeals.</p>

<p>Seamen <§=»21—Right to wages held forfeited by “desertions.”</p> <p>On a libel for seamen’s wages, evidence held to show that libelants were deserters from the ship, and had forfeited their wages under Rev. St. § 4596, as amended (Comp. St. § 8380) ; “desertion” being a quitting of the ship and her service, not only without leave and against the duty of the party, but with an intent not again to return to the ship’s duty.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Desertion (in Maritime Law).]</p> <p><J=»For other oases see same topic & KEY-NUMBER in .all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Southern District of West Virginia, at Blueñeld; Edmund Waddill, Jr., Judge.</p> <p>Action by Earl Waldron against John Barton Payne, Director General of Railroads, as Agent. Judgment for defendant, and plaintiff brings error.</p>

<p>Bankruptcy <5=>I 05 (1) —Order granting injunction modified.</p> <p>An order of a court of bankruptcy, which, though refusing an injunction restraining respondent from prosecuting a suit in a state court against the bankrupt to establish his title to certain mining ground and a mill and machinery thereon, enjoined him from interfering with the receiver in bankruptcy in his possession “and disposal” of the mill and machinery, modilied, so as to apply only to the possession of the receiver, pending determination of the ownership in the state suit.</p> <p>(S^pl’ar other eases -see same topic & KEY-NU3.1 BMil in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the district of Oregon; Robert S. Bean, Judge.</p> <p>Action by William G. Nesmith against John D. Ankeny, executor of the last will and testament of Levi Ankeny, deceased, and others. Decree for defendants, and plaintiff appeals.</p>

<p>Appeal and, error ®=»931(1) —Presumption oí correctness oí decree of characellos- will uphold it, where evidence is contradictory.</p> <p>Where the evidence is contradictory the presumption of the correctness of a finding by the chancellor will sustain the finding and the decree thereon.</p> <p><§5»iror other eases see same topic & KEY-NUIvlBEIt in all Key-Numbered Digests & Indexes</p>

<p>1. Sales @=465—Unrecorded conditional sale is valid1 between buyer and reí ceiver of assignor.</p> <p>Under Uniform Conditional Sales Act N. J. § 1, defining seller, and section 4, making conditional sales valid aS to all persons, except purchasers or creditors without notice from the buyer, an unrecorded conditional sale contract, which was subsequently assigned by the seller, is valid as between the buyer and the receiver in bankruptcy of the seller, who had retaken possession of the property.</p> <p>2. Chattel mortgages @=1—Right of redemption is essential.</p> <p>To constitute a mortgage, the right of redemption must exist, and where such right is established the form of the conveyance is not controlling.</p> <p>3. Chattel mortgages @=85—Assignment of chose in action as security is not “chattel mortgage,” within New Jersey act.</p> <p>An assignment of a chose in action, even if it be as security for the payment of a debt, is not a .“chattel mortgage,” within the meaning of the New Jersey Chattel Mortgage Act, requiring recording, which applies only when the goods mortgaged are capable of such open and visible possession that their holding by mortgagor might tempt some one to deal with him as absolute owner.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Chattel Mortgage.]</p> <p>4. Bankruptcy @=184(2)—Absolute assignment of conditional sale contract is not “chattel mortgage,” within act.</p> <p>An absolute assignment by a seller of a conditional sale contract and the notes secured thereby, under which the seller reserved no right of redemption, is not a “chattel mortgage,” within the New Jersey Chattel Mortgage Act, requiring recording, but, although not recorded, entitles the assignee to possession of the property after buyer’s default, as against the creditors of the assignor, represented by receiver in bankruptcy.</p> <p>5. Bankruptcy @=140(1)—Possession by bankrupt, retaken after assignment of conditional sale, gave no right to receiver.</p> <p>Where the seller of a motor truck by conditional sale contract had absolutely assigned a contract and the note securing it to another, the fact that the seller had retaken possession of the property after the buyer’s default, and had it in possession when a receiver in bankruptcy was appointed for the seller, gave the seller and his receiver no property right in the truck as against the assignee.</p> <p><g=AFor other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Seamen <§=»3—Action for injury while in a foreign port is governed by the law of the flag.</p> <p>An action by a seaman of a vessel of the United States for an injury received in a foreign port, while in performance of his duties on board, through alleged .negligence in the management of the ship, is governed by the law of the United States, and not that of the port.</p> <p>45¡saFor other cases see same topic & KEY-NUMBER ia all Key-Numbered Digests & Indexes</p> <p>2. Removal of causes <§=>3, 19(5)—Action at law by seaman for personal injury held removable, the provisions of the Employers’ Liability Act against removal not applying.</p> <p>An action at law in a state court, brought by a seaman for personal injury under La Ifollette Seamen’s Act, § 20, as amended by Merchant Marine Act 1920, § 33, held removable into the federal court; that part of the Employers’ Liability Act as to removal not being adopted as part of the Marine Act.</p> <p>^cs>For other cases see same topic & KE Y-NUMBER m ail Key-Numbered Digests & Indexes</p>

<p>1. Habeas corpus <©=4—Discretionary power of federal court.</p> <p>A District Court is vested with discretionary power to determine whether a petitioner, claiming to bo imprisoned by state authority for an act done pursuant to federal law, shall be put to his writ of error to the highest court of the state, or shall be permitted to have the question determined summarily on writ of habeas cqrpus.</p> <p><§=»Eor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>2. Post office <@=’4—Regulations of Postmaster General for conduct of department have force of law.</p> <p>Under Rev. St. § 396 (Comp. St. § 582), the Postmaster General has power to promulgate regulations generally as to the conduct of the department, and such regulations are controlling, have the force of law, and are judicially noticed.</p> <p>3. Municipal corporations <@=>707—Driver of mail truck, conforming to regulations of department, not subject to arrest under state law.</p> <p>The driver of a mail truck, on a street which is a post road, held not subject to arrest, conviction, and imprisonment because the lights on his truck, which were those prescribed by the regulations of the department, did not conform to the requirements of a state statute.</p> <p><@zs>For other cases see same topic & KEY-NUMBER in .all Key-Numbered Digests & Indexes</p>

