Volume 279 — Federal Reporter

<p>1. Criminal law ¡§=1 134(4, 10)— Ridings on motion in arrest and for new trial are not reviewabie.</p> <p>Rulings on the motion of accused in arrest of judgment and for new trial are not assignable as error in the appellate court.</p> <p>2. Criminal law ¡5=1134(3) — Courts must aiways consider sufficiency of indictment and jurisdiction of trial court. .</p> <p>The federal appellate court must always consider the questions whether an indictment charges an offense and whether the court below had jurisdiction.</p> <p>3. Indictment and information ¡§=86(2) — Omission of venue of one overt aet does not invalidate indictment for conspiracy.</p> <p>Since the overt act in furtherance of a conspiracy need not have been committed within the jurisdiction in which the conspiracy was formed, an indictment alleging the venue of the conspiracy and of all the overt acts but one was not insufficient because of its failure to allege the venue as to that act.</p> <p>4. Conspiracy <@=43(SO) — Indictment charging intent to violate statute and prohibition regulation states an offense.</p> <p>An indictment under Or. Code, § 37 (Comp. St. § 10201), charging conspiracy to violate the National Prohibition Act and a regulation of the Commissioner of Internal Revenue, charges an offense, since it charges a conspiracy to commit a crime and the violation of the regulation would defraud the United States.</p> <p>5. Criminal law ¡®=4I9, 420(1) — Evidence as to power of attorney fiied in prohibition office is not hearsay.</p> <p>Where a witness for the prosecution had testified he procured a permit to engage in the wholesale liquor business at the solicitation of defendant and gave a power of attorney with reference thereto, testimony that the power of attorney was found in (he local prohibition office was admissible to corroborate the witness, and was not objectionable as hearsay.</p> <p>8. Criminal law ©=! !59(2)— Appellate court cannot weigh the evidence.</p> <p>The appellate court cannot be called upon to weigh the evidence on review of a conviction for crime.</p> <p>¡5=I<'or other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>7. Criminal law @=865(1) — Remarks of judge held not erroneous coercion of jury.</p> <p>Where, after the jury had been out over night and had reported it was impossible to agree, the court stated he had read wagers were offered on the result of the trial at odds which he did not think were justified and, did not desire to be a party to easy winning of the money, and that he would send the jury back for further deliberation, to which exception was taken, and, after another night, during which they received further instruction to which no exception was taken, the jury returned a verdict of guilty, the remarks of the court did not amount to coercion of the jury sufficient to invalidate it.</p> <p>Ross, Circuit Judge, dissenting.</p>

<p>1. Vendor and purchaser <@=>22 — Description by reference to attached map is sufficient.</p> <p>A contract for the sale of a large body of land sufficiently describes the land, where it referred to a map attached thereto, on which were shown, in different colors, as designated by the contract, the several portions of the tract that were to be conveyed upon the making of payments specified in the contract, which map identified the land as completely as if a proper description of it had been set out in the contract.</p> <p>2. Vendor and purchaser <@=>187 — Requirement of immediate deposit is waived by notice to make deposit before time therein stated.</p> <p>The requirement of a contract for the purchase of land that the purchaser shall make an immediate deposit of the first payment on the land is waived by the vendor’s letter to the purchaser, stating that the contract1 would be regarded as rescinded unless the deposit was made within the time fixed in the letter, with which requirement the purchaser complied.</p> <p>3. Vendor and purchaser <@=>75 — Contract held not to require additional payment and tender of trust deed before abstract was furnished.</p> <p>A contract for the purchase-of a large tract of land, which required the purchaser to make a deposit of the initial payment, at which time the vendor was to execute and deposit in escrow deeds for the land, and the purchaser to .execute and deposit in escrow notes for the deferred payments and a trust deed securing them, and to pay an additional $500 for a deed to 600 acres of land and an abstract showing the vendor’s interest therein, did not require the purchaser to pay the additional $500 or to execute tlie notes and trust deeds until the abstract and the deeds were deposited by the vendor.</p> <p><@=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>4. Vendor and purchaser ®=>179 — Deposit of payment in specified bank is not defeated by attempt to garnishee it.</p> <p>Where the purchaser had deposited in the specified bank the amount, required as the first payment under the contract, to be delivered to the vendor on deposit by him in escrow oC warranty deeds to the property, the purchaser’s rights under the contract are not defeated by an attempt of a third party, in an action against the purchaser, to garnishee the deposit, especially where the writ of garnishment was dismissed without further action after the bank had answered if hold the money as a deposit under the contract.</p> <p>©al'or other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Western Division of the Western District of Tennessee; Clarence W. Sessions, Judge.</p> <p>E. S. Fisk was convicted of violating the Harrison Anti-Narcotic Daw, and he brings error.</p>

Sheppard, Judge. Action by the Pensacola Maritime Corporation against the Texas Company to recover damages for breach of contract for the sale of oil. Judgment for plaintiff, and defendant brings error.

<p>In Error to the District Court of the United States for the Eastern District of Kentucky; Andrew M. J. Cochran, judge.</p> <p>Action by the Norfolk & Western Railway Company against the Norton Iron Works. Judgment for defendant, and plaintiff brings error.</p>

<p>Appeal from the District Court of the United States for the District of Massachusetts; Charles F. Johnson, Judge.</p> <p>Suit in equity by the United Shoe Machinery Company against the L,. Q. White Shoe Company. Decree for defendant, and complainant 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 the Automatic Pencil Sharpener Company against the Boston Pencil Pointer Company. Judgment for defendant, and plaintiff brings error.</p>

<p>Appeal from the District Court of the United States for the District of Porto Rico; Arthur E. Odlin, Judge.</p> <p>Suit in equity by Russell & Company, sues. S. en C., against Salvador Mestre, Attorney General of Porto Rico, and others. From an order granting a temporary injunction, defendants appeal.</p>

Jack, Judge. Suit in equity by J. E. Ritchie against the W. G. Strange Oil & Refining Company, Inc., and others. Decree for defendants, and complainant appeals. The appellant, J. E. Ritchie, brought this suit in equity against the appellees, W. G. Strange Oil '& Refining Company, a Louisiana corporation, W. G. Strange, and six other individuals.

<p>In Error to the District Court of the United States for the Eastern District of Arkansas; Jacob Trieber, Judge.</p> <p>Action at law by the Bankers’ & Planters’ Mutual Insurance Association against Jack Walker, Collector of Internal Revenue. Judgment for defendant, and plaintiff brings error.</p>

C. Westenhaver, Judge. Action by the Walsh Construction Company against the City of Cleveland, in which the defendant City, as cross-plaintiff, had the National Surety Company made a party defendant. Judgment for the plaintiff (271 Fed. 701), and defendant brings error.

<p>In Error to the District Court of the United States for the Southern District of Ohio; John W. Peck, Judge.</p> <p>Action at law by the C. G. Blake Company against the United States. Judgment for the plaintiff (275 Eed. 861), and defendant brings error.</p>

District of California; Frank H. Rudkin, Judge. Action at law by Frank P. Helm against the American Hawaiian Steamship Company. Judgment for defendant, and plaintiff brings error. On February 28, 1916, the plaintiff and the defendant entered into an agreement for a charter from defendant to plaintiff of the steamer Floridian at $115,000 per month for two round trips to the Orient, delivery and redelivery at San Francisco.

I fit) el in admiralty by A. O. Andersen & Co., Inc., against the Texas Company. From a final decree dismissing the libel, the libelant appeals. The libel was for the alleged broach of a charter party under which the steamship Bimfaxe was chartered by libelant (referred to infra at times as Andersen & Co.) to respondent (referred to infra at times as Texas Oo.) for a voyage with case oil from Port Arthur, Tex., to five West Indian points, one of which was Paramaribo.

<p>1. Patents <§=>178 — Language of reissue claim held applicable to patented structure.</p> <p>In a reissue patent for a trunk, lock, a claim calling for a plurality of kooks mounted on a sliding bar applies to a construction whereby the hooks are pivoted on the trunk and fastened to the sliding bar, so that they move with the movement of the bar.</p> <p>2. Patents <§=>157(2) — Literalism of claim should not defeat meritorious patent.</p> <p>Mere literalism of statement of the claim should not defeat a meritorious patent.</p> <p>3. Patents <§=>328 — Reissue 14,143, claim 1, for trunk-locking device, held valid, without limitation to particular structure.</p> <p>The reissue patent, No. 14,143, claim 1, for a trunk-locking device, held valid as disclosing invention, without limiting it to the particular structure in which the locking hasp is located at one end of the trunk.</p> <p>4. Patents <§=>328 — Reissue 14,143, claim I, for trunk-locking device, held not anticipated.</p> <p>Reissue patent, No. 14,143, claim 1, for a trunk-locking device in which the locking hasp operates a sliding bar, which engages hooks on one section of the trunk with lugs on tbe other section, held not anticipated by an earlier patent, in which the hooks and lugs were engaged by the action of springs.</p> <p><§=>For other oases see same topjc & KEY-NUMBERin .all Key-Numberpd Digests & Indexes</p>

Thomas Ellet Hodgskin and George Simon were convicted of conspiracy to defraud the United States and to commit an offense, by failing within 60 days after the passage of the Trading with the Enemy Act of October 6, 1917, to transmit to the Alien Property Custodian a list of stockholders in a corporation, etc., and bring error.

Rose, Judge. Consolidated libels by John J. Dempsey, trading as Dempsey & Sons, and another, against the Maryland Transportation Company. From a decree in favor of the libelants (269 Fed. 665), defendant appeals.

<p>!. False personation <g=o4 — IniHetmsnt alleging defendants did “pretend” to be officers sufficiently charges falsity of pretense.</p> <p>An indictment charging that defendants did assume and pretend to De United States revenue officers sufficiently charges that they falsely assumed or pretended to be officers, within Criminal Code, § 32 (Comp. St. § 10196), since the word “pretend,” in the connection in which it was used, implied the putting forward of a false appearance of being officers, the simulating or feigning to bo officers.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Preterid.]</p> <p>2. Criminal law <§==>¡03? (3)— OSjjcciion to prosecutor’s signature on an indictment cannot Isa first raised on error.</p> <p>The objection that the indictment was signed by a special assistant to the United States attorney, and that the statute authorized no such officer, cannot bo first' raised on writ of error after conviction, where the record shows the grand jurors duly presented the indictment as a true bill, and that the defendants, on being arraigned, pleaded not guilty, and the trial was conducted on behalf of the government by an assistant United States attorney.</p> <p>3. Criminal law <§=>1186(3) — .Erroneous designation of prosecuting attorney on indictment does not invalidate.</p> <p>If the designation of an officer who signed the indictment as a special assistant to the United States attorney constituted a defect in the indictment, it was such a one as by Rev. St. § 1025 (Comp. St. § 1691), is made insufficient to affect the indictment or the judgment of conviction based thereon.</p> <p>4. Crimina! law <g=a3S6(i) — Defendant cannot object to oral evidence of documents concerning which they testified.</p> <p>Where the defendants introduced testimony as to the contents and signing of a bill of sale which the witnesses stated was filed with the United States commissioner, they cannot object to testimony on behalf ox the government with regard to that bill of sale, on the ground that the bill itself was iho best evidence.</p> <p><®=s>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Bankruptcy <©=446 — Questions of law only reviewabie on petition to revise.</p> <p>On a petition lo revise, as distinguished from an appeal, the court does not determine the facts on conflicting affidavits or testimony, but takes the facts as found by the District Court and inquires solely into questions of law.</p> <p>2. Bankruptcy <©=447 — Order requiring purchaser to pay amount bid for interest in lease reversed, when no claim of interest appeared, but without prejudice.</p> <p>Where the record on a petition to require a purchaser to pay the amount bid by him for the interest of a receiver in bankruptcy in a lease and fixtures fails to disclose even a claim to any right, title, or interest whatever, on the part of the receiver, the order granting the petition will bo reversed, but where the petitioner bid with his eyes open the reversal will be without prejudice to a further hearing.</p> <p><©=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

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

Appeals from the District Court of the United States for the Southern District of New York. Libel in admiralty by Michael N. Cavalliotis, trading as the iEgeau Trading Company, against Seventy-Five Drums of Caustic Soda, etc., claimed by Alex. R. Mehaffy, as master of the schooner A. J. West, with cross-libel by Alex. R. Mehaffy, as master, etc., against Seventy-Five Drums of Caustic Soda, etc., claimed by said Cavalliotis.

<p>In Error to the District Court of the United States for the Northern District of Texas; James C. Wilson, Judge.</p> <p>Criminal prosecution by the United States against R. D. James. Judgment of conviction, and defendant brings error.</p>

<p>Internal revenue <@=>46 — Automobile used in removal of liquor to defraud the government of tax held subject to forfeiture.</p> <p>Eev. St. § 3450 (Comp. St. § 6352), providing, inter alia, for the forfeiture of any conveyance used for the removal of goods or commodities subject to tax, with intent to defraud the United States of such tax, held in force with respect to an automobile seized thereunder while being used in the removal of distilled spirits a few days after the National Prohibition Act went into effect; it not appearing that such spirits were not manufactured and subject to tax before that date.</p> <p>(g£*lfor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Patents <$=>328 — 1,273,022, for process and device for finishing concrete pavements, held valid and infringed.</p> <p>Tbe Ashmore & Morgan patent, No. 1,273,022, for a process and device for finishing concrete pavements, claims 5 and 6, field valid and infringed.</p>

<p>In Equity. Suit by W. L. Porterfield and Y. Mizuno against U. S. Webb, Attorney General of the state of California, and another. On motion for preliminary injunction.</p>

<p>In Equity. Suit by J. J. O’Brien and J. Inouye against U. S. Webb, Attorney General of the state of California, and another. On motion for preliminary injunction.</p>

In Admiralty. Libel by the Shell Company of California against the steamship Admiral Goodrich to enforce a lien for fuel oil furnished to the vessel.

In Admiralty. Suit for collision by the Ellerman Dines, Limited, owner of the steamship City of Chester, against the barge Pittston, the Scully Line, Inc., claimant, with cross-suit.

Suit in admiralty for collision by the Ellerman Pines, Pimited, owner of the steamship City of Chester, against the barge Pittston, the Scully Pine. Inc., claimant, with cross-suit. Decree in favor of the City of Chester (279 Fed. 128), and the claimant of the Pittston appeals.

<p>1. international law <g=» 10 — Naval vessel of foreign nation not subject to seizure in rem.</p> <p>A public naval vessel of a. foreign nation is not subject to seizure in rem in a court of tbe United States, when the character of the vessel is suggested by the accredited representatives of the foreign government.</p> <p>2. Constitutional law <g=¿68(l) — Court is without jurisdiction to determine who is accredited representative of foreign government.</p> <p>The certificate of the Secretary of State that a certain person is the accredited representative of the government of a foreign nation recognized by the United States government is conclusive on the courts.</p> <p><§zs>For other cases see same topic & KEY-NUMBER in all Key-NumberedfDigests & Indexes</p>

<p>Petition by Bassilios Diligannis for citation for contempt against E. Eorrest Mitchell for violation of an order by United States Commissioner Thomas E. Playden.</p>

<p>In Equity. Suit by the United States against the Auto City Brewing Company and others to have certain property declared a common nuisance and for other relief, pursuant to the National Prohibition Act. On application for a temporary injunction. Temporary injunction issued, restraining defendants from disposing of liquors on ,the property in controversy, but not restraining the exercise of control over the property by them.</p>

<p>In Equity. Suit by the United States of America against R. W. Smith and others. On an agreed case.</p>

<p>1. Patents @=>236 — Mere change of form does not avoid infringement.</p> <p>A mere change of form of a mechanical structure, which retains the mode of operation and accomplishes the same result as the patented device, does not avoid infringement.</p> <p>2. Patents @=>72 — Device not designed for, and requiring modification to accomplish, purpose of patented device, not anticipation.</p> <p>It. is not sufficient to constitute anticipation that the device relied on might by modification be made to perform the function of the patented device, if it was not designed by its maker, nor adapted nor actually used for the performance of such function.</p> <p>3. Patents @=>328 — 1,238,525, for trap spring, claim 2, held valid and infringed.</p> <p>The Kinsley patent, No. 1,238,525, claim 2, for a spring for a game trap, held not anticipated, valid, and infringed.</p> <p>@=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes.</p>

<p>Application by John H. Brcde for writ of habeas corpus.</p>

<p>In Equity. Suit by the American Thermos Bottle Company against the W.-T. Grant Company.</p>

Proceeding on a bail bond by the United States against Norman E. Fletcher, principal, and J. M. Escajeda and L. Lopez, sureties. On motion by sureties to set aside judgments nisi and final.

<p>Shipping 14 — Supervising inspector held without power to institute and try charges against master of a vessel in collision.</p> <p>Under Act June 10, 1918 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 8214a-8214d), and the regplations promulgated thereunder, providing for appeals from decisions of hoards of local inspectors of vessels to the supervising inspector of the district, and that any supervising inspector may, within 30 days thereafter, on his own motion, review any such decision, and may revoke, change, or modify the same, such proceeding before a supervising inspector is an nppeHate proceeding for re-examination of the decision of the local board, and a supervising inspector is given no authority to file charges before himself against the master of one of two vessels'in collision, and to conduct an independent hearing thereon, ignoring a prior 'decision of the local board, not appealed from, determining responsibility for the collision.</p> <p><©cs>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>At Taw. Action by the United States against De Witt Garrison Brown and others, to condemn land.</p>

In Equity. Suit by the Southern Pacific Company against C. E. Waite and others. On January 19, 1921, C. R Waite and wife, as plaintiffs, filed their action in the superior court of the county of Los Angeles against the Southern Pacific Company claiming damages as and for goods alleged to have been lost during the course of transportation.

