Volume 278 — Federal Reporter

Whitaker Thompson, Judge. Action by John R. Markley and another, to the use of E. Kirby-Smith, against John O. Sheatz, receiver of the International Dumber & Development Company. Judgment for defendant on a directed verdict, and plaintiffs bring error.

<p>1. Evidence <&wkey;320 — Calculation based on testimony of others is not objectionable as hearsay.</p> <p>Where those who had at defendant’s request cut the timber on land sold to plaintiff testified that they pointed out to plaintiff’s son the stumps from which the timber had been cut, and an expert timber estimator testified he could tell from the stumps what timber had been cut since the sale to plaintiff, testimony by plaintiff’s son as to a calculation by him of the quantity of timber cut was not objectionable as hearsay.</p> <p>2. Witnesses <&wkey;24(l(2) — Objection to question as leading is addressed to trial court’s discretion.</p> <p>The ruling on an objection to a question asked a witness on the ground that the question was leading is within the discretion of the trial court.</p> <p>3. Appeal and error <&wkey;1052(5) — Evidence as to loss of chattels on property sold held harmless, in view of the verdict.</p> <p>In action1 by a purchaser against his vendor to recover for timber cut on the premises after t'he sale and for the removal of certain personal property therefrom, the admission of evidence that one of two circular saws on the premises had been broken and another loaned to a neighbor, though erroneous, was not prejudicial to defendant, where the fact that the personal property had been unlawfully disposed of was abundantly shown by other testimony, and the jury awarded plaintiff a verdict for less than the value of the timber as shown by the evidence.</p> <p>4. Appeal and error &wkey;>9~'i (5) — New trial <&wkey;(i — Denial of new trial is not assignable as error.</p> <p>Denial of a motion for a new trial rests within the discretion of the trial court, and is not assignable as error.</p> <p>5. Compromise and settlement <&wkey;24 — Testimony settlement was procured by fraud raises jury question.</p> <p>In an action for the cutting of timber on land sold to plaintiff, where the defendant alleged a settlement, testimony on behalf of plaintiff that the settlement was based on defendant’s representations of the amount of timber cut by him, which representations were shown by undisputed evidence to be false, raises a jury question whether the settlement was binding on plaintiff.</p> <p>6. Vendor arad purchaser <S=>203 — -Vendor cannot commit waste after giving1 option.</p> <p>Even if a contract between plaintiff and defendant was a mere option to plaintiff to purchase the land, it was the duty of defendant to maintain the property in the condition it was when he gave the option, and not to commit waste by cutting the timber thereon; and on the exercise of the option by plaintiff his rights related back to its date, and he can recover for the timber cut-in the meantime.</p>

<p>1. Courts <&wkey;312(l) — Suit by subrogated compensation insurance company held not one by parties to whose rights company subrogated, as respects . federal jurisdiction.</p> <p>The federal court has jurisdiction of an action in Texas under Texas Workmen’s Compensation Act (Vernon’s Ann. Civ. St. Supp. 1018, art. 5246 — 47) by the Texas Compensation Insurance Company, a Delaware, corporation, against Texas corporations for pain and suffering and subsequent death of an employé of another corporation, a subscriber under the Texas Workmen’s Compensation Act carrying insurance with plaintiff company; the compensation insurance company being subrogated to the rights of the employé and his wife, and the company, and not the employé and wife, being the real plaintiff, as the statute vests entire legal title to the cause of action in it primarily for its own security.</p> <p>2. Master and servant <&wkey;39414, New, vol. 5A Key-No. Series — Cause of action against wrongdoer for compensable injuries within Texas statute not abated by employe’s death.</p> <p>Texas Workmen’s Compensation Act ('Vernon’s Ann. Civ. St. Supp. 1918, art. 5246 — 35), providing that the cause of action survives “in all cases of injuries resulting in death” of employé, does not refer to suits against an employer who has taken out insurance; the right of action against such employer being taken away by part 1, section 3 (art. 5246 — 3) of the act, but is intended to preserve causes of action arising from those accidents to which the employer’s insurance is applicable; i. e., injuries to employés for which third persons are liable under article 5246 — -47 to the subrogated insurer, and to prevent such causes of action against third persons not insured from abatement by death.</p> <p>3. Master and servant &wkey;354 — Employé sustaining compensable injury entitled to sue wrongdoer.</p> <p>Where telephone company’s employé sustained a compensable injury by being thrown from a telephone pole through coming in contact with guy wire of paper mill company, charged with electricity from defectively insulated high-tension wires of a light company, if he had a cause of action against the telephone company for failure to furnish him a safe place to work, he none the less had a good cause of action against the light company and paper mill for causing the place to be. unsafe, as their fault preceded and caused the fault, if any, of the telephone company.</p>

Sheppard, Judge. Suit by Felo McAllister, as trustee of the estate of the Blue Creek Company, bankrupt, against the Producers’ Naval Stores Company and others. Decree for complainant, and defendants appeal.

<p>1. Sales &wkey;>32 — Contract made by correspondence cannot be avoided by insisting' on different terms in formal written contract.</p> <p>Whore a valid contract of sale has been made by the exchange of letters or telegrams, but with the understanding that it shall be embodied in a formal writing signed by the parties, neither party can defeat it or avoid its obligations by insisting on other or different terms in such writing and refusing otherwise to sign it.</p> <p>2. hales <&wkey;377 — Petition held to authorize damages based on market price at time of delivery.</p> <p>In an action by a seller for refusal by the purchaser to receive and pay for the goods contracted for, the petition held sufficient to authorize the recovery of damages measured by the difference between the contract price and the market price at the time fixed for delivery, though it prayed for the difference between the contract price and the market price at the time the contract was repudiated. “and for all other relief” to which plaintiff might be entitled.</p> <p>3. Appearance <&wkey;19(l) — Filing demurrer and pleading to merits held to constitute general appearance.</p> <p>A defendant not served, and who appeared specially, but filed a demurrer and numerous special exceptions and pleaded 1o the merits, held to have waived objection to the jurisdiction over his person.</p>

Holmes, Judge. Action at law by the State of Mississippi, for the use of Walter Dee Ivy, against Will Inmon, Sheriff, and the surety on his bond. Judgment for plaintiff, and defendants bring error.

Anderson, Circuit Judge, dissenting. Appeals from the District Court of the United States for the district of Massachusetts; George H. Bingham, Judge. Suit by Richard Mayer against Francis P. Garvan, Alien Property Custodian, and others, to claim property seized by the custodian. From a decree requiring redelivery of the property to the plaintiff, for dissolution of the partnership, and for an accounting of the interest of enemy partners therein, both parties appeal.

. In Error to the District Court of the United States for the Southern Division of the Southern District of California; Oscar A. Trippet, Judge. ' „ William-Page and-others were convicted of unlawfully possessing intoxicating liquor, and of maintaining a common nuisance for the unlawful sale of intoxicating liquor, and they bring error.

<p>1. Schools and school districts <&wkey;114 — District may maintain suit to recover its proportion of a fundi held in trust by the county for school purposes.</p> <p>A district, made by statute a body corporate, with power to sue and be sued, and charged with administration of its schools and the funds appropriated therefor, may maintain a suit to recover its proportionate share of a fund held in trust by the county for the benefit of the public schools therein, and which the county is diverting to other purposes.</p> <p>2. Attorney General <&wkey;7 — Schools and school districts &wkey;>118 — Attorney General represents public only where community rights involved, and is not proper party to bring suit to enforce rights of school district against county.</p> <p>.It is the province of an Attorney General to represent the general public, where the rights of the entire community are involved, and not those only of a limited portion thereof, and the Attorney General of a state is not the proper party to bring a suit against a county to enforce rights of a school district, which is under the statute a body corporate, with power to sue and be sued.</p> <p>3. Woods and forests <&wkey;8 — Government held not interested in suit by school district against county concerning fund received from forest reserve.</p> <p>Where money received from a forest reserve has been paid by the Treasurer of the United States to a state “for the benefit of the public schools and the public roads of the county or counties in which the forest reserve is situated,” as required by Act May 23, 1908 (Comp. St. § 5149), and by the state to a county in trust for the same purpose, as provided by a state statute, a controversy between the county and a school district over the administration of the trust fund is not one between the general government and the state, but a matter of local concern only.</p> <p>4. Courts <&wkey;284 — Federal court of equity has jurisdiction of a suit involving construction! of a federal statute creating a trust fund.</p> <p>A suit by a school district against the county to enforce its right to a share of a fund paid by the United States to a state from the receipts of a forest reserve, under Act May 23, 1908 (Comp. St. § 5149), “for the benefit of the public schools and public roads” of the county, and paid by the state to the county, under a state statute for the same purpose, is within the jurisdiction of a federal court of equity, as involving the construction of a trust created by the federal statute.</p> <p>5. Woods and forests <&wkey;8 — Funds from reserves given state for roads and schools to be divided equally.</p> <p>Act May 23, 1908 (Comp. St. § 5149), providing that one-fourth of the receipts from a forest reserve shall be paid to the state, to be expended “for the benefit of the public schools and public roads of the county or counties in which the forest reserve is situated,” held, to require the apportionment of the fund equally between the schools and roads of the county.</p>

Action by the Northwestern Bridge & Iron Company against the Interstate Iron & Steel Company. Judgment for plaintiff, and defendant brings error. The action was for damages for breach of two written contracts to manufacture and deliver iron and steel. Judgment for $35,259.37 went against plaintiff in error.

<p>1. Appeal and error <&wkey;954(l) — Grant of interlocutory injunction not disturbed, in absence of improvident exercise of discretion.</p> <p>Where bill seeking an injunction states a good cause of action, the Circuit Court of Appeals, on appeal from decree granting an interlocutory injunction, will not disturb the decree, unless it clearly discloses an improvident exercise of judicial discretion.</p> <p>2. Appeal and error <&wkey;837(3) — Findings based on complaint conclusive on appeal from decree granting interlocutory injunction.</p> <p>On appeal from decree granting an interlocutory injunction, the Circuit Court of Appeals accepts as conclusive the District Court’s findings of faet based on the plaintiff’s verified bill and affidavits, and ignores the issues of faet which may be tendered in the answer to be filed, and which are forecast to some degree in the affidavits filed on behalf of defendants.</p> <p>3. Injunction &wkey;152 — Considerations in measuring justifiable scope of interlocutory decree stated.</p> <p>In measuring the justifiable scope of interlocutory decree, the court will consider the nature and object of the bill, the property that requires protection, the interest of parties in that property, and will ascertain what decree is indispensable, in view of the respective rights of the parties in the suit, to afford complete protection.</p> <p>4, Injunction <&wkey;l — Is an extraordinary remedy, limited! to protection of property from unlawful invasion.</p> <p>Injunction is an extraordinary remedy, and is limited to the protection of property from unlawful invasion.</p> <p>8. Injunction <&wkey;135 — Great care should be exercised! in ascertaining necessity for preliminary injunction.</p> <p>A preliminary injunction is necessarily so drastic in its nature that great care should be had in exercising the discretion.</p> <p>6. Injunction <&wkey;197, 18!! — Should forbid only th© particular unlawful invasions that would be committed, except for such restraint.</p> <p>No injunction, preliminary or final, should forbid more than the particular unlawful invasions which the court finds would be committed, except for the restraint imposed.</p> <p>7. Injunction <&wkey;157 — Interlocutory decree erroneously applied to unnamed parties, on whose behalf plaintiff alleged to have filed bill.</p> <p>In action by coal mine operator, who alleged that it filed its bill on behalf of itself and 62 other operators of closed nonunion mines in certain district, to enjoin operators of unionized mines in other district and miners’ organization from destroying the property, disturbing the employees, and interfering with the business of the closed nonunion mine operators, in'which plaintiff did not name the 62 other operators, and did not allege why it was impracticable to name or to enjoin such other operators, the court, in granting interlocutory injunction, should have made such decree applicable merely to the plaintiff, and not to such other unnamed operators.</p> <p>8. Injunction <&wkey;13S(3) — Interlocutory decree granted to restrain destruction of property, interference with employees, and threatened trespasses upon plaintiff’s property rights.</p> <p>In action by operator of nonunion coal mine, doing an interstate business, against operators of unionized mines in other district and mine workers’ organization, where the bill and affidavits show such defendants, pursuant to conspiracy, to he engaged in destroying its property, interfering with and intimidating its officers, agents, and employees by armed forces, assaults, threats, and abusive language, and by intrusion on their privacy without invitation or consent, and in inducing plaintiff’s employees secretly to change from nonunion to union men, and to remain in plaintiff’s employment in violation of their contracts, the District Court will grant a preliminary injunction prohibiting such unlawful acts, and will restrain other specifically threatened trespasses on plaintiff’s property rights, if any are shown.</p> <p>9 Injunction <&wkey;10|(:l) — Employers and employees may bargain collectively for a closed nonunion shop, or for a closed union shop.</p> <p>Unions of owners of capital may bargain collectively through their officers with laborers, either individually or collectively for a closed nonunion shop, and unions of laborers may bargain collectively through their officers with employers, either individually or collectively, for a closed union shop, and both are entitled to free and equal access to the pool of unemployed labor, for the purpose.of securing recruits by peaceable appeals to reason.</p> <p>10. Injunction <&wkey;101(l) — Employers may persuade union men to become nonunion^ and union laborer’s may persuade nonunion men to become union.</p> <p>Employers may persuade a union man, provided they do not violate his right of privacy, nor invade the rights of another, to become nonunion, and union laborers may under the same conditions persuade a nonunion man to become union.</p> <p>11. Injunction <&wkey;457 — Restraining unionization of nonunion man held erroneous, in that it prohibited! peaceful persuasion.</p> <p>Preliminary injunction held erroneous, in that it deprived union laborers of the right to persuade nonunion employees of plaintiff to join the union, instead of limiting the prohibition of unionization or attempted unionization of plaintiff’s men to the threatened direct and immediate interfering a’cts shown by the bill and affidavits.</p> <p>12. Injunction <&wkey;157 — Sending of money into mine district for unionization of miners should not be restrained^ except in so far as money is used in protecting unlawful acts.</p> <p>In action for injunction against operators of unionized mines and organization of union workers, alleged to be destroying plaintiff’s property and interfering with its employees by threats, intimidation, etc., an interlocutory injunction restraining the sending of money into the district in which plaintiff’s mine was located, to be used in unionizing workers therein, should have limited the prohibition to the use of the money in aiding or promoting the unlawful acts alleged.</p> <p>13. Injunction <&wkey;157 — Interlocutory decree held erroneous, in so far as it restrained performance of check-off contracts between operators of unionized mines and the organization of workers.</p> <p>Interlocutory injunction held erroneous, in so far as it restrained the performance of check-off contracts between such operators of union mines and union organizations, whereby operators deducted fees of union workers and made payment direct to the organizations.</p>

<p>In Error to the District Court of the United States for the District of Wyoming; John A. Riner, Judge.</p> <p>Action at law by the Bench Canal Drainage District against the Maryland Casualty Company. Judgment for defendant, and plaintiff brings error.</p>

<p>1.-Patents <&wkey;328 — 1,019,482, claims 1-4, 7, and 8, for method and means of charging storage batteries, not infringed.</p> <p>’ Claims 1-4, 7, and 8 of the Kennedy patent, No. 1,019,482, for a method and means,of charging storage batteries in connection with train-lighting systems, when construed consistently with the patentee’s, actual achieve-jnent, consisting of a device for determining the amount of current in the batteries and for cutting down the charging current, when the battery is sufficiently charged, but which shows only the amount of current that ought to be in the batteries, if the precalculated assumptions regarding input and outgo are correct, held not infringed by a system embracing a meter responsive to the battery current and indicating at all times the actual or exact charge in the battery.</p> <p>Z. Patents <&wkey;l(H — Claim must be fortified by disclosure.</p> <p>Even the broadest or most loosely drawn method or combination claim must be fortified by a disclosure of how the method is to be practiced, or of the kind and nature of the elements combined.</p> <p>3. Patents <&wkey;343 — Combination claim not infringed, except by substantially</p> <p>the same elements functioning co-ordinately in the same way.</p> <p>A patented combination, if good for wbat its elements will really coordinately accomplish, is not infringed, unless the infringing (Combination is of substantially the same elements, functioning co-ordinately in the same way.</p> <p>4. Patents <&wkey;l(> — Not inoperative, though possessing no practical utility.</p> <p>A patent cannot be struck down as inoperative, in the sense of the patent law, where the device will operate, at least in a laboratory, though it possesses no practical utility.</p>

Action by Beatrice Mangan, as administratrix, etc., of Thomas Man-gan, deceased, against the Lehigh Valley Railroad Company. Judgment for plaintiff, and defendant brings error. The plaintiff in error was defendant below, and is hereinafter referred to as defendant. The defendant in error was the plaintiff below, and is hereinafter referred to as plaintiff.

Action by Maria Salsedo, as administratrix of Andrea Salsedo, deceased, against A. Mitchell Palmer and others. From a judgment for defendants on demurrer, plaintiff brings error.

Action by J. Ralph Harper and another, copartners doing business as Ralph Harper & Co., against Adolph Hochstim and another, copart-ners doing business as Hochstim & Bossalc. Judgment for defendants on demurrer, and plaintiffs bring error. The parties hereto entered into a contract evidenced by a document, whereof the material parts are as follows (the italicized portion being written, and tho rest a printed form): “New York, February 16, 1920.

' Proceeding on objections filed by Isidor Nagel, alleged bankrupt, to the claim of Walter Kraus. An order expunging the claim was reversed by the District Court,'and the bankrupt appeals.

<p>In Error to the District Court of the United States for the District of Colorado; Robert E. Lewis, Judge.</p> <p>Petition for mandamus by the Gas Securities Company against E. B. Moore, Assessor of Adams County, Colo., and others. Writ granted, and defendants bring error.</p>

<p>In Error to the District Court of the United States for the Western District of South Carolina, at Greenville; Henry H. Watkins, Judge.</p> <p>Action by B. O. Elrod against B. R. Moss and another. Judgment for defendants, and plaintiff brings error.</p>

Rose, Judge. Libel in admiralty by the Gans Steamship Line against the Isles Steamshipping Company, Limited, as owner of the steamer Isle ol Mull. Decree for libelant (257 Fed. 798), and respondent appeals.