<p>1. Patents <@=>226—That patentee toes not apply invention to all uses to which it might be applied immaterial.</p> <p>That a patentee of a system for feeding the carbureter of internal combustion engines applied bis invention commercially only to single-cylinder stationary engines, and not to multi-cylinder engines, did not affect his right to sue for infringement by reason of a device used largely on automobiles.</p> <p>2. Patents <@=>328—984,932, claim 5, and 983,994, for feeding system for engines, held infringed, and not anticipated.</p> <p>The Seager Patent, No. 984,032, claim 5, for a system for feeding the carbureter of internal combustion engines, consisting in part of an auxiliary reservoir, filled by means of the suction in the intake pipe, and the Harrington patent, No. 983,994, for an, improvement, consisting in dividing the auxiliary reservoir into two superimposed chambers, held infringed by a device, all of the essential features of which were found in the patented inventions, except that a sereenlike partition took the place of a throttle valve, and a float valve mechanism was used to provide automatically intermittence of suction and nonsuetion intervals; also held not anticipated.</p> <p>3. Patents <@=>226—Relief not denied, because plaintiff’s device never sold to particular trade, while- defendant placed its device on the market at great investment.</p> <p>Where there is no doubt as to the validity of patents for a feeding mechanism for internal combustion engines, relief against infringement will not be denied because the patented devices, used on stationary engines, have never been sold to the automobile trade, while the infringing device has been put on the market at an enormous investment; the invention being applicable to automobiles, and the infringing device applicable to stationary engines.</p> <p><g=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by the United States against the Marine Engineers’ Beneficial Association No. 38 and others. On motions to dismiss bill.</p>

<p>SMpjiimg <3^88(2)—Evidence held to show lighter capsized from unseaworfhinei-s, and not from swells from passing' tag.</p> <p>On trial of libel by owner of lighter, which capsized after libelee’s tug had passed, the libel charging that the tug passed too close and at a rate of speed so great that her displacement waves and swells caused the lighter to capsize and sink, evidence held to show that the capsizing was caused by unseaworthiness of the lighter, due to inherent weakness or overloading, and not from fault of the tug.</p> <p>^or oilier cases see same topic & KEY-NUMBEIl in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Uibel by the Russell-Cronin Company, Inc., against the Director General of Railroads. From a decree dismissing the libel, libelant appeals.</p>

At Law. Action by the Holbrook, Cabot & Rollins Corporation against the City of New York. On demurrer to the seventh, eighth, and ninth causes of action. " The action was brought to recover amounts alleged to be due on a contract and supplemental contracts for the construction of a section of -the Broadway-Fourth Avenue Rapid Transit Railroad in the city of New York, and for damages for alleged breaches of the contract.

<p>Municipal corporations <§=>75—Act applicable to cities, etc., having specified population, not invalid because not submitted to mayor.</p> <p>Tke Lusk Amendment to the Walters Act of the New York Legislature, providing for payment of the increased cost, due to the war, of completing public contracts in reliance on any promise of ’relief by the local authorities of any county, municipality, or political division of the state having a population of more than one million, and by any state, county, or municipal agency, board, or commission charged with making or carrying out such contract though not submitted to the mayor of the city of New York, is not invalid under Const. N. Y. art. 12, § 2, requiring special city laws to be submitted to the mayor and defining special city laws as those relating to a single city or to less than all the cities of a class.</p> <p><gcs>For other cases see same topic & KEY-NUMBER in .all Key-Numhered Digests & Indexes</p>

Petition by the Red Cross Line for an order directing the Atlantic Fruit Company to proceed to arbitration, removed on_ petition of the Atlantic Fruit Company to the United States District Court. On motion by the Red Cross Line -to remand, and by the Atlantic Fruit Company to dismiss for lack of jurisdiction.

<p>Removal of causes <@=>12—Nonresident of district, sued by alien, may remove cause.</p> <p>A citizen of the United States, nonresident in the district, sued in a state court by an alien plaintiff, is entitled to remove the action to the federal court, on showing- such diversity of citizenship, together with the other requisite jurisdictional elements.</p>

<p>Habeas Corpus. In the matter of the application of John Matthews for writ to secure discharge from custody.</p>

<p>At La.w. Action by Andrew Johnson against the Panama Railroad Company. On plaintiff’s motion for judgment on pleadings and defendant’s demurrer to complaint.</p>

<p>Patents <§=>113(7)—Decision of Patent Office in rejecting claims held not to be disturbed.</p> <p>A decision of the Commissioner of Patents, rejecting 17 of 229 claims of an application for a patent on an invention relating tó an automatic auditing machine, held not to be disturbed, where the court was confined to a mere examination of highly technical references without the aid of enlightening testimony.</p>

<p>Patents <§=>113(7)—Concurrent fluffing of three tribunals, not palpably wrong, will not be disturbed.</p> <p>Where the three tribunals of the Patent Office each awarded priority to the same party in interference proceedings, their conclusion will be sustained, unless the court can say it was palpably wrong.</p> <p><§=»For other cases see same topic & KEY-NUMBER, in all Key-Numbered Digests & Indexes</p>

<p>Patents -@=>66,' 79—Disallowed claims for automobile starting generator held anticipated.</p> <p>Claims in an application for a patent for an automobile starting generator, Wherein the windings of the armature are so formed as to serve the function of a commutator, held anticipated by publication and patent, so that three claims were properly disallowed.</p> <p><§5»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Application by Jeremiah F. Sullivan for a writ of mandamus against Cuno H. Rudolph and others, Commissioners of the District of Columbia. From a judgment granting the peremptory writ, the defendants appeal.

Petition for mandamus by the United States, on the relation of the Merrell-Soule Company, a corporation, against William C. Fowler, as Health Officer of the District of Columbia. From a judgment issuing the peremptory writ, respondent appeals.

Lewis, Judge. Action by E. Stenger, as receiver of the Denver Tramway Company, against the City and County of Denver. From an order granting a temporary injunction, and denying defendant’s motion to dismiss the petition, defendant appeals.

Van Fleet, Judge. Suit by the United States and others against the Marine Cooks’ and Stewards’ Association of the Pacific Coast and others. From an order adjudging him in contempt, Edwin Forrest appeals.

Van Fleet, Judge. Action by P. Pastene & Co., Incorporated, against the Greco Canning Company. Judgment for plaintiff (26S Fed. 168), and defendant brings error.