In Bankruptcy. In the matter of the Movette Camera Corporation, bankrupt. On review of a decision by the special master that a chattel mortgage given by the alleged bankrupt was invalid.

<p>Appeal from the Commissioner of Patents.</p> <p>Interference proceeding between George William Gray and Aimer McDuffie McAfee. From a decision awarding priority to McAfee, Gray appeals.</p>

<p>1. Trial <@=>109— Reference in opening statement to ground of negligence not alleged was properly excluded.</p> <p>In an action for injuries to a street car passenger, where there was no allegation in the declaration of negligence in selecting the employSs who operated the car, it was not error to sustain an objection to an opening statement by plaintiff’s counsel that he expected to prove that the crew in charge of the car were inexperienced because they were strike breakers.</p> <p>2. Appeal and error <@=>203 (>/2) — Not reversible error for court not to take judicial notice of fact, where no ruling embodying fact is asked.</p> <p>An assignment that the court erred in failing to take judicial notice of a fact does not require reversal, where there was no ruling by the court requiring notice of such fact, and no request for a charge stating the fact to the jury.</p> <p>3. Evidence <@=>52 — Judicial knowledge of strike held not knowledge particular employés were inexperienced.</p> <p>Judicial knowledge by the court that a street railway strike was in progress when a passenger was injured would not enable the court to assume without proof that the employés in charge of the particular car were - strike breakers and inexperienced, or that they were negligent, where it was stated at the bar, and not denied, that many of the employés of the street car company did not strike.</p> <p><@=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>4. Trial ©=243 — Request for directed verdict for plaintiff is inconsistent, with request for submission of damages.</p> <p>A request tor a verdict instructed for plaintiff in an action for injuries to a street car passenger, which was not limited to the matter of negligence, but covered the entire case, was inconsistent with a previous instruction, given at plaintiff’s request, submitting to the jury the issue of damages, and was properly refused.</p> <p>5. Carriers ©=>320(I) — Inference of negligence from uncontradieted testimony open to different inferences is for the jury.</p> <p>Even if the testimony as to the accident in which a street car passenger was injured was uncontradieted, such testimony did not conclusively establish negligence, if it was open to more than one inference, in which case the jury alone were authorized to determine what inference should be drawn from it.</p> <p>S. Carriers ©=>318(4) — Uncontradieted testimony of an injured passenger as to a violent jerk as she was going to the door held not to conclusively establish negligence.</p> <p>I’laintiff’s testimony that she was injured while a passenger on defendant’s street car, by being thrown against a seat by a violent jerk while she was going to the door to leave the car, which was uncontradieted, because no complaint of injury was made at the time, so that the defendant could not identify the crew in charge of the car, does not establish conclusively that the injury to the plaintiff was the result of plaintiff’s negligence.</p> <p>7. Carriers ©=>316(1) — Res ipsa loquitur merely permits inference of negligence.</p> <p>Under the rule established by the Supreme Court of the United States, which is binding on the courts of the District of Columbia, the doctrine of res ipsa loquitur does not require an inference of negligence lo be drawn from prbof of injury to a street car passenger happening without her fault, but merely permits such inference to be drawn.</p> <p>8. Appeal and error ©=>999(3) — Finding on negligence not disturbed.</p> <p>Where negligence is properly submitted to the jury, their finding on that issue will not bo disturbed.</p> <p>9. Trial ©=>210(4) — instruction as to credibility of witnesses held proper on question of damages.</p> <p>In an action for injuries to a street car passenger, an instruction that the jury must weigh the testimony of each witness, considering the interest that any witness might have in the outcome of the case, was proper, as bearing upon the subject of damages, even if plaintiff’s contention that negligence was conclusively established was correct.</p> <p><§ss>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>!. Taxation <3=>53 — Tax on gross earnings of savings bank bald a franchise tax.</p> <p>The tax levied by Act July 1, 1902, § 6, par. 7, as amended by Act April 28, 3904, upon incorporated savings hanks, amounting to 4 per cent, of their gross earnings, less the interest paid their depositors, is a franchise tax. computed on Hie basis of gross earnings, and not a property tax, so that the tax is valid, though a portion of fhe gross earnings consisted of, interest derived from liberty bonds and other securities exempt from taxation.</p> <p>2. Taxation Mature of tax, and not name given it, controls.</p> <p>In determining whether a tax is a property or an excise or franchise tax, the designation of the tax by the Legislature is of little importance, but the substance oC the statute controls.</p> <p>3. Taxation <s==> 10 — National banks cannot be taxed by states without consent of Congress.</p> <p>National hanks, being creatures of the federal government, may not be taxed by the state, either on their property or their franchise, without permission of Congress.</p> <p>@5»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the Supreme Court of District of Columbia.</p> <p>Action by Adolphus Jones against the District of Columbia. Judgment for the District of Columbia, and plaintiff appeals.</p>

<p>Appeal from the Commissioner of Patents.</p> <p>Interference proceeding between Byron E. Eldred, Colin G. Fink, and John A. Ytmck. From a decision of the Commissioner of Patents, awarding priority to Fink, Eldred and Ytmck separately appeal.</p>

Sibley, Judge. Action by Charles Shepard and another, composing the firm of Shepard & Gluck, against E. A. Holbrook. Judgment for the plaintiffs, and defendant brings error.

Uynch, Judge. Suit by ReRoy S. Throckmorton, trustee of the American Box Company, bankrupt, against J. Parker Hickman and others. From a decree dismissing the bill, plaintiff appeals.

Bean, Judge. Action at law by W. Leslie Comyn and Benjamin F. Mackall, partners doing business as Comyn, Mackall & Co., against the Douglas Fir Exploitation & Export Company. Judgment for plaintiff, and defendant brings error. The Douglas Fir Exploitation '& Export Company appealed from a judgment in an action by Comyn, Mackall & Co. to recover damages for an alleged breach of contract.

<p>In Error to the District Court of the United States for the Eastern District of Pennsylvania; J. Whitaker Thompson, Judge.</p> <p>Action at law by Charles Stindt and another against G. Henry Stetson. Judgment for plaintiffs, and defendant brings error.</p>

Whitaker Thompson, Judge. Suits in admiralty by the Norfolk Shipbuilding and Drydock Corporation against the steamer Penn and the steamer Ford Baltimore. Decree for respondent, and libelant appeals.

<p>1. Conspiracy @=27, S7 — Is separate offense from intended crime.</p> <p>A conspiracy to commit a crime may be a completed offense, even if the intended crime be not committed, and is a separate offense when such crime has been accomplished.,</p> <p>2. Conspiracy @=>43(9) — Indictment for conspiracy to use mails to defraud held sufficient.</p> <p>An indictment for conspiracy to commit th.e offense of using the mails to defraud, as defined in Penal Code, § 215 (Clomp. St. § 10385), held to sufficiently charge the intended use of the mails to effect the object of the conspiracy..</p> <p>3. Crimina! law @= 1148 — Granting or refusing separate trials of defendants discretionary.</p> <p>The granting or refusing separate trials to defendants jointly charged rests in the legal discretion of the court, and its action is reviewable only for an. abuse of discretion.</p> <p>4. Witnesses @=>370(3) — Impeaching question held irrelevant.</p> <p>Where a witness on cross-examination admitted that he was unfriendly to one of defendants, because as an attorney he had prosecuted a son of the witness, a further question, designed to show that the son was guilty, held properly excluded as irrelevant.</p> <p>5. Criminal law @=>753(2), 1159(2) — Verdict should not be directed, if substantial evidence supports conviction; weight of evidence cannot be considered by appellate court.</p> <p>A verdict for defendant should not be directed, if there is any substantial evidence to support a verdict of conviction, and its weight cannot be considered on a writ of error.</p>

Sawtelle, Judge. Action by John T. Uittlejohn against the United Verde Extension Mining Company. Judgment for plaintiff, and defendant brings error. The parties will be designated “plaintiff” and “defendant,” as in the court below. The defendant, United Verde Extension Mining Company, was on and for some time prior to June 2, 1920, engaged in operating and conducting smelting and ore reduction works in Yavapai county, state of Arizona.

Wilson, Judge. Action at law by W. C. Myers and others against the Moore-Kile Company. J udgment for defendant, and plaintiffs bring-error.

<p>Sales <g=o53(2) — Whether correspondence created a contract of sale and purchase held a jury question.</p> <p>Whether letters and telegrams exchanged between the parties, under the circumstances in which they were written and sent, created a contract for the sale and purchase of a commodity, held a question for the jury.</p> <p>other cases see same topic & KEY-NUMBER in, all Key-Numbered Digests & Indexes</p>

Action at law by Sam Beckham, administrator of the Estate of Carroll Blair, deceased, against Walker D. Hines, Agent, etc. Judgment for defendant, and plaintiff brings error.

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Action by Wallace B. Phillips against the United States Grain Corporation. Judgment for defendant, and plaintiff brings error.</p>

Petition to Revise Order of the District Court of the United States for the Southern District of New York. In the matter of Frank J. Ruhlman and another, individually and as members of P. Ruhlman & Co., bankrupts. The petition of Charles C. Chapman for reversal of a decree of an order of the referee was denied, and he brings a petition to revise.

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Santino Parisi was convicted of violating Harrison Anti-Narcotic Act, § 1, as amended by Apt Feb. 24, 1919, § 1006, and section 2, and he brings error.</p>

Action by Ferdinand Guerin and others, as copartners doing business under the firm name and style of Veuve Guerin & Fils, against Byron R. Newton, individually and as Collector of Customs in the District of New York, for moneys had and received. Judgment for plaintiffs, and defendant brings error.

Call, Judge. J. H. Alderman and others were convicted of conspiracy to violate the National Prohibition Act, and of violating that act in certain particulars, and they bring error.

<p>Commerce <@=o85 — Interstate Commerce Commission may award reparation for overcharges made after tiling of complaint.</p> <p>Where, on the bearing before the Interstate Commerce Commission of a petition against a railroad company for reparation for unreasonable rates “heretofore and hereafter charged to petitioners,” both parties treated the issues as embracing shipments made both before and after filing of the petition, and evidence relating thereto was taken without objection, the commission held to have power to award reparation, for overcharges made after as well as before the filing of the petition.</p> <p>©=oFor other cases see same topic & KEY-NTJMBER in .all Key-NumberedJDigests & Indexes</p>

I. Grubb, Judge. Petition by Tracy W. Pratt for habeas corpus to prevent his removal for trial under an indictment. Writ refused, and he appeals.

<p>1. Criminal law <®=>993 — Imposition of void sentence not obstacle to assumption of jurisdiction to impose legal sentence.</p> <p>The imposition of a void sentence is not an obstacle to assumption by tbe court which imposed it of jurisdiction of the convict in order that a legal sentence may be imposed.</p> <p>2. Criminal law <$=>979(2) — Imposition of void sentence does not bar imposing of lawful sentence after expiration of term.</p> <p>Where there was a conviction, accompanied by a void sentence, the court’s jurisdiction of the case for the purpose of imposing a lawful sentence was not lost by the expiration of the term at which the void sentence was imposed; the case being regarded as pending until disposed of by imposition of a lawful sentence.</p> <p>3. Habeas corpus <s=^39(3> — Imposition of void sentence cannot be attacked after expiration of term.</p> <p>One duly convicted, but not sentenced as authorized by law, cannot defeat the court’s incompletely exercised jurisdiction over him by attacking a void sentence in habeas corpus proceeding instituted after the adjournment of the term at which such void action was taken.</p> <p>^ss>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the First Division of the Northern District of California; Maurice T. Dooling, Judge.</p> <p>Suit in admiralty for salvage services by Otis E. Miles and others against the United States. Decree for libelants, and the United States appeals.</p>

Libel by the Central Union Stockyards Company against the steam tug Rose Reichert, of which the Reichert Towing Line was claimant, and the steam tug John F. Lewis, of which the A. S. Hughes & Sons Towing & Transportation Company was claimant. From a decree for the libelant, the Reichert Towing Line appeals. On motion to tax the cost of printing the briefs.

In Bankruptcy. In the matter of Loeb’s, Incorporated, bankrupt. On petition by the Grand Rapids Showcase Company to revise the decision of the referee, denying its petition for recovery of property and permitting petitioner to file a claim as a general creditor.

At Law. Action by the Northwestern National Bank of Portland •against Axel O. Andersen and others. On defendants’ motion to require the plaintiff to make the complaint more definite and certain, by separately stating_ and numbering; the causes of action therein, or to strike out allegations in the complaint.

In Bankruptcy. In the matter of E. Dier & Co., bankrupts. On rule nisi on behalf of Elmore D. Dier to enjoin the receiver in bankruptcy and the district attorney of New York county from using the books and papers of the alleged bankrupt firm before the grand jury.

<p>1. Copyrights <§=66 — Playing music at moving picture theater “performance for profit.”</p> <p>The playing of music in a motion picture theater to which a charge for •admission was made was a “performance for profit,” within the meaning of the copyright act, though the music was selected because fitting and appropriate to the action of that portion of the motion picture at that precise instant being shown upon the screen.</p> <p>2. Copyrights <§=77 — Employer of musician responsible for music played.</p> <p>The operator of a motion picture theater, who employs a musician to perform for profit under a contract by which the musician has authority to play whatever compositions are in accordance with his judgment appropriate and fitting, is responsible for any infringement of copyright by such musician, as against the objection that the musician is an independent contractor.</p> <p>3. Copyrights <§=66 — That music played was short excerpt no defense In infringement suit.</p> <p>That playing of music in motion picture theater consisted of short excerpts was no defense, in an action for infringement of copyright.</p> <p>4. Equity <§=262 — Paragraph of answer held proper denial of allegation of damage, as against motion to strike.</p> <p>Where paragraph of bill in infringement of copyright suit alleged that acts of defendant caused injury and damage to plaintiff, because it was deprived of exclusive rights to its copyright composition, was a mere conclusion from facts elsewhere averred, a paragraph of the answer denying its allegations must be construed as a denial of the specific thing charged —that is, the injury caused — and plaintiff was not foreclosed thereby of its right to recover such damages as the statute allowed, and a motion to strike out such paragraph of the answer must be denied.</p> <p>'5. Copyrights <§=48 — Mere giving of professional copies does not constitute license to publicly perform.</p> <p>The mere giving to a musician of professional copies of music does not constitute a license to publicly perform.</p> <p>6. Copyrights <§=75 — Benefit to plaintiff no defense in suit for infringement.</p> <p>An averment in an answer in a suit for infringement of copyright that plaintiff was greatly benefited, and not damaged, by performance of its music, was immaterial.</p> <p>7. Copyrights <§=45 — Conveyance of material object no transfer of copyright.</p> <p>Under Copyright Act, § 1 (Comp. St. § 9517), the copyright owner has the exclusive right to print, reprint, publish, copy, and vend the copyrighted work, and under section 41 (Comp. St. § 9562) the copyright is distinct from the property in the material object copyrighted, and the sale or conveyance by gift or otherwise of the material object does not of itself constitute a transfer of the copyright, nor does the assignment of the copyright constitute a transfer of the title to the material object.</p> <p>3. Monopolies <§=21 — Unlawful combination between authors no defense in suit for infringement.</p> <p>It is no defense to a suit for infringement of copyright of musical selections that the authors, composers, and publishers have formed an unlawful combination, in violation of the Sherman Anti-Trust Act (Comp. St. §§ 8820-8823, 8827-8830); the remedies under the act being clearly defined and exclusive.</p> <p><£=For.other oases see same topic & KEY-NTJMBER in all Key-Numbered! Digests & Indexes</p> <p>9» Monopolies <®=»I2(2) — Right to perform musical composition not “trade or commerce,” under the Sherman Act.</p> <p>A copyright is an. intangible thing, and the right to perform a musical composition under a copyright is not “trade or commerce,” and a combination of composers, authors, and publishers, under which extortionate license feos are demanded for public performances for profit of musical numbers copyrighted by the various members, does not constitute a violation of the Sherman Anti-Trust Act (Comp. St. §§ 8820-8823, 8827-8830).</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Commerce; Trade.]</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>At Daw. Action by the Dicks-David Company against the Edward Maurer Company, begun in the state court and removed to the United States District Court.</p>

<p>1. Patents <§=>129 — Assignor of application estopped to deny validity of claims granted within the scope of the application.</p> <p>The assignor of an application for a patent, and equally a corporation which he organized and controls, is estopped, as against the assignee, to deny the validity of a patent subsequently granted thereon as to claims within the scope of the original disclosure, though not made in the application as filed, hut not as to claims not within the scope of such disclosure.</p> <p>2. Patents <§=>328 — 1,296,606, claims 21-23, 26, and 29, held void, as not within scope of application.</p> <p>The Akimoff patent, No. 1,296,606, for a balancing machine, claims 21, 22, 23, 26, and 29, which were transferred to the application from another application filed more than a year later, without a new oath, held void, as not within the scope of the disclosure made in the original application.</p> <p>3. Patents <§=>328 — 1,296,610, for balancing machine, claims 15 and 16, held void, and claims 12 and 13 valid, as against assignor of application.</p> <p>The Akimoff patent, No. 1,296,610, for a balancing machine, claims 15 and 16, which are method claims, added by amendment without further verification, held void, as too broad, and because the original specification made no claim for method. Claims 12 and 13, also added by amendment without further oath, but which arc within the scope of the original disclosure, held valid, as against the assignor of the application, and also infringed.</p> <p><§=>For other oases see same topic & KUY-NUMBEB in all Key-Numbered Digests & Indexes</p>

Criminal prosecution by the United States against Edward J. Pyle and W. J. Conner. On motions of defendant Conner to set aside the verdict as to hi-m and in arrest of judgment. By indictment the above-named defendants were accused of a violation of section 5209 of the United States Revised Statutes (Comp. St. § 9772). Eighteen separate counts were charged, the total misapplications involved amounting to about $75,000. The first count is fairly illustrative of the others.