<p>Admiralty <&wkey;124 — Premium on bond not taxable as costs without statute. The premium on the bond given for the release of a vessel cannot be taxed as costs, in the absence of a statute or rule to that effect.</p>

<p>1. Appeal and error <&wkey;544(3‘), 614, 717 — Correctness of judgment depends only on pleadings, in absence of bill of exceptions, agreed statement of facts, or findings of fact, and opinion and unauthenticated notes of evidence cannot be considered.</p> <p>In a case tried, without a jury, where the record contains no bill of exceptions, agreed statement of facts, or findings of fact, there is nothing before the court, except the petition and answer,, by which to test the correctness of the judgment, though the record does contain unauthenticated notes purporting to contain the evidence and, an opinion of the District Judge.</p> <p>2. Courts <&wkey;352 — Trials in federal court without jury regulated by federal statute.</p> <p>Though Act May 26,' 1824, adopted for United States courts in Louisiana the practice of the courts of the state, the practice since 1866 as to trials by the court without a jury has been in accordance with Rev. St. §§ 649, 700 (Comp. St. §§ 1587, 1668; Act March 3, 1865, § 4).</p> <p>3. Courts <&wkey;352 — Trial by federal court without jury may be had under statute or independent of statute.</p> <p>Neither the Judiciary Act of 1789 nor Act March 3, 1865 (Rev. St. §§ 649, 700 ['Comp. St. §§ 1587, 1668]), made applicable to District Court by Judicial Code, § 291 (Comp. St. § 1268), deprived litigants of the privilege of submitting cases to the court for determination without the intervention of a jury, and cases may be tried by the District Court without a jury under the statute or independent of the statute.</p> <p>4. Courts <&wkey;352 — Stipulation essential to trial without jury under federal</p> <p>Under Rey. St. §§ 649, 700 (Comp. St. §§ 1587, 1668), a stipulation in writing is essential to secure a trial by the court without a jury, and where the record fails to disclose any waiver of a jury by stipulation in writing, the case must be considered as tried independent, of the statute.</p> <p>5. Appeal and error '&wkey;849 (2) —Findings not reviewable, when jury trial - not waived in writing.</p> <p>Where a case is tried by the court without a jury without filing the waiver of a jury trial, essential under Rev. St. §§ 649, 700 .(Comp. St. §§ 1587, 1668), the court acts as an arbitrator, and its determination of issues of fact is conclusive on the parties.</p>

<p>Appeal and error <&wkey;849(3) — Nothing reviewahle in case tried without jury without written waiver, except sufficiency of defense.</p> <p>In a case submitted to the court without a jury and without any written stipulation waiving a jury, where no objection was taken to the sufficiency of the defense, nothing is presented for review.</p>

Foster, Judge. Suit in equity by the United States Shipping Board Emergency Fleet Corporation against Dan Lyons and others. From an order granting a preliminary injunction, defendants appeal. Affirmed. Frank Newman and others, and Robert B. Taylor, defendants, bring error from orders adjudging them in contempt for violation of the injunction.

Trip-pet, Judge. Action at law by Juliet Reilly and another against the American Film Company, Inc. Judgment for plaintiffs, and defendant brings error.

<p>Specific performance &wkey;>119 — Plaintiff, suing to enforce sale contract, in which he agreed to procure release front third person, must show his ability to perform, if not prevented! by defendant’s acts.</p> <p>Where defendant contracted to sell plaintiff an interest in oil, gas, and mineral rights owned by her and her two sisters, and which were then in litigation with L., one of the conditions of the contract being that plaintiff would procure a release from L., and L. thereafter made a release as to the interests of all three sisters before plaintiff had procured any en-foreeable agreement with him, plaintiff was not entitled to specific performance, ' without showing that he would have obtained the release, if defendant and her sisters had not made such settlement, and that his inability to perform was caused by such settlement.</p>

In the matter of Henry Friend and others, doing business as W. B. Friend & Co., bankrupts. From an order denying their petition for the delivery fay them of goods and accounts, Maurice Gordon and others appeal and file a petition to revise. Prior to October, 1920, the appellant partnership (Gordon & Cohen) sold to the bankrupts in the city of New York a quantity of velveteen. It was not paid for, and vendors sued for the purchase price.

Rudkin, Judge. Suit by the Mountain Copper Company, Limited, against Shasta County. Judgment for plaintiff, and defendant brings error. This and two other actions inyolve like questions and can be generally considered in this one opinion.

<p>In Error to the District Court of the United States for the Second Division of the Northern District of California; Frank H. Rudkin,'Judge.</p> <p>Suit by the Mountain Copper Company, Limited, against Shasta County. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Sales <&wkey;153, 377 — Tender of delivery unnecessary after repudiation by other party; allegation of buyer’s repudiation renders allegation of seller’s tender unnecessary.</p> <p>The seller is not required to tender delivery of the goods after notice from the buyer that it would not be accepted, so that a declaration alleging repudiation of the contract by the buyer sufficiently alleges a breach, without an allegation of tender of delivery.</p> <p>2. Pleading <&wkey;193(8) — Erroneous claim for damages does not make declaration demurrable.</p> <p>Where the declaration alleges a cause of action for breach of contract, it is not rendered demurrable because it makes claim for damages which cannot be recovered under the facts alleged, or because it incorrectly alleges the measure of damages.</p> <p>3. Limitation of actions <&wkey;127(4) — Amended declaration for breach of same contract held not to state new cause of action.</p> <p>Where demurrer was sustained to the original declaration for breach of contract, because the damages claimed were not recoverable under the facts alleged, an amended declaration alleging breach of the same contract does not state a new cause of action, and should be permitted, though the statute of limitations had run against the cause of action after the original declaration was filed.</p>

Foster, Judge. Suit by Edward Pilsbury, as trustee of the estate of Philip Da Costa, bankrupt, against the Marks Ribbon Company, and others. Decree for complainant, and defendants appeal.

<p>1. Conspiracy <&wkey;43(6) — Counts charging conspiracy to possess ami transport intoxicating liquors held sufficient.</p> <p>Counts of an indictment charging that defendants conspired to possess intoxicating liquor with intent to use, in violation of the National Prohibition Act, and to effect the object of the conspiracy had possession of 600 quarts of liquor with intent so to use it, and conspired to transport intoxicating liquor without permit or without making record, and to effect the object of the conspiracy, transported such liquor, are sufficient.</p> <p>2. Intoxicating liquors <&wkey;236(5) — Finding of still and supplies held to warrant inference of intent.</p> <p>Evidence that a still was found in a building on the premises of one defendant, and that the other defendant was present, and that there wore also found quantities of mash, sugar, hops, and yeast, and Canadian liquor and moonshine whisky, held sufficient to warrant the jury in inferring defendants’ intent.</p> <p>3. Intoxicating liquors <&wkey;233 (2) — Testimony of surrounding circumstances relevant, to show intent in possession of liquor.</p> <p>Testimony of the circumstances surrounding the discovery of the still and of the conduct of defendants was relevant to show their intent with reference to the liquor.</p> <p>4. Criminal law <&wkey;829(3) — Requested charges defining conspiracy held sufficiently covered.</p> <p>Where the court had quoted the, statutory definition of conspiracy, and had sufficiently covered the essential elements in further explanation, there was no error in refusing requests for instructions as to what constituted conspiracy.</p> <p>5. Criminal law &wkey;=>lli>7 (2) — invalid counts, unnecessary to sustain judgment, do not harm accused.</p> <p>Where defendants were convicted on five counts, two of which were sufficient, and were sustained by the evidence, the verdiet being general, and the judgment being under tbe whole indidment, and the sentence not exceeding' that which might have been imposed under the two good counts, defendants cannot complain that the other three counts were insufficient.</p>

<p>In error to the District Court of the United States for the Western District of Louisiana; George W. Jack, Judge.</p> <p>Suit by Mrs. Cecelia Leonard Ellerbe against Jasper B. Kirklin. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the District of Montana.</p> <p>John Samiin was convicted of unlawfully selling intoxicating liquor, and he brings error.</p>

<p>Appeal and error <&wkey;1062(4) — Error in submitting contract to jury for construction held harmless where it was correctly construed.</p> <p>The fact that a court erroneously submitted a contract to the jury for construction held not ground for reversal, where the jury construed the contract as the court should have construed it as matter of law.</p>

Trippet, Judge, Petition by Uouisa Cabrillos, on behalf of Alfonso Cabrillos, an infant, against Emillio Angel and Chonita Angel, for a writ of habeas corpus. Writ denied, and petitioner appeals.

<p>Wharves <§=>21 — Patching a hole in a wharf with a two-inch plank held not negligence as to a licensee.</p> <p>The nailing of a two-inch plank over a hole in defendant’s wharf held not to constitute negligence as to plaintiff, who, when a visitor on the wharf in the daytime, fell over the plank and was injured.</p>

<p>In Error to tlic District Court of the United States for the Southern District of Mississippi; Geo. W. Jack, Judge.</p> <p>Criminal prosecution by the United States against Walter Torrey. Judgment of conviction, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the Eastern District of Louisiana; Rufus E. Foster, Judge.</p> <p>Action by the Bank of Plant City against the Canal-Commercial Trust & Savings Bank. Judgment for plaintiff, and defendant brings error.</p>

Action by Mary S. Johnston against the Emerson Phonograph Company, Inc., in which receivers were appointed, and were ordered to pay in full the claim of the Brilliantone Steel Needle Company. From an order requiring the receivers to pay such company $1,110, they appeal.

<p>1. Criminal law <©=>552(1) — Verdict of guilty may be based on circumstantial evidence.</p> <p>A jury may find a verdict of guilty on circumstantial evidence.</p> <p>2. Witnesses <©=348(1) — Felon not incompetent as witness.</p> <p>The old common-law rule of the incompetency of felons as witnesses is not in force in the federal courts.</p>

<p>In Admiralty. Petition of the Canadian Pacific Railway Company, as owner of the steamship Princess Sophia, for limitation of liability.</p> <p>On October 24, 1918, the Princess Sophia, owned by the Canadian Pacific Railway Company, stranded on Vanderbilt reef, in Lynn Canal, Alaska, and during the night of October 25th the vessel foundered, resulting in the loss of the vessel and cargo and of the lives of all of the passengers and crew on board. Suits for damages were ’ asserted. On the 28th day of February, 1919, the owner petitioned this court, seeking to obtain the benefit of sections 4283, 4284, and 4285, R. S. (sections 8021, 8022 and 8023, Comp. St.), limiting the liability for all loss resulting, and prayed that a trustee be appointed, to whom the interest in the steamship and her pending freight might be transferred and monition issued, warning all persons having claims by reason of thé .catastrophe to present the same within a fixed time, and that the owner be decreed not liable for loss, or, if liable, its liability be limited to the property surrendered. A trustee was named, and the interest of the company in the steamship and pending freight was transferred to him. A lifeboat after-wards discovered was reported to the court, and its’value paid to the trustee.</p> <p>Answers have been filed by many claimants, contesting the petitioner’s right to limit liability, and it is affirmatively charged that the petitioner operated the steamship as a common carrier for passengers and freight for hire between the ports of Skagway and Vancouver and Seattle, and extensively advertised throughout Canada and the United States its lines of steamers, particularly that of the Princess Sophia, as being well adapted to navigate the waters of the inside passage to Alaska; that the officers were specially quali-fieri to sail in such waters, and were familiar with the dangers, reefs, and rooks; that the vessel was staunch and strong; that on the 23d of October the Princess Sophia was at Skagway, and that the passengers purchased tickets and went aboard and became passenger’s for hire, and that its officers failed to carry out such statements, etc.; that the route over which the petitioner operated its vessels was a dangerous route, and extremely difficult to navigate with safety in fog, rain, snowstorm, and thick weather, especially and particularly that portion known as Lynn Canal; that on account of such dangers there is placed a lighthouse at Eldred Kock, 30 miles south of Skagway to the starboard, and a light at Point Sherman, .38 miles south of Skagway, and a light at Sentinal Island, 60 miles south of Skagway; that a vessel navigating such route in clear weather at night could see the light at Point Sherman until the light at Sentinal Island was picked up; that Vanderbilt reef is about 18 miles south of Point Sherman and about 1¾ miles to the westward of the regular route traveled by vessels passing to the starboard; that it is dangerous to attempt the navigation of said passage at night, unless vessels can pick up Point Sherman light before passing Sentinal Island light, before reaching the vicinity of Vanderbilt reef; that vessels cannot undertake said route during heavy rains or snowstorms or thick weather with any degree of safety, and in doing so run great risk of being wrecked, all of which was well known to the officers and agents and employees of the petitioner; that the petitioner made it a practice to run and operate steamers for many years over said route at an unlawful rate of speed in thick weather, and at night when such, lights could not be seen, in violation of law and rules of navigation; that such was the usual and customary method of navigating the steamship Sophia, and it was well known, permitted, authorized, and directed by the petitioner and its officers naming various persons; that the Princess Sophia left Skagway at 10:10 p. m. October 23d, at which time she had on board a large and excessive number of passengers, and moro than she had accommodations for, and more than she was permitted by law to carry; that she proceeded in a reckless and careless manner, at an excessive rate of speed, and at about 12 o’clock p. m. ran into a blinding snowstorm, and continued to run in such snowstorm without being able to pick up Eldred Rock light, and without being able to pick up Sentinal Island light, and while so running at full speed struck and ran upon Vanderbilt reef at about 2 o’clock a. m. October 24th; that upon striking said reef she rose out of the water and ran the greater part of her length on said reef, with such force as to tear away plates on the bottom of said vessel, and tore a hole from the bow on the starboard side about 2 feet wide, to about 60 feet aft, throwing many passengers from their berths and causing great fear and anxiety among her passengers; that immediately upon striking said reef wireless messages were sent to managing officers of the petitioner at Juneau, Skagway, Ketchikan, Vancouver, Victoria, and Prince Rupert; that shortly thereafter the tide rose, causing the vessel to pound hard upon the rocks and causing great fear and distress among the passengers, which information was conveyed by wireless from the officers of said steamship to the officers ahd agents of the petitioner; that the lives of the passengers upon said steamship upon her stranding were immediately placed in great peril; that it was the duty of the petitioner, its officers, agents, and employees, to take immediate steps to remove said passengers to places of safety, which could have readily and easily been done by lowering lifeboats of said steamship upon Vanderbilt reef at low tide, and launching the same to the leeward of said reef, and allowing the passengers to step down from the steamer upon said reef and into said lifeboats, which could have readily been done; that lifeboats could then have been rowed to vessels standing by, and her passengers transferred; that such lifeboats could have been rowed to boats within the vicinity of said rocks, where all the passengers could have been landed without difficulty, or that said passengers could have been saved by launching the two aft starboard lifeboats from said vessel into the water and transferring the passengers from lifeboats into other vessels standing near hv, or by lowering lifeboats at high tide and transferring the passengers to the vessels standing by; that this could have been done at all times until noon of October 25th, and other methods of transferring passengers wore set out; that, in order to save the expense of removing the passengers, petitioner decided to keep tlie passengers on board the Princess Sophia nntil it could send one of its vessels from Vancouver to Vanderbilt reef, a distance of 950 miles; that in accordance with such plan petitioner at 11 p. m. October 24th sent' the steamship Princess Alice, with directions to go to Vanderbilt reef and take the passengers from the Princess Sophia and carry them to their destination; that it would take about 65 hours for the Princess Alice to reach Vanderbilt reef; that the vessels Peterson, Estebeth, Amy, King & Winge, Cedar, Atlas, Sitka, Elsinore, 'Osprey, Prince George, and other vessels were in the vicinity of said rock, ready and willing to take the passengers to places of safety, but the' petitioner refused to allow the passengers to leave said steamship Sophia, although urgent demands were made of them; that at 4 p. m., October 25th, a violent storm arose in Lynn Canal, with a strong north wind, and at high tide, about 6 p. m., the wind and waves drove said vessel over and across the reef causing her to founder; that it had been generally known for many years that during the fall and winter months violent storms arose suddenly in Lynn Canal with little warning, and that petitioner well knew that such storms were likely to arise at any time, and in case of such storm the Princess Sophia would be driven from the reef and would ■ founder; that notwithstanding this fact petitioner decided to keep and require all passengers to remain upon the Sophia until they could be taken therefrom by the Princess Alice; that the Princess Sophia was unsea-worthy when she left Skagway, and that she was not equipped with sufficient lifeboats, life preservers, or life-saving appliances as required by law, and that the crew were insufficient in numbers, and were incompetent and not able-bodied seamen; that many of the crew were sick and unable to perform their duties; that said vessel did not carry pilots; that she was insufficiently manned, equipped, and not provided with a full and complete crew to perform their duties; that Captain Locke, master of the steamship, was 67 years of age, and was not given sufficient pilots, and required to stand long watches, and was under great mental and physical strain, and had become weakened physically' and mentally, and was addicted to the use of alcoholic liquors -to excess, and was under the influence of liquor on said voyage; that he had become incompetent, and not a safe master, all which was known to petitioner.</p> <p>Charges of incompetence and unfamiliarity with the waters of Lynn Canal, carelessness and inefficiency, and disqualification were made against the officers of the petitioner, of which the petitioner had knowledge; that the compass and the barometer on the steamship were not in good order and condition ; that the compass had not been tested or swung for a long time, and the barometer did not correctly indicate atmospheric pressure and change in weather; that all of the acts of negligence, incompetence, and unseaworthiness were known to the petitioner, and that the petitioner was at fault and guilty of gross negligence in connection with the loss and foundering of said steamship.</p> <p>The petitioner replies, placing at issue all of the allegations of the affirmative matter, and asserts affirmatively that its managing or supervising officer or agents had instructed the navigating officers and employees connected with the navigation of its steamers, including the steamship Princess Sophia, to navigate and operate said steamers in a cautious and careful manner, and under no circumstances to operate the same in a manner contrary to law and the rules of navigation; that written instructions were furnished'to the navigating officers of all the vessels, cautioning them against running risk which by any possibility might result in accident, and to bear in mind that the safety of life and property intrusted to their care is the ruling principle by which they must be governed in the navigation of their ship, and that no saving of time on their voyage is to be sought at the risk of accident; in thick foggy weather and in storms speed must be reduced, and, if soundings are to be had, lead is to be used, and the whistle must be blown at short intervals as prescribed by law; that at least two officers must be on the bridge and a double lookout kept, all water-tight compartments closed, and all possible precautions taken. Such notices were delivered to the officers navigating the steamship Princess Sophia.</p> <p>It is admitted tliat after the stranding a wireless message was sent by Captain Locke to Captain Troupe, manager of the British Coast Steamship Service at Victoria, who was operating said vessel, advising Captain Troupe that such vessel had stranded, which message was received at about 9:11 o’clock a. m. October 24th at Victoria. It is admitted that Lowle, agent at Juneau, received a message from the wireless operator at Juneau at about 2:15 a. m. (3:15 ship’s time) on October 24th, advising him that the said vessel had stranded on Vanderbilt reef, and was calling for help, and that about 3 o’clock a. in. Lowle received a further message from the wireless operator at Juneau to the effect that the Sophia was pounding heavily and was lowering her boats; states that, since all lives on board were lost, petitioner was not advised as to the conditions existing at and in the vicinity of Vanderbilt reef and on board the vessel at the time she stranded, but from the information conveyed to it by wireless, the lives of the passengers were placed in peril; that the Sophia was in command of a competent and experienced master and officers and crew, and that the advisability as to what should be done with relation to the removal of the passengers were matters to be determined by the master, officers, and crew, who had opportunity to consult with the passengers, many of whom were experienced seamen; that upon the petitioner’s direction the Peterson, with a capacity of 150 or 200 passengers, arrived on the scene at 9 a. in. October 24th, the Kste-fceth, with a capacity of from 85 to 150 passengers, arrived at 10 a. m. the same day, the Amy, with a capacity of 150 passengers, arrived at 11:20 a. m. October 24th, the King and Winge, with a capacity of 100 passengers, arrived at 6:20 p. m. the same day, and the Cedar, with a capacity of 400 passengers, arrived at the rock at 8 p. m., and the Lone Fisherman, Sitka, and Elsinore, with total capacity of 350 to 400 passengers, arrived at the scene the afternoon and evening of October 24th; that there were no other vessels in the vicinity of Juneau capable of rendering any assistance; and further alleges that if there was any fault on the part of any one in the removal of the passengers from the stranded ship, such failure was due to an error in judgment on the part of the navigating officers, and was without privity of knowledge or fault of the petitioner or any of its managing officers or agents. It admits that on the afternoon of October 25th a violent storm was raging in Lynn On nal, and alleges that such storm had been raging throughout the 24th and 25th. It specifically denies that it or any of its officers or agents decided to keep or require the passengers to remain on board the stranded ship awaiting the arrival of the steamship Princess Alice.</p> <p>Upon motion and stipulation of the parties a commissioner was appointed to take testimony at various places in Alaska and in the city of San Francisco. The issue was finally presented on testimony taken in open court, and at the conclusion was submitted upon such testimony and depositions taken. The only issue now before the court as submitted is as to the right of a limitation of liability.</p>