<p>Appeal from the District Court of the United States for the Eastern District of Louisiana; Rufus E. Foster, Judge.</p> <p>Suit by Frank H. Mortimer against Victor Loisel, United States Marshal. From an order granting a preliminary injunction, defendant appeals.</p>

<p>1. Appeal and error @=926(2)—Treatment by trial court of instrument as in evidence presumed acquiesced) in by appellant, in absence of objection.</p> <p>Where there was nothing in the record to indicate that appellant raised any objection to the trial court’s action in treating an instrument, a copy of which was attached as an exhibit to libelee’s answer, as evidence in the case, it was to be inferred that such treatment was acquiesced in by appellant.</p> <p>2, Shipping @=59—Maritime liens @=30—No lien on ship or claim against owner for coal and supplies furnished with notice of charter restrictions.</p> <p>Where charter party required the charterer to provide and pay for coal and certain supplies, a shipping company by furnishing and paying for such coal and supplies for the ship, did not acquire a lien on the ship or a claim against its owner, under Act June 23, 1910, § 8 (Comp. St. § 7785), where the company, not knowing of the terms of the charter party, made no effort to secure information as to its terms, although in communication with the charterer for several weeks before the vessel’s arrival at the port for supplies.</p> <p>other caaes see same topic & KET:-NUMBER in all Key-Numbered Digests & Indexes</p> <p>3. Subrogation <@=>26—Volunteer has no right.</p> <p>. Where shipping company, by payment of bills for coal, etc., furnished a vessel, and approved by its master, acquired no lien on the vessel or claim against the owner, under Act June 23, 1910, § 3 (Comp. St. § 7785), because of the failure to exercise reasonable diligence to ascertain the terms of the charter party, which required the charterer to provide and pay for such supplies, such payments did not give the shipping company the right by subrogation to enforce the liens in favor of the actual furnishers, who were not shown to have been chargeable with notice of the terms of the charter party, for, so far as the vessel and its owner were concerned, the shipping company was a mere volunteer in making, the payments, and subrogation does not arise in favor of a volunteer paying another’s debt, but the debt is thereby extinguished.</p> <p>4. Estoppel <@=>78 (4)—Vessel owner held not estopped to deny liability for supplies furnished charterer by directing account be submitted! for audit.</p> <p>Where, after defendant vessel owner had explicitly denied responsibility for disbursements made by plaintiff shipping company for the charterer’s account, it was not estopped to deny such responsibility by telegram directing that plaintiff’s disbursements be submitted to defendant’s office for audit, where the telegram added, “We return them to you fo.r transmittal to” charterer, “latter should then reimburse you immediately.”</p> <p><J=3For other eases see same topic & KEY-NUMBER in all Key-Numbered-Digests & Indexes</p>

<p>1. Eminent domain @=>8—Power to condemn not lost by conferring power to purchase.</p> <p>The general grant of power, conferred by Act Aug. 1, 1888 (Comp. St. § 6909), on any officer charged with procuring property for a public use, to acquire it by condemnation, was not withdrawn, as respects the acquisition of the so-called Hanson Canal, in Louisiana, by Act July 25, 1912, authorizing the Secretary of War to purchase the canal for not to exceed $65,000; the conferring of the power to purchase not negativing the existing power to condemn.</p> <p>2. Eminent domain @=>47(1)—Power to condemn other public uses held to authorize condemnation of canal.</p> <p>The general grant of power, conferred by Act Aug. 1, 1888 (Comp. St. § 6009), on any officer charged with procuring property for a public use, to acquire it by condemnation,. held to authorize the condemnation of a canal as part of intracoastal waterway, by virtue of the term “other public uses.”</p> <p>3. Constitutional law @=>80(1)—Act authorizing acquisition of canal for fixed sum not invasion of judicial power.</p> <p>Act July 25, 1912, authorizing the Secretary of War to purchase, as part of an intracoastal waterway, the so-called Hanson Canal, at a cost not to exceed $65,000, is not an invasion of the judicial power, as undertaking to value the property.</p> <p><§=oFor other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Southern District of Mississippi; Edwin R. Holmes, Judge.</p> <p>Action at law by Alex Hyman & Co. against J. C. Hay. Judgment for defendant, and plaintiffs bring error.</p>