In Admiralty. Libel by Fields S. Pendleton against the steam tug Gypsum King to recover damages for the sinking of a barge while in tow of the tug.

In Bankruptcy. In the matter of the West Side Auto Company, a corporation, bankrupt. On petition to review an order of the referee allowing the claim of the Shields-Eivengood Motor Company as a first lien on a certain automobile.

<p>Appeal and error $=>670( I) — Court’s ruling, sustaining its record against affidavit to correct it, not disturbed.</p> <p>When a court, supposed to have personal knowledge of the facts, sustains a recital in the record as against a recital in an affidavit in support of a petition to correct the record, its ruling will not be disturbed, since a record imports absolute verity, while an affidavit by a party does not.</p> <p>®s»For other eases see samo topic & KEY-NUMBEE in all Key-Numbered Digests & Indexes</p>

<p>Appeal from a Decision of the Commissioner of Patents.</p> <p>Dissenting opinion.</p>

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Action by the Thompson & Spear Company, Inc., against R. H. Arnold, trading as the R. H. Arnold Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Action by Robert Louis, an infant, by Gus Louis, his father and next friend, against the Washington Railway & Electric Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from the Commissioner of Patents.</p> <p>Application for a patent by Benjamin V. Sholleriberger. Prom a decision of the Commissioner of Patents, rejecting the application, the applicant appeals.</p>

Petition for mandamus by the United States, at the relation of the Western Union Telegraph Company, against the Interstate Commerce Commission. Prom a judgment dismissing the petition, relator appeals.

<p>I. Army and navy 10 — Reserve naval officer cannot be retired, for incapacity contracted in line of duty, without hearing before Retiring Board.</p> <p>Under Act June 4, 1920, § 2, making officers of the Naval Reserve Force, who have been disabled in line of duty, eligible for retirement under the same conditions as officers of the regular navy, -and Rev. St. § 1455 (Comp. St. § 2634), providing that no officer of the navy shall be retired from active service without a hearing before the Naval Retiring Board, a naval reserve officer, disabled in line of duty, cannot be retired from active service by the Secretary of the Navy, and from the service by general discharge by the Bureau of Navigation, without the hearing which he demanded before tbe Naval Retiring Board.</p> <p>©soFor other casos see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>:2. Mandamus <§=>77(4) — Can issue to vacate order discharging naval officer without hearing before Retiring Board.</p> <p>The statutes entitling a naval officer to a hearing before the Retiring Board on demand are too plain and positive to leave room either for the exercise of discretion on the part of the Secretary of the Navy, or for reasonable difference of opinion as to the construction to be placed thereon, so that mandamus will lie to compel the vacation of orders discharging an officer for violation of the statute.</p> <p>'3. Army and navy <§=>10 — Naval officer not entitled to hearing before Retiring Board until recommendation approved by the President.</p> <p>Under Rev. St. § 1448 (Comp. St. § 2627), a naval officer, who is incapacitated to perform the duties of his office, is not entitled to a hearing before the Retiring Board, though he cannot be discharged without such hearing, unless the recommendation of the Secretary of the Navy for such hearing is approved by the President.</p> <p>•4. Mandamus <§=s64 — Discretion of President in approving recommendation for hearing before Naval Retiring Board cannot be controlled.</p> <p>The courts cannot control by mandamus the discretion given to the President by Rev. St. § 1448 (Comp. St. § 2627), to approve a recommendation of the Secretary of the Navy that a hearing be granted an incapacitated naval officer before the Naval Retiring Board.</p> <p><§=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Dickinson, Judge. Libel by the American Dyewood Company against the schooner Mary F. Barrett, whereof H. T. Hayden is master and part owner. Decree for libelant (270 Fed. 618), and respondent appeals.

Van Eleet, Judge. Replevin at law by the Sterling Tire Corporation against John M. Sullivan, as receiver, in which E. E. Gerlinger intervened, claiming property. Judgment for the plaintiff, subject to the lien in favor of the receiver, and plaintiff brings error.

<p>In Error to the-District Court of the United States for the Western District of Michigan; Clarence W. Sessions, Judge.</p> <p>Action by H. W. Paine & Co., Inc., against the Manistee Tanning Company. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Shipping <@=42 — Charter carries implied warranty of seaworthiness.</p> <p>A charter carries an implied warranty of seaworthiness, unless limited by the terms of the charter party.</p> <p>2. Shipping <@=132(3,4) — Burden of proof on shipowner to prove seaworthiness and that loss was by perils of the sea.</p> <p>In a suit for damage to cargo, the burden rests on the shipowner to prove seaworthiness of the vessel at the beginning of the voyage and also to sustain the defense that the damage was caused by perils of the sea, within the exception of the charter parly or bill of lading.</p> <p>3. Shipping <@=l32(4) — Excessive leaking of ship warrants inference of unseaworthiness.</p> <p>Where damage to cargo was caused by excessive leaking of the ship, evidence that she did not encounter unusual weather conditions, in the absence of other explanation, warrants the inference that she was unseaworthy at the beginning of the voyage.</p> <p>4. Shipping <@=132(3, 5) — Bill of lading prima facie evidence of quantity received.</p> <p>A bill of lading is prima facie, but not conclusive, evidence of the quantity received and in a suit for short delivery the burden rests on the ship to satisfy the court that she delivered all that was received.</p> <p>5. Shipping <§=I32(5) — Ship held liable for short delivery of cargo.</p> <p>Evidence held insufficient to show incorrectness of a hill of lading as •to quantity, set up as a defense to a suit for short delivery.</p> <p><g^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Thomas and St. John, Virgin Islands; Thiele, Judge. Suit in admiralty by A. H. Lockhart, as attorney for C. H. Kinch, against the schooner Edgewood. The Sugar Products Company, owner of the schooner’s cargo, appeals.

<p>1. Internal revenue <@=>38 — Act of 1916 permits suits on rejected refund claims made thereunder.</p> <p>The act of 1916, permitting a taxpayer from whom excess taxes have been collected under Act Aug. 5, 1909, and Act Oct; 3, 1913, to present a claim for refund thereof, notwithstanding Rev. St. § 3228 (Comp. St. § 5951), which requires a claim for refund to be made within two years, permits a suit to recover taxes unlawfully collected, where the claim for refund made thereunder was erroneously rejected by the collector; the cause of action for such taxes accruing at the time of such rejection, within Rev. St. § 3227 (Comp. St. § 5950), requiring suit to be brought within two years a!fter the cause of action accrued.</p> <p>2. Judgment <@=>633 — >Act of 1916 is waiver by United States of res judicata plea to suit for taxes wrongfully collected.</p> <p>Act Sept. 8, 1916, § 14a (Comp. St. § 6336n), permitting suits for internal revenue taxes wrongfully collected, notwithstanding the two-year limitation of the claims for refund contained in Rev. St. § 3228 (Comp. St. § 5951), is a waiver by the United States of its plea of res judicata against a suit for such refund, based on a judgment denying relief to the taxpayer because the claim for refund was not made within the time specified by section 3228.</p> <p><gss>For other cases see same topic & KEY-NUMBER in ail Key-Numbered Digests & Indexes</p>

Peck, Judge. Foreclosure suit, in which the Indianapolis Union Railway Company and others filed a petition asking that the purchaser, the Cincinnati, Indianapolis & Western Railroad Company, be required to show cause why it should not make a payment to the petitioners. From an order in favor of the petitioners, the purchaser appeals.

<p>Appeal from the District Court of the United States for the Northern Division of the Western 'District of Washington; Edward E. Cushman, Judge.</p> <p>Action at law by Emil Hoof against the Pacific American Fisheries. Judgment for defendant, and plaintiff brings error.</p>

Petition to Revise Order of, and- Appeal from, the District Court of the United States for the Southern District of New York. In the matter of the B. & R. Glove Corporation, bankrupt. Prom an order allowing reclamation claim of Garó Keshishian & Co., Inc., Julian A. Gregory, as receiver in bankruptcy, appeals and files petition to revise.

Action by the Standard Trust & Savings Bank against George F. Hinrichs, Inc. 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, the plaintiff below, is hereinafter referred to as plaintiff. The plaintiff is a corporation organized under the laws of the state of Illinois, and conducts its business at tbe city of Chicago therein.

Dickinson, Judge. Action at law by the Anchor Cotton Mills, to use of Carl Vietor and others, trading as Frederick Vietor & Achelis, against Eouis I. Bellow and Joseph Cotlar, trading as the Bellow-Cotlar Company. Judgment for defendants, and the use plaintiffs bring error.

Criminal prosecution by the United States against John Shillitani. Judgment of conviction, on an indictment charging violation of Rev. St. § 3082 (Comp. St. § 5785), and Tariff Act Oct. 3, 1913, § 3, par. 8 (Comp. St. § 5524), and defendant brings error.

<p>1. Army and navy <§=>51'/2, New, vol. I2A ICey-No. Series — Application held admissible in action on certificate of war risk insurance.</p> <p>In an action against the United States on a certificate of war risk insurance, which did not name the beneficiary, but made a part of the contract the application, which designated the beneficiary and the disposition to be made of future installments in case of his death, such application held admissible in evidence, both to establish the rights of the beneficiary and to limit the right of his executor.</p> <p>2. Army and navy <§=>5l'/2, New, vol. I2A Key-No. Series — State statute held inapplicable to contract of war risk insurance.</p> <p>Act Pa. May 11, 1881 (P. L. 20, § 1; Pa. St. 1920, § 12399), providing that, unless a copy of the application referred to therein shall be attached to a life insurance policy issued by any company, the same shall not be admissible in evidence, held to have no application to contracts of war risk insurance.</p> <p><©=>For other casas see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>I. Druggists <@=»I I — Insecticide not “adulterated” or “misbranded” by addition of water.</p> <p>■ An insecticide or fungicide known as “Kil-Tone” was not adulterated or misbranded by reason of addition of water to the net weight to take-care of evaporation, though it increased the volume of the contents of the package, and may have caused the proportion of the active ingredients to-appear less than called for by the labels; it being stated on the label that water was added “in addition to the net weight.”</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Adulterate — Adulteration; Misbrand — Misbranding.]</p> <p>2. Appeal and error .*§==>999(1)— Facts found by jury not re-examined.</p> <p>It is beyond the power of a Circuit Court of Appeals to re-examine the facts as found by the jury in the District Court, and its verdict cannot be disturbed, unless the court committed substantial error.</p> <p><§^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Habeas corpus by the United States, on relation of McGregor S. Ross, against Frederick A. Wallis, Commissioner of Immigration at New York City. From an order dismissing the writ, relator appeals.

Appeal 'from the District Court of the United States for the Southern District of New York. Habeas corpus by the United States, on the relation of Edward D. Brown and others, against Frederick A. Wallis, as Immigration Commissioner, etc. From an order dismissing the writ, relators appeal.

Dickinson, Judge. Criminal prosecutions by the United States against Emma C. Berg-doll and others, with four other allied cases. Judgments of conviction (272 Fed. 498), and defendants bring error.

<p>I. Shipping <©=»54 — Charterer of barge and crew liable for damage to barge only for negligence.</p> <p>Where the charterer chartered a barge and its so-called master, wbo was the only member of its crew, and who was appointed and paid by the owners, the so-called master remained the agent and representative of the general owner, in so far as the care of the boat or its internal economy was concerned, and the charterer can be held liable only on tbe ground of bis negligence.</p> <p>Shipping <§=>54 — Leaving barge moored at dangerous berth in face of storm warning held negligence.</p> <p>A charterer was negligent in leaving the chartered barge moored at an exposed berth, which was unnecessarily dangerous, after storm warnings and the conditions of weather and ice in the river became known to the charterer.</p> <p>3. Shipping ®=»5’4 — Absence from barge of owner’s master held negligence imputable to owner.</p> <p>Where the master of the barge appointed and paid by tbe owner remained in charge of the barge after it was chartered, his negligence in absenting himself from the barge while it was moored in a dangerous position and exposed to a storm, of which warning had been given, was imputable to his employer, the owner.</p> <p>other cases see same togie & KEY -NUMBER in .all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Southern District of Mississippi; Edwin R. Holmes, Judge.</p> <p>Bill in equity by the United States against the Riviera Realty Company. Decree for defendant, and the United States appeals.</p>

<p>Collision <s=s>96 — Tug held in fault for collision with ferryboat.</p> <p>A tug, with, a car float on each side, heading up the Hudson, held solely in fault for a collision between one of her floats and a meeting ferryboat, which she knew intended to enter a slip, for not sooner indicating her own course by signal, and for crossing the signal of the ferryboat for passing port to port, which was the proper passage indicated by the positions and courses of the two vessels.</p> <p>(@=^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Suit in equity for infringement of patent by the Weber Electric Company against W. R. Ostrander & Co. Decree for plaintiff, and defendant appeals. Suit is upon claims 1 and 4 of patent No. 743,206 and claim I of patent No. 916,812. The elder patent expired pending suit. The subject-matter is the frequently litigated Weber socket. The litigious history of these patents is given in Weber, etc., Co. v. Connecticut, etc., Co. (C. C. A.) 263 Fed. 583.

Jack, Judge. Action by Harve M. Wheeler against Charles P. Taft. Decree for plaintiff. From an order satisfying the decree, plaintiff brings error and appeals.

Court of the United States for the Eastern District, of Pennsylvania; Oliver B. Dickinson, Judge. Petition in equity of Alice Frances Brown and others against the Pennsylvania Canal Company and the Pennsylvania Railroad Company. Decree dismissing petition, and petitioners appeal.