<p>1. Customs duties ¾=»55 — In action against collector, defense that lie was acting for disclosed principal lielii good.</p> <p>In an action against a collector of customs for delivering plaintiff’s property to a third party, a separate defense alleging that defendant acted solely as the known and disclosed agent and officer of a known and disclosed principal, to wit, the United Slates, and was acting solely in his official capacity, was not insufficient to state a defense, though the trial may result in establishing that he was guilty of personal misconduct, neglect, or wrongdoing.</p> <p>2. Pleading <®=»355 — Separate defenses questioning sufficiency of complaint and jurisdiction of court stricken on motion.</p> <p>Separate defenses alleging that the complaint does not state facts sufficient to constitute a cause of action, and that the court has no jurisdiction of the action, will be stricken on motion as surplusage; these being grounds of demurrer.</p> <p>3. Pleading <^»359 — Separate defenses alleging that complaint did not show acts done under color of office stricken as sham.</p> <p>In an action against a collector of customs for delivering plaintiff’s property to third parties, a complaint alleging that defendant was acting in his official capacity held, to show sufficiently that he was acting under color of his office, so that a separate defense asserting that the complaint failed to set out the fact that the acts averred were committed'by defendant under color of his office will be stricken as sham.</p>

<p>In Bankruptcy. Application by Louis Hamburg for the return of certain property to him by Thomas J. F. Kirk, receiver in bankruptcy of the Nostrand Leather Goods Shop, Inc. On report of a special commissioner.</p>

<p>Shipping <®=>141(1, 3) — Vessel heia not liable for freezing of lemon cargo.</p> <p>A steamship held not liable for damage to a cargo of lemons by freezing, where a part was shipped on a bill of lading expressly excepting damage by frost and the remainder on a bill excepting perils of the sea and loss or damage occasioned by causes beyond the carrier’s control, and by reason of exceptionally stormy weather the ship was driven from her course, her rudder broken, and she was compelled to make the port of Halifax for repairs, where the freezing occurred without any negligence on her part.</p>

In Admiralty. label by the Eagle Oil Transport Company, Limited, as owner of the British steamship San Tirso, against the United States, as owner of the United States steamship Pocahontas, heard with the following libels: By the Almirante Steamship Corporation, as owner of the steamship Almirante, against the United States, as owner of the steamship Hisko; by the A. A. Wire Company, Inc., as owner of cargo on board the steamship Almirante, against the United States, as owner…

<p>In Admiralty. Suit by the Standard Oil Company of New Jersey against the. Steamboat Newark. On exceptions to suggestions of United States attorney.</p>

<p>Prosecution by the United States against Emanuel Bookbinder. On motion to quash search warrant, etc.</p>

<p>In Admiralty. Libel by James E. Conley against the steam tug •Betty.</p>

<p>In Equity. Suit by Piel Bros, against Ralph A. Day, Federal Prohibition Director for the State of New York, and others. On motion for preliminary injunction.</p>

<p>Application by Nicholas Radivoeff for a writ of habeas corpus.</p>

L. L. Bateman was charged with violating the National Prohibition Act. On motion of the defendant for the return of property seized without lawful search warrant.

In Bankruptcy. In the matter of the Gilchrist Company, bankrupt. . Claim of the William Eilene’s Sons Company was allowed by the ref.eree, and bankrupt petitions for review.

<p>1. Public service commissions <&wkey;23 — Action reviewable by federal court only on constitutional grounds.</p> <p>The action of a public service commission in prescribing rates to be charged by a public utility corporation is reviewable by a federal court only on the question whether it is an invasion of constitutional rights, and such collateral questions as are incidental thereto, and the presumption is in favor of its validity.</p> <p>2. Public service commissions <&wkey;7 — Value of franchise held properly excluded in fixing rates for a public utility.</p> <p>A franchise for a public utility is granted on the implied condition that it shall be used for the public benefit and at reasonable rates of charge to the public, and in the computation of the value of the property used in the service by a public service commission for the purpose of establishing reasonable rates, which is only a method of enforcing such implied contract, the value of the franchise should not be taken into consideration, as it is neither taken nor impaired, but its use required according to the original contract.</p> <p>3. Public service commissions <&wkey;7 — Valuation of physical property.</p> <p>In ascertaining the present value of physical property for rate-fixing purposes in a period of changing values, a decided tendency to higher or lower may be recognized and considered.</p> <p>4. Public service coibiuIsemhis &wkey;>V — Fast eanrósjís are not an element In bo eoiisidereil in fixing Aitmo rates.</p> <p>In establishing reasonable rates for a public service corporation, failure to earn a fair return in past years is not a factor to be considered, either by adding the deficiency to capital investment or amortizing it in future rates.</p> <p>5o PhííIms servís® eommissio«s <&wkey;"<f — Income te not allowable as an expense, in establishing rates for a public service corporation, the federal income tax is not allow aide as an expenso of the business.</p>

<p>Petition of the General Consumers’ Company against E. H. James, United States Marshal, for restoration of property.</p>

<p>At Law. Action by Henry D. Tudor, as trustee, against Joshua R. Raudabaugli and wife. On trial before court.</p>

<p>At Law. Action by May L. Weber, administratrix, against the Chicago & Northwestern Railway Company. On demurrer to affirmative defense pleaded in answer.</p>

<p>Habeas Corpus. Petition by the United States, on the relation of Vahan Rasparían, against James L. Hughes, Commissioner of Immigration.</p>

Criminal prosecutions by the United Spates against Albert F. Slater and others on several indictments. On demurrers and motions to quash indictments.

<p>1. Courts &wkey;338(4) — In class suits, aggregate interests, if sufficient, give federal courts jurisdiction.</p> <p>Where a suit is a class or representative suit, the aggregate interests oí the class, and not the several interests of individuals, constitute the matter in dispute, and, if sufficient in amount, gives the federal court jurisdiction.</p> <p>2. Courts <&wkey;328(3) — In injunction suits, value of right to be protected determines amount.</p> <p>In injunction suits, it is not the sum recoverable for the injury sustained, but ihc value of the right to be protected, that determines the amount in controversy.</p> <p>3. Courts <&wkey;3©8 — Though unions could not furnish diversity of citizenship, the individuals made parties could.</p> <p>In a class suit for injunction by a local against a national trade union, in which the requisite diversity of citizenship existed between the individuals made parties, objection that the unions were not legal entities, and so could not furnish diversity of citizenship, was of no avail.</p> <p>4. Courts <&wkey;345 — Attacking jurisdiction of federal court after voluntary answer not available.</p> <p>In a suit for injunction by a local against a national trade union, where defendants have voluntarily answered, the jurisdiction of the federal court cannot be attacked on the ground that the case does not involve property, within the meaning of Judicial Code, § 57 (Comp. St. § 1039), so as to sustain venue of the fedéral court on the process issued.</p> <p>5. Trade unions &wkey;4 — Court relieves from executive board's unauthorized action in expelling member.</p> <p>Whore the attempted action of the executive board of a trade union in expelling a member was without official sanction, and its judgment and acts pursuant thereto are not the action of the union, parties aggrieved may apply to courts, without taking steps within the union for relief.</p> <p>6. Trade unions &wkey;>4 — Judgment of suspension of members by executive board, acting in spirit of reprisal, held void.</p> <p>While there is authority for the proposition that members of an executive board, who have been defamed, are disqualified by a direct interest in the subject-matter of the controversy to try the defamatory charge, and that their judgment in such a proceeding would be void, such proposition is not declared thus broadly here; but it is held that where the members of the board are involved in the inquiry, and it further appears that the inquiry was entered upon by the board in a spirit of reprisal, rather than judicial fairness, the judgment is void.</p>

<p>In Equity. Suit by Horace G. Johnson and Henry S. Cooper against Bit Bros., Inc.</p>

<p>1. Internal revenue <&wkey;38 — Finding of fact by former Commissioner in assessing income tax should be regarded as final.</p> <p>No authority has been vested in the Commissioner of Internal Revenue to overrule and reverse the action of his predecessor in office, and where a former Commissioner heard and determined a question of fact necessary to enable him to act intelligently in determining the amount of plaintiff’s net income on which he would be required to make a levy and assessment, and his finding on that issue has not been impeached, it should be regarded as final.</p> <p>2. Internal revenue <&wkey;38 — Decision of former Commissioner not conclusive, when question involved was different.</p> <p>Where the only question of fact under consideration on plaintiff’s application to a former Commissioner of Internal Revenue for remission of an income tax assessed against him was whether he was within the class of persons entitled to deduct losses sustained in buying and selling stocks and securities, the Commissioner’s decision is not conclusive on the present Commissioner, where it now appears that plaintiff did not during the tax period sustain any such losses as those claimed.</p> <p>3. Internal revenue &wkey;>38 — Tax paid not recoverable, when taxpayer not entitled to deductions claimed), whether assessment made or not.</p> <p>Where a taxpayer’s income tax return was false, in that he had not sustained the losses deducted therein, the tax subsequently collected on the amount of such deductions was justly exacted, whether an assessment had or had not been made, and could not be recovered, there being no implied promise for its return.</p> <p>4. Internal revenue <&wkey;38 — Limitation of actions to collect taxes inapplicable in suit to recover taxes already paid.</p> <p>Act Feb, 24, 1919, § 250d (Comp. St. Ann. Supp. 1919, § 6336ygtt), providing that no suit or proceeding for the collection of any income tax shall be begun after the expiration of five years from the date when the return was due or was made, has no application in an action to recover back a tax paid under protest.</p>

In Bankruptcy. In the matter of the Will V. Connell Company, a corporation, bankrupt. On petition by the Céntral Grocery Company and others for a review of an order and decree by the referee, declaring a voidable preference.

<p>1. Constitutional law <&wkey;68(l) — Court may not pass on rights of factions of foreign government to recognition, where State Department has recognized one.</p> <p>A court of admiralty held, without jurisdiction to determine the right to a vessel, admittedly the property of the Russian nation, as between the so-called Russian Socialist Federal Soviet Republic, claiming to be the Russian government, but which has not been recognized by the United States, and the Russian government as represented by its duly accredited ambassador, received and still recognized as such by the United States government, and who is in actual possession of the vessel.</p> <p>2. InteriíafíoEa-l law <&wkey;l® — Jurisdidl®» may fee questioned by foreign representative.</p> <p>A suggestion that the court should not take jurisdiction o£ a cause because it involves auestions of national policy, within the province of the political department, may be received from the duly accredited representative of a foreign country, though it should properly come from the appropriate executive department of our own government.</p>

<p>In Equity. Suits by the Chicago, Milwaukee & St. Paul Railway Company, by the Chicago & Northwestern Railway Company, by the Chicago, Rock Island & Pacific Railway Company, by -the Wabash Railway Company, by the Minneapolis & St. Rouis Railway Company, by the Chicago, Burlington & Quincy Railway Company, and by the Atchison, Topeka, & Santa Eé Railway Company against Nathan E. Kendall, Governor, and others; by the Dubuque & Sioux City Railway Company against George A. Burke, Auditor, and others; and by the Et. Dodge, Des Moines & Southern Railway Company against Nathan E. Kendall, Governor, and others. On applications for temporary injunctions.</p>

<p>Courts <&wkey;347 — Conformity statute heM not to invalidate rule of federal court.</p> <p>The conformity statute, Kev. St. § 914 (Comp. St. § 1537), requiring the federal courts to conform “as near as may be'’ to the state practice in actions at law. does not require exact conformity in all respects, and is to be read in the light oí section 918 (Comp. St. § 1544), which authorizes the District Courts to make rules to regulate their own practice, and a rule of a District Court requiring every answer to admit or deny specifically each material allegation of the petition, is valid and enforceable, though the state statute permits a general denial.</p>

<p>At Law. Action by Mary J. McKasson, administratrix of the estate of Patrick A. McKasson, deceased, and Mary J. McKasson individually, against the Union Pacific Railroad Company. On demurrer to petition.</p>

<p>In Equity. Suit by the W. A. Schleit Manufacturing Company, Inc., against the Syracuse Radiator Company, Inc., and others.</p>

Criminal prosecution by the United States against Jim Alexander. On motion by defendant, attacking validity of search warrant, and for return of property seized thereunder.

<p>Pleading <&wkey;49 — Action for breach of warranty must proceed on definite theory.</p> <p>Sales Act Pa. May 19, 1915 (P. L. 543, 562, § 69; Pa. St. 1920, § 19717), provides (1) that, where there is a breach of warranty by the seller, the buyer may at his election “(b) accept or keep the goods, and maintain an action against the seller for damages for breach of warranty; * * * (d) rescind the * * * sale and refuse to receive the goods, or, if the goods have already been received, return them or offer to return them to the seller, and recover the price or any part thereof which has been paid. Second. When the buyer has claimed and been granted a remedy in any one of those ways, no other remedy can thereafter be granted.” Held, that a buyer may not defer his election until trial, but that his action must be based definitely on one or the other of the remedies given.</p>

<p>Collision <&wkey;95(7)~Both tugs held at fault for fallare to keep proper lookout.</p> <p>Two tugs held both at fault for failure to ke,ep proper lookout, as a result of which neither observed the approach of the other in time to avoid a collision, by which a cattle float in tow of one of them was injured, and the fact that the cattle float and its tug were not in the middle of the river held only a condition, and not a cause, of the injury.</p>

Libel in admiralty by the Central Union Stockyards Company against the steam tugs Rose Reichert and John F. Lewis. From a decree (278 Fed. 311) holding both tugs at fault, the Reichert Towing Line, Inc., as claimant of the Rose Reichert, appeals.

<p>1. Patents &wkey;>113(7) — Concurrent decisions of Patent Office tribunals not disturbed, unless clearly wrong.</p> <p>Wliere the three tribunals of the Patent Office concurred in awarding priority to one party to an interference proceeding, the decision must be affirmed, if not clearly wrong.</p> <p>0. Patents <&wkey;l©9 — Joint application held reduction to practice by sole inventor.</p> <p>Where a joint application was filed for a patent, on which it was decided that one of the applicants was the sole inventor, and he thereupon filed a separate application, he was entitled to the date of the joint application for reduction to practico, as the application of the sole inventor was an amendment of the joint application, and related back to the time of the filing of the original application.</p> <p>3. Patents <&wkey;113(l) — Decision of Court of Appeals in another case adhered to, when facts the same.</p> <p>Where the holding of the Court of Appeals in another case that an applicant for a patent did not reduce his invention to practice by reason of a certain test was not based on the testimony of the witnesses, but on his own conduct after the test in abandoning the experiment, and, though the testimony in a subsequent proceeding is somewhat stronger, it does not lessen the probative force of his conduct, the former conclusion will be adhered to.</p> <p>4. Patents <&wkey;112(4) — Decision in another casa held not res judicata, when matter not involved.</p> <p>The decision of the Examiner of Interferences in a prior interference that a party reduced his invention to practice in April or May, 1912, is not res judicata, where in that proceeding such party had a constructive reduction to practice as of March 13, 1912, and it was therefore entirely unnecessary for ihe Examiner to decide that he had actually reduced it to practice at a later date; the holding being merely obiter.</p> <p>5. Judgment <&wkey;735 — Conclusive in action on different claim only as to matters on which decision rendered.</p> <p>Where a second action between the same parties is on a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue, or points controverted, on the determination of which the finding or verdict was rendered.</p>

<p>Smyth, Chief Justice, dissenting.</p> <p>Appeal from a Decision of the Patent Office.</p> <p>Interference proceeding between Richard E. Baus and Alfred Cop-ony. From a decision awarding priority to Copony, Baus appeals.</p>

Proceeding to probate a will by Mary Helen McNeely and another, by their guardian ad litem, opposed by Charles H. Morris and others, in which Ella Finley Foster entered her appearance in support of the will. From a decree admitting the will to probate, Charles H. Morris and others, including Mary Helen McNeely, appeal.

<p>Appeals from the Commissioner of Patents.</p> <p>Separate applications by Henry L. Haskell for patents for a process for making cement and tor the cement. P'rom decisions of the Commissioner of Patents, rejecting two claims of the process application and one claim of the product application, the applicant appeals.</p>

Suit by Roeco Filippone and another against James R. Hayden to recover premises from the defendant as a tenant at sufferance. Judgment for the plaintiffs in the Supreme Court of the District, on appeal from the municipal court, and defendant appeals.

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Petition for mandamus by the United States of America, on the relation of John F. Norris, against Charles R. Forbes, Director of the Bureau of War Risk Insurance, and another. Rule to show cause discharged, and petition dismissed after relator elected to stand on his demurrer to the return and relator appeals.</p>

Application by Carl C. Kusterer for a patent for a table slide structure. From a decision of the Commissioner of Patents, refusing the allowance of a claim, applicant appeals.

<p>Patents <&wkey;120 — Assignee of two applications is bound, by election to take patent with narrow claims reading on other disclosure.</p> <p>Where two applicants each assigned their copending applications to the same assignee by an assignment which left no interest in the applicant, the election of the assignee to take the patent on one application, which contained narrow claims reading on the disclosure in the other application, is binding on him, and precludes his right to issuance of patent on the other application, containing broader claims covering the same features.</p>

Petition by the Ironsides Company against the Citizens’ Wholesale Supply Company for cancellation of a trade-mark. From a decision of the Commissioner of Patents denying the petition, the petitioner appeals.

<p>Bills and notes <&wkey;5Q9 — In action against maker and indorser of check, defendants held entitled to show whole transaction.</p> <p>In an action against the maker and indorser of a chock on which the maker had stopped payment, where plaintiff claimed as an innocent holder for value, to whom the payee had indorsed and delivered the check in part payment for merchandise, defendants held entitled to show the entire transaction and to introdnee evidence tending to show that the sale of the mei’chandise was to the maker of the cheek, through the payee as a broker, who in accepting and indoi'Sing the check acted as plaintiff’s agent with plaintiff’s knowledge, and that plaintiff’s only right of action was against the maker of the check on the contract of sale.</p>

<p>1. Judgment <&wkey;8>22(2) — Not entitled to full faith and credit as evidence against one not a party to it.</p> <p>Const, art. 4, § 1, does not require a court to give full faith and credit to a judgment of another state as evidence against one who was not a party to it.</p> <p>2. Judgment <&wkey;828(3) — Federal court cannot set aside judgment of state court on ground of after-discovered evidence.</p> <p>A federal court is without power to set aside a decree of a state court, where the bill simply presents a case of after-discovered evidence; the remedy being in the court which rendered tile decree.</p> <p>3. Judgment <&wkey;828(3) — Party bound by judgment which he invoked.</p> <p>A party who, having the choice of tribunals between the federal and state court, chooses the latter, is bound by its decree, and cannot later invoke the jurisdiction of the federal court to set aside such decree on the ground of newly discovered evidence showing that it was obtained by fraud and perjury.</p>

<p>In Error to the District Court of the United States for the District of New Jersey; Joseph U. Bodine, Judge.</p> <p>Action at law by the John M. Kelley Contracting Company against the United States Fidelity & Guaranty Company. Judgment for defendant, and plaintiff brings error.</p>

Wolverton, Judge. Angelo H. Rossi was convicted of conspiracy to defraud the United States, etc., and he brings error. The indictment in this case charges a conspiracy to defraud the United States, and to alter certain obligations of the United States, to wit, United States War Savings Certificates and United States War Savings Certificate Stamps, by removing the stamps from the certificates and erasing from the face of the stamps certain registration or identification marks.

Petition to Revise Order of the District Court of the United States for the Southern District of New York. In the matter of James T. Wood, bankrupt; Joab H. Banton, Trustee.

Suit in admiralty by the Frederick Starr Contracting Company against the tug Automatic; the Tice Towing Dine, claimant. Decree for respondent, and libelant appeals.