<p>1. Ijwkeepers <§=11 (4)—Holding oat one to public as servant estopped to (ferny such relation.</p> <p>Where an innkeeper, offering the public entertainment and care, puts a person in the position of a servant, with the duties of a servant, with respect to the facilities of such entertainment, and ro.serves and exercises control over his work, and says nothing and does nothing whereby a private arrangement to the contrary is disclosed to the public, the principal is estopped from disclaiming the relation of master to the person so positioned, and from avoiding liability for his negligence.</p> <p>2. Innkeepers <@=11 (2)—May become bailees oí goods from one not guest.</p> <p>An innkeeper may, as a bailee, with or without reward, receive goods from one who is not strictly his guest.</p> <p>3. Innkeepers ’<§=11 (8)—Defendant held liable, either as innkeeper or bailee for hire, for loss of trunk through negligence.</p> <p>Where defendant, keeper of a hotel, accepted plaintiff’s trunk for storage, and received pay therefor, and afterward undertook for hire to transfer the trunk to a railroad station, and delivered it to the driver of a wagon, who stole it, defendant was liable for the loss as innkeeper, if the driver was its servant, and, if not, as bailee for hire, if it was chargeable with want of ordinary care in delivering the trunk to him.</p> <p>4. Evidence <§=113(13)—Value placed on property for insurance purposes held irrelevant on issue of market value.</p> <p>On an issue as to the fair market value of merchandise, the value placed on it by the owner for insurance purposes, or in settlement with the insurance company for its loss, held irrelevant.</p> <p><§=>For other cases seo same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Replevin @=>33(2)—Marshal had power to proceed under bond approved by judge.</p> <p>That formal affidavit of replevin and bond for delivery of property in the state of Washington were executed and filed, not with the marshal, but with clerk of federal District Court, and that the bond was approved by the District Judge, who ordered that a writ of replevin issue,' instead of by the marshal, did not render invalid the action of the marshal in proceeding to take charge of the property; under Rem. Code Wash. 1915, §§ 707-717, providing that affidavit and bond be filed with the sneriff, etc.</p> <p>2. Trial @=>82—Documents properly admitted over objection of lack of authentication.</p> <p>The court properly overruled an objection to admission of a paper appearing to be a notice of assessment and receipt issued by the state comptroller of New York for a corporate state franchise tax, and also a certificate by the deputy secretary of such state, certifying that the certificate of the incorporation of the plaintiff was filed and recorded, which was formally attested by the secretary of state and the seal of the state affixed, where objection was put solely on the ground that such papers were “not authenticated in the manner provided by the statutes of the United States,” without pointing out specific lack of authenticity.</p> <p>3. Evidence @=386(1)—Rules of convenience applied, where documents bear appearance of regularity.</p> <p>In the admission of record evidence, rules of convenience may often be applied by courts, in cases where documents bear every appearance of regularity and the seal of officials of a state are offered in evidence.</p> <p>4. Corporations @=630(3%)—In view of statute making directors trustees, they may be made plaintiffs in action by corporation whose life has expired.</p> <p>Sole directors of a New York corporation may, on petition be made parties plaintiff in an action by the corporation, where they wish to be added to protect the property and rights of the corporation, notwithstanding the life of the corporation has expired, in view of General Corporation Law N. Y. § 35, making directors trustees, with authority to sue and recover debts and property of corporation, after the life of the corporation has expired.</p> <p>5. Courts @=343—Adding new plaintiffs on trial discretionary.</p> <p>It is discretionary with the federal District Court to add new parties plaintiff after the evidence has closed, under Rev. St. § 948 (Comp. St. § 1580).</p> <p>(gzxaFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>6. Parties <@=52—No abuse of discretion in adding plaintiffs after evidence was dosed.</p> <p>Defendant, in replevin by corporation, cannot complain that court abused its discretion in permitting directors of tbe corporation to be added as parties plaintiff after tbe evidence was closed, where sbe expressly announced on tbe trial that sbe made no claim of ownership of tbe property, and took a position in merely technical opposition to tbe claim of the corporation to possession; the real parties entitled to possession being tbe directors as trustees.</p> <p>7. Replevin <@=96—Finding of value unnecessary, in absence of issue.</p> <p>Omission to find value in verdict in a replevin action was immaterial, where the pleadings made no issue in tbe matter.</p> <p><§=3>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Northern Division of the Western District of Washington; Edward E. Cushman, Judge.</p> <p>Hosaye Sakaguchi was denied admission to the United States, upon a hearing by a commission appointed by Henry M. White, as the United States Commissioner of Immigration of the Port of Seattle, Wash. On appeal to the Secretary of Labor the findings of the Commission were affirmed, and she petitioned for habeas corpus, and on the return to the writ her petition was dismissed, and she appeals.</p>

Lynch, Judge. Suit for infringement of patent hy the General Electric Company against the Ohio Brass Company. From a decree dismissing the bill (275 Fed. 213), complainant appeals.

<p>Corporations <S=>556—Removal of causes <S=31:—Corporation indispensable party to suit for receiver and sale of its property; corporation and complainant being of same state, jurisdiction was not acquired on removal.</p> <p>Where part of the relief prayed for in a bill is the appointment of a receiver for a corporation and the sale of its property, the corporation is an indispensable party, whether or not the allegations are sufficient to warrant such relief, and where the complainant and the corporation are citizens of the same state, a federal court cannot acquire jurisdiction of the cause by removal.</p> <p>@ss>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Principal and surety <®=^59—Sureties no,t compensated not subject to rules as to compensated sureties.</p> <p>Where sureties on a contractor’s bond are not compensated, they are to be treated accordingly, and not subject to rules as to a compensated surety.</p> <p>2. Principal and surety <@=^100 (4)—Alterations held to release sureties.</p> <p>In an action on a contractor’s bond for the construction of a bank and hotel building, where the contract provided that any alteration was to be on a written order of the architects only, alterations exceeding $1,000 in value, added to the contract price by agreement between the contractor and the owner, but without the knowledge and consent of the architects or sureties, held to release the sureties.</p> <p>tg^For other cases see same topic & KEY-NUMBER, in all Key-Numbered Digests & Indexes</p>