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

<p>In Error to the District Court of the United States for the Southern District of Florida; William I. Grubb, Judge.</p> <p>Criminal prosecution by the United States against William T. Hilt and others. Judgment of conviction, and defendants bring error.</p>

<p>1/ Internal revenue <§ss>2 — Prohibition Act cannot impliedly repeal revenue forfeiture section except as to Intoxicating liquors.</p> <p>Since Kev. St. § 3450 (Comp. St. § 6352), providing for forfeiture of a 'vehicle used in tile removal, deposit, and concealment of property on which the revenue tax had not been paid, covered the whole field of articles, taxed by'the United States, the Volstead Act could not impliedly repeal it as a whole.</p> <p>2. Statutes '<&z>159 — Repeal implied only if It is impossible to execute both laws.</p> <p>Before an implied repeal exists, it must he impossible to execute both laws.</p> <p>-3. Internal' revenue <@=m2 — Prohibition Act did not repeal act forfeiting vehicles used in concealing liquor to evade tax payment.</p> <p>Since Volstead Act, § 26, providing for forfeiture of vehicles used in transporting liquor, relates only to transportation in violation of that act, under which liquors may be taxed and may be lawfully transported by •one having a permit, it did not impliedly repeal Kev. St. § 3450 (Comp. St § 6352), providing for forfeiture of a vehicle used in transporting, ■concealing, or depositing liquors on which the tax had not been paid, at least in so far as the latter section related to the concealing and depositing of such liquors.</p> <p><g=^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>4. Internal revenue @=>46 — Judgment forfeiting under revenue law for transporting, depositing, and concealing is valid.</p> <p>A .-judgment forfeiting an automobile under Eev. St. § 3450 (Comp. St. § 6352), which recited that the automobile was used in transposing, concealing, and depositing liquors on which the tax had not been paid, was valid, in view of the presumption in favor of judgments, even though the portion of that section authorizing forfeiture for transporting liquors was impliedly repealed by the Volstead Act.</p> <p>5. Intoxicating liquors @=>252 — Judgment of forfeiture held not sustainable under prohibition law.</p> <p>_ A judgment forfeiting an automobile for transportation of intoxicating liquors therein cannot be sustained, under Volstead Act, § 26, authorizing such forfeiture after the persons in charge thereof had been prosecuted and convicted under that act, where the record does not show that known persons who were in charge thereof were violating the act, or that they had been prosecuted and convicted.</p> <p><gs^>Eor other cases see same topic & KEY-NUMBEK in all Key-NumherecI Digests & Indexes</p>

<p>1. Evidence 10(2), II — Judicial notice taken of location of town and prosperous conditions.</p> <p>It is a matter of common knowledge, of which the court must take notice on objections to a bankrupt’s discharge, on the ground that a materially false statement was made for the purpose of obtaining credit, that Dunn, N. C., is in the center of an unusually fine agricultural section, and that the year 1919 and until the latter part of 1920 was of unprecedented prosperity.</p> <p>2. Bankruptcy <§=»407(5)— Representation that accounts were good not materially false statement, preventing discharge.</p> <p>In view of the unexpected drop in the prices of farm products during the fall months of 1920, a representation in a statement to a commercial agency in July. 1920, that a mercantile firm’s accounts receivable were good, held not shown to be a materially false statement, preventing a discharge, under Bankruptcy Act, § 14b (Comp.1 St. § 9598), because in June, 1921, one-third of the accounts were uncollectible.</p> <p>—Jnr other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>3. Bankrupty <§=>407(5) — Statement in financial statement that “accounts are good” construed.</p> <p>A representation in a statement given a commercial agency by a mercantile firm doing business in an agricultural section that its accounts receivable were good, when fairly and reasonably construed, was an asser-. tion that, in the opinion of the one making the statement and under present and fairly reasonable conditions, they would be paid as crops were matured and marketed.</p> <p>4. Bankruptcy <§=>407(5) — Representation as to partner’s real estate, which was subject to dower, held not materially false statement.</p> <p>A representation in a statement given a commercial agency by a mercantile firm that real estate worth $30,000 stood of record in the name of a partner, who took no part in conducting the business, and who was not individually adjudicated bankrupt, held, not a materially false statement, within Bankruptcy Act, § 14b (Comp. St. § 9598), where the partners making the statement did not know that dower had been alloted in such land to the owner’s mother.</p> <p>5. Bankruptcy <§=>407(5) — Partners making statement to mercantile agency not charged with knowledge of dower to which another partner’s real estate subject.</p> <p>Partners including in a statement of the assets of the. firm made to a commercial agency real estate owned by another partner, who took no part in conducting the business, were not charged with notice that dower had been allotted to the other partner’s mother, though it was a matter of record, where they never had occasion to examine the record.</p> <p>6. Bankruptcy <§=>407(5) — Statement known to be untrue, or made without reasonable cause to believe it to be true, not basis of charge of intent to defraud.</p> <p>One who makes a statement as a fact which he knows to be untrue, or which he has no reasonable cause to believe to be true, knowing that the person to whom it is made will act on it to his detriment, is liable for Such damage as such person sustains by acting on it; but this principle is confined to legal liability, and cannot be made the basis of a charge of making a false statement with intent to defraud, under Bankruptcy Act, § 14b (Comp. St. § 9598).</p> <p><§=>For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by the Liberty Central Trust Company and others against the Gilliland Oil Company. On rule of W. N. McFarland, Supervisor of Public Accounts, and J. W. Coleman, Tax Collector for the Parish of Claiborne, on receivers to show cause why they should not comply with the provisions of the Severance License Tax Law of Louisiana and pay the tax therein provided. Receivers instructed to make payment.</p>

Suit by Olin J. Stephens, Inc., against the American Real Estate ■Company. On exceptions by David Whitehom and others, as tenants, to the report of a master fixing the reasonable rental which the receiver might charge for the premises. Sur exceptions to a special master’s report under the following circumstances: The proceeding arises in a “sequestration” or “conservation” suit to protect the interests of creditors.

<p>At Raw. Action by the Bromwell Brush & Wire Goods Company against the State Board oí Charities and Corrections. On motions by defendant to dismiss.</p>

<p>1. Patents 173 — Inventor entitled to uses of instrumentality, whether understood or not, and whether theory right or wrong.</p> <p>An inventor of a new instrumentality is entitled to the fruits of all its uses, whether he understood them or not, and whether his theory of operation was right or wrong, comprehensive or limited; the question being what the instrumentality does, and not how or why it does it.</p> <p>2. Patents 1 (4)— Evidence held to show patentee the first inventor of improved wireless receiving system.</p> <p>In a suit for infringement of the Armstrong patent, No. 1,113,149, for an improved wireless receiving system, evidence held to show that the patentee was the first inventor of such system.</p> <p>3. Patents <§=^328 — 1,113,149, for wireless receiving system, held not anticipated and infringed.</p> <p>The Armstrong patent, No. 1,113,149, for a wireless receiving system, held not anticipated, and also infringed.</p> <p>4. Depositions <s=»65 — Not admissible, where party has had no opportunity to examine the witness.</p> <p>A deposition is inadmissible in a patent infringement suit as a mere ex parte affidavit where defendant has had no opportunity in the same or any other proceeding to examine the witness.</p> <p>5. Patents <g=»91 (3) — Corroboration of inventor as to date of invention not essential, if evidence satisfies trier of facts.</p> <p>In a patent infringement suit, corroboration of the patentee’s testimony as to the date of invention, in the sense of full knowledge of the inventive conception and an understanding of the apparatus, by a witness in addition to 1he inventor, is not necessary, where the testimony of the inventor, in connection with the other testimony, and his apparatus and a sketch made by him, is satisfactory to the trier of the facts.</p> <p><§^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Patents <§=5>328 — Reissue 13,436, for a wood glue and process of manufacture, held valid and infringed.</p> <p>The Perkins reissue patent, No. 13,436,'for a wood glue and process of making same, claims 13 and 38, for the second and final step in the process, as limited by 'the disclaimer filed, and claims 28, 30, and 31, for the product, held valid and infringed, though in preparing the starch base; treated by the final process, the first step in the patented process, covered by other claims, is not used, but an equivalent base otherwise procured is used, and the product resulting from its treatment by the final process is that' of the patent.</p> <p>(§E5>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by the Perkins Glue Company against the Holland Furniture Company and others.</p>

<p>In Equity. Suit by the Perkins Glue Company against the Standard Furniture- Company and others.</p>

<p>Appeal from the District Court of the United States, for the Western Division of the Northern District of Ohio; John M. Killits, Judge. _</p> <p>_ Suit in equity by John P. Curry and Clifford L. Miller against, the Union Electric Welding Company. From the final decree, defendant appeals.</p>

<p>In Error to the District Court of the United States for the Western District of Kentucky; Walter Evans, Judge.</p> <p>Action at law by Thomas J. Taylor and others, partners doing business under the firm name of Taylor, Uowcnstein & Co., against the Louisville Soap Company, to recover damages for a breach of contract for the purchase of rosin, in which the defendant filed a cross-petition to recover overpayments made by it. Judgment for plaintiffs and defendant brings error.</p>

<p>Street railroads <3=s*l 17(35) — Negligence, within last clear chance doctrine, held for jury.</p> <p>Plaintiff, when crossing a street midway of a block, stopped between the east and west bound lines of track of defendant’s street railroad, where he stood for a minute or more, and while so standing and while his attention was attracted in the opposite direction, he was struck and injured by a car coming from behind him. There was evidence that the car was running at excessive speed, that a passenger saw plaintiff before it reached a cross-street, which was 216 feet from where plaintiff stood, and that no warning was given until the car was within 50 feet of him, and no attempt made to stop it until within 80 feet. Held, that the ease was for the jury, that while plaintiff was negligent the last clear chance doctrine applied, and that if the motorman saw plaintiff, or should have seen him in the exercise of ordinary care, in time to avoid the collision, and did not, his negligence was the proximate cause, of the injury, and this though plaintiff’s negligence continued to the time of the injury.</p> <p><£s»For other cases* see same topic & KEY-NUMBKR in 'all Key-Numbered Digests & Indexes</p>

<p>1. Courts <@=>371.(2) — Federal court has jurisdiction to appoint receiver under Delaware statute.</p> <p>Eev. Code Del. 1915, § 3883. providing that “whenever a corporation shall be insolvent, the Chancellor, on the application and for the benefit of any creditor or stockholder thereof, may, at any time, in his discretion, appoint one or more persons to be receivers” of such corporation, confers such jurisdiction on the Court of Chancery, and not on the Chancellor as an individual aside from his court functions, and such power may be exercised by a federal court of equity in the state in a ease of which it has jurisdiction.</p> <p>2. Bills and notes <@=>443(3) — Holder of negotiable note may sue in his own name.</p> <p>A bona fide holder of a negotiable promissory note indorsed in blank, though after maturity, may sue thereon in his own name, whether he owns it or holds it as agent or trustee for another.</p> <p>3. Bills and notes <@=>351 — Indorsee of overdue negotiable paper takes subject only to such equities as attach to the paper itself.</p> <p>An indorse^ of negotiable notes though after maturity, takes the paper subject only to such equities or defenses as attach to the notes themselves, and not to claims arising out of collateral matters or independent transactions, whether they arise against the payee or an intermediate holder.</p> <p>4. Corporations <@=>556 — Appointment of receiver under Delaware statute need not be on application of judgment creditor.</p> <p>Under Eev. Code Del. 1915, § 3883, authorizing appointment of a receiver for an insolvent corporation on application of a creditor, it is not necessary that complainant be a judgment creditor.</p> <p>5. Receivers <@=»8 — Appointment held within discretion of court.</p> <p>Appointment of a receiver for a corporation held based on valid grounds, and not an abuse of discretion.</p> <p>other cases see same topic & KEY-NUMBER in-’aH Key-Numbered Digests & Indexes</p>

<p>1. Criminal law <@= 1149 — Motion to quash for incompetency or insufficiency of evidence before grand jury addressed to discretion of court.</p> <p>Denial of a motion to quash an indictment on the ground of the incompetency and insufficiency of the evidence before the grand jury on which it was based is within the discretion of the trial court, and will not usually be reviewed by an appellate court.</p> <p>2. Indictment and information <@=¡25(3) — Indictment for using snails to defraud held not bad for duplicity.</p> <p>An indictment for using the mails to defraud held no'- duplicitous, because it also charged that the scheme devised by defendants was to obtain money by means of false and fraudulent representations.</p> <p>3. Witnesses <@=206 — Statements to attorney, made in presence of others, held not privileged.</p> <p>Testimony of an attorney as to statements made by defendant at a conference held not inadmissible as a privileged communication, where others were present and it did not appear that defendant was seeking legal advice.</p> <p>4. Criminal law <©=432, 434 — Books and papers of corporation held admissible in prosecution of officers.</p> <p>Books of account, canceled checks, and other documents of a corporation, which came legitimately into the hands of its receivers and were delivered by them to the district attorney, held admissible in the prosecution of officers of the corporation for using the mails to defraud.</p> <p><@=For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexe»</p>

<p>1. Removal of causes <@=>29 — Causes field removable to District Court for Porto Rico, where requisite amount involved.</p> <p>Under Jones Act, §§ 41, 42 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 3803qq, 3808r), establishing the District Court of the United States for Porto Rico, defining its jurisdiction and providing for removal of causes thereto, a cause which involves the requisite amount is removable from a local court where all the defendants are “citizens or subjects of a foreign state or states, or citizens of a state, territory or district of tbe United States not domiciled in Porto Rico,” regardless of whether or not plaintiff is a citizen, either of Porto Rico or of a foreign state.</p> <p>2. Removal of causes <@=>l 11— Bringing in new parties after removal does not oust jurisdiction.</p> <p>A federal court having acquired jurisdiction of a cause by removal is not ousted of jurisdiction by the bringing in of new parties, whatever their citizenship.</p> <p>3. Courts <@=>315 — Jurisdiction of suit against partnership is determined by citizenship of partners.</p> <p>Where the jurisdiction of a federal court of a suit against a partnership depends on diversity of citizenship the question is to be determined by the citizenship of its members, though under the law of the place of its origin it is regarded as an entity and may sue and be sued in its partnership name.</p> <p>4. Boundaries <@=>13 — “Seashore” as boundary is ordinary high-water mark.</p> <p>“Seashore” is the land lying between ordinary high and low water mark, and when named as a land boundary means ordinary high-water mark.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Seashore.]</p> <p>5. Territories <@=>9 — Cession of Porto Rico to United States did not affect prescription.</p> <p>Under general order of November 4, 1898, and Fbraker Act, § 8 (Comp. St. § 3755), continuing tbe laws of Porto Rico in force, a prescriptive right to land which had commenced to run under Spanish Civ. Code, art. 1957, in force in the island, continued until the adoption of Pol. Code Porto Rico, March 1, 1902.</p> <p>(gr»P©r other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Sanford, Judge. Sam C. Baird was convicted of operating a distillery, contrary to the revenue laws, and of using foods; in the production of distilled spirits, contrary to the Eever Act, and he brings error.

<p>In Error to the District Court of the United States for the Eastern District of Louisiana; Rufus E. Foster, Judge.</p> <p>Criminal prosecution by the United States against Camille Falgout and others. Judgment of conviction, and defendants bring error.</p>

Bean, Judge. Suit in equity by the United States against the California Midway Oil Company and others. Decree for defendants, and complainant appeals. The United States brought a suit to enjoin waste oí tho oil contents of the northwest quarter of a section of land in Kern county, Cal., the legal title thereto being in the United States.

Action by Titus E. Bortz against Charles E. Adams and others, as trustees, doing business under the firm name and style of the New England Fuel & Transportation Company. Judgment for plaintiff, and defendants bring error. Defendants owned the steamship Malden and employed plaintiff in June, 1919, as chief steward for. a voyage to one or more European ports and return.

<p>Petition to Revise and Appeal from the District Court of the United States for the Southern District of New York.</p> <p>In the matter of Alma Newton Anderson, bankrupt. On petition to revise and appeal by the United States to review order of the District Court.</p> <p>Alma Newton Anderson was duly adjudicated a bankrupt. On June 23, 1921, an order was entered affirming an order of the referee in bankruptcy barring the United States from participating in the bankrupt’s estate for taxes assessed against the bankrupt upon income received by her during the year 1917. The United States of America petitions to revise this order.</p>

In the matter of P. Jesse Matton, bankrupt, William A. Shovah, Jr., appeals from an order of the District Court. Appeal from an order dismissing Shovah’s petition and adjudging that the boat sought by Shovah to be delivered to him is the property of the trustee in bankruptcy'. The petition in bankruptcy was filed May 14,1921, and Matton was adjudicated a bankrupt on June 2, 1921. Matton, on and subsequent to January 5, 1921, was a boat builder at Watervliet, New York.

Call, Judge. Proceedings by the United States to forfeit the vessels Dickey Bird and Florence, claimed by Nick Santini, and the yacht Inia II, claimed by W. H. Lowe. From decrees dismissing the libels, the United States appeals.

<p>j. Customs duties <§=»62— Intoxicating liquor is “merchandise,” within statute relating'to production of manifests.</p> <p>Intoxicating liquor is “merchandise,” within Rev. St. § 2811 (Comp. St. § 5508), requiring master of a vessel to produce manifests in writing to inspector of customs, m view of section 2766 (Comp. St. § 5462).</p> <p>LEd. Note. — For other definitions, see Words and Phrases, First and Second Series, Merchandise.!</p> <p>2. Customs duties <§=^2 — Statute requiring master to deliver manifest more than league from shore valid.</p> <p>Rev. St. $ 2811 (Comp. St. § 5508), requiring masters of laden vessels bound for a port of the United States to produce manifests in writing on demand when within four leagues of the coast, is valid, as is section 2814 (Comp. St. § 5511), penalizing master failing to produce manifests.</p> <p>3. Customs duties @=»62, 129 — Vessel intending to deliver cargo at sea held “bound to a port of the United States,” within statute relating to manifests.</p> <p>A vessel, getting or intending to get its cargo into the United States by delivering it at sea more than three miles from shore to a boat or boats, by which it was to be carried to a port of the United States, was “bound to a port of the United States,” within the meaning of Rev. St. §§ 2811, 2814 (Comp. St. §§ 5508, 5511), requiring a master to deliver a manifest to customs officers and providing a penalty for failing to do so.</p> <p><§=»For other cases see same ¿opio & KEY-NUMBER, in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the First Division of the Northern District of California; Maurice T. Dooling, Judge.</p> <p>Action at law by Charles D. Harris, trustee in bankruptcy of the Davis Transit Company, against the Moreland Motor Truck Company and others. Judgment for defendants, and plaintiff brings error. On motion to dismiss the writ of error.</p>

Dooling, Judge. Action at law by Charles E. Harris, as trustee in bankruptcy of the Davis Transit Company, against the Moreland Motor Truck Company and others. Judgment for defendants, and plaintiff brings error. Action by the trustee of the Davis Transit Company, a bankrupt corporation, formerly in the automobile stage business, against the Moreland Motor Truck Company, a corporation, and individual defendants, to recover $51,000.

In the Matter of the Oswegatchie Chemical Products Corporation, hankrupt. The Abbott Factory, Inc., appeals from an order of the District Court denying a lien. In January, 1916, the Abbott Factory, Inc., was, and still is, a corporation. It then owned certain land and the buildings thereon erected in Gouverneur, N. Y. The shares of the Factory, Inc., were all owned by J. Henry Abbott, his son, Arthur TI. Abbott, and a cousin.

Earis, Judge. Suit in equity by Thomas L. Williams, doing business as the May-bell Laboratories, against Benjamin Ansehl, doing business as the Lash-brow Laboratories Company. Decree for defendant on cross-bill, and complainant appeals.