<p>Internal revenue <&wkey;7 — Dividend declared before Income Tax Act took effect held net “income” of stockholder, taxable thereunder, though not paid until afterward.</p> <p>Under Income Tax Act Oct. 3, 1913, § 2, A, snbd. 1, which took effect from March 1, 1913, and imposed an annual tax on the entire net income of citizens and residents “arising or accruing from all sources in the preceding calendar year,” a dividend declared by a corporation prior to March 1, 1913, though not paid until after that date, held to have been capital of the stockholder at the time the act took effect, and not taxable as income arising or accruing thereafter.</p> <p>[Ed. Note. — Nor other definitions, see Words and Phrases, First and Second Series, Income.]</p>

Suit in equity by Charles Scribner’s Sons, a corporation, against the Board of Education of District No. 102 of Cook County, Ill., and others. Decree for defendants, and complainant appeals. On petition for rehearing, after entry of order of affirmance without opinion.

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Suit by tbe Chicago, Milwaukee & St. Paul Railway Company against George K. Eranzen and others. Judgment for plaintiff, and defendants bring error.</p> <p>The parties will be designated as they appeared in the court below. Plaintiff, operating a railroad, instituted in the state court proceedings to acquire certain rights in land owned by defendants. Its right so to do was at first denied, but on appeal was established. C., M. & St. Paul Ry. Co. v. Franzcn, 287 .111. 346, 122 N. E. 492. Thereafter condemnation proceedings were instituted in the federal court to acquire land from the defendants; the basis for the claim of jurisdiction being diversity of citizenship and the amount involved exceeding $3,000. A judgment based on the verdict was duly entered, and this writ of error followed.</p>

<p>Appeal from- the District Court of the United States for the District of-Indiana.</p> <p>Suit in equity by the K. W. Ignition Company against the Ford Motor Company. Decree for complainant, > and defendant appeals.</p>

<p>Master and servant <&wkey;288(15) — Assumption of risk by workman using defective wrench held for jury.</p> <p>A workman tightening nuts on a railroad bridge was given a wrench, which, as he knew, was worn and defective. He took it to his foreman, showed the defects, and told him'it was “no good”; but the foreman without promise of repair or substitution, ordered him back to his work. While using the wrench, it slipped, and the workman fell from the bridge and was killed. Held, in an action for his death under Employers’ Liability Act, § 1 (Comp. St. § 865(7), that whether deceased assumed the risk, or whether he was justified in relying on the judgment of the foreman, was a question for the jury.</p>

<p>Sales <&wkey;183(l) — Issue in action, by selto for breach of contract.</p> <p>In an action by the seller for breach of a contract for the sale and purchase of cotton cops, to be delivered in installments, where defendant, claiming that the cops delivered were not of a size called for by the contract, or a size which could be used in Ms mill, refused to pay for the same, and also canceled the contract and refused to accept further deliveries as authorized in such case by a state statute, held, that plaintiff’s right to recover depended solely on the cptestion of fact whether the cops delivered complied with the requirements of the contract, and that such question was properly submitted to the jury.</p>

<p>Appeal from the District Court of the United States for the Eastern, • District of Pennsylvania; J. Whitaker Thompson, Judge.</p> <p>Suit in admiralty by the Delanco Shipbuilding Company against the barge Huron; the Thompson-Lockhart Company, owner. Decree for respondent, and libelant appeals.</p>

<p>Patents —1,282,073, for cigarette case, held valid and infringed.</p> <p>The Nivois patent, No. 1,232,073. for a cigarette case, held valid and infringed.</p>

Criminal prosecution by the United States against Joe Camarota and another. On motion by the defendant named for the return or destruction of certain property taken without a search warrant.

<p>1. Bankruptcy <&wkey;372 — Court has power to reopen estate on any equitable ground.</p> <p>Under Bankr. Act, § 2(8), being Comp. St. § 9586, authorizing the court to reopen estates when not fully administered, and the final clause of said section, providing that nothing therein shall be construed to deprive the court of any power it would possess, were certain specific powers not enumerated, a court is not limited, in reopening estates, to cases where new assets are found, but may reopen an estate for the benefit of the bankrupt, where equity requires it.</p> <p>2. Bankruptcy <&wkey;32 — Amendments may be permitted in furtherance of justice.</p> <p>A court held to have power to permit an amendment of the bankrupt’s schedules, after the estate had been closed, to correctly state the name of the payee of a note scheduled.</p>

<p>Admiralty <&wkey;29 — Suits in rent against vessel and in personam against owner may be joined.</p> <p>Under new admiralty rule 14 (268 Fed. xii), providing Unit “in all suits for pilotage or damage by collision the libelant may proceed in rem against the ship and/or in personam against the master and/or the owner,” the ship and the owner may he joined as respondents in a single libel for collision.</p>

In Equity. Suit by Joseph M. I,acks against E. F. Mitchell, as Federal Prohibition Director, to review a decision of the Commissioner of Internal Revenue, refusing an application for a permit to withdraw intoxicating liquor from a government bonded warehouse for beverage purposes.

<p>Appeal from the Commissioner of Patents.</p> <p>Application for a patent by Clarence D. Keller. From a decision of the Patent Office refusing two claims, the applicant appeals.</p>

<p>Appeal from the Commissioner of Patents.</p> <p>Interference proceedings between Benjamin H. Dosenbach and! Milton F. Webster. From a decision of the Commissioner of Patents awarding priority to Webster, Dosenbach appeals.</p>

<p>1. Patents <&wkey;91 (4) — -Evidence held to show prior conception of invention in issue.</p> <p>In interference proceedings involving an invention of a process for concentrating copper ores where sulphide and nonsulphide ores were mixed, evidence that the experiments of the prior inventor were conducted with ore from the mine which produced a mixture of sulphide and non-sulphide ores held to establish the conception of the invention in issue, though there was nothing in the record to show he conceived the idea of applying the process to such mixed ores.</p> <p>2. Patents <&wkey;112(4) — Issuance of patent gives no advantage in mtsirfercnee between co-pending applications.</p> <p>A patentee is entitled in interference proceedings to no advantage from the issuance of his patent where the interfering applications were eo~ pending in the Patent Office.</p>

Application by Alice N. Mummert for a reissue patent for dust collecting bag for vacuum cleaners. From a decision of the commissioner of patents rejecting two of the claims in the application, the applicant appeals.

<p>In Error to the District Court of the United States for the Southern Division of the Western District of Michigan; Clarence W. Sessions, Judge.____</p> <p>Arthur Sevensma was convicted, of violating the Harrison Anti-Narcotic Law, and he brings error.</p>

<p>Appeal from the District Court of the United States for the District of New Jersey; Charles P. Lynch, Judge.</p> <p>Interpleader suit by the New York Life Insurance Company against Roland B. Lowther and others. Prom an order granting an injunction, defendant Roland B. Lowther appeals.</p>

Bodine, Judge. Action at law by Harold Wursthorn, an infant, by his next friend, and Curt Wursthorn, against the Public Service Railway Company. Judgment for plaintiffs, and defendant brings error.

<p>1. Intoxicating liquors <&wkey;238(3) — Evidence not insufficient as matter of law to show liquor sold as “whisky” was intoxicating.</p> <p>Evidence that defendant by separate agreements contracted to sell two barrels of whisky, delivered it as whisky, and received the price of two barrels of whisky, and that the purchaser, an admitted connoisseur, after drinking some of it, declared it was whisky, was not insufficient as matter of law to show that it was intoxicating, though there was no analysis, as whisky is a well-known intoxicating liquor of high alcoholic content, and the word, whenever used, has a definite and specific meaning.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Whisky.]</p> <p>2. Criminal law <&wkey;789 (17), 829(18) — Definition of "reasonable doubt” held</p> <p>sufficient, and requested instruction properly refused.</p> <p>Where the court charged that defendant’s guilt must be proven beyond a reasonable doubt, and defined a “reasonable doubt” as a doubt founded in reason and arising from the evidence, and not a mere hesitation of the mind to pronounce guilt because of the punishment that might follow, or a mere capricious doubt or hesitancy of the mind, but a doubt founded in reason and arising from the evidence, the instruction was sufficient, and a requested instruction defining a reasonable doubt was properly refused.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Reasonable Doubt.]</p> <p>3. Criminal law <&wkey;561(l) — Reasonable doubt must arise from evidence, or want of evidence.</p> <p>The reasonable doubt-contemplated by the law must arise from the evidence, which includes want of evidence, and can arise from no other legitimate source.</p> <p>4. Criminal law <&wkey;507 (1) — “Accomplice” defined.</p> <p>An “accomplice” is an associate in guilt in the commission of a crime, a participant in the offense as principal or accessory.</p> <p>[iE‘d. Note. — For other definitions, see Words and Phrases, First and Second Series, Accomplice.]</p> <p>5. Criminal law <&wkey;507(l) — Purchaser of liquor not accomplice of seller.</p> <p>As it is no crime to purchase whisky, the purchaser is not a participant in the seller’s offense, and is not an accomplice, where the seller is charged only with illegal selling and transportation, and not with conspiracy to violate the Volstead Act.</p> <p>6. Criminal law <&wkey;561(3) — Points that evidence of character witnesses, if believed, was sufficient to raise reasonable doubt, properly refused.</p> <p>The court properly refused to affirm points asserting that the evidence of character witnesses, if believed, was sufficient to raise a reasonable doubt, as this would have been equivalent to saying that the establishment of a good reputation entitled defendant to an acquittal.</p> <p>7. Indictment and information <&wkey;114 — Prior conviction under Volstead Act for selling, eta, miust be pleaded.</p> <p>The provision of Volstead Act, tit. 2, § 29, that it shall be the duty of the prosecuting officer to plead prior convictions, applies to the offense of manufacturing or selling in violation of the statute, as well as the offenses for which no special penalty is prescribed, covered by the same paragraph in which the provision in question appears.</p> <p>8. Criminal law <&wkey;1202 (1) —Second offense under Volstead Act not committed until there has been a judgment on prior verdict; “conviction.”</p> <p>In a legal sense, a “conviction” is a judgment on a plea or verdict of guilty, and a second offense, carrying with it a more severe sentence, cannot be committed until there has been a judgment on the first; and while in common parlance a verdict of guilty is said to be a conviction, a verdict in another prosecution will not support a sentence under the Volstead Act as for a second offense.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Convicted — Conviction.]</p> <p>9, IiuHctment and mi’onraatiom <&wkey;lM — Indictment charging second offense must set forth prior conviction.</p> <p>An indictment charging accused of being a second offender, under a statute making a second offense a distinct crime carrying with it heavier penalties, must set forth the fact of the prior conviction, as it is an element of the offense in the sense that it aggravates the offense and authorizes increased punishment.</p> <p>10. Criminal law <&wkey;1202 (2) — Prior comvictioar and identity of accused must he established in prosecution for second offense.</p> <p>When the indictment charges a prior conviction under a statute providing heavier penalties for a second offense, questions of fact are presented as to the prior conviction, and the identity of accused as the same person in each prosecution, and such facts must be established at the trial.</p>

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of-Illinois.</p> <p>Suit for injunction by the United States against Ike Eewinsohn. Defendant was adjudged guilty of contempt, and he 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>Suit by the United States against William Allen. Order finding defendant guilty of contempt, and he 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>Action by Edward Maher against the Chicago, Milwaukee & St. Paul Railway Company. Judgment on a directed verdict for defendant, and plaintiff brings error.</p>

<p>1. Patents <&wkey;222 — Mark on patented article must state day of patent issue.</p> <p>To comply with Rev. St. § 4900 (Comp. St. § 0446), the mark on a patented article must state the day, as well as the month and year, the patent was granted.</p> <p>2. Patents <&wkey;>222 — Notice of infringement of article not marked must be as specific as required statutory mark; “due notice.”</p> <p>To constitute “due notice” of infringement of an unmarked patented article, which will entitle the patentee to recover damages for the infringement, under Rev. St. § 4900 (Comp. St. § 9446), the actual notice must be as specific as that required by the statute to be marked upon the article, and a mere statement to a defendant by a person unknown to him that his article is an infringement of a patent is not sufficient.</p> <p>[Ed. Note — -For other definitions, see Words and Phrases, First and Second Series, Due Notice.]</p> <p>3. Patents <&wkey;222 — -“Damages,” in Rev. St. § 4900 (Comp. St. § 9446), includes profits.</p> <p>In Rev. St. § 4900 (Comp. St. § 9146). providing that, where the patented article has not been marked and no notice of infringement given, “no damages shall be recovered by the plaintiff,” the word “damages” includes profits.</p> <p>[■Ed. Noto.' — For other definitions, see Words and Phrases, First and Second Series, Damage — Damages.]</p> <p>4. Patents <&wkey;322 — Where no infringement is found prior to filing of bill, there can be no accounting for damages or profits.</p> <p>Under Rev. St. § 4921 (Comp. St. § 9467), providing that, “upon a decree being rendered * * * for an infringement,” plaintiff shall be entitled to recover profits and damages, a decree finding infringement is a prerequisite to an accounting, and where by reason of failure to mark the patented article or to give notice' as required by Rev. St. § 4900 (Comp. St. § 9446), no actionable infringement can be found prior to the filing of the bill, an accounting may not be directed for subsequent infringement.</p>

<p>1. Patents <&wkey;328 — 814,786, claim 43, for* talking machine, held net irafringed.</p> <p>The Johnson patent, No. 834,786, for a talking machine, claim 42, which relates to the sound conveyor, consisting of a constantly tapering sound tube and the horn proper coupled thereto, construed in the light of the speciiication, held not infringed.</p> <p>2. Patents <&wkey;328 — 814,848, claims 1 and 11, for talking machine horn, held not infringed.</p> <p>The Johnson patent, No. 814,848 for horn for talking machines claims 7 and 11, held not infringed.</p>

Suit in equity by the Curtiss Aeroplane & Motor Corporation and Glenn H. Curtiss against Albert S. Janin and the Janin Company, Inc. Decree for defendants, and complainants appeal. Suit is brought under Rev. Stat. § 4915 (Comp.

Mack, Circuit Judge, dissenting. Appeal from the District Court of the United States for the Southern District of New York. Suit in admiralty by I,. Telles De Vasconcellas against the steamship Sarnia; the Sarnia Steamship Corporation claimant. From th;e decree, libelant appeals. . The libelant is a citizen of the republic of Portugal and a resident of the city of Lisbon therein.

Mantón, Circuit Judge, dissenting. Appeal from the District Court of the United States for the Southern District of New York. Suit in equity by the International Signal Company against the Vree-land Apparatus Company, Inc., and Frederick K. Vreeland. Decree for defendants, and complainant appeals.

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Proceeding for contempt by the United States against Csesar Dal Pino. Defendant brings error.</p>

Action by the Dang & Gros Manufacturing Company against the Ft. Wayne Corrugated Paper Company, in which defendant admitted the claim sued On, but filed a counterclaim. Judgment for plaintiff for only the difference between its claim and the counterclaim, and plaintiff brings error. The Manufacturing Company, plaintiff in error, sued the Paper Company, defendant in error, for $11,065.47 for merchandise sold.

<p>Petition for Leave to File Petition in Nature of Bill of Review in the District Court of the United States for the Eastern District of Wisconsin.</p> <p>Suit by Niels A. Christensen and another against the National Brake & Electric Company. On petition by tire defendant to the Circuit Court of Appeals for leave to file in the District Court a petition in the nature of a bill of review. The petition was denied (258 Fed. 880), but the order was reversed by the Supreme Court (254 U. S. 425, 41 Sup. Ct. 154, 65 L. Ed. 341).</p>

Action by Mary J. Gallery against the Supreme Council, Catholic Benevolent Legion. Verdict for plaintiff, and defendant brings error. The action was upon a benefit certificate issued in 1884 to Wm. J. Onahan by plaintiff in error, a fraternal benefit society chartered by the state of New York. The certificate provides for payment of $5,000 maximum to the beneficiary named upon death of the member.

<p>Appeal from the District Court of the United States for the Western District of Pennsylvania; Charles P. Orr, Judge.</p> <p>In the matter of the Harry Davis Restaurant Company, bankrupt. Klliot Frederick, trustee, appeals from an order allowing the claim of Louis A. Meyran.</p>

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Action at law by the Evans Coal Company against the Wickham & Burton Coal Company. Judgment for plaintiff, and defendant brines error.</p>

<p>Appeal from, and Petition to Review and Revise Order of, the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>In the matter of the O’Gara Coal Company, bankrupt. From an order of the District Court, made on petition of Frank G. Gardner, trustee, the Chicago Title and Trust Company, as receiver of the Fa Salle Street Trust and Savings Bank, appeals, and also files petition to review and revise.</p> <p>In 1913 O’Gara Coal Company became bankrupt. It owed the La Sallo Street Trust & Savings Bank a nolo for 815,000. Trustees of bankrupt deposited funds of the estate in this bank, which was an authorized depository of the District Court. In June, 1913, the bank became insolvent and suspended business, and a receiver was appointed in the state court. On suspension of the hank the deposit of the trustee was almost $20,000. The state court appointed a receiver for the bank, who, in September, 1914, exhibited in the bankruptcy court proof of unsecured claim against the bankrupt, based on said note due the hank, which was allowed in full. June, 1916, trustees in bankruptcy filed in tbe state court claim for the amount of such deposits and demanding priority for the claim. Afterwards the demand for priority was abandoned, and claim allowed in full as a general claim. In the liquidation of the assets of the bank its receiver has paid creditors two dividends, the trustee in bankruptcy being paid as such dividends, on its claim allowed against the bank for the deposits, August, 1916, $4,963.35, and June, 1918, $1,985.34.' May 22, 1918, trustee in bankruptcy filed its petition in the bankruptcy court, setting forth the facts substantially as above stated, and alleging that by section 68 of the Bankruptcy Act (Comp. St. § 9652) the trustee is entitled to set off against the claim of the receiver of the bank the amount which is due to the bankrupt estate from the bank as aforesaid, praying for decree setting off such claims, and that upon payment of balance, if any, which may then be due on such note, certain collateral which accompanied said note may be ordered to be surrendered by the receiver of the bank. October, 1920, the referee entered an order granting the prayer of the petition for set-off and decreeing accordingly, and February, 1921, the district court confirmed such order and decree. The matter is brought here both by appeal and petition to review and revise.</p>

<p>Patents &wkey;>328 — 780-,086, for vending device, held void for lack of lawful utility and invention.</p> <p>The Brewer patent, No. 780,086, for a vending device or punch board intended for use as a lottery device, held, void for want of lawful utility, and also for lack of invention, in view of the prior art.</p>

<p>1. Vendor and purchase? <&wkey;36(2) — Representations by vendor that laud was “irrigable” means at reasonable post.</p> <p>A representation by a vendor that the land sold is “irrigable” agricultural land is to be understood as meaning that it can be irrigated at a reasonable cost, which would make its irrigation practicable for agricultural purposes.</p> <p>2. Vendor and purchaser &wkey;>37 (4) — -Rule of caveat ermptor held not applicable, whore land represented to be irrigable.</p> <p>The rule of caveat emptor cannot be invoked by the vendor of a large tract of land against the purchaser, where he represented the tract to be irrigable agricultural land, whereas fully half of it could not be irrigated, except at a prohibitive cost, and where his agent, in showing the land to the purchaser, purposely took him only on the level part, from where, because of intervening brush, ho could not see the broken character of the other part.</p>