<p>1. Bankruptcy <©=>495—Perjury <©=*33 (1)—Evidence held to sustain conviction for concealing property from trustee and for perjury.</p> <p>Evidence showing the improbability of bankrupt’s testimony that he was robbed of a wallet containing diamonds worth $115,000 just before his bankruptcy held sufficient to sustain a conviction for perjury in testifying to the robbery before the referee, and for fraudulently concealing from his trustee the diamonds he claimed were stolen.</p> <p>2. Criminal law <©=*1159 (1) —Verdict is binding as to facts.</p> <p>Finding of the jury on questions of fact is binding on the Court of Civil Appeals on writ of error to a conviction for crime.</p> <p>3. Bankruptcy <©=*242(2)—False testimony before referee is admissible on charge of perjury.</p> <p>Where accused went to trial without objection on an indictment containing separate counts charging concealment of property from the trustee in bankruptcy and perjury, his testimony before the referee was admissible on the perjury charge, notwithstanding Bankruptcy Act, § 7a, subd. 9 (Comp. St. § 9591), providing that no testimony given by a bankrupt on his examination shall be offered against him in any criminal proceeding.</p> <p>4. Criminal law <©=>824(8)—Accused must request charge limiting effect of evidence.</p> <p>Where accused was tried under an indictment containing two counts, and evidence was offered against him which was- competent as to one of the counts, he cannot complain that the court did not limit the effect of such evidence to that count, where he did not direct the court’s attention to that question.</p> <p>5. Bankruptcy <@=>495—Schedules held admissible in prosecution for conceal- . ment of property and perjury.</p> <p>In a trial for concealing property from a trustee in bankruptcy and for perjury in the testimony before the referee, it was not error to admit in evidence the schedules in bankruptcy filed by accused, without limiting them to the perjury count.</p> <p>8. Perjury <©=*32 (7)—Testimony by bankrupt before referee held admissible.</p> <p>Where the indictment charged accused with perjury and false testimony before the referee in bankruptcy to the effect that he had been robbed of certain diamonds just before his bankruptcy, .and the transcript of his testimony before the referee showed that he had first testified to the robbery before the commissioner, but that in his testimony before the referee he adopted his former testimony and substantially repeated it, with additions, it was not error to admit in evidence the testimony given before the referee.</p> <p><§z^For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>7. Witnesses <§=^389 (5), 397—Government earn question: own witness as to previous statements, when surprised) by testimony, but such statements do not establish offense.</p> <p>Where the government is surprised by the testimony of a witness called by it, who was related to accused, it can question him as to previous statements by him inconsistent with such testimony, though proof of such inconsistent statements is not sufficient to establish the offense.</p> <p>8, Criminal law <3=»651(lé)—Court need not accompany jury on view of premises.</p> <p>Permitting the jury to view the scene of the crime is within the discretion of the court, and is permitted to enable the jury to understand the evidence; but it does not constitute the taking of testimony, and it is not necessary that the judge accompany the jury.</p> <p>0. Bankruptcy <8=»405—False swearing in bankruptcy does not require same proof as perjury.</p> <p>False swearing in bankruptcy, contrary to Criminal Code, § 125 (Comp. St. § 10295), is not equal in enormity to the crime of perjury denounced by the general statute, and the burden of proof in perjury cases, requiring two witnesses to contradict the oath of accused, is practically annulled, and the burden on the government is only to prove beyond a reasonable doubt the guilt of accused.</p> <p>10. Criminal law <3=>XX34 (4) —Denial of new trial is not reviewable.</p> <p>.Refusal to grant a new trial after a verdict of guilty is not reviewable.</p> <p>XI. Criminal law <3=»1129(8)—Filing of additional assignments after writ of error not approved.</p> <p>Since the filing of assignments of error is a condition to the granting of the writ of error, under rule 10 (235 Fed. vi, 148 C. C. A. vi), errors not assigned in accordance with the rule will be disregarded, unless a plain error is apparent; the growing practice of allowing additional assignments after the writ of error is issued being disapproved.</p> <p>other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Eastern District of North Carolina, at Raleigh; Henry G. Connor, Judge.</p> <p>Allen J. Honeycutt was convicted of buying, receiving, and having in his possession articles stolen from an interstate shipment, and he brings error..</p>

<p>1. Criminal law @=>1168(1)—Failure to order return of goods illegally seized immaterial, where they were not used as evidence.</p> <p>In a prosecution for receiving goods stolen from an interstate shipment, the inadvertent omission from an order for the return of goods illegally seized of certain of the goods, or the failure to return such goods, was immaterial, where they were not used in evidence.</p> <p>2. Witnesses <§=277 (1)—Error to permit district attorney to use in cross-examination cheeks illegally seized and ordered returned.</p> <p>On a trial for receiving stolen goods, where checks illegally seized had been ordered returned, it was error to permit the district attorney, to use such checks in cross-examining defendant,</p> <p>a. Criminal law <§=1186(4)—Judgment not reversed because of use of checks illegally seized, which added nothing to defendant’s testimony.</p> <p>Where, on a trial for receiving goods stolen from an interstate shipment, defendant testified without objection to his purchase of the goods late at night from hoys, who brought them to his country store, and to the giving of cheeks for the purchase money, and to writing on the face thereof “for labor,” the checks themselves added nothing to the evidence already adduced, and, though they had been ordered returned as illegally seized, the judgment will not be reversed, because the district attorney was permitted to use them in cross-examining defendant, in view of Judicial Code, § 269 (Comp. St. Ann. Supp. 1919, § 1246), requiring the disregard of technical errors or defects not affecting the substantial rights of the parties.</p> <p>*§zs>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the Uhited States for the Eastern District of North Carolina, at Washington; Henry G. Connor, Judge.</p> <p>Suit by the United States, to the use of the Norfolk Railroad Company, against D. E. Taylor & Co. and others, to recover on the bond given by the government contractor, in which E. R. Connett and another intervened. From a judgment (268 Fed. 635) allowing the claim of the interveners, defendants bring error.</p>

<p>1. Bankruptcy <©=>467—After jury trial on issue of bankruptcy, only questions of law can be reviewed.</p> <p>On writ of error to an order adjudicating plaintiff in error an involuntary bankrupt, entered after a trial by jury demanded by him, the appellate court is limited to errors of law alleged; the verdict being binding as to all questions of fact, including the insolvency of the bankrupt.</p> <p>2. Bankruptcy <@=81 (4)—Petition alleging preference to creditors in statutory language is insufficient, but amendable.</p> <p>A petition in involuntary bankruptcy, alleging on information and belief that the alleged bankrupt, while insolvent, made payments to certain of his creditors unknown to petitioners, with intent to prefer such creditors over his other creditors, which was substantially in statutory language, is insufficient, but amendable.</p> <p>3. Bankruptcy <©=>81 (4)—Defect in petition held not jurisdictional.</p> <p>The defect in a petition in involuntary bankruptcy, which alleged preferences to creditors generally in the language of the statute, was not jurisdictional, but would uphold an adjudication, if true, or admitted by default, so that a motion equivalent to a special demurrer under equity rule 29 (198 Fed. xxvi, 115 C. O. At xxvi) would have been• granted, with leave to amend.</p> <p><SJ=For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>4. Bankruptcy <§=22—Equity ruies are of limited application.</p> <p>The equity rules are of limited application in bankruptcy,, but they furnish a guide to procedure, though bankruptcy cannot do everything that equity does, and need not do it exactly the same way.</p> <p>5. Bankruptcy <S=81(1)—Bankrupt cannot, during trial, seek dismissal for amendable defect in petition.</p> <p>A bankrupt, who has demanded a jury trial, which lias been entered on, cannot during its course seek for a dismissal of the petition because of a defect therein, which could have been cured by amendment, but is entitled only to such relief as would insure fairness in trying the issues.</p> <p>6. Bankruptcy <§=S1 (4) -—Bankrupt’s rights against defective petition cured by requiring bill of particulars.</p> <p>Where a petition in involuntary bankruptcy was defective for alleging preferences to creditors only generally, the bankrupt’s right to a fair-trial of the issues was secured for him on his motion to dismiss for defects in the petition, made during the course of the jury trial of the issue in bankruptcy, by granting a postponement of the trial and requiring petitioners to lile bill of particulars.</p> <p>7. Courts <§=347—Bills of particulars may be ordered in equity suit in federal court.</p> <p>In the Second circuit, bills of particulars in equity suits have boon freely ordered and are common practice.</p> <p><i®sx>For other cases see same topic & KEY-NUMBER in ’all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the District of Maryland, at Baltimore; John C. Rose, Judge.</p> <p>' Suit in equity by William K. Norris and others against the No-Leak-O Piston Ring Company. Decree for complainants, and defendant appeals.</p>