<p>Maritime liens <®=»65--CIa!m to lien for stevedoring services held not sustained by the evidence.</p> <p>A claim to a lien on a ship for stevedoring services rendered in loading the ship, which was under a charter requiring the charterer to pay for such services, held, not sustained by the evidence, where it rested on the testimony of libelant’s president that the master agreed that the vessel would be reponsible, which was positively denied by the master, who was corroborated by the fact that he had been previously advised by the ship’s agent that the charterer was not financially responsible and to be cautious.</p> <p><@nrp£’or oilier oases see same topic & KEY-NU.MBEIl in all Key-Numbered Digests & Indexes</p>

<p>Criminal law <§=>770(2) — Instructions must present defendant’s theory of defense when supported by evidence.</p> <p>Where the evidence presents a theory of defense, and' the court’s attention is particularly directed to it, it is reversible error to refuse to give any charge on such theory.</p> <p>•<©55>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Alabama; William I. Grubb, Judge.</p> <p>Suit in equity by Gtuiseppe Moretti against John Wiley and others. Decree for-defendants, and complainant appeals.</p>

Woodrough, Judge. Action at law by Edwin T. Swobe against the Brictson Manufacturing Company. Judgment for defendant, after demurrer to the complaint had been sustained and plaintiff had declined to plead further, and. plaintiff brings error.

<p>In Error to the District Court of the United States for the Eastern District of Missouri; Charles B. Earis, Judge.</p> <p>Criminal prosecution by the United States against Selz Sloan. Judgment of conviction, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the Western District of Louisiana; George W. Jack, Judge.</p> <p>Action at law by S. H. Bolinger & Co., Limited, against the St. Louis Southwestern Railway Company. Judgment for plaintiff, and defendant brings error.</p>

Kansas; John C. Pollock, Judge. Application by Mánuel Moreno^ and others for writ of habeas corpus, directed against W. I. Biddle, Warden of the United States Penitentiary at Leavenworth, Kan. From a judgment discharging the petitioners, the Warden appeals.

<p>Intoxicating liquors <§=»236(19)— Conviction for having mash not sustained by evidence.</p> <p>Conviction of a defendant for making and fermenting a certain mash, wort, or wash fit for the production of spirits, on premises other than a duly authorized distillery, held not sustained by evidence.</p> <p><@cs>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Woodrougli, Judge. In the matter of the Crown Tire & Rubber Company, alleged bankrupt. The Newsome Valve Company and others, petitioning creditors, a ppeal from an order dismissing their petition.

<p>Patents <§=>328 — 814,786 and 814,848, for talking machine horns, held valid and infringed.</p> <p>The Johnson patents, No. 814,786 and No. 814,848, for improvements in amplifying horns for talking machines, disclose patentable novelty and are valid; also held infringed.</p>

<p>1. Bankruptcy <§=98 — Referee’s findings on unreported evidence are conclusive, unless plainly wrong.</p> <p>Where the evidence is not reported, the findings of the referee are conclusive, unless plainly wrong on the face of his report; but, in so far as such findings are merely inferences from facts stated, they carry much less weight.</p> <p>2. Bankruptcy <§=58 — Intent to prefer essential to make preference an act of bankruptcy.</p> <p>The giving of a mortgage for a past debt and a present additional consideration covering practically all the assets of one who knew he was insolvent was not an act of bankruptcy", unless made with an intent to prefer, as required by Bankruptcy Act, § 3 (Oomp. St. § 9587).</p> <p><B=For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>3. Bankruptoy (grsSii — IVlQrtgage sufficient to secure existing debt is “act of bankruptcy,” notwithstanding desire to make new loan.</p> <p>Where an insolvent person gave to a creditor a mortgage covering substantially all Ms property, which was sufficient to secure, not only a new loan made by the creditor, but also the creditor’s existing claim, the fact that the mortgagor’s desire was to secure the additional loan does not prevent the mortgage from being an act of bankruptcy, since motive and intent in such a case are quite different things.</p> <p>[Kd. Note. — For other definitions, see Words and Phrases, First and Second Series, Act of Bankruptcy.]</p> <p>4. Bankruptcy <3=s>53--New loan of 50 per cent, of value of mortgaged chattels not necessarily a preference.</p> <p>Where a new loan to an insolvent person amounted to 50 por cent, of the value of chattels mortgaged to secure that loan and an existing debt io the mortgagee, the ratio between the value of the chattels mortgaged and the new loan was not sucli as necessarily to establish a preference, because obviously resulting in an excess of security applicable to the old debt.</p> <p><gEZ¿For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Bankruptcy. In the matter of Elijah F. Ballard, bankrupt. On review of an order of the referee. The opinion of E. M. Baker, Referee in Bankruptcy, was as follows: Elijah !•'. Held: in the contest between the mortgagee and judgment creditors, whoso lion took effect after ihe cancellation of the old note, that the lien continued until the debt was paid.

In Fquiiy. Suit by the American Radium Company against the Hipp. Didisheim Company, Inc... and others, for infringement of letters patent No. 911,401, dated February 2, 1909, for luminous substance for indicators.

<p>I.. Removal of causes ©=>95 — State court, by denial of petition, does not retain jurisdiction, if cause removable.</p> <p>If a cause was removable on petition of tbe defendants applying therefor, the denial of the petition by the state court did not affect the status of cause, so as to give the court jurisdiction thereafter to enter an order in the cause; but, if tbe denial of tbe petition for removal was proper, the injunction thereafter issued by tbe state court will not be vacated.</p> <p>2. Removal of causes ©=>92 — Ail papers filed in state court prior to removal should be sent to tbe federal court.</p> <p>Where a petition by two defendants to remove the cause to the United States court was insufficient to secure removal, all papers thereafter entered in the cause in the state court, including depositions taken pursuant to commissions, should have been sent to the federal court, on the subsequent removal of the cause on petition filed by all of the defendants except one, who disclaimed.</p> <p>Cj=sFor otter eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Bankruptcy. In the matter of the Henry Wood Sons Company, bankrupt. On petition of bankrupt for review of order of referee.</p>

Bledsoe, Judge. Suit in equity by Willis J. Boyle, Sr., against the Woolwine Metal Products Company. Decree for complainant, and defendant appeals. The appellee, WiJIis J. Boyle. Sr., had been a manufacturer of canteens since 1899. From time to time he had improved on his canteens, and on the 15th of July, 1910. had perfected á type of canteen for which he made application for a patent, and on June 19, 1917, patent No. 1,230,459 was issued to him.

Eobingier, Judge. Criminal prosecution by the United States against Williams S. Fleming. From a judgment adjudging the defendant guilty of direct-contempt, he brings error.

Suit by Harvey McConaughey, for himself and others, against J. J. Morrow, Governor of the Panama Canal, and others. Decree for defendants, and plaintiff appeals and brings error.

■In Error to the District Court of the United States for the District ot New Jersey; Charles F. Eynch, Judge. Action at law by Elmira Van Buskirk, administratrix of the estate ot William Van Buskirk, deceased, against the Erie Railroad Compmy. Judgment for defendant, and plaintiff brings error.

<p>1, Sales <§=>384(2)~-Measure of damages for breach of contract by purchaser.</p> <p>While it is the settled law that tlie measure of damages for breach of a contract for the purchase of a marketable commodity is the difference between the contract price and (lie market price at the time and place when and whore delivery was to he made, such rale does not apply when delivery is deferred at the request, of the buyer; but in that case the measure of damages is the difforeme between the contract price and the market price at the place of delivery at the time the buyer definitely refuses to accept delivery.</p> <p>2. Sales <g=>88 — Construction of contract is for the court.</p> <p>The construction of a written contract of sale and of subsequent correspondence relating thereto held, for the court.</p> <p>H. Sales <§=>l77--Cori‘espondence held not to have effected cancellation of can-tract.</p> <p>Correspondence relating to a contract for the sale and delivery of 200 tons of pig iron per month for six months, to be treat ed as a separate contract for each month, construed, and the contract held, not to have been definitely canceled or repudiated by the buyer until delivery for tiie last month was due and tendered, where until that time the buyer continuously requested that shipments be deferred and the price reduced, without explicitly refusing to accept delivery at a future time.</p> <p><2=>Eor other casos soo samo topic & KEY-NUiVLBBR in all Key-Numbered Digests & Indexes</p> <p>4, Sales <§=>69 — Contract for sale of pig iron held not limiten to iron of seller’s own manufacture.</p> <p>A contract for the sale of pig iron to be delivered at seller’s furnaces held not for manufacture and sale, but one under which the seller had the right to supply the iron from its own or other manufacturing plants.</p> <p>5, Appeal and error <©=>1064(I ) — Judgment not reversible for harmless error in instructions.</p> <p>A judgment will not be reversed, or a verdict set aside, because of error in the instructions, where it appears that no harm resulted to the complaining party.</p> <p><§E5>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the District of Wyoming; John A. Riner, Judge.</p> <p>Suit in equity by the Western Wyoming Land & Dive Stock Company against David Bagley and others. Decree for defendants, and complainant appeals.</p>

<p>1. Crimiuai law <£=762(2) — Expression by judge of opinion of guilt of accused not error.</p> <p>In the federal courts the trial judge is entitled to express in his instructions Ms opinion on the facts and the guilt or innocence of the accused, provided the jury is given unequivocally to understand that it is not bound by tlie expressed opinion of the judge.</p> <p>2. Intoxicating liquors <3=224— Burden of proving legality of possession of liquor held to rest on defendant.</p> <p>Under National Prohibition Act, tit. 2, § 33, which provides that possession of liquor by any person not legally permitted by the act shall be prima facie evidence that it is Kept for an unlawful purpose, but that "it shall not lie unlawful io possess liquors in one’s private dwelling while the same is occupied and used by him as his dwelling only, * * - provided such liquors are for use only for the personal consumption of (lie owner,” etc., where liquor was found in possession of a defendant in his hotel, an instruction that the burden was on him to prove that It was possessed lawfully by him Cor his own use held not erroneous.</p> <p>3. So;;robos and seizures <g=7 — Seizure of liquor found on search made with defendant’s consent held not unlawful.</p> <p>Where prohibition agents entered the public bar in defendant’s hotel, and, finding there a bottle of whisky, asked permission to search the premises, which was granted and the search led by defendant, the seizure of other liquor found in such search, though the agents had no search warrant, held not in violation of defendant’s rights under Const. Amend. 4.</p> <p><g=For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Appeal and Cross-Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois. Suit for infringement of a patent by the Computing Scale Company against the Toledo Computing Scale Company. From a decree rendered for complainant after an accounting, the parties separately appeal.

<p>1. Death <@=>103(2) — Cause'of hrakeman’s death held question for jury.</p> <p>Evidence that a brakeman, with another man, was in the caboose of a train standing on the track a few minutes before the caboose was struck and demolished by the engine of a following train, that the bodies of two men were found in the wreckage, and that the body of the brakeman was buried three days later, held to warrant submission to the jury of the question whether his death was caused by the collision.</p> <p>2. Master and servant <@=3286(34) — Negligence causing collision between trains held question for jury.</p> <p>Evidence, that a block signal was in working order 15 minutes before the approach of a train, and was set at a signal warning the train to stop before entering the block, and that it not only passed it without stopping, but failed to stop when it passed over and exploded torpedoes placed on the rails, and crashed into a train ahead, held sufficient to warrant submission to the jury of the question of negligence.</p> <p>3. Death <@=>95(3)— Measure of damages under federal Employers’ Liability Act defined.</p> <p>In an action against a railroad company for death of an employé, under Employers’ Liability Act April 22, 1908, § 1 (Comp. St. § 8057), which authorizes recovery for the benefit of the widow and children, plaintiff is entitled to recover such sum as would fairly and reasonably compensate such widow and children for the loss of pecuniary benefits which they might reasonably expect to have received, but for the death.</p> <p>4. Death <@=>69 — Evidence of wife’s infidelity held inadmissible.</p> <p>In an action against a railroad company, under Employers’ Liability Act April 22, 1908, § 1 (Comp. St. § 8657), for death of an employé who left a widow and children, evidence offered by defendant to show that the widow had been unfaithful to her husband held properly excluded.</p> <p>^=3For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in admiralty by the Virginia-Carolina Chemical Company against the Chesapeake Lighterage & Towing Company and Fireman’s Fund Insui-ance Company. Decree for libelant, against the Insurance Company, and it appeals.</p> <p>Libelant either imported or bought from the importer certain “kainit.” Tie steamship Main, which brought the kainit, arrived at Baltimore, and libelant employed the Chesapeake Company to take the kainit upon one of its barges for carriage to Seawell, Md. The laden barge, according to tbe libel, “sprang a leak and sunk * * * as a result of perils of the sea,” whereby libelant’s cargo became a total loss. Except for the above quotation, the liiel contains nothing that can be called an allegation of fault against the Ciesapeake Company.</p> <p>Libelant did, however, allege that when the lighterage contract was made it was agreed with Chesapeake Company “that all goods lightered [including, of course, this kainit] while on the lighters of Chesapeake, etc., Company, were to be insured by the [Chesapeake Company] up to the sum of $6,000, provided there was no prior insurance” thereon. In point of fact there was before and at the time when the kainit was laden on Chesapeake Company's barge, and apparently for some months prior to that date, insurance attach-ii g (according to its terms) to said kainit. It was expressed in a policy issued by Federal Insurance Company to the concern which apparently sold the k unit to libelant, and was in favor of said vendor corporation “on account of whom it may concern,” and it concerned the libelant apparently as holder of bills of lading for the kainit at the time it was unladen from the Main a id put aboard Chesapeake Company’s barge.</p> <p>This insurance, available to libelant, covered the kainit from the time of shipment on the Main until its delivery at destination, and specifically included “all risks of lighterage”; but such general assumption was limited by the following exceptive provision: “Warranted by tbe assured free from any liability for merchandise in the possession of any carrier or oilier bailee, who may be liable for any loss or damage thereto, and for merchandise shipped under a bill of lading containing a stipulation that the carrier may have the benefit of any insurance thereon, and that any insurance granted herein símil not cover where any carrier or other bailee has insurance (whether prior or subsequent in date to this policy) which would attach if this policy had not been issued.”</p> <p>At and before the time when Chesapeake Company agreed to carry libelant's kainit, it had a policy in the Fireman’s Fund Insurance Company, which by its terms covered “merchandise and property on which the (Chesapeake Company) have agreed with the shippers to provide insurance, also their legal liability in cases where they have not agreed to provide insurance.” This Fireman’s Company policy applied specifically to the barge which carried the kainit, and contained the exceptive provision: “Warranted by the assured that any insurance granted herein shall not cover where the assured or any carrier or other bailee has insurance which would attach if this policy had not been issued.”</p> <p>Upon the loss of the kainit libelant received from the Federal Company what would have been its loss under that company’s insurance policy, but only “as a loan, and repayable only to the extent of any net recovery [Federal Company! may make from any carrier, bailee, or others on account of loss [of the kainit]. or from any insurance effected by any carrier, bailee or others on said” kainit. The receipt for this loan contained the usual agreement on the part of libelant to prosecute suits as required by Federal Company, but “at the expense and under the exclusive direction and control” of said Company.</p> <p>The; eupoii this action was begun, with allegations as above set forth only against Chesapeake Company, but with an averment that “by reason of the said policy of insurance taken out [with-.Fireman’s Company] said Fireman’s Company is liable to it under and by virtue of the terms of its said policy with” Chesapeake Company. The Chesapeake and Fireman’s Companies appeared by the same proctors, denied the allegation last quoted, but admitted that, when Chesapeake Company agreed to carry said kainit, it further agreed that it “would be insured by the Chesapeake Company while on its lighters, provided said cargoes were not otherwise insured.”</p> <p>At trial the only evidence beside the two policies of insurance a,nd the receipt for the loan made to libelant by Federal Company was a stipulation that whatever agreement to insure was made by Chesapeake Company was evidenced only by talk between a representative of libelant and of Chesapeake Company, and that if such representatives were called as witnesses each would swear exactly as ihoir respective employers had pleaded. On this record the trial court gave decree to libelant as against the Fireman’s Insurance Company only, but dismissed the libel as’against Chesapeake, etc., Company. Whereupon the Fireman’s Fund Insurance Company appealed.</p>

Suit in admiralty by Fazel Ahammed and others against the steamship City of Norwich; Norton, Lilly & Company, claimant. Decree for libelants, and claimant appeals. This is an appeal by the claimants of the steamship City of Norwich from a final decree awarding to the libelants for wages, maintenance, and transportation an amount which aggregates $20,235.28.