<p>Sales <&wkey;rn — Facts held not to authorize cancellation of contract by seller.</p> <p>A contract for sale of 10,000 cases of condensed milk, to he shipped under buyer’s labels and delivered f. a. s. New York, held not subject to cancellation by the seller after shipment of 2,000 eases, because the labels furnished were a few short of the total number required, of which fact the buyer was not notified, nor because, owing to delay in obtaining shipping permits, the buyer directed shipment to stations in New York other than the docks, which change was immaterial to the seller.</p>

<p>Appeal from the District Court of the United States for the District of New Jersey; Joseph U. Bodine, Judge.</p> <p>Suit for infringement on patent by the Chipman Chemical Engineering Co., Inc., against the Reade Manufacturing Company. From a decree holding the patent invalid (270 Fed. 677), complainant appeals.</p>

<p>Perjury <&wkey;10, 34(1) — Form of oaili immaterial; conviction may be based on iestimony of single witness, supported by documentary evidence.</p> <p>A conviction of perjnry may be based on the testimony of a single witness, though contradicted, supported by documentary evidence, and if the defendant was sworn the oath need not be in any particular form.</p>

<p>Brokers <&wkey;88(l) — Evidence held to sustain direction of verdict for defendant in suit for commission.</p> <p>Evidence held, to sustain the action of the trial court in directing a verdict for defendant in an action by a broker to recover a commission.</p>

<p>Criminal law <&wkey;109(M8,14) — Bill of exceptions essential to review of errors in evidence and instructions.</p> <p>A bill of exceptions is essential to the consideration of alleged errors in the admission of evidence and the instructions.</p>

<p>In Bankruptcy. In the matter of the Federal System of Bakeries of Maryland, Inc. On petition of the Federal System of Bakeries of America to reclaim property.</p>

<p>1. Patents '&wkey;32&wkey;878,895, for fabric turning machine, held valid and infringed.</p> <p>Tbe Palmer patent, No. 878,995, for a machine for feeding a hollow web of fabric onto a tube, held, valid and infringed.</p> <p>2. Patents <&wkey;237 — Infringemei&f not avoided by substituting equivalent.</p> <p>Where a “yielding means” constitutes an element of a patent claim, the substituting of a different yielding means for the coil spring in the patent device does not avoid infringement.</p> <p>3. Patents <&wkey;235 — Giving part an additional function does not avoid infringement.</p> <p>That a part in a patented machine is given an additional function in another machine does not avoid infringement.</p>

<p>At I/aw. Action by Henry M. Day & Co., Inc., against Schiff, ¡Lang & Co., a corporation. On motion by defendant to set aside and vacate summons.</p>

<p>In Admiralty. Suit by the John E. Moore Company and others against the Steamship Hallfried, with other suits for salvage service.</p>

<p>At Law. Action by Charles F. Hart against the American Concrete Steel Company.</p>

<p>Street railroads <&wkey;55 — Forfeiture of franchise not enforceable in foreclosure suit.</p> <p>In a suit to foreclose a mortgage given by a street railroad company, in which receivers have been appointed for defendant’s property, a city, which is not a party, will not be granted permission to take possession of and operate so much of defendant’s line as is within its limits, on the claim that it has summarily forfeited defendant’s franchise and that under the contract the city becomes owner of the property.</p>

<p>Criminal prosecution by the United States against Frank Shaffer. On motions by the United States to commit defendant and by defendant for extension of time to file bill of exceptions.</p>

<p>At Law. Action by the Burntisland Shipbuilding Company, Limited, for the use of Raeburn & Yerel, Limited, hgainst the Barde Steel Products Corporation. On demurrer to second count of declaration.</p>

<p>In Bankruptcy. In the matter of the Northern Hardwood Company, bankrupt. On review of order of special master disallowing claim of Christian Yousey.</p>

<p>In Equity. Suit by the Ramopa Company against A. Gastun & Co., Inc.</p>

<p>John T. Vannatta was indicted for conspiracy to violate the Volstead Act. On demurrer to the indictment.</p>

<p>Aliens <&wkey;32(8) — Status established by fair prepoiwTeraiice of evidence.</p> <p>On an issue as to the United States citizenship of a person of the Chinese race, he is not required to establish his citizenship beyond a “substantial doubt,” but only by á fair preponderance of the evidence.</p>

Habeas corpus by the United States, on the relation of Gittel Gott-lieb and another, against the Commissioner of Immigration of the Port of New York, or other person having the charge, custody, or control of the bodies of the relators.

<p>In Admiralty. Suit by Andrew Olsen against the steamship Muske-gon, formerly the Gotland; the American Transatlantic Steamship Company, claimant.</p>

<p>In Bankruptcy. In the matter of Fred Stone, bankrupt. On order to show cause why execution should not be stayed.</p>

<p>Maritime liens <&wkey;2 — Lien for supplies to foreign vessel depends on law of country where furnished, which must be pleaded and proved.</p> <p>In a suit to establish and enforce a maritime lien for supplies furnished to a vessel in a foreign port, whether such lien exists, or whether the court has or will exercise jurisdiction, depends, on the law of the country where the supplies were furnished, which must be pleaded and proved.</p>

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Bill by the Washington Doan & Trust Company, a corporation, as executor of the estate of Matilda J. Ramsey, deceased, and as trustee under the will of said decedent, against Ethel G. B'laine, formerly Ethel M. Garrigus, Harriet S. Ramsey, and others, for a construction of the will, and for instructions concerning the disposition of the property of the estate. From the final decree, the Trust Company and defendants Ethel G. Blaine, Harriet S. Ramsey, and another appeal.</p>

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Suit by Frank Janes against Audroneke Janes, administratrix of the estate of John Janes. Decree for defendant, and plaintiff appeals.</p>

<p>1. Reference <&wkey;100(7) — Failure to except to auditdr’s findings admits they are correct.</p> <p>Under Code, § 254, authorizing judgment on the auditor’s report, if no exceptions are taken thereto, failure to except to a finding in the report is equivalent to an admission it is correct.</p> <p>2. Reference <©=>100(3) — Exceptions to subordinate finding unavailing, after admission of ultimate finding.</p> <p>Exceptions to the action of the auditor in rulings on testimony and to a finding that plaintiff was not bound to account to defendant for certain moneys, if erroneous, are unavailing to defendant, where the ultimate findings by the auditor that the contract in controversy was absolute and not conditional, and that defendant was indebted to the plaintiff in the amount stated, were admitted by defendant’s failure to except thereto.</p> <p>3. Reference &wkey;109(2) —Exceptions may be taken only to items found by auditor.</p> <p>Under Code, § 254, requiring a party excepting to the report of the auditor to point out particularly the items which he wishes to challenge, and to state the grounds of his exception, exceptions can be taken only to the findings — items in the report, and not to matters outside of the report, such as erroneous rulings on evidence, though such rulings may be included as grounds for the exceptions to particular items.</p>

Two petitions by B. E. Trappey & Sons against K. Mcffiienny’s Son, for the cancellation of two trade-marks. Prom decisions of the Commissioner of Patents, canceling the trade-marks, the registrant thereof appeals,

<p>1. Patents <5=»81(1) — Junior applicant has burden of proof in interference proceeding.</p> <p>In interference proceedings, the junior party has the burden of proof.</p> <p>2. Patents <&wkey;133(7) — -Judgment of office tribunals on question requiring knowledge of drawings is entitled to great weight.</p> <p>Where the question whether drawings of the senior party in interference proceedings, in connection with the statements in the specifications, disclosed the claims in issue was very close and its determination required a thorough knowledge of drawings, supplemented by the ability to apply specifications to drawings, as to which the Patent Office tribunals were experts, their judgment is entitled to great weight.</p> <p>3. Patents <&wkey;113(7) — Concurrent findings of three tribunals, as to priority not reversed unless dearly wrong.</p> <p>Where the three tribunals of the Patent Office concurred in holding that the senior party was the prior inventor, their finding will not be reversed unless it appears to be clearly wrong.</p>

Interference proceedings between Edward E. Clement and James L. McQuarrie and another. From a decision of the Commissioner of Patents awarding priority to McQuarrie and another, Clement appeals.

<p>1. Patents &wkey;>26(2) — Combination of three types of tire changing devices in one wheel held invention.</p> <p>The combination in one wheel of the three existing systems of tire changing device, demountable wheels, demountable rims, and quick detachable rims, produced a new result and disclosed invention entitling the inventor to a patent.</p> <p>2. Patents <&wkey;36 — Doubt as to invention is resolved in favor of applicant.</p> <p>Where the question as to invention or mere mechanical skill is close, the doubt is resolved in favor of the applicant.</p> <p>3. Patents <&wkey;113(8) — Applicant limited' to 1 claim out of 16.</p> <p>Where 1 claim out of the 16 erroneously rejected by the Patent Office completely covered applicant’s contribution to the art, the rejection of the other claims will be affirmed to avoid inviting controversy and litigation.</p>

Application by Christine M. Kernan for registration of a trademark, opposed by the Quaker City Chocolate & Confectionery Company, Inc. From a decision of the Commissioner of Patents against the opposer, the opposer appeals.

<p>In Error to the District Court of the United States for the Eastern District of Tennessee.</p> <p>.Action by Benjamin H. Davis against the County of .Hamilton, Tenn. 'Judgment for plaintiff, and defendant brings error.</p> <p>The county in which the city of Chattanooga is located desired to build a bridge across the Tennessee river. Por that purpose the county employed Mr. Davis, the defendant in error, as consulting engineer, and agreed to pay him for his services in planning the bridge and supervising its erection a 5 per cent, commission upon its cost. In the course of the erection it was found that extensive changes were necessary in the plans and much expense was incurred beyond that contemplated. A controversy arose between the county and the engineer. He was discharged, and the work was completed under other supervision. Thereupon he brought this suit against 1he county in the court below, claiming that his total compensation, for his commission and extras, should have been about $73.000, admitting payments and offsets amounting to about 525,000 and asking judgment for the balance of 548,000.</p> <p>Upon a jury trial he recovered a verdict of .815,000, and had judgment for that amount. The county brings the case here under a writ of error, relying in one form or another upon the defense that there had been no authority on the parf of the county or its agents to make a contract for a commission upon any sum in excess of 5500,000, and that, if any such more extensive contract had been made, it had not been raiified.</p> <p>The basis of the controversy is found in chapter 25 of the Private Acts of 1913 (Extra Session) of the Tennessee Legislature. Tt provides in section 1 that the county “is hereby authorized and empowered to construct a bridge * * * and to issue and sell for the purpose of paying for the same its negotiable coupon bonds in an amount not exceeding 5500,000.” Upon the one side, it is claimed that the authority of the county and of its agencies was thereby limited to the erection of a bridge within the specified cost. Upon the oilier side it is insisted that other statutes gave the county general authority-on this subject, and that the only effective limitation of this particular statute was as to the amount of bonds which could be issued for this purpose.</p> <p>Shortly after the passage of the act, the proper county authority (being the-county court) appointed a committee, known as the “Tennessee River Bridge Committee,” with specified powers and restrictions, among which were: “(4) After the design of the said bridge is adopted by the committee and approved by the War Department, to advertise for bids for the erection of same and to let the contract for the building of said bridge to the lowest and best bidder, provided the total cost of the erection should not exceed five hundred thousand dollars.”</p> <p>Thereupon the committee advertised, requesting bridge engineers to submit competitive designs and estimates, and stated in the advertisement that the county had voted a bond issue of $500,000 for the erection of such bridge. Davis wrote the committee requesting some information, and the committee replied, saying among other things, “cost of structure complete must not exceed $500,000.” On March 27, he submitted to the committee a letter in which he said: “For 5 per centum of the total cost of the bridge and approaches, inclusive of movable span, I agree to do the full and complete engineering of the structure.” He then specified what the services would be, and among other things said: “Your committee shall have its own free choice as to which type of movable span it prefers and the' appropriation will permit.”</p> <p>To this the committee replied with a letter to Davis, saying that: “Conditioned on your securing the approval of the War Department of a span for a concrete bridge, acceptable to our committee, within a reasonable length of time to be determined by the said committee, you will be awarded the contract as consulting engineer for the construction of said bridge, as per your proposal contained in your letter of the 27th of March.”</p> <p>Thereafter, under Davis’ supervision, borings were made at points on the bank and in the river, to determine the foundation conditions for the piers, and he prepared complete plans and specifications. He reported to the committee that there were going to be several bids, and he thought they would be low enough so as to build the bridge within the appropriation. Somewhat later he applied to the committee for a payment on account of his services. In reply the committee recited the understanding between them that, if it was found that the bridge which he was designing could not be built within the appropriation, he should be paid a reasonable price for his services so far rendered, and further reciting that, since it could not be ascertained until the bids were in whether the bridge could be built within the appropriation, an advance payment was thereby offered to him, to be considered as a part of the proposed reasonable compensation in case the bridge could not be built for the sum named, or as a-payment on account of the 5 per cent, commission in case a contract should be made with a bidder to construct the bridge for a price within the $500,000 limit. This payment was accepted by Davis without question as to the conditions.</p> <p>When the bids were opened they were such that it was apparent that contracts could be let to responsible bidders for about $460,000 based upon Davis’ estimate of quantities, and computed upon the unit plan. A formal contract was then made between Davis and. the committee, by which his duties as consulting engineer were specified and the committee agreed to pay him a commission of 5 per cent, “on the total cost of the entire construction and completion of the bridge.” The contract contains no reference to the proposed cost of the bridge, excepting as it says: “Upon the award" of any contract or contracts for the construction of said bridge and approaches, the estimated amount of the full commission shall be determined, and one-half of the same, less total previous payments, shall then be paid.”</p> <p>Thereupon the committee reported to the county court that it had employed Mr. Davis at a fee of 5 per cent, of the cost of the bridge and that contracts had been negotiated with bidders for its erection at a cost of not more than $460,000, and the county court thereupon passed a resolution ratifying these building contracts. The contract with Davis is dated October 26, 1014, and the contracts with the bidders are dated one October 31st and one November 23d, but they are pursuant to the informal awards made by the committee, prior to or simultaneously with the contract with Davis; all three contracts were practically part of one transaction, and the bridge contracts included the Davis plans and specifications.</p> <p>It turned out that the bridge as completed cost more than $1,000,000. Some changes were made by the committee, and for which Davis carried no responsibility, but these did not take the cost substantially above $500,000. The chief trouble was that the borings for the pier foundations, put down under Davis’ supervision, had either been made unskillfully or else he had failed to draw the right conclusions therefrom. It became necessary to carry these foundations very much deeper and to make them larger than Davis planned, and these changes gave rise to the bulk of the additional cost.</p>

Sanford, Judge. In the matter of the estate of Frank G. Moseley, bankrupt. Petition by Robert W. Thompson, as trustee in bankruptcy, against the Tennessee Finance Company and others, to have determined the right of the respondents to the wages earned by the bankrupt, under assignment of such wages. From an order denying the right of respondents to the earned wages, the named respondent appeals.

<p>1. Bankruptcy <&wkey;136(2) — Petition held to allege sufficient effort to purge of contempt for failing to turn over property.</p> <p>A petition by a bankrupt, who bad been committed for contempt for disobedience to an order that he turn over property to his trustee, which alleged that the bankrupt did not, at the time the order was entered, have the money under his control, and had not paid it over to any-one for him, that he was without funds and unable to comply with the order to turn the money over to the trustee, and that his brother had advanced the money necessary to pay the bankrupt’s attorney and had supported the bankrupt’s family during the months the bankrupt had been in jail under the order, held to contain a sufficient showing of effort to purge the bankrupt of his contempt.</p> <p>2. Bankruptcy <&wkey;136(2) — Previous finding of indebtedness not conclusive as to present ability to pay.</p> <p>A previous finding that the bankrupt was indebted to the trustee, on which an order for his commitment for failure to turn the money over to his trustee was based, is not conclusive at a hearing on an application for release several months thereafter as to his present ability to pay.</p> <p>,3. Bankruptcy &wkey;'138(2) — Inipiisoumcut should not be continued after it appears obedience cannot be enforced thereby.</p> <p>The commitment of a bankrupt for contempt, under Bankruptcy Act, § 2(13), being Comp. St. § 9586, to enforce obedience to an order to pay funds to the trustee, should cease whenever it appears that obedience to the order cannot be secured by that means, so that further imprisonment is useless, since the bankrupt should not be subjected to an indefinite imprisonment without the sanction and support of the verdict of a jury.</p> <p>4. Bankruptcy <&wkey;136(2) — Discharge from commitment for refusal to turn ever property rests in court’s discretion.</p> <p>The determination whether the further imprisonment of the bankrupt to enforce obedience to an - order that he turn property over to his trustee, when the bankrupt claims an inability to comply with the order would he ineffective,.involves judicial discretion.</p> <p>5. Bankruptcy <&wkey;136(2) — Release of bankrupt front commitment for refusal to turn over property sustained.</p> <p>An order releasing a bankrupt from further imprisonment under a commitment for contempt for failure to pay over money to his trustee, entered after two references in .which the referees failed to find that the bankrupt had the ability to comply with the order, and where the bankrupt had been confined five months, and protested his inability to make the payment required, and the trustee had not located any property under the bankrupt’s control, will not be reversed on petition to revise.</p> <p>6. Bankruptcy <&wkey;136(2) — Release front commitment for failure to turn over property does not bar other remedies.</p> <p>The release of a bankrupt from commitment to enforce an order requiring him to turn over property to his trustee does not preclude resistance to an application for a discharge in bankruptcy, nor proceedings to recover property thought to have been fraudulently conveyed or concealed, nor criminal prosecution for such disposition.</p> <p>7. Bankruptcy <&wkey;446 — Facts cannot be reviewed on petition to revise release from commitment.</p> <p>On petition to revise an order releasing a bankrupt from commitment for refusal to turn over property to his trustee, the appellate court cannot review the facts.</p>

Appeals,from the District Court of the United States for the Southern District of New York. Suit in equity by George E. Vandenburgh against the Concrete Steel Company. From the final decree, both parties appeal.

Bourquin, Judge. _ _ Criminal prosecution by the United States against J. W. Willis. Judgment of conviction, and defendant brings error.

<p>Patents <&wkey;328- — 1,061,915, for a spark plug, held not to involve invention.</p> <p>The Johnston patent, No. 1,061,91.5, for a spark plug designed to produce a larger spark than heretofore obtainable, as limited by an earlier patent, held not to involve invention, but to show only such a meeháni-eally progressive step as the constantly improving art would naturally take.</p>

<p>, In Error to the District Court of the United States for the District of New Jersey; Joseph U. Bodine, Judge.</p> <p>Action by Mesh & Co., Inc., and others, against the Paterson Brewing & Malting Company. Judgment for plaintiffs, and defendant brings error.</p>

In the matter of John J. Reisler, bankrupt. From an order of the District Court, denying the application of the bankrupt» for his discharge (275 Fed. 65), said bankrupt appeals.

<p>Appeal from the District Court of the United States for the First Division of the Northern District of California; Frank H. Rudkin, Judge.</p> <p>Habeas corpus by Young Yen and Young Soon against Edward White, Commissioner of Immigration at Port of San Francisco. From a judgment discharging petitioners, respondent appeals.</p>

Appeals -from the District Court of the United States for the District of Delaware; Hugh M. Morris, Judge. Suit in equity by Uri T. Hungerford against the Owen Magnetic Motor Car Corporation. From an order refusing confirmation of sales by the receivers, and directing a new sale, Robert j. Metzler, Inc., Daniel Dryer, Alfred Damberg and Morey & Co., the purchasers, separately appeal.