<p>In Error to the District Court of the United States for the Southern District of Iowa; Martin J. Wade, Judge.</p> <p>Criminal prosecution by the United States against Charles T. Gibsou. Judgment of conviction, and defendant brings error.</p>

Libel in admiralty by the Great Lakes Dredge & Dock Company against the steamer Haven, her engines, etc., claimed by Harriet M. Spraker and another. From a decree for the libelant, the claimants appeal.

<p>In Error to the District Court of the United States for the Western District of Virginia, at Big Stone Gap; Edmund Waddill, Jr., Judge.</p> <p>Action by James Bartley against Speed Mankin. A motion to quash an execution was denied, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Action by the Park & Pollard Company, against the Stuyvesant Insurance Company. Judgment for defendant, and plaintiff brings error.</p>

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>John Zimmerman was convicted of violating the National Prohibition Act, and he brings error.</p>

<p>1. Intoxicating liquors <S=328—Equity will not aid purchaser of liquors unlawfully in getting possession of them.</p> <p>Purchaser of liquors January 11, 1920, in violation of the War-Time. Prohibition Act, who stored them in a bonded warehouse, cannot obtain aid of equity to get possession of them.</p> <p>2. Intoxicating liquors <§=¿>139—Possession of liquors purchased before Eighteenth Amendment, and not in one’s dwelling, and nob reported within 10 days under Volstead Act, unlawful.</p> <p>Where liquor purchased in February, 1919, was not in one’s dwelling at the time the Eighteenth Amendment went into effect, and the ownership was not reported to the Commissioner within 10 days thereafter, under Volstead Act, tit. 2, § 33, his possession thereafter was unlawful.</p> <p>^»For other cases see same tonic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Courts <©=4128 (5)—Parties having several claims cannot create jurisdictional amount by assignments to one party.</p> <p>Where several parties unite to enforce a single right, in which they have a common interest, it is enough to give a federal court jurisdiction if their interests collectively equal the jurisdictional amount; but the interest must be common and pertain to the enforcement of a single title or right, and the assignment of separate claims to one party does not create a single demand within the court’s jurisdiction.</p> <p>cgsatfor other cages see same topic & KEY-NUMBEK, in ail Key-Numbered Digests & Indexes</p>

<p>1. Shipping ©=>81 (I)—Dredge held liable for cutting caMe.</p> <p>Where either a dredge or a cable cut by it was out of its proper place, but the cable was practically stationary, with a possible swing of 50 feet, while the dredge was moving, the dredge held liable, as it is more likely that it was out of place than that the cable was.</p> <p>2. Admiralty ©=26—Decree in rein entered against dredge for cutting cable.</p> <p>In a suit against a dredge l'or cutting a cable, decree in rem entered for the libelant, in order that the question whether the action in rem was maintainable might be determined.</p>

<p>Citizens ©=>9—Naturalization of minor surviving parent during Ms minority malms Mm a citizen.</p> <p>The son of alien parents, whose father died an alien, but whose mother remarried, and her husband was naturalized during her lifetime and the son’s minority, held to have thereby become a citizen.</p> <p>^saJPor other cases see same topic & KEr-NUMBEit in all Key-Numbered Digests & Indexes</p>

In Equity. Suit by the Chicago Railways Company and others against the Illinois Commerce Commission and others. On application for a temporary injunction. On the filing of the bill in this cause a temporary restraining order was entered, and the defendants duly notified to appear on a day certain to respond to a motion for a preliminary injunction.

<p>1. Removal of causes '@=>17—Defendant may contest case in state court after removal without loss of right.</p> <p>If a state court proceeds with the trial of a cause after the filing of petition and bond for removal, the defendant may contest the action there without losing his right of removal.</p> <p>2. Removal of causes @=>107(6)—Petition for removal not amendable in federal court to state new ground for removal.</p> <p>A removing defendant may not amend his petition for removal in the federal court, by adding a new ground for removal.</p> <p>3. Removal of causes @=>19(5)—Action.for damages under Interstate Conn merce Act held removable.</p> <p>An action brought in a state court against a common carrier to recover damages for delay, loss of, or injury to property received for interstate transportation is removable as one arising under the laws of the United States, where the amount in controversy exceeds $3,000, as required by Comp. St. § 1010, being based on and governed by Carmack; Amendment (Comp. St. §§ 8604a, 8604aa).</p> <p>4. Removal of causes @=>19(1)—That a federal question has been'authoritatively decided does not affect the right to remove a cause in which it is raised.</p> <p>That a question arising under the laws of the United States in a cause which would authorize its removal has been decided by the Supreme Court does not change its effect for the purposes of Removal Act, § 28 (Comp. St. § 1010).</p> <p>5. Courts @=>489(9)—Removal of causes @=>19(5)—State courts have ju-. risdiction of suits for damages for injury to shipments, under Interstate Commerce Act, but cause is removable.</p> <p>A state court has jurisdiction of a suit for damages for delay, loss of, or injury to, property in interstate transportation, under Carmack Amendment (Comp. St. §§ 8604a, 8604aa), but such cause is removable when it involves the jurisdictional amount.</p> <p>jgz^For other cdses see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes¿</p>