<p>I. Contracts ®=>353(I) — Charge held not to limit plaintiff to date of contract alleged as claimed in exception.</p> <p>A charge stating that plaintiff alleged he and defendant- made a contract in the .spring- of Í9J.0, that plaintiff’s testimony as to conversation with defendant’s representative in April or May and as to suhsouuent talks were denied by the representative, and which submitted to the jury to determine which testimony was to he believed, was not subject to the exception that plaintiff was thereby confined to the date of the contract alleged, notwithstanding evidence the contract was later made.</p> <p><@^>For other eases see same topic & KEY-NUMBEK in all Key-Numbered Digests & Indexes</p> <p>2. Contracts <@=>353(8) — Charge held not to sustain exception to direction of verdict on failure to find refusal to make additional loans.</p> <p>An exception to a portion of the charge to find for defendant if the jury failed to find that defendant refused to loan any further sums was not sustained, where the charge on that question stated that, if the jury failed to and a refusal by defendant to furnish further credit and a demand for repayment in violation of the terms of the alleged contract, the verdict should he for defendant.</p> <p>3. Appeal and error <@=>1068(4) — Charge on damages not prejudicial to plaintiff, where jury found for defendant.</p> <p>A charge referring to the measure of damages cannot be error prejudicial to plaintiff, where the verdict was for the defendant.</p> <p>A. Trial <@=>251 (4) — Requested charges eliminating defenses not raised by defendant were properly refused.</p> <p>In an action for breach of contract to extend credit, where the only defenses relied on were denial of the contract to extend credit and a denial of the alleged refusal of credit, requested charges that the insolvency of the corporation to which credit was to be extended would not justify defendant in breaching its contract to extend the credit to the corporation were properly refused, even though they were correct as abstract propositions of law.</p> <p>E. Trial <@=>260(9) — Requested charge as to cause of insolvency held covered, In so far as correct.</p> <p>In an action for breach of a contract to extend credit to a corporation of which plaintiff was a stockholder, a requested charge to find for plaintiff, if the refusal to extend the credit was the proximate cause or the corporation’s insolvency, was covered in so far as it was correct by a charge that, if the jury found the contract was made between plaintiff and defendant, that defendant breached the contract, and plaintiff suffered loss which was caused by the breach of the contract, the verdict should be for plaintiff.</p> <p>(. Trial <@=>253(5) — Requested charge directing verdict for plaintiff on finding as to only one issue was error.</p> <p>In an action for breach of contract to extend credit to a corporation in which plaintiff was interested, where defendant denied making the contract and denied refusal to extend credit, a requested charge directing a verdict for plaintiff on a finding only that the defendant’s refusal to extend credit caused the insolvency of the corporation was clearly erroneous.</p> <p>/. Pleading <@=>236(5) — Refusal of immaterial amendments to complaint held not abuse of discretion.</p> <p>It was not abuse of the trial court’s discretion to refuse to permit plaintiff during the trial to amend his complaint to conform to the pxoof, where the testimony excluded was not pleaded, was immaterial, and the amendment would not make it material.</p> <p>f. Appeal and error <@=>959(3) — Pleading <@=>236(5) — Allowance of trial amendment is discretionary.</p> <p>The allowance of trial amendments to make the pleadings conform to the proof are clearly within the discretion of the trial judge, and his ruling thereon will be reversed on appeal only in case of an abuse of that discretion.</p> <p>). Evidence <@=>205(1) — Admission must be certain and definite.</p> <p>An admission must be certain, consistent, and definite, couched in language reasonably capable of the interpretation sought to be placed on it, and conjectural and supposititious statements are excluded.</p> <p>10. Evidence <@=>261 — Whether circumstances made silence an admission is question for the court.</p> <p>Whether the circumstances were such as to call for a reply by a party to remark made to him, so as to make his silence an admission is a question for the court.</p> <p><i=>For other cases see same topic & KEY-NUMBER in .all Key-Numbered Digests & Indexes</p> <p>II. Evidence @^322G(2) — -Failure to reply to telephone statement charging breach of contract held not admission thereof.</p> <p>Wliero plaintiff, who claimed that defendant had breached its agreement to extend credit to a corporation in which both were interested, stated, in reply to defendant's inquiry as 1o why a receiver had been appointed, thatjt was because defendant did not live up to his contract, the statement required no reply, and it was not error to exclude the statement from evidence.</p> <p><@5»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & indexes</p>

<p>I Criminal law <@=970(7) — No error in overruling motion in arrest where indictment was not attacked by demurrer or motion to quash.</p> <p>Where no motion to quash the indictment and no demurrer thereto was entered before the trial, assignments of error in overruling a motion in arrest of judgment entered upon seven counts, charging that one of the counts fixed the date of the offense subsequent to the date of the indictment, and two of the others were vague and uncertain, are without merit.</p> <p>2. Criminal law <@=1 144(17) — Indictment and information <@=203 — Conviction not reversed for defective counts if any count is good and supports the judgment; sentence presumed rendered on good count.</p> <p>A verdict and judgment upon an indictment containing several counts will not be reversed for error as to some of the counts, if any one of them is good and warrants the .judgment, since- the presumption is that the court awarded sentence on the good count only.</p> <p>3. Internal revenue <@=42 — Affidavit must state property to be seized under warrant.</p> <p>An affidavit for a warrant to search for property held in fraud of the revenue of the United States, which is substantially in the language of Rev. St. § 3462 (Comp. St. § 6364), authorizing such search warrant, but which does not particularly describe the persons or things to be seized, does not conform to the requirements of Const. Amend. 4, and a warrant issued thereon'and following its language is void.</p> <p>4. Criminal law <@=393(2) — Evidence procured by invalid search warrant cannot be used.</p> <p>To admit evidence procured from defendant under a void search warrant would in effect compel him to become a witness against himself in violation of Const. Amend. 5.</p> <p>£. Crimina! lav; <@=395 — Marked bill deposited by defendant as bill can be used against him.</p> <p>A marked bill 'given by the revenue officers to a witness to purchase narcotics and deposited by defendant for bail can be used 'in evidence against him; the doctrine forbidding the admission of property illegally seized being inapplicable.</p> <p>(■. Arrest <@=70 — Person legally arrested can be searched for fruits of crime.</p> <p>An accused, when legally placed under arrest, can be searched to discover and seize the fruits or evidences of crime.</p> <p>Witnesses <@=383 — Statement by witness that he was going to swear against defendant to save himself admissible.</p> <p>In a prosecution for the sale of narcotics, where a witness testified he made the sale as agent for defendant, an' extrajudicial statement by the witness that he was going to swear against defendant to save himself did not relate to a collateral matter so as to preclude proof of such statement.</p> <p><§=For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>8. Witnesses <g3j>389 — Testimony witness doss not renseinbar his inconsistent statements does not prevent proof by others.</p> <p>“Where a witness testified that he did not remember making- the inconsistent extrajudicial statements inquired about, the making of such statements can be proved by others.</p> <p>9. Witnesses cg=»383— Inconsistent statement as to source of drugs sold by witness held not collateral.</p> <p>Where a witness testilied he acted as defendant’s agent in soiling narcotic drugs, an extrajudicial statement, showing an attempt to procure money to obtain drugs from another source, did not relate to a collateral mailer, but could be established by other witnesses.</p> <p>10. Criminal lav/ ¡s::»374 — Offer to compromise prior offense of different nature held too remote to be admissible.</p> <p>In a prosecution for sale of narcotics, evidence of an offer by defendant to compromiso a prior prosecution for failure to keep the records required of him as a dentist, concerning opiates handled by him, was too remote to be admitted as tending to prove his guilt of the offense charged.</p> <p>SI. Cricniitai law ¡srx»508 (9) — Charge there is greater probability of the truth of two accomplices than of one is not error.</p> <p>It was not error for the court to charge that there was greater probability of the truth of the testimony of two accomplices than of one.</p> <p>ottier eases seo same topic & KEY-NUMBéJít in all Key-Numbered Digests & Indexes</p>

Suit in equity for infringing of patent No. 1,195,923 by the Perrrmtit Company against the Harvey Laundry Company and another. Decree for plaintiff (274 Led. 937), and defendants appeal.

Rudkin, Judge. Action at law by P. J. Garnett against the American Can Company, submitted with six other cases. Judgments for plaintiffs, and defendant brings error.

<p>In Error to the District Court of the United States for the Northern Division of the Eastern District of Washington; Frank H. Rudkin, Judge.</p> <p>Action at law by Frank Funkhouser against the American Can Company. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the District Court of the Ünited States for the Western District of Oklahoma; John H. Cotteral, Judge.</p> <p>Action at law by Dee Cruce against the Pierce Oil Corporation, in which the defendant paid the amount in dispute into court, and asked that the Kewanee Oil & Gas Company be made a party defendant, judgment for defendants, and plaintiff brings error.</p>

Petition for Revision and Appeal from tlie District Court of the United States for the Western District of Pennsylvania; Charles P. Orr, Judge. In the matter of the Warren Oil Company of Pennsylvania, banklupt. On petition to revise, and appeal by Samuel J. Black, trustee, to review an order of the District Court vacating a restraining order issued against the Financing Corporation of Buffalo.

Habeas corpus by the United States, on relation of Meyer Ripstein, against James M. Power, as United States Marshal, from'an order directing the discharge of relator, respondent appeals.

<p>1. Courts <§=>284 — Mere assertion of right under law of United States not sufficient to give federal court jurisdiction.</p> <p>The mere assertion of a right under a law of the United States is not sufficient to confer jurisdiction on a national court, but the suit must really and substantially involve a controversy as to the construction or effect of the JLaw on the determination of which the result depends.</p> <p>2, Courts <§=>299 — Cause of action as stated held not one arising under a law of the United States.</p> <p>A bill by a homesteader to quiet title as against a mortgage executed before he made final proof on his entry, on the ground that the mortgage was an alienation in violation of the homestead law, held not to state a cause of action within the jurisdiction of a federal court, as arising under a law of the United States, where it also alleged that the mortgage was void, because obtained by fraud, and prays that it be so adjudged.</p> <p><§=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Patents @=>328 — 1,176,413, for electric wira terminals, held valid and infringed.</p> <p>The White patent, No. 1,170,413, for an improvement in terminals for electric wires, the novel feature of which is a notch on the curved portion of the plate by which a bite is made into the insulation of the conductor, hold not limited to a device in which the notch was preformed in manufacture, and, as so construed, held not anticipated, valid, and infringed l>y defendant's device manufactured, so that the notch was formed when the nut was tightened.</p> <p>@=>For other car.es see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States, for the Northern Division of the Eastern District of Washington; Frank H. Rudkin, Judge.</p> <p>Suit in equity by the Heath Unit Tile Company against the American Fire Brick Company and the Richey & Gilbert Company. Decree for defendants, and complainant appeals.</p>

<p>I. Criminal law <s=» 1169(5) — Reference to former conviction, excluded because too late, held not prejudicial.</p> <p>A reference on the trial to a former conviction of accused, to establish that the sale of intoxicating liquor was a second offense, but which was excluded from evidence by the court because the. conviction was too late to. sustain that conclusion, resulted in no substantial prejudice to accused, since discussion of the subject could not have been avoided, nor could the exclusion have been more complete.</p> <p>I!. Criminal law <@=»I043(2), 1059(2), 1129(3) — Specific Abjection, or exception and assignment of error is necessary to review of rulings on evidence and instructions.</p> <p>Where there is no specific and definite, objection or exception to the admission of testimony or to the charge of the court, and the point raised in the brief has not been saved by a specific assignment of error, the court is not required to consider the points, and will not do so, where the evidence of the government’s witnesses, if believed by the jury, rendered the conviction inevitable.</p> <p>other cases see same topic & KEY-NUMBER in‘all Key-Numbered Digests & Indexes</p>

<p>Copyrights <g==>76 — Plaintiff, relying on eon tract which gave no authority to copyright matter, cannot sue for infringement of copyright.</p> <p>Where it was admitted that all of plaintiff’s rights grew out of a contract between it and a foreign publishing company, which contract did not give plaintiff authority to copyright in this country the matter of -which its representative was permitted to make a résumé or copy, plaintiff cannot maintain a suit for infringement of tile copyright of such matter.</p> <p>«gr-T>7Tnr other cases seo same topic & KEY-NUMB Elt in all Key-Numbered Digests & Indexes</p>

<p>Bankruptcy <@=>184(1) — Trustee in bankruptcy held entitled to motor truck as against mortgagee.</p> <p>Where bank advanced purchase price of motor truck and accepted as security a mortgage from the purchaser, who maintained a place of business at which he was engaged in buying and selling automobiles, and permitted him to retain possession of the truck and display and offer it for salera his salesroom, and thereafter the purchaser became bankrupt, the trustee in bankruptcy was entitled to the truck as against the mortgagee. '</p> <p>■@=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Wharves <§=>20(1) — Person inviting boat to use wharf held liable for injury from known danger.</p> <p>Regardless of the nature of a wharfinger’s liability, any person is liable for injuries to a boat which went where she did at his invitation and for hi's service, if such person knew of the danger which produced the injury, and negligently failed to guard against the probable consequences of obedience to his own orders.</p> <p>©=>For other oases see same topic & KEY-NTJMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Corporations <@=559(3) — Appointment of receiver does not affect entity of corporation which could still function as such.</p> <p>The appointment of a receiver for a corporation did not affect the entity of the corporation, which could still function as such, except to interfere with property in possession of the receiver, and could carry on the defense of a suit instituted before the receiver was appointed. ,</p> <p>2. Corporations <©=3560(4) — Possession of stock pledged before receivership not acquired by receiver.</p> <p>The receiver of a corporation does not acquire possession of stock belonging to the corporation, which had been pledged by it to a bank before the receiver was appointed.</p> <p>3. Corporations <@=123(1) — Delivery of stock to bank as security constitutes contract of pledge.</p> <p>Delivering certificates of corporate stock by the corporation owning them to a bank as security for notes of the corporation constitutes a pledge of the stock and entitles the bank to retain possession until the conditions of the pledge are fulfilled.</p> <p>4. Receivers <@=I74(4) — Receiver appointed by federal court not granted leave to bring suit to enjoin enforcement of judgment properly rendered by state court before appointment.</p> <p>The receiver of a corporation appointed by a federal court .will not be granted leave to bring plenary suit in a state court to enjoin the enforcement of a judgment rendered by the state court in an action against the corporation begun before the receiver was appointed, whereby certificates of stock pledged by the corporation to a bank were subjected to the payment of the judgment.</p> <p><@=For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Seamen @=>30 — Master may punish insubordination by confinement, but not In jail of foreign country, except in extreme cases.</p> <p>In view of Comp. St. § 8382, relating to insubordination, a master may punish,insubordination by confinement; but the punishment should or- . dinarily be inflicted on board the vessel, and removal of a seaman from the vessel and confinement in the jail of a foreign tropical country is not justified, except in extreme cases.</p> <p>2, Seamen @=>30 — Captain held not justified in sending insubordinate member of erew ashore for confinement.</p> <p>"Where an intoxicated member of a ship’s crew, who hád been talking in a mutinous way, resisting an attempt to put him in irons, etc., had not endangered discipline,.and had quieted down, captain held not justified in ordering Ms arrest and. confinement by the local police, especially where he made no formal accusation, and did not comply with Comp. St. 8036, 8381, relative to entry in the log, etc.</p> <p>@=For other eases see same topic & KEY-NUMBER in .all Key-Numbered Digests & Indexes</p> <p>3. Seamen <§=>30 — Captain held justified in causing arrest of insubordinate member of erew.</p> <p>Where an intoxicated and insubordinate member of the crew had resisted attempts to put him in irons, and successfully defied the local police called in by the captain, and part of the ciew was pretty well out of hand, captain held .justified in sending to a warship for a boat’s crew, and requesting his arrest and that of two others who were taking his part.</p> <p>4. Seamen <£=330— Insubordinate member of erew held entitled to damages for excessive force used in arresting him.</p> <p>An intoxicated and insubordinate member of a ship’s crew, arrested and taken ashore by a boat’s crew from a warship called in by the captain, had a just grievance, and was entitled to damages for unreasonable and excessive force used in removing him from the steamer; but where the most severe injury was inflicted on the trip to shore, while the captain was not in command, $100 held sufficient damages.</p> <p>5. Seamen (£=>30 — Evidence insufficient to show what personal effects were not returned to member of erew arrested and confined ashore.</p> <p>Evidence held insufficient to show what personal effects of a member of a ship’s crow were not returned to him, on his arrest and confinement ashore for insubordination.</p> <p>S. Seamen <&=>IS — Member of crew, arrested for insubordination, but nevar legally discharged, held entitled to wages.</p> <p>The insubordinate conduct of an intoxicated member of a sMp’s crew, for which he was arrested and confined ashore, held not such as in legal effect to end Ms service on the ship; and hence, where he was not discharged pursuant to Comp. St. § 8382, he was entitled to compensation for the remainder of the term for which he shipped.</p> <p>7. Seamen <@=>30 — Members of crew, who interfaced with attempt to arrest another member, held to have no claim for imprisonment.</p> <p>A member of a ship’s crew, who interfered when the captain was attempling to put irons on another member of the crew, and'threatened the local police with violent resistance when they were called in, and another member of the crew, who stood by ready to take part, if an actual fight developed, had no claim to damages because of their confinement ashore, and later on board the vessel.</p> <p>other cases? see same topic & KEY-N UMBER in all Koy-Numhered Digests & Indexes</p>