<p>Aliens <&wkey;S2 — Claiming exemption from military service before declaration of intention not a bar to naturalization.</p> <p>The fact that an alien, within five years prior to his application for admission to citizenship, but before his declaration of intention, on registering under the Selective Service Act, in answer to an irrelevant question in the questionnaire, claimed exemption from military service as an alien, held not to show conclusively that he was not “attached to the principles of the Constitution of the United States and well disposed to the good order and happiness of the same,” which is a requisite to admission under Naturalization Act Juno 29, 1906, § 4 (4), being Comp. St. § 4352, but that question may he determined by other evidence.</p>

In Admiralty. Suit by William J. Gokey & Co., Inc., against the dredge Boston, with nine other cases. On motions by libelants for enforcement of their right to any sum paid or collected as damages for injury to the Boston in collision.

<p>In Bankruptcy. In the matter of the Glory Bottling Company of New York, Inc., alleged bankrupt. On motion to dismiss petition.</p>

<p>Trade-marks and traite-names and unfair competition <&wkey;95(l) — Temporary injunction refused, cm balancing off injuries.</p> <p>In a suit to restrain defendant corporation from using in connection with its goods the name of two of its principal officers, which was also used in the trade-mark of complainant, where it appeared that defendant and its affiliated companies had been using that name for years, and that no Injury which could not he compensated could result to plaintiff from the continued use until the final hearing, while a preliminary injunction would require defendant to change all of its advertising matter, cartons, etc., the preliminary injunction will not he granted.</p>

<p>Patents <&wkey;328 — 803,684, claim 1, for an auction, held valid and infringed, but claim 37 held not infringed.</p> <p>The Fleming Patent, No. 803,684, for a wireless telegraph and telephone device known as an “audion,” held, on motion for preliminary injunction, valid and infringed as to claim 1, by defendant’s device when used as detector, hut not infringed as to claim 37, by defendant’s device when used as an amplifier, or as a generator of high-frequency oscillations.</p>

<p>jRemuval of causes <&wkey;17 — lieieaisiami, loses right oí removal by appealing aril filing answer in state court.</p> <p>By appearing in the state court and filing an answer after return day, a defendant held to have lost the right to remove the cause.</p>

<p>1. Conspiracy <&wkey;43 (6) — Indictments for conspiracy to commit offense not specifically defined held insufficient.</p> <p>Indictments under Criminal Code, § 37 (Comp. St. § 10201), charging conspiracy “to commit an offense against the United States, that is to say, to violate title 2 of the National Prohibition Act in1 this, to wit, that the said [defendants] would then and there possess certain intoxicating liquors, to wit [stating number of cases of liquor], contrary to the provisions of said act,” without stating the hind of liquor, or otherwise alleging which of the many provisions of the Prohibition Act defendants conspired to violate, helé insufficient, as too general and not sufficiently informing defendants of the charge they were required to meet.</p> <p>2. Conspiracy i&wkey;>43(5) — Allegations of overt acts cannot aid indictment defective in substantive averments.</p> <p>In an indictment for conspiracy, allegations of overt acts cannot be re-' sorted to in aid of an insufficient averment of the offense which was the object of the alleged conspiracy.</p> <p>3. Conspiracy <&wkey;43(6) — Indictment held not to charge an offense.</p> <p>An indictment for conspiracy to violate the National Prohibition Act by possessing “certain intoxicating liquors [stating the number of cases], contrary to the provisions of said act,” without alleging any facts to show that such possession was unlawful, either on account of the time, place, or purpose of the possession, or the character of the liquor, helé not to charge an offense.</p> <p>4. Intoxicating liquors <&wkey;!3, 139 — Mere possession of liquor not a crime.</p> <p>National Prohibition Act Oct. 28, 1919, tit. 2, § 33, does not make the mere possession of intoxicating liquor a crime, nor would a law making possession a crime be within the power conferred on Congress to legislate for the enforcement of the Eighteenth Amendment, unless for the purpose of rendering effective the prohibition of manufacture, sale, transportation, importation, or exportation contained in the amendment, and appropriate to that end.</p> <p>5. Conspiracy <&wkey;43(5) — Overt act must be alleged to have been done to effect object of conspiracy.</p> <p>In an indictment for conspiracy under Criminal Code, § 37 (Comp. St. § 10201), an act charged as an overt act must be alleged to have been done “to effect the object of the conspiracy,” or words to that effect, and it is'not sufficient to allege that it was done “pursuant to said unlawful conspiracy.”</p> <p>6. Customs duties &wkey;>129 — Rev. St. § 3082, as applied to intoxicating liquors, superseded by National Prohibition Act.</p> <p>Eev. St. § 3082 (Comp. St. § 5785), imposing a penalty for smuggling or aiding in concealing or disposing of smuggled goods, as applied to intoxicating liquors, is superseded by National Prohibition Act, tit. 2, §§ 3, 29, which prohibit the importation of such liquor, except as therein authorized, and prescribes a less severe penalty for its violation.</p> <p>y„ intoxicating litjuors <&wkey;2!3 — Indictment for maintaining common nuisance held insufficient.</p> <p>An indictment nuder National Prohibition Act Oct. 28, 1019, tit 2, § 21, for maintaining a common nuisance, which alleged in substance that defendants, at some time and at some place within the district, did unlawfully keep —■ cases of intoxicating lianor on board a certain launch, held, insufficient, in that it did not specify the time or i>laee or describe the vessel or the liquor, or set forth any facts showing- that the “keeping” was unlawful, or that it was kept for sneh time as to constitute a “maintaining,” within the statute.</p>

<p>Intoxicating liquors <&wkey;!3 — Amendment of Prohibition Así, prohibition prescription of by physicians, hold constitutional; “appropriate legislation.”</p> <p>National Prohibition Act as amended by Act Nov. 23, 1921, providing that “only spirituous and vinous liquors may be prescribed for medicinal purposes, and all permits to prescribo and prescriptions for any other liquor shall be void,” held within the power conferred on Congress by Eighteenth Amendment, § 2, to enact “appropriate legislation” for its enforcement.</p>

<p>1. Searches and seizures &wkey;>7 — No constitutional prohibition of search without warrant.</p> <p>The Fourth Amendment, providing that “the right of the people to he secure in their persons, houses, papers, and effects against unreasonable search and seizures shall not be violated, and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized,” contains no prohibition of arrest, search, or seizure without a warrant, but only against “unreasonable” searches and seizures.</p> <p>2. Arrest <&wkey;63(3) — Criminal law &wkey;>395 — Intoxicating liquors <&wkey;249, 255 — > Poison found with liquor on his person may be arrested without warrant and searched, and the liquor seized and used as evidence!, and defendant is not entitled its return.</p> <p>Under National Prohibition Act Oct. 28,1919, tit. 2, § 25, providing that “it shall be unlawful to have or possess any liquor * * * intended for use in violation of this title, * * * and no property rights shall exist in any such liquor,” a prohibition agent held to have authority to arrest without warrant a person found on the street with whisky on his person, and to search him and seize such liquor; and such person held to have no right to the return of such liquor which may be retained and used as evidence against him.</p> <p>3. Words and phrases —“Probable cause.”</p> <p>“Probable cause,” which will justify a criminal accusation, is a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a, cautious man in his belief that the person accused is guilty of the offense with which he is charged.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Probable Cause.]</p>

<p>1. Intoxicating liquors <&wkey;275 — Evidence held to establish maintenance of common nuisance.</p> <p>Evidence held to establish the allegation that defendant maintained a common nuisance on premises by the manufacture and sale of intoxicating liquor thereon, which rendered them subject to injunction and abatement, under National Prohibition Act, tit. 2, § 22.</p> <p>2. Intoxicating liquors ¡§=3260 — Common nuisance same for purposes of criminal prosecution and injunction suit.</p> <p>What constitutes a common nuisance for the purpose of a criminal prosecution, under National Prohibition Act, tit. 2, § 21, also constitutes a common nuisance for the purpose of an injunction suit, under section 22.</p> <p>3. Intoxicating liquors &wkey;>26! — Single sale of liquor, with possession of other liquor on the premises, constitutes maintenance of common nuisance.</p> <p>A single sale of intoxicating liquor on premises, accompanied by the unlawful possession of other liquor thereon, is sufficient to warrant the granting of an injunction under National Prohibition Act, tit. 2, § 22, for maintenance of a common nuisance.</p>

<p>1, Bankruptcy &wkey;318(2) — Claim for damages for breach of executory cm*. tract provable.</p> <p>A claim for damages for breach of an executory contract for services to be rendered to the bankrupt, further performance of which was pe-vented by the bankruptcy, is provable.</p> <p>2. Bankruptcy <&wkey;92, 328 — Court may fix time less than one year for filing of claims; in proceedings looking to dismissal all creditors may be required to prove claims.</p> <p>The provision of Bankruptcy Act, § 57n (Comp. St. § 9641), that claims shall not be proved subsequent to one year after adjudication, is a limitation, and does not preclude the court from- fixing a shorter time within which claims must be proved, as in proceedings looking to a dismissal of the petition, as provided in section 59g (Comp. St. § 9643), in which case the court may require all creditors scheduled and notified to prove their claims before the hearing.</p>

<p>Patents <&wkey;328 — 1,224,880, for electric switch and fuse box, held valid and infringed.</p> <p>The Kries patent, No. 1,224,880, for an electric switch and fuse box for use where electric wires enter a building in which the switchboard and fuses are in separate compartments, the former of which may be locked and made inaccessible to consumers, held not anticipated, valid, and infringed.</p>

<p>In Equity. Suit by the American Metal Cap Company against the Anchor Cap & Closure Corporation.</p>

<p>In Equity. Suit by Conrad1 Hubert and two corporations against Sergius Apostoloff and another; also two suits by defendant, each against one of the corporate complainants.</p>

<p>1. Intoxicating liquors <&wkey;274 — -Requisites of bill, to enjoin nuisance.</p> <p>In a suit under National Prohibition Act, tit. 2, § 22. to enjoin a nuisance the bill must set forth the facts which constitute the nuisance, and if the sale of liquor in the premises is alleged it must appear that it was sold, kept, or bartered habitually, continually, or recurrently, and a general allegation that liquor has been and is being sold and kept for sale therein is insufficient.</p> <p>S. Intoxicating liqiors <&wkey;21>l — To constitute place a nuisance, its unlawful use must have been with owner’s knowledge, actual or implied.</p> <p>To constitute a place a common nuisance, which may be closed to use by injunction, under National Prohibition Act, tit. 2, § 22, its unlawful use must have been with the consent of the owner, or he must have had knowledge or reason to believe it was so used.</p> <p>8. Intoxicating liquors &wkey;>271 — Bill to enjoin nuisance must allege specific violation of statute.</p> <p>Under National Prohibition Act, tit. 2, § 21, providing that any building or place where liquor is “manufactured, sold, kept or bartered in violation of this title is hereby declared to be a common nuisance,” a bill for art injunction to close a place as a nuisance under the following section 22 must allege specifically what violation of the statute was committed therein, and it is not sufficient to allege in the disjunctive that liquor was manufactured, sold, kept, or bartered on the premises.</p> <p>4. Intoxicating liquors <&wkey;274 — Allegations on information and belief insufficient to warrant injunction.</p> <p>A bill to enjoin a nuisance, under National Prohibition Act, tit. 2, § 22, is insufficient to authorize the granting of a temporary injunction, where the allegations are made on information and belief.</p>

<p>In Bankruptcy. In the matter of the estate of J. L. Bowers, bankrupt. On a review of a judgment allowing an amendment of schedule, so as to waive and renounce claim of homestead.</p>

<p>L Patents &wkey;j20 — Making a thing in one piece that was before in two pieces does not give patentability.</p> <p>Any new function or effect, where making a thing in one piece that was before made in two, does not give it patentability, unless there is evidence of “unexpected properties or uses capable of producing a novel result.”</p> <p>2. Patents &wkey;>l ¡2(5) — Changes requiring only skilled mechanic not patentable.</p> <p>When the court is satisfied that changes in old devices require only the exercise of the skilled mechanic, the presumption of patentability running with the allowance of the patent is overcome.</p> <p>3. Patents <&wkey;328 — 1,054,677, for improvements in coolers for liquids, held invalid.</p> <p>Cordley patent, No. 1,054,677, for improvements in coolers for water and other potable liquids, held invalid.</p>

<p>1. Appeal and error <&wkey;883 — Party estopped by consent to submission of issue to jury.</p> <p>A defendant, whose counsel withdrew objection to evidence tending to show that by its conduct it had waived its right to recover damages pleaded as a counterclaim, and expressed his willingness that the question be submitted to the jury, held estopped to complain of such submission.</p> <p>2. Pleading <&wkey;427 — Failure to plead waiver immaterial, where evidence is admitted without objection.</p> <p>Where evidence tending to show that defendant by its conduct had waived the right to claim damages pleaded as a counterclaim, such evidence may properly be considered in determining whether defendant has established its counterclaim, and the fact that waiver was not pleaded as a defense is immaterial.</p>

In'Equity. Suit by I/mis Nekritz, doing business under the name of Perfect Polish Company, against Charles A. Klein, doing business under the name of Standard Polish Company.

Division of the Northern District of California; William C. Van Fleet, Judge. . . _ . . _ Suit in equity by the California & Oriental Steamship Company against the Norsk Ii'ydro-Elektrisk Kvaelstof Actieselskab and Bjarne Eriksen. From an order appointing a receiver, defendants appeal. The bill in this case w,as filed July 16, 1921, and service thereof with summons was made upon the defendants, who are the appellants here, two days thereafter, to wit, July 18, 1921.

District Court of the United States for the Territory of Hawaii; J. B. Poindexter, Judge. Habeas corpus by Buntaro Kaneda against the United States to procure applicant’s discharge from custody of the immigration service. From a judgment discharging the writ, and remanding applicant to custody, applicant appeals.

<p>1, Equity <&wkey;339 — Answer under ©ath is evidence for defendant.</p> <p>When a bill does not waive answer under oath, the answer of a defendant under oath, directly responsive to the bill, is evidence in his favor.</p> <p>%. Evidcnee <&wkey;591 — Witnesses <&wkey;33-i — -Complainant, calling defendant as witness, is estopped to deny Ms credibility, mid baimd by testimony.</p> <p>A complainant, who calls a defendant as a witness, is estopped to deny his credibility, and is bound by his testimony, unless it is countervailed by other evidence.</p> <p>3. Patpjrets <&wkey;328 — 1,131,138, for an evaporator, elaito 8, held void for lack ©f invention.</p> <p>The Row patent, No. 1,131,738, for an evaporator, claim 8, held void for lack of invention, in view of the prior art.</p>

Petitions to Revise Orders of the District Court of the United States for the Southern District of New York. In the matter of Max Mitchell, alleged bankrupt.

<p>In P'rror to the District Court of the United States for the Western District of Missouri; Arba S. Van Valkenburgh, Judge.</p> <p>R. D. Caudle was convicted under an indictment charging conspiracy to break seals of railroad cars and steal freight, and the unlawful breaking of a seal and the entering and stealing of property therefrom, and the felonious possession or reception of the same, and brings error.</p>

Libel in admiralty by the Central Railroad Company of New Jersey against the steam tug Morristown, of which the Delaware, Lackawanna '& Western Railroad Company wa"s. claimant, in. which the claimant impleaded the steam tug Flemington. From a decree dismissing the libel, libelant appeals.

Libel in admiralty by the Standard Oil Company of New York against the steam tug William H. Taylor, of which the Morris & Cum-ings Dredging Company was claimant. From a decree awarding half damages to the libelant, both the libelant and claimant appeal.

<p>Mines and minerals <&wkey;31 (2) — “Discovery vein” determines the end and side lines of claim.</p> <p>The discovery vein is the primary vein for the purpose of locating a mining claim and determining which are the end and which the side lines, and where the discovery vein crosses the opposite side lines of the claim as located, the side lines become end lines, not only with respect to such vein, but for determination of extralateral rights in any other vein which apexes within the claim.</p>

<p>In Error to the District Court of the United States for the Southern Division of the Northern District of California; William C. Van Fleet, Judge.</p> <p>Action at law by Cotton & Co., Incorporated, against the Ozmo Oil Refining Company and Petroleum Products Company. Judgment for plaintiff, and defendants bring error.</p> <p>■The defendant in error brought an action against the plaintiff in error to recover damages for breach of contract. The parties will be named plaintiff and defendant as in the court below. The case was tried before the court without a jury.' The following is the substance of the court’s findings of fact:</p> <p>That on October 14, 1918, the parties contracted in writing as follows: The defendant agreed to sell and deliver to the plaintiff at Buffalo, N. Y., 700 tons of paraffin wax, 50 tons to be shipped each month, beginning with November, 1918, and ending with December, 1919, for which the plaintiff was to pay 9% cents per pound in car lots, f. o. b. at San Francisco; that the plaintiff complied with the terms of the contract, but the defendant failed to .deliver any of said merchandise, and wholly failed to comply with the contract; that on or about September 30, 1918, and prior to the execution of said agreement, the plaintiff sold 600 tons of said wax to the Standard Oil Company of New York, the same to be delivered 50 tons monthly from January to December, 1919, at 10% cents per pound in car lots f. o. b. San Francisco, which sale was not consummated because the defendant did not deliver any of the wax mentioned in the original agreement; that the plaintiff prior to the execution and delivery of the agreement sold 100 tons of wax to Mitsui & Co., the same to be delivered 60 tons monthly in November and December, 1918, at 10% cents per 'pound in car lots Í. o. b. San Francisco, which sale was not consummated because the defendant did not deliver any of the wax mentioned in the contract; that prior to the execution and delivery of the contract the defendant well knew, and the plaintiff informed it, that plaintiff was about to purchase the wax mentioned in said agreement for resale, and had resold the same; that on September 17, .1918, the Ijlaintiff notified defendant by letter that it intended to offer the wax in question for sale. On September 80, 1918, it telegraphed the defendant that it had sold the wax to responsible parties, and on October 3, 1918, it wrote the defendant that the wax had been sold to responsible parties, and on October 8, 1918, plaintiff wrote defendant that it had sold the wax to the Standard Oil Company of Now York and to Mitsui & Oo.; that the total price to be paid by the plaintiff under the contract was $129,500; that the resale price of 600 tons to the Standard Oil Company was $121,500, and the resale price of 100 tons to Mitsui & Co. was $21,000, making a total resale price of $142,500; that the plaintiff has been damaged in the sum of $13,000, with Interest from May 31, 1919, the average due date of the payments which would have been made from the Standard Oil Company and Mitsui & Oo.</p>

<p>In Error to the District Court of the United States for the Eastern District of Missouri; Charles B. Faris, Judge.</p> <p>H. J. Reineke and another were convicted of larceny from a box car and having the stolen property in possession, respectively, and bring error.</p>

Libel in admiralty by Donald J. Sargent against the steam tug R. G. Townsend, her engines, etc.; the Cornell Steamboat Company, claimant. Decree for claimant, and libelant appeals.