<p>Removal of causes <@=»19 (5)—Action for loss or injury to interstate shipment held removable, as arising under federal law.</p> <p>Congress having undertaken by the Carmack Amendment" (Comp. St. §§ 8604a, 8604aa) to regulate the rights of shippers and the liability of carriers of interstate shipments, any action for delay, loss of, or injury to such shipment is based on and governed by such statute, and. where brought in a state court, if it involves the requisite amount, such action is removable, as arising under a federal law, though the entire carriage was by a single carrier and not by connecting carriers.</p> <p>•grzoFor other cases see same topic & KEY-N UMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by the Dunkley Company against the California Packing Corporation.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in equity by the Dunkley Company against the California Packing Corporation. Decree for defendant, and plaintiff appeals.</p> <p>PMantiff as assignee and owner sues on two patents covering the inventions of Samuel J. Dunkley, viz., No. 1,104,175, for a “machine for peeling peaches and other fruit,” and No. 1,237,628, for a “process of peeling peaches or other fruits or vegetables.”</p> <p>These patents rest upon a single application filed by Dunkley November 29, 1904—subsequently divided so as to separately produce the above referred to machine patent and process patent.</p> <p>The history of these Dunkley patents is to he found in the reports. One Beekhuis applied on May 25, 1904, for patent upon “apparatus for removing; the skin from fruit”; patent issued September 3, 1907, No. 864,944. Beekhuis was subsequently put into interference with Dunkley and the latter succeeded in taking from Beekhuis what are now claims 19-22, inclusive, of the machine patent. Dunkley v. Beekhuis, 39 App. D. O. 494.</p> <p>Beeklmis had assigned his patent to the California Fruit Canners’ Association, which then instituted in the Patent Office a “public use proceeding,” which Dunkley sought to prevent by praying for a mandamus against the Commissioner. In this he was defeated (United States ex rel. Dunkley v. Ewing, 42 App. D. C. 176),. but the Association above named withdrew its application for said proceeding on May 25, 1914. Thereafter the machine patent issued on July 21, 1914.</p> <p>This left pending application for the process patent, which was put In interference with one Monte; the invention of the latter being owned by the same concern as the Beekhuis patent In this interference Dunkley also prevailed in February, 1937 (Monte v. Dunkley. 46 App. D. C. 70), and thereafter Dunkley’s process patent issued on August 21, 3.917.</p> <p>It is plain that Dunkley’s real opponent in the Patent Office was the California Fruit Canners’ Association, and eotemporaneously with the abandonment by that concern of its “public use proceeding,” and for a nominal consideration the plaintiff herein executed a license to its opponent for and under whatever patents might be ultimately granted upon the Dunkley application of November 29. 1904.</p> <p>This license is dated May 22, 1914, and the words here important are as follows:</p> <p>“Now therefore, be it known, that for and in consideration of the sum of $10 in hand paid by the California Fruit Canners’ Association unto the said Dunkley Company the receipt whereof is hereby acknowledged, the said Dunkley Company does hereby grant unto the said California Fruit Canners’ Association for the benefit of itself and its successors, a license free of royalties of any kind whatsoever, for the use of the said invention in connection with its business relative to the canning or treatment of fruit, granting unto the said California Fruit Canners’ Association the free right for the use of any machine or machine or invention owned or controlled by the said Dunkley Company”—and covered by the patents expected to grow out of tho application aforesaid.</p> <p>The license agreement continues that it is granted “for the benefit of the said California Fruit Canners’ Association and its successors for the full term of years of any letters patent which may hereafter be granted for the inventions” disclosed in the aforesaid application.</p> <p>In August, 1915, plaintiff sued upon its then recently granted machine patent in the Northern District of California, summoning as defendants numerous companies engaged in the canning of fruit, especially peaches, including the Griffin & Skellcy Company and the Central California Canners’ Company;. In this case Dunklev prevailed. Central, etc., Co. v. Dunkley Co., 247 Fed. 790, 159 C. C. A. 648.</p> <p>Within a fortnight after the lower court’s favorable decision in the case just cited, this plaintiff began action against another alleged infringer in the Southern District of California. The process patent had not yet issued and suit was begun on the machine patent alone. Subsequently and in April, 1918, the suit was enlarged by supplemental bill so as to count upon the process patent also. It was then brought to trial and the bill dismissed, the trial court holding that the Dunkley machine invention could not be “carried back beyond the summer of 1903” and was under 1he evidence anticipated. That court was “clearly of the opinion that there is no validity at all” in the Dunkley process patent, wherefore the bill was dismissed. The appeal resulted ii^ affirmance, but upon the ground of noninfringement. Dunkley Co. v. Pasadena, etc., Co. (C. C. A.) 261 Fed. 386.</p> <p>This present suit was brought before tho decision of the District Court for the Southern District of California adverso to the patents. A. N. Hand, J., followed the reasoning, and reached the conclusion of Trippet, J., in the last-mentioned California case. But the issues in this litigation differ from those in any of the preceding causes. Here, as there, anticipation and lack of invention are advanced by the defense; hut in addition there is a plea of license growing out of the following nncontradicted facts:</p> <p>The California Fruit Canners’ Association is a corporation of California. After it obtained the above-recited license, it continued to carry on its business until November, 1916. At that time it sold, transferred, and assigned to this defendant, the California Packing Corporation (which is formed under the laws of New York), all its “business, franchise and property as a whole,” including its good will and all its real and personal property.</p> <p>It is not denied that this transaction was and is in accord with ihe law of California, which does not permit the express merger and consolidation of corporations.</p> <p>Defendant by its contract of purchase assumed all the debts, obligations, and liabilities of the California Fruit Canners’ Association, and since the purchase aforesaid defendant has carried-on the business of its assignor or predecessor. It has also acquired additional canning plants, including especially those of Griffin & Skelley and the Central, etc., Co., which were two of the unsuccessful defendants in the suit brought in the Northern District of California.</p> <p>Since the sale in November, 1916, the California Fruit Canners’ Association has done no business, but shortly, after said sale its capital stock was reduced to á par of $3,000 and all its assets (except $3,000) were distributed among its stockholders. The defendant herein has acquired all of this $3,000 par of stock (except eight shares) and is now the holder and owner of the same.</p> <p>The decree below (appealed from by plaintiff) held: (1) That defendant during all the times complained of was a licensee of plaintiff; (2) that both the patents in suit are “invalid, null and void.”</p>

<p>In Equity. Suit by the Dunkley Company against the Centra5 California Canneries Company and others. On motion to reopen de cree.</p>

<p>In Bankruptcy. Involuntary proceedings against Beiseker & Martin, alleged involuntary bankrupts.</p>