<p>1. Patents <@=>114 — Counterclaim is not limited to subject-matter of bill.</p> <p>Under equity rule 80 (201 Fed. v, 118 C. C. A. v), permitting the answer - to set out any set-off or counterclaim which might be tbe subject of an independent suit in equity, which rule was taken rather from the order of the English Supreme Court of Judicature than from the Codes of the several states, permitting a counterclaim only if it arises from the same transaction as the cause of action alleged in the bill, the answer may set up a counterclaim, regardless of whether it arose from the same transaction as set out in the bill, so that, in a suit for interference between patents, under Rev. St. § 4918 (Comp. St. § 9463), defendant can file a counterclaim for infringement by plaintiff of claims not involved in the interference.</p> <p>2. Patents <@=>288 — Provision governing district in which suits for infringement may be brought can be waived.</p> <p>Judicial Code, § 48 (Comp. St. § 1030), permitting suit for infringement of patent to be brought in the district where defendant had an established place of business and committed an act of infringement does not relate to the general jurisdiction of District Courts over infringement suits, but merely to an immunity of the person from suit in a particular District Court, and that immunity may be lost by the acts of such person amount ing to an acceptance of the jurisdiction of the particular courts.</p> <p>3. Patents <@=>l 14 — Filing bill submits plaintiff to jurisdiction of particular district for determination of counterclaim.</p> <p>The filing of a bill for interference between plaintiff’s and defendants’' patents within a district in which the plaintiff did not reside or have an established place of business submits tbe person of plaintiff to tbe jurisdiction of the court of that district for determination of a counterclaim by defendant for infringement of claims not involved in the interference.</p> <p>4. Patents <@=>114 — Plaintiff cannot limit jurisdiction by declaration of purpose in tiling bill.</p> <p>A declaration in the bill that plaintiff appears in the court in which the bill is filed only for tbe purpose of relief, under Rev. St. § 4918 (Comp. St. § 9 is without effect to limit the jurisdiction of that court to consider defendants’ counterclaim for infringement of other claims, not only because plaintiff may not lessen the rights conferred on a defendant by the equity rules, hut also because the voluntary filing of the hill of complaint was in itself a general appearance of the plaintiff.</p> <p><@=For other oases'see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Collision <§=»102 — Steamships meeting both in fault.</p> <p>The steamships Lake Calvenia, going west, and the H. H. Rogers, toward the east, approached at night in a channel a mile or more wide. The Calvenia crossed to the southerly side of the channel, and when a mile apart the vessels exchanged two-whistle signals and proceeded on courses which would have led to a safe passage, starboard to starboard. When perhaps 1,000 feet apart the Rogers gave another signal, of two whistles as claimed, but of one whistle as understood by the Calvenia, which, also thinking she saw the Rogers turning to starboard, ported her own helm; the result being a collision in which she was sunk. JTeld, that both were in fault; the Rogers for giving the second signal, which, even ihoegh a repetition of the first, was needless and unwarranted, and likely to be confusing, and the Calvenia in unnecessarily crossing to the wrong side of the channel and in changing her course, which, under the circumstances, was not warranted and brought about the collision.</p> <p>^cs>For other cases see same topic & KJ3Y-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by the Union Special Machine Company against (he Metropolitan Sewing Machine Corporation, with counterclaim by defendant.</p>

<p>At Daw. Action by the Great Northern Railway Company against May Hyder, doing business as the Hyder Furnace Company. On demurrer to answer and to affirmative defense.</p>

In Admiralty. Libel by the Fleischmann Malting Company against tie steamer G. A. Tomlinson, her engines, etc., claimed by the Pioneer Steamship Company. On exceptions to the libel.

<p>Petition by Cornelius Bonner to be admitted as a citizen of the United States.</p>

<p>Petition by Erwin Escher for naturalization.</p>

<p>In Bankruptcy. In the matter of Isaac Simon, bankrupt. On petitions for allowance of disbursements and counsel fees.</p>

<p>J. Attorney and client <s=>30 — Attorneys held special partners, so that judgment tor fees vested in survivors of deceased attorney.</p> <p>The fact that the services for which judgment was recovered were rendered by the three plaintiffs as attorneys shows a special partnership by the plaintiffs, since they were engaged in a common enterprise for mutual benefit, so that ¡.he right of a deceased attorney vested in the two surviving partners, and Code of Law 1901, § 235, relating to the survival of rigius of action and abatement in caáe oí death, has no application.</p> <p>2. Judgment <@=3856{I) — Sciro fanias may bo amemied by suggesting death of one plaintiff.</p> <p>Scire facias on a judgment for fees oí attorneys who were special partners may be amended by suggesting the death of one of the plaintiffs, since such an amendment would in no way affect the rights of the defendant.</p> <p><£saFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Bankruptcy ©=390 — Bankrupt can sue to protect assets, after adjudication. and before appointment of trustee.</p> <p>After the adjudication in bankruptcy, the title to all dioses in action-belonging to the bankrupt’s estate remains in the bankrupt until the appointment and qualification of the trustee, and the bankrupt accordingly could bring suit thereon; so that it was proper to deny motion to strike-petition of intervention by the bankrupt, filed before the appointment of the trustee, and to permit the petition to be amended to inure to the benefit' of the receiver in bankruptcy.</p> <p>2. Bankruptcy ©= 154 — Surety cannot set off against bankrupt principal payment marie for principal.</p> <p>In a suit on a government contractor’s bond, where a bankrupt intervened to protect the claim against the contractor, a surety of the contractor could not set off against the intervener’s claim a claim by it for expenditures as surety on the bankrupt’s bond since the debt attempted to be set off arose out of a different transaction and different contract, and,, under Bankruptcy Act, § 68 (Comp. St. § 9652), set-off is permitted only where the transactions involved resulted in mutual relation of debtor and: creditor, and to permit a set-off in other cases would be to grant a preference, in violation of Bankruptcy Act, § 60 (section 9644).</p> <p><£=^Eor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Patents <©=>106(2) — Refusal of amendment of preliminary statement held not abuse of discretion.</p> <p>Where the preliminary statement of an experienced inventor, made after at least two consultations with his attorney, stated that he first reduced the invention to practice on a specified date, the refusal to permit him to amend the preliminary statement, after he had seen statement of the adverse party, to allege the making and operation of a machine embodying the invention more than two years before the date stated in his first statement, was not an abuse of discretion.</p> <p>2. Patents <©=>90(2) — Junior applicant held to have shown reduction to practice prior to senior applicant’s tiling date.</p> <p>Where, in interference proceedings involving a simple improvement In driving shaft for power-driven sewing machines, the junior applicant showed a reduction to practice prior to the filing date of the senior applicant, the junior hold entitled to priority.</p> <p><©=>For other cases see same topic & KEY-NUiYEBEIt in all Key-Numbered Digests & Indexes</p>

Youmans, Judge. Suits in equity to foreclose by the Southern Trust Company, trustee, and others, and by the Mississippi Valley Trust Company against the Arkansas, Oklahoma & Western Railroad Company and others, in which the Kansas City Southern Railway Company intervened. From the decree of distribution, the various parties appeal.

<p>Appeal from the District Court of the United States for the Eastern District of South Carolina, at Charleston; Henry A. Middleton Smith, Judge.</p> <p>Suit in equity by F. A. Miller against the Southern Bell Telephone & Telegraph Company, instituted in the state court and removed by defendant to the United States District Court. From a decree dismissing the complaint, plaintiff appeals.</p>

<p>1. Bankruptcy @=>188(3) — Equitable lien held subordinate to rights of trustee.</p> <p>An agreement to give a mortgage is not a mortgage, and where such an agreement, made more than four months before a petition in bankruptcy was filed, was unexecuted at that time, the legal title to the property remained in the bankrupt, and under Bankruptcy Act, § 47a (2), as amended (Comp. St. § 9631a), giving the trustee the rights of a creditor holding a lien by legal or equitable proceedings, his right is superior to that of the holder of the equitable lien.</p> <p>2. Bankruptcy @=>161 (2) — Mortgage given by insolvent within four months of bankruptcy not valid, because executed pursuant to prior agreement.</p> <p>A mortgage given by an insolvent debtor within four months of bankruptcy, otherwise voidable by the trustee under Bankruptcy Act, § 60b (Comp. St. § 9644), is not validated by the fact that it was executed in, performance of a contract made more than four months before the bankruptcy.</p> <p>3. Bankruptcy @=>16112) — Mortgage held voidable as a “transfer of property.”</p> <p>Where the legal title to property became vested in bankrupt within four months prior to bankruptcy, though subject to an equitable lien created by an agreement made prior to the four months to give a mortgage thereon, it took such title unincumbered for the benefit of its creditors, and a mortgage executed pursuant to-the agreement held a transfer of its property not for a present consideration, which, where it operated as a preference of the mortgagee, was voidable by the trustee under Bankruptcy Act, § 60b (Comp. St. § 9644).</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Transfer.]</p> <p><5^Por other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the District of Maryland, at Baltimore; John C. Rose, Judge.</p> <p>Suit by Daniel R. Crissinger, as Comptroller of the Currency of the United States, against the First National Bank of Hagerstown, a national bánking corporation, and others. From an order appointing a receiver for the bank, defendants appeal.</p>

Pollock, Judge. Separate proceedings in habeas corpus ky Harry D. Williams, by Arthur Corall, and by Fred C. Wike, each against August V. Anderson, as Warden of the United States Penitentiary at Deavenworth,. Kan. From orders directing the Warden to discharge the petitioners from confinement in the penitentiary, the Warden appeals.

<p>Appeal from the District Court of the United States for the Eastern District of New York.</p> <p>Libel in admiralty by James Shewan & Sons, Inc., against the schooner Indomable; Reuben I. Cameron, claimant. Decree for libelant, and claimant appeals.</p>

<p>1. Removal of causes <§=48 — Cause held removable on the ground of separable controversy.</p> <p>A suit by a stockholder against the corporation and another corporation, each a citizen of a different state from complainant, for the rescission of a contract between them under which complainant’s corporation had transferred property to the other, and also against the directors of both corporations, to hold them accountable for any loss sustained by complainant’s corporation through such contract, held to involve two separate controversies, the first of which could be determined between complainant and the corporations alone, and the cause held removable by either or both the corporations under Judicial Code, § 28, as amended by Act Jan. 20, 1914 (Comp. St. § 1010), without regard to the citizenship of the remaining defendants.</p> <p>2. Removal of causes <§=>31— Joinder of unnecessary parties cannot defeat right of removal.</p> <p>To a suit by a stockholder against the corporation for rescission of a contract made by it, its directors are not necessary parties, and the fact that they are joined as defendants in their official capacity only does not defeat the corporation’s right of removal on the ground of diversity of citizenship, though they are citizens of the same state as complainant.</p> <p>3. Railroads <§=>18 — Distribution of oil properties within Hepburn Act, held legal.</p> <p>The directors of the Southern Pacific Company, as a means of disposing of its oil lands, the retention and operation of which had been made unlawful by Hepburn Act June 29, 1906, § 1 (6), being Comp. St. § 8563 (6), adopted a plan for their distribution among the company’s stockholders by the organization of an oil company and offering its stock to its own stockholders at a price much below its actual value, with the privilege ■ to each stockholder of buying his proportion of the stock or of selling his right thereto, the proceeds of the stock being used to purchase and pay the railroad company for the lands at a fixed' price, which was less than one-third of their estimated value, and for working capital. Held, that such action of the directors was not ultra vires, but within the powers conferred on them by the charter to acquire and deal in all kinds of stocks, and to sell all kinds of personal and real property to the amount they might determine, nor was it illegal as infringing the rights of stockholders ; it appearing that the right of any stockholder to purchase his proportionate share of the stock of the oil company was valuable and readily salable in the market.</p> <p>©=>For other eases see same topic & KEY-NUMBER in Ml Key-Numbered Digests & Indexes</p> <p>4. Corporations <3=5393 — Courts will not interfere with discretion of directors on questions of corporate management or policy.</p> <p>In the absence of usurpation, fraud, or gross negligence, courts of equity will not interfere, at the suit of a dissatisfied stockholder, merely to overrule or control the discretion of the directors, within the limits of their authority, on questions of corporate management or policy.</p> <p><3=5For other casos see same topic & KEY-NUMBER in all Koy-Numbererl Digests & Indexes</p>

States for the Eastern District of New York. Habeas Corpus by the United States, on the relation of William Robert Harris, against Josephus Daniels, Secretary of the Navy, and others. From an order granting the writ, defendants appeal.

Application by the Richfield Oil Company for a writ of mandamus against Hon. William H. Sawtelle, District Judge of the District of Arizona, and against the District Court of the United States in and for the District of Arizona.

<p>1 Appeal and error<§=958~When denial of motion to intervene will be reversed.</p> <p>The Circuit Court of Appeals will reverse an order denying a motion for leave to intervene, if petitioner had an absolute right to intervene, but will not disturb the action of such court, if the facts presented a case for the exercise of judicial discretion.</p> <p>2 Parties <@=41 — When right of party to intervene is absolute.</p> <p>The general rule is that an application to intervene is addressed to the sound discretion of the court, but that rule is founded on the assumption that the petitioner for intervention has other and adequate means of redress available to him, and if one presents a situation where he will lose a'meritorious claim, unless he can obtain relief by intervention, the court has no right to deprive him of the only way by which he can have an opportunity to be heard.</p> <p>3. Receivers <@=34 — Creditor held entitled to intervene as matter of right in other creditor’s action.</p> <p>A petition of a creditor showing that assets of defendants valued at $2,000,000 were sold at public sale by a receiver for about $86,465, plus amounts which made a total of $275,000, and out of an indebtedness of about $800,000 claims for less (han $270,000 were established in court, and each and every claimant of the claims aggregating.such amount was adjudged entitled to a lien,' held to show that petitioner had an absolute -right to intervene in a prior action by another creditor seeking injunction and receiver.</p> <p>^=For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Faris, Judge. Suit in equity for infringement of a patent by Jake S. Brauning against the Metallic Industries, Incorporated, and others. Decree for plaintiff, and defendants appeal.

<p>1. Sales <3=127--Delay in delivering article to be manufactured held not to entitle buyer to rescind without notice.</p> <p>Whore the seller agreed to manufacture and deliver as soon as possible a largo quantity of spikes for shipbuilding during the war, when delays in manufacture might be reasonably anticipated, and the buyer accepted the delivery of other articles covered by the same order three and four months after the order was given, without objection to the delay, the buyer was not aulhorized, after the delivery of the spikes six months after the order was given, to declare the contract rescinded for the delay in delivery; no notice having previously been given to the seller of such rescission.</p> <p>2. Contracts <3=527! — -Notice essential to rescission for delay, where no time for performance is fixed.</p> <p>Where the contract fixes no definite date for its performance, notice is a prerequisite to the right of one party to rescind for delay for perform • anee by the other.</p> <p>3. Sales <3= 181 (9) — Evidence of difficulties in manufacture is competent to show delivery was within reasonable time.</p> <p>Where a contract for the manufacture and sale of spikes fixed no time for delivery, evidence of the difficulties encountered by the seller in manufacturing the articles was admissible, after the buyer’s refusal to accept them because of the delay, on the issue whether delivery was tendered within a reasonable time.</p> <p><§c^For other cases see same topic & KEY-NUMBER in .all Key-Numbered Digests & Indexes</p>

Suit in equity for infringement of a patent by Heyl & Patterson, Inc., against the M. A. Hanna Coal & Dock Company. From a decree dismissing the bill (257 Fed. 97), complainant appeals.

<p>In Error to the District Court of the United Stales for the District of New Jersey; Joseph E. Bodine, Judge.</p> <p>Action at law by Percy R. Pyne, Jr., against Horace M. Kilborn. Judgment for plaintiff, and defendant brings error.</p>

Suit for infringement of a patent by the Condron Company against the Corrugated Bar Company. From a decree dismissing the bill (256 Fed. 672), complainant appeals.