<p>In Error to the District Court of the United States for the Southern District .of Iowa; Martin J. Wade, Judge.</p> <p>Elmer G. Dickson was convicted of violating the Espionage Act, and he brings error.</p>

<p>In Error to the District Court of the United States for the Second Division of the Northern District of California; Frank H. Rudkin, Judge.</p> <p>Action at law by George U. Hind and James Rolph, Jr., against the Western Union Telegraph Company. Judgment for defendant, and plaintiffs bring error.</p> <p>The plaintiffs were grain merchants at San Francisco. They had barley to sell. On February 24, 1916, they sent their agents in London a message offering a cargo of barley at 63s. ,9d., “including war risk insurance,” meaning that the sellers would pay the war risk insurance. On the following day the agents replied that buyers declined the offer, but they submitted an offer to purchase the barley at 62s. 6d., “including war risk,” meaning thereby that the sellers would pay such insurance. The message, in its transmission from New York to San Francisco over defendant’s lines, was altered by tlie insertion of tlie word “not” before tlie words “including war risk.” Tlie plaintiffs accepted the offer as it came to them and without knowledge of the alteration, and they shipped the barley and received therefor the purchase price of 62s. 6d. Later they were required to pay the war risk insurance in the sum of $6,970.54. To recover that sum they brought action against the defendant, alleging in their complaint that the defendant failed to exercise reasonable care, and was grossly negligent in transmitting the message, and that they, the plaintiffs, would not have accepted the offer if it had come to them in its original terms. The cause was submitted to the court below upon an agreed statement of facts, and thereupon judgment was rendered for the defendant. Among the stipulated facts are these: That the plaintiff received a profit of $80,000 on the sale, that on or about the date of the transaction there was no particular market price for barley, and that the price the plaintiffs actually received was the best which their agents could secure at that time. It was further stipulated that one of the plaintiffs would have testified that the plaintiffs would not have accepted the offer set forth in the message, if the same had been transmitted as filed by the agents.</p>

Petition for Revision of an Order of the District Court of the United States for the Southern District of Ohio; John E. Sater, Judge. In the matter of the Franklin Tractor Company, bankrupt. On petition to revise order of District Court.

<p>Allens <&wkey;32(9) — -Record held to show fair hearing on claim of Chinese that he was son of citizen.</p> <p>A record, showing that a Chinese, who claimed the right to enter as the foreign-born son of a citizen, had a hearing before a board of special inquiry, at the close of which he was allowed 10 days’ further time for additional evidence, of which he did not avail himself, and that the entire record was forwarded to the Secretary of Labor, before whom the applicant was represented by attorneys, shows that he was afforded a fair hearing.</p>

<p>In Bankruptcy. In the matter of William Bernard, bankrupt. On motion to expunge claim from schedules as one not dischargeable.</p>

<p>Jn Equity. Suit by Daniel J. O’Neil against the Co-Operative Deague of America. ()n exceptions to the master’s report.</p>

<p>Petition by Benjamin Shanin for naturalization,</p>

<p>In Equity. Suit by Csesare Marcucci, doing business as the National Tin Can Manufacturing, against the United Can Company, Inc. On motion for preliminary injunction.</p>

<p>In Bankruptcy. In the matter of the Astell Engineering & Iron Works, Inc., bankrupt. On motion of trustee to confirm report of special commissioner, holding chattel mortgage by bankrupt void.</p>

In Admiralty. Suit by the Pocomoke Guano Company against the Eastern Transportation Company, owner of the barge Columbia, and others. On petition for defendants for limitation of liability.

In Bankruptcy. In the matter of the Hartman-Blanchard Company, Inc., bankrupt. On review of the action of the referee in allowing the claim of one Blanchard for the purpose of voting for a trustee, and in selecting B. Roger Wales as trustee, because of the failure of any person to receive the vote of the majority of the creditors.

In Bankruptcy. In the matter of the estate of the Ann Arbor Machine Company, bankrupt. On petition of the Bourne-Fuller Company to review an order of the referee denying the claim of petitioner as a preferred claim.

In Equity. Suit by the Village of Hubbard, Ohio, against the United States and others, to restrain the enforcement of an order of the Interstate Commerce Commission. On motion by plaintiff for a preliminary injunction, and by defendants to dismiss the bill.

<p>Iu Equity. Suit by City of Wellsville, Ohio, against the United States and others. On motion of plaintiff for a preliminary injunction and motion of defendants to dismiss the bill.</p>

<p>In Admiralty. libel by the Queen Insurance Company of America against the Globe & Rutgers Fire Insurance Company. On final hearing.</p>

In Equity. Suit by the Pratt Lumber Company, Inc., against the T. H. Gill Company, in which creditors furnishing materials and labor intervened and sought priority.

<p>1. Shipping <&wkey;45 — “Default” in charier party means failure to comply with agreement to complete loading.</p> <p>“Default,” as used in a charter party in the common form, does not mean “fault,” but mei’ely failure to comply with the agreement to complete loading in the stipulated time; the only exception being vis major or its equivalent.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Default.]</p> <p>2. Shipping «§=>39 — Losses caused by government Interference left where they fall.</p> <p>Generally speaking, losses caused by government interference with the performance of charter parties are left where they fall, and are not to be transferred from one person to another, unless the latter has contracted to take the risk of them, or is otherwise obliged to do so.</p> <p>3. Shipping <&wkey;>33 — Charterer does not warrant that there will be no detention.</p> <p>A charterer does not warrant that there shall be no detention.</p> <p>4. Shipping «&wkey;>52 — Charterer field not liable far detention through government interference.</p> <p>A charterer of a ship with a cargo of coal held not liable for delay in loading caused by interference of the government, preventing the obtaining of a permit to load, though at the 'time of the making of the charter party coal was under government control.</p> <p>3. Shipping &wkey;>52 — Charterer held liable for delay caused by congested condition of part and action of government.</p> <p>Where government held up loading of coal for some time, and the harbor became congested before the government allowed pex-mits to be issued, a charterer of a ship with a cai-go of coal was liable for demurrage after the permits were issued, though the government retained control and determined the order in which the vessels should be loaded.</p>

<p>On petition of August Szumrak for writs of habeas corpus and cer-tiorari.</p>

In Equity. Suit bjr the Continental & Commercial Trust & Savings Bank against the New Orleans Drainage Company and others, with Wellington R. Burt and others as interveners. On exceptions to master’s report on distribution oí fund.

In Equity. Sait by the Firestone Tire & Rubber Company and another against the Marlboro Cotton Mills to restrain the enforcement of a default judgment. On complainants5 motion for temporary injunction and defendant’s motion to dismiss the bill.

<p>In Equity. Suit by the Central Metal P’roducts Corporation against William O’Brien and others. On motion for preliminary injunction.</p>

<p>In Equity. Suit by the American Brake Shoe & Founder Company against the Pere Marquette Railroad Company. On petition by the Pere Marquette Railway Company, as purchaser of the assets of defendant at the master’s sale, to restrain Frank Kozcnicki from collecting a judgment obtained by him against petitioner in a state court.</p>

<p>In Equity. Suit by the International Elatstub Check Book pom-pany, Incorporated, against the Young & Selden Company of Baltimore City.</p>

Habeas Corpus. Separate Petition for writs by Pasquale Le Grazie, as next friend, etc., by Juda Feld and others, by Sam Woniski, as next friend of Israel Woniski and as-next friend of Moses Tanenbaum, and by Vincenzo Giovanniello, each against Frederick A. Wallis. Commissioner of Immigration at New York. In the matter of Ben Rad-ziejewski.

•Appeal from the District Court of the United States for the Southern District of New York. Petitions for writs of habeas corpus by Juda Feld and others against Frederick A. Wallis, Commissioner of Immigration at New York.

<p>At Law. Action by William Toop and others against the Ulysses Land Company and others.</p>

In Equity. Receivership suit by the American Brake Shoe & Foundry Company against the New York Railways Company. On petition by the receiver for instructions. Petition of receiver for instructions in respect of the renewal of certain leases.

<p>In Bankruptcy. In the matter of the estate of Ernest E. Smith and others, bankrupts. On claim of Eolliard E. Gilmore.</p>

<p>In Equity. Suit by Angus R. Gross against Joseph Frank.</p>

<p>Patents <&wkey;288 — Allegation defendant maintained field office does not show established place ef business.</p> <p>In a bill for infringement of a patent, an allegation that defendant had a field office within the district, and therein constructed certain tunnels by a method infringing plaintiff’s patent does not show that defendant has a regular and established place of business within the district, which is necessary to give the court jurisdiction, under Judicial Code, § 48 (Comp. St. § 1030).</p>

J. Cochran, Judge. Bev Bailey and another were convicted of resisting internal revenue officers by the use of deadly weapons, and they bring error.

<p>Appeal from the District Court of the United States for the Eastern District of Kentucky at Catlettsburg; Andrew M. J. Cochran, judge.</p> <p>Suit by V irgil V. Adkins and others against the Union Gas & Oil Company and another to cancel an oil and gas lease. Decree for complainants, and defendants appeal.</p>

H. Seward Thomson, Judge. Action by A. K. Harsch against Max Kramer and another, partners trading as the Kramer-Horn Company. Judgment for plaintiff, and defendants bring.error.

<p>1. Carriers (&wkey;i 59(1) — Limitation in bill of lading of time for giving notice, filing claim, and commencing suit for loss or damage, held bar to recovery, except for negligence'through delay, or in loading or unloading, or in transit.</p> <p>Act March 4, 1915, c. 176, § 1 (Comp. St. § 8604a), requires a carrier to issue bills of lading, makes it liable to the lawful holder thereof for any loss, damage, or injury to the property caused by it or by any common carrier to which the property may be delivered, aud makes it unlawful to provide by rule, contract, regulation, or otherwise a shorter period for giving notice of claims than 90 days, and for the filing of claims of a shorter period than 4 months, and for the institution of suits than 2 years, “provided, however, that if the loss, damage, or injury complained of was due to delay or damage while being loaded or unloaded, or damaged. in transit by carelessness or negligence, then no notice of claim nor filing of claim shall be required as a condition precedent to recovery.” Held that, where a bill of lading contained limitations on the time for giving notice, filing of claim, and commencement of suit, all valid under the Statute, a failure to act within the time so limited is a bar to recovery against the carrier except for negligence, either through delay, or in loading or unloading, or in transit.</p> <p>2. Carriers <&wkey;l32 — Burden of proving negligence in loss of goods rests on plaintiff.</p> <p>Where liability of a carrier for loss of goods depends on its negligence, the burden of proving negligence rests on plaintiff, and while nondelivery, without excuse, is at common law regarded as making a prima facie case of negligence, where it appears that the goods were stolen, and the circumstances attending the theft as shown do not authorize an. inference of lack of reasonable precaution, plaintiff must go forward with the evidence.</p>

Appeal and Cross-Appeal from the District Court of the United States for the Southern District of Texas; Joseph C. Hutcheson, Jr., Judge. _ _ Suits in admiralty by the Boston-Virginia Transportation Company and the Freeport & Tampico Fuel Oil Corporation against the Com-pañía De Navegación Interior, S. A. From the decrees, both parties appeal.

<p>1. Taxation <&wkey;>I — Penalties &wkey;>l — “Tax” and “penalty” distinguished.</p> <p>A “tax” is a pecuniary burden laid upon individuals or property for the purpose of supporting the government, while a “penalty” is in the nature of a punishment and is collectible usually by fine or by suit, and jet the latter may be termed a duty or tax. and still be a penalty.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Penalty; Tax-Taxation.]</p> <p>2. Internal revenue &wkey;>45 — “Tax” provisions in National Prohibition Aet are “penalties” whose enforcement may be enjoined.</p> <p>The so-called taxes or penalties prescribed by the National Prohibition Act, tit. 2, § 35, on account of the sale or manufacture of intoxicants, are merely additional penalties for violation of a criminal statute, and a suit to enjoin collection of such penalties does not fall within Rev. St. § 3224 (Comp. St. § 5947), declaring that no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court.</p> <p>3. Internal revenue &wkey;>45 — Provisions as to distraint under revenue iaw do not apply to penal provisions of National Prohibition Act.</p> <p>The provisions of internal revenue laws relative to assessment, and summary collection by distraint of internal revenue taxes are not applicable to the assessment and collection of the taxes prescribed by the National Prohibition Act, tit. 2, § 35, as additional penalties for violation.</p>

Rose, Judge. Suit in admiralty for limitation of liability by Walker D. Hines, Director General of Railroads, and another, against John H. Butler and others. From an adverse decree (264 Fed. 986), plaintiffs appeal.

<p>Patents &wkey;>328 — 1,125,229, for filler tube cap for automobile radiators, held void for lack of invention.</p> <p>The Webster patent, No. 1,125,229, for filler tube cap for automobile radiators, assuming that the patentee, and not defendant, was the originator of the device, held void for lack of invention, as being merely for the reproduction in sheet brass of caps theretofore made in brass by casting without material change.</p>

Appeals from the District Court of the United States for the First Division of the Northern District of California. Libel by Richard J. Spencer and others for wages, transportation, and subsistence, as seamen on the ship Benowa, owned by the Pacific Motorship Company, in which W. F. Gerber, Jr., and the anglo-Cali-fornia Trust Company a corporation, intervened. Decree for the libel-ants, and interveners appeal.

<p>Appeal from the District Court of the United States for the District of Massachusetts; George W. Anderson, Judge.</p> <p>Suit in equity by the Troy Eaundry Machinery Company, limited, against the International Equipment Company, doing business as the Empire Eaundry Machinery Company. Decree for defendant, and complainant appeals.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Libel by the Navigazione Generale Italiana against Edward M. Tim-mins, with the steamtug Edward G. Murray, the Edward G. Murray Lighterage & Transportation Company, claimant, impleaded, and others. From an adverse decree the claimant of the Murray appeals.</p> <p>Libelant sues as owner of steamship Proeida. On February 8, 1916, that steamer, without cargo, and without steam in her boilers, lay at a pier iu the Erie Basin, Brooklyn. She had been repaired at the Robins Drydock and equipped with a refrigerating apparatus for the transportation of fresh meat, and was ready to be shifted to her loading berth at Thirty-Fourth street. North River, although her new refrigera I ion plant had not yet boon tested and some work remained undone that could not be performed until test was made. It was the expectation of the contractors that with some allowance for unforeseen contingencies all work would be completed and the vessel ready to load on February 16th.</p> <p>Respondent Timmins is the owner of several tugboats, was engaged in harbor transportation generally, and known as one furnishing tugs for the conveyance from one wharf to another of vessels temporarily without motive power of their own, as was the Proeida.</p> <p>The testimony is uncontradicted that Timmins was employed to move li-belant’s steamer in the following manner: Libelant’s superintendent called Timmins’ office on the telephone and said, in substance, “Arrange to have tugboats remove (Proeida) from Erie Basin to the north side of our pier, Pier 74, North River.” The Timmins concern accepted the order and telephoned to the master of their tug “John J. Timmins,” then at the Bush Stores, and gave him orders (as testified by the master himself) “to transport (Proeida) from Erie Basin to Thirty-Fourth street, North River.” This employee, Oapt. Keene, did not “receive any instructions with reference to how (he was) to do the work. ' * * * That'was left to (his) own judgment.” Oapt. Keene summoned the tugs Edward Murray and McOaldin Bros., to assist him on this job; they did not belong to Mr. Timmins and were obviously selected (as is customary) because they happened to be in the neighborhood.</p> <p>For a vessel of Procida’s size the waters of Erie Basin are very narrow. The slip in which she lay was on the side opposite to the gap or entrance of the basin, and it was necessary to haul her out of the slip stern first, swinging her in such manner as to head for the gap, and then go ahead.</p> <p>Oapt. Keene went on the steamer’s bridge and took charge of the whole enterprise. In his own language he “gave instructions to the tugs as to what they should do.” He admittedly told McOaldin Bros, to “take a hawser oft the port bow and go ahead,” i. e., go ahead when it was time so to do. His own tug, the J. J. Timmins, he placed on the starboard quarter, and there is no doubt that he ordered the Murray to begin the operation in the only way it could .begin, by hauling the Proeida out of the slip stern first; and this the Murray did. The only conflict of evidence is as to the orders given by Oapt. Keene concerning the Murray’s duties after the Proeida was out of the slip and in the basin. Keene declared that when the steamer was in the middle of the basin the Murray was to “hang on behind and help steer her out of the gap..” The master of the Murray declared that the orders covering his whole duty were, “You take a line over her stern and pull her out and when you get her out come alongside on the port side.” It is admitted that when Murray had pulled the steamer out of the slip she did come up on the Proei-da’s port quarter and there make fast. It is proven overwhelmingly, if not admitted, that the only proper way to get such a vessel out of the basin in her then helpless condition was to have a tug hang on behind and act as a sort of rudder.</p> <p>Under the impetus given to Proeida by pulling her out of the slip she nearly crossed the basin, and when McOaldin Bros, started ahead, struck a vessel moored on the basin’s opposite side, and received injuries, to recover for which this suit was brought. The Murray on the port quarter was in no position to render assistance and had just time to back out of the way in order to avoid injury to herself.</p> <p>Oapt. Keene held a license from the United States inspector as master and pilot; he guided the Proeida in the sense not only of giving orders to her only motive power, the tugs, but of selecting their courses in going to destination in the North River. He personally rendered a bill to the steamship agents for ?)5 — a charge separate and distinct from that made by Mr. Timmins for the transportation work.</p> <p>The lower court exonerated the tug McOaldin Bros, from all fault; held that the proximate cause of damage was that the Murray was not hanging on the stern as she ought to have been, and was therefore at fault, and that Oapt Keene “had .ample time and space” to see to it that the Murray assumed her proper position. Also, held that Keene was Timmins’ agent in the premises— wherefore Timmins was liable. From a decree holding both Mr. Timmins and the steamtug Murray at fault and exonerating McOaldin Bros., the claimant of the Murray only appealed.</p>

Action by Samuel O'. Tazaras and others, copartners doing business under the firm name and style of Lewis Lazarus & Sons, against the New York Central Railroad Company to recover the value of freight lost while in the possession of defendant. Judgment for the plaintiffs (271 Fed. 93), and the 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 Heart Lee. Muser, executrix, against Harry A. Bell. Decree for defendant, and complainant appeals.</p>

<p>1. Criminal law <&wkey;13 — Conviction proper under statute not defining.</p> <p>A conviction may be had for extortion under Criminal Code, § 85 (Comp. St. § 10256), though such statute does not define the term, notwithstanding sections 332, 333, 340 (Comp. St. §§ 10506, 10507, 10614).</p> <p>2. Extortion &wkey;>4 — Special agent of Department of Justice held guilty of extortion.</p> <p>A special agent of the Department of Justice, who falsely informed one who applied for a visa on a passport to permit an alien to visit the United States, that to got the matier attended to promptly a man must bo sent to Washington and that the expenses incidental thereto would he $300, and required the applicant to pay the $300 after the application had been granted at Washington, was guilty of extortion under Criminal Code, § 85 (Comp. St. § 10253).</p> <p>3. Bribery &wkey;>l (I) — Criminal law <&wkey;37 — Offense of accepting bribe complete when person asks for money; defense of entrapment held without merit.</p> <p>The offense of accepting a bribe, under Criminal Code, § 117 (Comp. St. § 10287). consists in asking for the money, and one prosecuted therefore cannot insist that government agents laid a trap, where the latter did nothing until the crime or arrangements were completed, and then only for the' purpose and with the result of verifying the report of the person called on to pay the bribe.</p>

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

<p>Trusts &wkey;>3l — Voluntary conveyance held to create implied trust.</p> <p>Where a grantee of property admitted that for some years she had lived with and eared for the grantor in the home of the latter, and that, though not of kin, their relationship was as intimate as that of mother and daughter, and it was not claimed that any money consideration was paid for the conveyance, and where on her death the grantor left a daughter, to whom she bequeathed all her property, the circumstances raised an implied trust, and the burden of explanation and aiBrmative proof of the complete fairness of the transaction rested on the grantee.</p>

Orr, Judge. Action at law by the Isaac Joseph Iron Company against Henry Hirsch, doing business as the Contractors’ Machinery & Supply Company. Judgment for plaintiff, and defendant brings error.