<p>1. Removal of causes @=>111—Service on foreign corporation in another district not set aside after removal.</p> <p>In an action removed from a state court where defendant, a foreign corporation, was served in another federal district of the same state, the service will not be set aside.-</p> <p>2. Courts @=>99(1)—Decision in same district not binding, when not followed by later case in the same circuit.</p> <p>Where an early decision by a District Judge of the same district has not been followed in a later case in the same circuit, it is not binding on the District Court, as a decision of the Circuit Court of Appeals would be.</p> <p><@=For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Southern District of New York. Action by the American Oil Corporation against the John R. Waters Company. Judgment for defendant, and plaintiff brings error.</p>

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

<p>In Error to the District Court of the United States for the Northern District of West Virginia, at Wheeling.</p>

<p>Petition to Revise Order of the District Court of the United States for the Southern District of New York. In the matter of Christoffer Haunevig, Inc., bankrupt. On petition by Henry A. Wise and another, receivers, to revise an order directing them to surrender premises to a claimant thereof.</p>

<p>In Error to the District Court of the United States for the Western District of Missouri. B. C. Howard, of Kansas City, Mo., for plaintiff in error.</p>

District of New York. Leslie H. Cooke and another were convicted of using the mails in the furtherance of a scheme to defraud, and they bring error.

Action by Frank Reitz, as administrator of the goods, chattels, and credits of Arthur Frank Reitz, deceased, against James G. Davis, Director General of Railroad's, as Agent under Transportation Act 1920 (41 Stat. 461) § 206. Judgment f&r plaintiff, and defendant brings error.

<p>In Error to the District Court of the United States, for the Southern District of New York. Action by Jacob Schaefer, as administrator of Harry Schaefer, deceased, against James C. Davis, Director General of Railroads, as Agent, under section 206 of the Transportation Act of 1920 (41 Stat. 461). Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Ohio; Westenhaver, Judge.</p>

<p>Appeal from the District Court of the United States for the Southern Division of the Northern District of Alabama; Henry D. Clayton, Judge. Involuntary bankruptcy proceedings against the Grocers’ Baking Company. An order of the referee sustaining the claim of the Birmingham Trust & Savings Company was confirmed by the District Court (266 Fed. 900), and the trustee appeals.</p>

<p>In Error to (he District Court of the United States for the Eastern District of Arkansas.</p>

<p>Tn Error to the District Court of the United States for the District of Nebraska.</p>

<p>Appeal from the District Court of the United States for the Southern Division of the Western District of Michigan; Sessions, Judge</p>

<p>Tn Error to the District Court of the United States for the Southern District of New York. Robert Grogan was convicted of conspiracy to violate the National Motor Vehicle Theft Act, and he brings error.</p>

<p>Appeal from the District Court of the United States for the Northern District of West Virginia, at Wheeling; Alston G. Dayton, Judge. Suit in equity by the Jefferson Glass Company and the Jefferson Company against the Handel Company.</p>

<p>In Error to the District Court of the United States for the Northern District of West Virginia, at Philippi.</p>

<p>Appeal from the District Court of the United States for the Southern Division of the Western District of Michigan; Sessions, Judge.</p>

Appeals from the District Court of the United States for the Southern District of New York.

H. S. Thomson, District Judge. In the matter of the estate of Josiah V. Thompson, bankrupt. The claim of Henry M. Jackson against G. R. Scrugham and others, as trustees in bankruptcy, was disallowed by the District Court, affirming the order of the referee in bankruptcy and the claimant appeals.

<p>In Error to the District Court of the United States for the Northern Division of the Western District of Michigan; Sessions, Judge.</p>

<p>In Error to the District Court of the United Slates for the Northern Division of the Eastern District of Tennessee; Sanford, Judge.</p>

<p>In Error to the District Court of the United ■States for the Southern District of West Virginia, at Huntington.</p>

<p>Appeal from the District Court of the United States for the Southern Division of the Western District of Michigan; Sessions, Judge.</p>

<p>Appeal from the District Court of the United States for the District of South Dakota.</p>

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

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

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

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

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

<p>Appeal from the District Court of the United States for the Southern Division of the Eastern District of Michigan; Tnttle, Judge.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Virginia, at Norfolk.</p>

<p>In Error to the District Court of the United States for the District of Maryland, at Baltimore.</p>

<p>Petition to Revise Order of the District Court of the United States for the Eastern District of Missouri.</p>

<p>Petition to Revise Order of the District Court of the United States for the District of South Dakota.</p>

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Ohio; Westenhaver, Judge.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Virginia, at Alexandria.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Virginia, at Norfolk.</p>

<p>In Error to the District Court of the United States for the Eastern District of New York. George Senft was convicted of violating the Prohibition Act, and he brings error.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Kentucky; Cochran, Judge.</p>

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Illinois. Action by the Chicago, Lake Shore & Eastern Railway Company against Julius F. Smietanka, as Collector of Internal Revenue for the First District of Illinois. Judgment for the plaintiff, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Illinois. Action by the Indiana Steel Company against Julius F. Smietanka, Collector of Internal Revenue for the First District of Illinois. Judgment for the plaintiff, and defendant brings error.</p>

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

<p>On Petition to Superintend and Revise, Order of the District Court of the United States for the District of Maryland, at Baltimore.</p>

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

<p>Appeal from the District Court of the United States for the Southern District of New! York. Application for writ of habeas corpus by the United States, on the relation of Barol Newman, against Frederick A. Wallis, Commissioner of Immigration of the Port of New York. From an order dismissing the writ, relator appeals.</p>

Libel in admiralty by the Mex-lean Petroleum Corporation against the schooner Virginia Pendleton, "her tackle, etc., claimed by Fields Pendleton. From a decree for libelant, claimant appeals.

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

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

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

<p>In Error to the District Court of the United States for the Southern Division of the Western District of Michigan ; Sessions, Judge.</p>

Libels in admiralty by the Western Assurance Company of Toronto, Canada, and by Bartle Daly and another against the Atlantic Transport Company and the Director General of Railroads, operating the Philadelphia & Reading Railroad. From adverse decrees, the Director General appeals.

<p>Appeal from the District Court of-the United States for the Southern Division of the •Western District of Michigan; Sessions, Judge.</p>

<p>On petitions to reclaim.</p>