<p>Petition for Review from the District Court of the United States for the Middle District of Pennsylvania; Charles B. Witmer, Judge.</p> <p>In the matter of the bankruptcy of Harry Nash, bankrupt, in which John R. Hessel was appointed receiver. Petition by George M. Cohen to review and revise a decree.</p>

<p>1. Prostitution *&wkey;4 — Evidence held not to sustain conviction for violation of White Slave Traffic Act.</p> <p>In a prosecution under White Slave Traffic Act June 25, 1910 (Comp. St. §§ 8812-8819), for knowingly causing the transportation of a girl from one state into another for an immoral purpose, where the testimony of the girl, which was uncontradieted, was that she insisted on going to a city in the other state, for reasons which she stated, and that she paid for both tickets, the evidence held, insufficient to sustain a conviction.</p> <p>2. Prostitution <&wkey;3 — Indictment for Mann Act held sufficient.</p> <p>An indictment under White Slave Traffic Act June 25, 1910 (Comp. St. §§ 8812-8819), for knowingly causing the transportation of a girl from one state into another for an immoral purpose, held not insufficient because it stated that the common carrier over which the transportation occurred was unknown to the grand jurors.</p>

<p>1. Criminal law &wkey;l 159(2) — Appellate court cannot review weight of evidence.</p> <p>A federal appellate court has no authority to.determine the weight of the evidence.</p> <p>2. Criminal law <&wkey;1156(1) — Ruling on motion for new trial not reviewable.</p> <p>In the federal courts a motion for new trial is addressed to the sound discretion of the trial court, and its ruling can be reviewed and reversed only when it clearly appears that the court has abused its discretion.</p> <p>3. Intoxicating liquors <&wkey;224— In prosecution for unlawful possession, lack of permit need not be proved.</p> <p>Under an information for unlawful possession of intoxicating liquors, the prosecution is not required to prove that defendant did not have a permit authorizing such possession.</p> <p>4. Criminal law <&wkey;799 — Instruction as to argument on credibility of policeman held not erroneous.</p> <p>An instruction, commenting on argument of defendant’s counsel, that the testimony of a police officer should be weighed on its merits and that he was not to be discredited because of his occupation, held not erroneous, as it was the court’s duty to advise the jury not to be misled by the argument.</p> <p>5. Criminal law &wkey;>llii(l) — Record conciusive as to sentence imposed.</p> <p>An appellate court is concluded by the record as to tlie sentence imposed on a defendant on a particular count, and cannot consider whether or not there is a clerical error therein.</p> <p>6. Criminal law <&wkey;984 — Illegality of sentences on one count does not affect validity of sentence on another count for different offense.</p> <p>Where the court imposed a separate sentence on each count of an indictment charging different offenses, the fact that the sentence of one eounl was unauthorized does not affect the validity of the sentence on another count.</p>

Petition for Review from the District Court of the United States for the District of New Jersey; John Rellstab, Judge. In the matter of the Cramer & Rogers Grocery Company, bankrupt; J. C. Dancnhower, trustee. There was a decree assessing stock held by J ohn W. Stone and another, and they petition to revise and review in matters of law.

<p>Appeal from the District Court of the United States for the Eastern District of Texas; W. Tee Estes, Judge.</p> <p>Libel in admiralty by the Standard (Til Company of New Jersey against the steam tug Si ella, of which D. M. Picton & Co., Inc., was claimant. From a decree dismissing the libel, libelant appeals.</p>

<p>In Error to the 'District Court of the United States for the District of Massachusetts; James M. Morton, Judge.</p> <p>Action at law by Herbert O. Aldrich against Ernest I. Clark. Judgment for plaintiff, and defendant brings error.</p>

<p>Shipping <&wkey;39 — Charter party held not to guarantee capacity of schooner.</p> <p>Under a charter of a vessel “estimated” to “carry 225 tons, more or less, but not binding,” tbe vessel could recover tbe full sum of money mentioned'in tbe charffer party, though capacity oí the vessel was only 125 tons; there being no guaranty of tonnage.</p>

Proceeding by the United States against various documents, papers and books taken on search warrant and claimed by Briggs & Turivas, a Corporation. The United States brings error to review an order of a United States Commissioner.

In Equity. Suit by the Anderson Coal Company against the Waban Rose Conservatories and others. On motion to strike from the record an affidavit of prejudice.

<p>1. Admiralty c&wkey;l2— May award damages against consignee, who accepts cargo from ship.</p> <p>Admiralty may award,o against a consignee who accepts cargo from a ship, damages for any wrongful detention of it irrespective of whether the respondent was or was not an original party to the bill of lading or other contract of carriage.</p> <p>2. Admiralty <&wkey;I2 — One selling goods, and contracting with ship to load them on her bound by a maritime undertaking.</p> <p>One who sells goods, and enters into a contract with a ship to load them on her, becomes bound to her fór an undertaking maritime in its nature.</p> <p>3. Admiralty <&wkey;l2 — Held not to have jurisdiction in action against seller.</p> <p>Where a foreign country purchased grain f. o. b. ship Baltimore, and notified sellers of its liability for demurrage, if they did not load a ship chartered by it within a certain time, but the sellers never at any time made any agreement with the ship, admiralty had no jurisdiction of a proceeding against the sellers to recover the demurrage paid.</p>

<p>On petition of Charles Mobile for return of certain property, in possession of the United States.</p>

<p>1. Shipping <&wkey;JL08 — Contract construed as to date of loading.</p> <p>A contract for the shipment of freight by a specified steamer providing for “June loading,” and that, “when vessel is closer at hand, will advise you more definitely as to exact loading date,” fixed Juno as the time at which the steamer should load the cargo.</p> <p>?j. Shipping <&wkey;108 — Vessel’s owner could not arbitrarily fix date for loading cargo.</p> <p>tinder a shipping contract providing for “Juno loading,” and for delivery of the freight alongside the steamer as fast as the vessel could load, the owner of the vessel could not arbitrarily fix a date for the delivery of the freight.</p> <p>8. Shipping <&wkey;108 — No actual breach by shipper, where vessel not ready to load and part of freight on wharf.</p> <p>Under a shipping contract providing for delivery of the freight alongside the steamer as fast as the vessel could load, under which the shipper was notified that delivery of freight was to begin on June 27th and he completed by June 29th, where the vessel was not in a condition to load on June 27th, and a part of the shipper’s freight was then on the wharf and treated by the vessel’s owner as delivered in part fulfillment of the contract, there was no actual breach of the contract by the shipper before the filing of a libel on June 27th.</p> <p>4. Contracts <&wkey;313(l), 816(1) — Action will lie for anticipatory breach before performance due, but not if part performance accepted.</p> <p>While an action may be maintained for a breach of contract on a distinct notification by one of the parties that he will not perform the contract, even though performance bo not then due, the party aggrieved by such anticipatory breach may not thereafter accept a part performance under the contract, and still maintain his action on such anticipatory breach before performance is due.</p> <p>5. Shipping &wkey;108 — No libel for anticipatory breach, where libelant did not accept repudiation of contract, but seized freight on wharf as delivered iu part performance.</p> <p>Under a contract for the shipment of 6,209 tons of automobiles and parts by a certain steamer, though the shipper notified the vessel’s owner that 4,075 tons was all that would be furnished, and that this would not be furnished if the owner attempted to hold it for freight on the whole 6,200 tons, the vessel’s owner, by refusing to accept this as a repudiation of the contract, and by filing its libel against freight then on the pier, elected to accept such freight as part performance of the contract, and could not maintain the libel as for an anticipatory breach, as it could have no action in rem against the freight on the pier, unless delivered and received as freight under the contract, and it was immaterial that the shipper endeavored to have this freight retaken by the railroad carrier that had delivered it.</p>

<p>1. ¿nipping <&wkey;108 — Shipper held not in default when suit commenced.</p> <p>Under a contract for the shipment of 6,200 tons of automobiles and parts, under which the shipper was notified that the vessel would be ready for loading on June 27th, and that loading was to be completed not later than June 29th, where the shipper on June 27th had 4,650 tons in San Francisco for shipment, and which were actually conveyed on the steamer, and had freight on the pier with which to begin loading, but the vessel could not possibly have loaded any cargo on the 27th, 28th, or 29th, there was no actual breach of the contract by the shipper when suit was commenced on June 27th.</p> <p>2. Shipping <&wkey;10>8 — Correspondence held not to show “June loading” did not mean loading before the end of the month of June.</p> <p>Under a shipping contract providing for “June loading,” correspondence between the parties held not to show that the quoted term was not intended to mean a loading before the expiration of the month of June, but only a loading as soon as was feasible or convenient after the expected return of the steamer from a voyage.</p> <p>[Ed. Noto. — For other definitions, see Words and Phrases, June Loading.]</p> <p>3. Shipping <&wkey;108 — Notice that full cargo contracted for would not be rur-rtished held not anticipatory breach.</p> <p>Under a contract for the shipment of 6,200 tons of automobiles and parts, a letter from the shipper, stating that 4,075 tons was its entire cargo, and announcing its purpose to withhold loading thereof if the owner of the vessel intended to hold it for freight on 6,200 tons, was not a renunciation of the contract or the expression of a purpose to breach it, and where the owner in reply stood strictly on the contract, and stated that it was ready to perform and accept such quantity as might be delivered, and that it would hold the shipper responsible, a suit could not be maintained as for an anticipatory breach.</p> <p>4. Admiralty <&wkey;G6 — Leave to amend not granted^ when there is no suggestion that any other evidence could be adopted.</p> <p>Where no actual or anticipatory breach of a contract of shipment had occurred when suit was brought, and .it did not appear that the owner of the vessel by which the goods were to be shipped had a cause of action for breach of the contract at any time, and there is no suggestion that other evidence on the merits may be adduced, permission to amend the pleadings on the theory that the suit was prematurely brought will not be granted. ,</p>

At Law. Action by the Alworth-Stephens Company against E. J. Lynch, as Collector of Internal Revenue for the District of Minnesota, in which Margaret C. Lynch, as executrix, was substituted as defendant, after the death of the original defendant.

<p>At Raw. Separate actions by Jose E. Sandoval, by Albert E. Petersen, and by B. T. McPeak, as administrator of the estate of Joseph E. Cleary, deceased, against James C. Davis, Agent appointed under Transportation Act of 1920, § 206. On demurrers to the answers.</p>

<p>In Equity. Suit by the I. T. S. Rubber Company against the United States Rubber Company for infringement of a patent.</p>

<p>1. Bankruptcy <&wkey;47 — State and injured convict could not oppose adjudication of bankruptcy under voluntary petition.</p> <p>Neither a state, contracting with a corporation, nor a convict, which had pending a suit against the corporation for personal injuries, could successfully oppose an adjudication of bankruptcy under a voluntary petition, no matter what the motive tor filing the petition, as the state could tile its claim for damages against the estate, and the claim of the convict was not affected thereby.</p> <p>2. Bankruptcy <&wkey;l32 — 'Trustee only removed for cause arising subsequent to appointment.</p> <p>There is no power in the court to remove a trustee in bankruptcy, except for cause arising subsequent to his appointment.</p>

<p>In Admiralty. Suit by Wilbur F. Spice, trading as Wilbur F. Spice & Co., against the United States, as owner of the Steamship Ascy.+piy.</p>

In Fquity. Suit by Peter Van Vlaandercn and another, copartners, doing business under the firm name and style of the Van Vlaandcren Machine Company, against the Peyet Silk Dyeing Corporation. On petition by Jerome Peyet against the receiver for preference for his claim against the defendant corporation as a claim for-wages.

In Equity. Suit by the Stanley Works, Inc., against Gourland Typewriter Manufacturing Company, Inc. On exceptions to the report of a special master, in so far as it disallowed parts of various claims against the receiver of defendant corporation.

<p>1. Eviicnse &wkey;>155(l) — -D»femcta4 off ©ring ©ral evidence as to terms ©Í written contmct cauirot ofrject to similar evMteiiea ior plaintiff.</p> <p>Where defendant, who offered a written contract in evidence, did not rely upon it as establishing the terms of the agreement, but introduced oral evidence as to such terms, thereby treating the instrument merely as evidence tending to prove the actual terms, he could not object to oral evidence by plaintiff in rebuttal on that issue.</p> <p>2, Cwjtoaefs <&wkey;323(l) — Kvktaw-e held net to skew «cmtitasively ea,u»e of fe'lmre to furnish film was beyond control of lessor.</p> <p>In an action for breach of a contract to furnish a film for exhibition, which provided that the distributor should not bo liable for failure to furnish the film due to any cause beyond, its control, evidence as. to the agreement between the distributor and a prior exhibitor, to the effect that the prior exhibitor had an option to restrain the film three days before the time for delivery to plaintiff, he,Id not to conclusively show that the failure to procure that film was due to a cause beyond the distributor’s control.</p> <p>8. Contracts <&wkey;322(3)- — Eiestnuctiom of film the weak Itoi'wro scheduled exM-Mtion held not t© excuse failure t© deliver.</p> <p>The failure to deliver a designated film to an exhibitor on a specified date is not shown to be due to a cause beyond the distributor’s control by evidence that one of the distributor’s films was destroyed almost a week before it was to bo delivered to the exhibitor, where there was no evidence that the distributor exercised due diligence to procure another film, but, instead, the evidence showed that distributor took no steps to that end until the day before the film was to be delivered.</p>

Suit by the Equitable Surety Company, a corporation, against the National Capital Bank of Washington, D. C., to enjoin the delivery of securities deposited with it, in which Albert Carry intervened. From a decree dismissing the bill, plaintiff appeals.

<p>1. Divorce <&wkey;37(l) — Separation and intent must exist together to constitute “desertion.”</p> <p>Actual separation and intention to desert must exist together to constitute desertion, which is made a ground for separation from bed and board by Code of Daw 1901, § 966, which Axes no definite period of desertion.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Desertion (in Divorce Daw).]</p> <p>2. Divorce iSexo37(6) — Separation and intention to desort need not be identical in their commencement.</p> <p>Actual separation and intention to desert, which together constitute desertion, need not be identical in their commencement; but, if one antedates the other, the period of desertion dates from the inception of the other element.</p> <p>3. Divorce <&wkey; 104 — Petition charging desertion as of date of intention held not in bad faith.</p> <p>A petition for divorce and alimony, which alleged desertion by the bus-band as beginning on tbe date when a.letter from him showed the fixed intention to desert his wife, though thereafter at his solicitation she had lived with him for a short time, does not, in view of the-fact that no fixed period of desertion is required by statute, show bad faith on the part of the petitioner, which prevents amendment of her petition, so as to allege the date of desertion as the date of final separation.</p> <p>4. Divorce <&wkey;37(8)— Husband’s conduct held to require special effort toward reconciliation.</p> <p>A husband, who had ignored his wife for a long period, and had written her a letter in which he charged her with most serious offenses, which he made no attempt to sustain by evidence, owed her the duty to express regret for his conduct and make special effort toward reconciliation, so that he cannot rely upon a telephone request to her to meet him and talk over their affairs as an effort toward reconciliation, especially when she Was justified in assuming it was but another attempt on his part to arrange for divorce on his terms, as he had previously been trying to do.</p>

Suit hy John Kennedy, surviving executor of the estate of Margaret King, deceased, against Michael F. Mangan, for specific performance of a contract for the purchase of real estate. -Decree for defendant, and plaintiff appeals.

<p>1. Husband and wife &wkey;>29(4)~Proof of common-law marriage held not to sustain contract in consideration of marriage.</p> <p>Speeiiie performance of a contract in consideration of marriage cannot be decreed, whore there was no proof of a ceremonial marriage, on evidence of a common-law marriage between the parties, in the absence of any indication in the contract of intent ion to contract a common-law marriage, or any certain evidence as to such intention.</p> <p>2. HushamS and wife <&wkey;>29(4)™inferenee that marriage was intended does not show marriage as consideration for contract</p> <p>Even though a written agreement between the parties supports an inference that marriage between them was intended, such an inference does not show an agreement to marry in consideration of the promises contained m a contract which the survivor claimed gave him all the property.</p> <p>8. Specific performance <&wkey;>28(i) — Contract must be certain in its terms.</p> <p>Specific performance cannot bo decreed on a document which is unintelligent, mutilated, and ambiguous, since the contract must 3iot only be certain in all its terms, but its terms must be clearly proved, for it to be specifically enforceable.</p> <p>4. Specific performance <&wkey;>8- — Right to performance of admitted contract is within court’s discretion.</p> <p>Spertfie performance, even when the contract is admitted, rests in the sound discretion of the court, and will not be decreed merely as a matter of right.</p>

Action by George Kellogg and another, trading as Kellogg & Miller, against Thomas J. Molloy. Judgment for plaintiffs for insufficiency of the affidavit of defense, and defendant appeals.

<p>Husband and wife Misconduct of wife Sreid violation of implied coitiiiiion of conveyance to her jointly with Sier husband.</p> <p>Where a husband purchased property intended to bo used by Mm as a home, and had a conveyance made to himself and wife as joint tenants, there was an implied condition of the gift to the wife that she would continue to live with him as his wife, so that her leaving him to live in adultery with another man, as a result of which her husband obtained a divorce, does not entitle her to a division o£ the property, which she could not have claimed prior to the divorce.</p>

<p>Appeal from the Commissioner of Patents.</p> <p>Interference proceeding between John J. Convery and F. H. Brucker. From a decision of the Commissioner of Patents, awarding priority to Brucker, Convery appeals.</p>

Action by Adel-bert Harris, by lus next iriend, Albert Harris, against the District of Columbia. Judgment for defendant on a directed verdict, and plaintiff appeals.

Action by Mae E. Goodspeed against the iEtna Life Insurance Company of Hartford, Conn., to recover the amount of a claim under an accident insurance policy. Judgment for defendant, and plaintiff brings error.

Petition to Revise Order of the District Court of the United States for the Southern District of New York. Suit in equity by the Amoskeag Manufacturing Company against the Bauman Clothing Corporation. From an order denying the application of A. A. Silberberg for an allowance of a claim for services rendered to one of the members of a creditors’ committee, the claimant petitions to re-, vise.

<p>In Error to the District Court of the United States for the Northern District of Texas; James C. Wilson, Judge. Criminal prosecution by the United States against Barlow Butler and Bob Terry. Judgment of conviction, and defendants bring error.</p>

<p>In Error to the District Court of the United States, for the Southern District of Florida;</p> <p>Rhydon M. Call, Judge. Sam Clouts and others were convicted of breaking and entering a railroad car with intent to steal therefrom property being transported in interstate commerce, and they bring error.</p>

Libel by Katherine Dunnigan and others against the steam tug Golden Rule, of which the Carroll Towing Lino, Incorporated, was claimant, in which suit the Associated Operating Company was impleaded under the fifty-ninth rule. From a decree dismissing the libel and petition the libellants appeal.

<p>In Error to the District Court of the United States for the Southern District of New York. Action by the Moran Towing & Transportation Company against the Gulf Towing & Transporta!ion Company. Judgment for plaintiff, and defendant brings error.</p>

Action- by Pearl Koch and another against the Knickerbocker lee Company to recover damages for personal injuries. Judgment for plaintiffs, and defendant brings error.

Petition to Revise Order of the District Court of the United States for the Southern District of New York. In the matter of Louis Kreiner and another, individually and as copartners trading as the Kayanee Waist & Dress Company, bankrupts.

Killits, Judge. Roger Thomas was convicted of having received, knowing it to have been stolen, property stolen while in interstate shipment, and he brings error.

Petition to Revise Order of the District Court of the United States for the District of North Dakota. Involuntary proceedings in bankruptcy against the Northern Fire & Marine Insurance Company, in which John Yallely was appointed trustee in bankruptcy. Adjudication was vacated on application by fhe company, and the trustee filed petition to revise the order in matter of law, and questions were certified to the Supreme Court (254 U. S. 348, 41 Sup.

<p>In Error to the District Court of the United States for the Southern District of Mississippi; George W. Jack, Judge. Earl S. Wilson and others were convicted of conspiracy to commit, an offense against the United States, and they bring error.</p>