<p>In Equity. Suit by the Alton Water Company against the Illinois Commerce Commission and others, to enjoin the defendants from enforcing against complainant penalties for collecting water rates in excess' of those allowed by the Commission.</p>

<p>V/oods and forests @==>5 — Regulations governing national forests are paramount and exclude inconsistent state laws.</p> <p>Under' Const, art. 4, § 3, vesting Congress with power to “make all needful rules and regulations respecting the territory or other property belonging to the United States,” regulations prescribed by Congress, or by a department under its authority, respecting a national forest reservation within a state, whether on the public domain or on lands acquired for the purpose, are paramount, and where such regulations prohibit the general grazing of live stock on lands of the reservation, they exclude from operation as to such lands a state statute providing that the owner of animals shall not be liable for their trespass on lands not inclosed by a lawful fence.</p> <p>@s»For other eases see same topic & KEY-NUMBER in .all Key-Numbered Digtóts & Indexes</p>

<p>1. Statutes <@=3255 — Act imposing “tax” on foreign corporations held revenue law, so that it went into effect as soon as approved and tiled by Governor.</p> <p>Under the law of Ohio, as settled by decision, that a legislative act may be both a license and a revenue measure, and that it is immaterial whether the sum charged is characterized in the act as a fee, a tax, or .an assessment, if on the whole it is clear that it is a tax, Gen. Code Ohio, § 8728 — 11, as amended by Act April 28, 1921 (109 Ohio Daws, p. 273), imposing a fee or tax on foreign corporations for the privilege of doing business in the state, based on the proportion of the authorized capital stock of the corporation represented by its property and business in the state, is a law providing for a tax within Const. Ohio, art. 2, §§ lc, Id, which provide that no law shall go into effect until 90 days after it shall have been filed by the Governor with the secretary of state, except that “laws providing for tax levies * * * shall go into immediate effect,” and such law as amended became effective from May 17, 1921, when, after approval, it was filed by the Governor.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Tax — Taxation.]</p> <p>2. Taxation <@=>40(l) — Prh/iieges and franchises not subject to “property” valuation for purposes of taxation, within uniformity provision.</p> <p>Const Ohio, art. 12, § 2, providing that all property shall be taxed uniformly according to its true value in money, is not a limitation on the ■ power to tax rights, privileges, and franchises, which, though they may be valuable, are not “property,” within the meaning of that section.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Property.]</p> <p>3. Commerce <@=374 — Statute taxing foreign corporations held not unconstitution-’ al, as imposing burden on interstate commerce.</p> <p>Gen. Code Ohio, § 8728 — 11, providing for a tax on foreign corporations doing business in the state, based on the proportion of their authorized capital stock represented by their property and business in the state, held not unconstitutional, as imposing a burden on interstate commerce as applied to a private manufacturing corporation doing both an interstate and intrastate business, and which is taxed thereunder only in respect to the latter.</p> <p>4. lonstitutional law <@=>284(1)— Rehearing hefore tax commission affords due process of law.</p> <p>A statute imposing a tax, the amount of which is determined by a- state commission before which the taxpayer may be heard, and which has power at his’instanee to review its decisions, is not invalid, as denying due-process of law, because it does not provide for £n appeal to the courts.</p> <p><@=oFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes ’</p> <p>5. Constitutional law <g=3100 — Foreign corporation has no vested right which prevents increase of taxes.</p> <p>A foreign corporation, admitted to do business in a state, acquires no vested right that no change shall be made in taxing statutes affecting it, or in the classification of corporations for purposes of taxation authorized by the Constitution and laws of the state.</p> <p>6. Constitutional law <@=3229(1) — inequality of taxation between domestic and Toreign corporations not necessarily denial of equal protection of laws.</p> <p>That a statute imposing taxes does not operate alike upon domestic and foreign corporations does not necessarily render it invalid, as denying to foreign corporations the equal protection of the laws, even though the result is to favor domestic corporations, and where the inequality is incidental in the application of a system that is not arbitrary in its classification, and does not result from hostile discrimination, it is not sufficient to defeat the law.</p> <p>7. Constitutional iaw <@=3229(1) — Taxation <@=»37 — Ohio statute providing for taxation of foreign corporations held constitutional and valid.</p> <p>Gen. Code Ohio, § 8728 — 11, providing the basis for taxation of foreign corporations doing business in the state, is a part of a comprehensive system of corporate taxation operating uniformly on all corporations of a given class, and is not unconstitutional as denying the equal protection of the laws.</p> <p>8. Constitutional law <@=3206(7) — Foreign corporation not “citizen,” within privileges and immunities clause of Constitution.</p> <p>A corporation doing business in another state is not a “citizen” of such state, within the privileges and immunities clause of the federal Constitution.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Citizen.]</p> <p><gr=>For other .cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Admiralty. Label by Frank B. Hall & Co., Inc., against the Jefferson Insurance Company and others. Libel in personam on an insurance policy. The libelants having furnished certain supplies to the schooner J. E. Dubignon, for which they had a maritime lien in whole or in part, applied to the respondent, among others, for £. policy of insurance.

<p>Shipping <@=^86 (2)— Stranding of steamship held not due to crowding by meeting vessel and tow.</p> <p>Evidence held not to sustain the burden of proof resting on a libelant to show that the stranding of a steamship at the head of a cut channel was due to the negligent and unskillful navigation of a meeting steamship and tow, which crowded her from her proper course to enter the cut.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Libel in admiralty by the Hanna Transit Company against the steamer Alexander McDougall and the barge W. Le Baron Jenney; the Pittsburgh Steamship Company, claimant. Decree for respondent (279 Fed. 893), and libelant appeals.

<p>1. Contempt <s=38—-Court does not interfere with right of free criticism.</p> <p>Ordinarily the court does not concern itself with personal attacks nor interfere with the fullest exercise of the right to criticize freely.</p> <p>2. Contempt <§=38—Charge court denied public officials right to information concerning uitilities under receivership tends to intimidate court.</p> <p>A charge by a city official that the court was denying the right of the officials to any access to original sources of information in respect to transit companies for whom receivers had been appointed by the court is one of the gravest charges which could be made against the court, since the principle that justice should be administered in the open is firmly established, and a charge to the contrary would create distrust of the courts, so that such charge, if false, must be intended to intimidate the judge into a course contrary to what he deems proper and just.</p> <p>3. Contempt i@=3>8—Facts held to show publication of letter containing contempt.</p> <p>Proof that a letter, containing the charges against the court on which the information for contempt was based had been read by defendant to a municipal committee of which he was a member, had been sent to the Public Service Commissioner, whose practice it was to keep such letters on public file, and had thereby reached the newspapers, which published it, establishes publication of the contempt by defendant.</p> <p>4. Contempt (@=38—Facts held to show charge court denied access to information was false.</p> <p>A charge on which proceedings for contempt were instituted against the author that the court which had appointed receivers for traction companies was denying the city officials any access to the original sources of information from which the situation of the traction companies could be determined was false where defendant admitted he had never made any application for access to any information in the hands of the receivers, but had based his statements upon the denial of an application for his appointment as additional receiver, which appointment he regarded as essential to give him full access to the information sought.</p> <p>{1. Contempt <§3338—-Person is responsible for statement whose plain meaning obstructs justice, though no contempt was intended.</p> <p>A person who made a statement concerning the court, the plain meaning . of which necessarily obstructed the administration of justice in the court, is responsible for the natural consequences of his act, and is guilty of contempt for which he will be punished unless he makes reparation by filing an unqualified retraction of the false statements on-which the charge was based.</p> <p>@£s>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>At Law. Action by the United States, by C. G. Lewellyn, Collector of Internal Revenue, against William Larimer Mellon.</p>

<p>In Bankruptcy. In the matter of the estate of L. C. McCormick, bankrupt. On petition to review and revise an order of the referee denying the claim of petitioners as a preferred claim against the proceeds of a sale of the bankrupt’s fixtures.</p>

<p>In Bankruptcy. In the matter of Edward H. Eddy, bankrupt. On motion by receivers to acquire custody of premises.</p>

In Admiralty. In the matter of the petition of the American Steamship Owners’ Mutual Protection & Indemnity Association, Inc., to participate in the distribution of the proceeds of sale of the steamship Wabash. On exceptions to petition.

<p>Appeal from Supreme Court of the District of Columbia.</p> <p>Action by Olive S. McGrew against John E. McGrew. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from the Commissioner of Patents.</p> <p>Divisional application by Albert F. Nathan, Jr., for a patent. From a decision of the Commissioner of Patents, refusing to allow a claim, applicant appeals.</p>

Action by Moore & Hill, Inc., against R. H. Phillips, to recover possession of a room occupied by defendant as tenant. Judgment for plaintiff, on the ground that the affidavit was insufficient, and defendant appeals.

<p>1. Appeal and error <@=>977(5)—Ruling on motion for new tria! is not assignable as error.</p> <p>The overruling of a motion for new trial is not subject to review in a United States appellate court, since it is addressed solely to the discretion of the trial court, .so that error cannot be assigned on such ruling.</p> <p>2. Carriers <@=>! 54—Choice of lower rate is consideration for exemption of carrier’s liability.</p> <p>Whore the carrier offers the shipper the choice of two rates, the higher one for carriage subject to common-law liability, and the lower one for carriage subject to certain exemptions from that liability, the lower rate was sufficient consideration for the exemption of the carrier’s liability, especially when the exemption did not include the carrier’s negligence. •</p> <p>3. Carriers <@=>147—Cummins Act does not apply to loss exempted by bill of lading.</p> <p>The Cummins Act, as amended by Act Aug. 9, 1916 (Comp. St. § 8601a), making the carrier liable for full value of goods lost In shipment, does not apply to a loss exempted by the bill of lading, but only 1o valuation in case of loss or damage for which the carrier is lawfully liable, especially where the bill of lading liad been approved by the Interstate Commerce Commission, so as to be within the express exception in that statute.</p> <p>4. Carriers <@=>147—Limitation of common-lav; liability is not contrary to public policy.</p> <p>A contract limiting the common-law liability of a carrier is not void as against public policy.</p> <p>5. Tria! <@=>260(1)—Requested charge covered in other language need not be given.</p> <p>It was not error for the court to refuse a requested charge, which-was fully covered in the court’s charge, though not in the language requested.</p> <p>6. Carriers <@=>!37—Charge held not to limit time during which carrier must exercise care.</p> <p>A charge stating that the evidence showed that the fire which destroyed plaintiff’s goods while in possession of defendant carrier was started be-, tween 7 and 8 o’clock in the evening, that defendant was not required to take precaution against lire resulting from the riot till it could reasonably have anticipated danger to plaintiff’s goods, but that, if the time came during the day or night in question that defendant could reasonably have anticipated such danger, then and only then it was required to exercise ordinary care in protecting Ihe goods, was not subject to the exception that it limited the time during which defendant was required to exercise care to the time at which the fire was started.</p> <p>7. Witnesses <@=>269 (2)—Cross-examination as to newspaper article concerning which witness had not testified was properly excluded.</p> <p>_ Cross-examination of a witness as to the contents of a newspaper article was properly excluded, where the witness had not been examined on that question on direct examination, and the court stated it sustained the objection at that time.</p> <p>8. Appeal and error <@=>!95! (3)—Exclusion of evidence as to notice to defendant of fact which it admitted it knew is not prejudicial to plaintiff.</p> <p>The exclusion from evidence of a newspaper article, offered by plaintiff on the issue of notice to carrier of a riot in the course of which plaintiff’s goods were destroyed, was not prejudicial to plaintiff, where defendant admitted knowledge of the riot.</p> <p><@=>For other eases seo samo topic & KEY-NUMB Sit in all Key-Numbered Digests & Indexe»</p> <p>9. Appeal and error <§=3263(1)—Exceptions to charge necessary.</p> <p>To justify an appellate court in considering alleged errors in the charge, the trial judge’s attention should be called to them by exceptions, in order that he may be given an opportunity to correct them.</p> <p>1C. Trial <§=»I93(2)— Statement in charge objected to held mere opinion as to a fact.</p> <p>In an action by a shipper against a carrier for the loss of goods destroyed by fire, a statement by the court in its charge that there was no doubt that the fire was caused by a riot was merely the opinion of the trial court on a matter of fact, which is not reversible error, if the question was ultimately submitted to the jury, and no rule of law was incorrectly stated therein.</p> <p><£=s?Eor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Shipping <3=s>!32(5)—Testimony of witness on shore to stranding not conclusive against silence of log hook and protests.</p> <p>Testimony by a witness on shore that the vessel stranded before she listed, so as to require the removal of a portion of her dock cargo, which would bring the cause of the loss of cargo so removed within an exception in the bill of lading, is not conclusive against the shipper, where the log book of the vessel and the original and supplemental protests made by tlie master did not mention a stranding at that time, though they did mention one later, and attributed the listing of the vessel to a leak in a ballast tank.</p> <p>2. Shipping <&=>l 17—Vessel liable for cargo ramovod and left without necessity before reaching destination.</p> <p>The contract of affreightment obliged the carrier, in the absence of a legal excuse, to carry the freight to tbe destined port stipulated in the bill of lading, and the vessel is liable for cargo removed therefrom and left without necessity at a place short of its destination.</p> <p>3. Shipping <sr5>l30—R/¡asísr should notify cargo owner, if possible, of necessity for removing pari of the cargo.</p> <p>If it became necessary for a vessel to discharge part of its cargo before reaching its destination, the master should notify the owner of the cargo; if possible; and the vessel is liable for failure to give such notice,' as the result of which the owner was unable to insure his goods against destruction by fire after they had been removed from the vessel.</p> <p>4. Shipping 130-—Vessel held liable for loss of lumber burned after removal from vessel.</p> <p>Where a vessel, on breaking ground at the port of shipment, listed because of a leak in the ballast tank and returned to dock, but there was no evidence that the leak could not have been repaired at that port, and no notice of the situation was given to the owner of the cargo, the vessel is liable for the burning of a portion of the cargo, which was unloaded at port because of the condition of the vessel, regardless of whether the leak in the tank was caused by a stranding, which was excepted by the bill of lading, or by the unseaworthiness of the vessel.</p> <p><@=»Eor other casos see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes»</p> <p>On Motion to Modify Decree.</p> <p>5. Interest <©=>39(I)—Shipping <©=>132(1)—Right of action for part of cargo wrongfully unloaded accrues before arrival of vessel at destination.</p> <p>A shipper’s right of action for a part of a cargo of lumber, wrongfully unloaded .by the vessel before departure from the port and burned after unloading, accrued on the destruction of the lumber, and not on the arrival of the vessel at its destination, so that interest should be allowed on the value of the lumber from that date as damages for delay in paying the loss.</p> <p>6. Interest <§=>28—May be awarded at rate prevailing where suit was brought.</p> <p>It is permissible to award interest at the rate prevailing at the place where suit was brought for loss of goods misdelivered, without requiring proof of the rate of interest payable at the port of destination of the cargo.</p> <p><=For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Southern Division of tiie District of Idaho; Frank S. Dietrich, J.</p> <p>Suit in equity by Julia Green Graef against J. E. Niday arid others. Decree for complainant, and both parties appeal.</p>

Holmes, Judge. Action at law by Roy P. Parham, by his father, as next friend, against the Standard Oil Company of Louisiana. Judgment for plaintiff (275 Fed. 1007), and defendant brings error.

<p>J. Telegraphs and telephones <©=533(1;—Compensatory rates must be allowed.</p> <p>Though a city, unless restrained by statute, can eject a utility corporation from the streets after the expiration of its franchise, it must allow compensatory rat^s, so long as it requires the corporation to continue to give public service.</p> <p>2. Telegraphs and telephones <©=533(1)—In absence of statute, municipality can require specified rates on expiration of franchise.</p> <p>In the absence of a statute to the contrary, a city may, after the expiration of the franchise of a public utility, by ordinance require the utility to choose between continuing to render service at the rates specified in the ordinance or vacating the streets.</p> <p>3. Telegraphs and telephones <©=s33(l)—Under Kentucky statute, company cannot be compelled to accept confiscatory rates on expiration of franchise.</p> <p>Ky. St. § 3037d, makes it the duty of a city to offer for sale a suitable new franchise before the expiration of a telephone company’s franchise, and deprives it of the right arbitrarily to eject the company from the streets on the expiration of the franchise, so that the company cannoi be compelled to accept confiscatory rates as a condition for being allowed to continue its business.</p> <p>4. Telegraphs and talephenes <®=s7—Kentucky statute, requiring sale of new franchise, valid.</p> <p>Oonst. Ky. § 163, providing that no public service company shall use city streets without the consent of the council, prevents the Ijegislature from compelling the council to permit a new or additional use of the city streets, but does not prevent it from prohibiting the council from practically destroying the value of property dedicated to public use after it has consented to the occupation of the streets for such purpose, so that Ky. St. § 3087d, requiring the council to offer a new franchise for sale before expiration of the old franchise, is valid.</p> <p>^c^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>E. Constitutional law <§=>48—Statute not declared invalid, If conclusion can be avoided.</p> <p>A statute should not be found unconstitutional, unless such conclusion cannot be avoided, especially when federal courts are considering a state statute.</p> <p>f . Telegraphs and telephones <§=>7—Right to renewal of franchise held not lost by delay.</p> <p>Where a telephone company called the attention of a city to requirements of Ky. St. § 3087d, requiring the sale of a new franchise, but the city took no action thereunder, because it desired to secure a merger of that telephone company with another company, the city cannot, after the expiration of the company’s franchise, claim that the company had lost its rights to the protection given by that statute, because it did not insist on such rights in time.</p> <p>/. Telegraphs and telephones <§=533(I)—Injunction against enforcement of rates made conditional on company’s proceedings to renew franchise.</p> <p>Though Ky. St. § 3037d, places on the city the duty to initiate proceedings for the sale of a new franchise before the expiration of a public utility’s franchise, a court of equity will not permit an intolerable impassé between the city and the company, but will make its preliminary injunction against the enforcement of an ordinance establishing confiscatory rates conditional on the company taking proper steps to secure the sale of a new franchise under the statute.</p> <p>i. Appeal and error <§=5(043(5)—-Amendable informality of bill on question indirectly involved held not to lequira reversal of decree.</p> <p>The fact that a bill to enjoin enforcement of a confiscatory rate ordinance did not allege the corporation’s willingness to buy a new franchise on fair terms is not of controlling importance in determining the propriety of the preliminary injunction, since the question arises only indirectly, and the defects in the bill can be cured by amendment.</p> <p>p. Courts <§=5371 (I)—Federal court has same jurisdiction as state court in rate cases.</p> <p>The machinery of a federal court of equity is as ample and as appropriate as that of a state court in directing and supervising compliance with the state statute requiring sale of a new franchise, where the federal court has jurisdiction by diversity of citizenship, and to prohibit the enforcement of a confiscatory rate ordinance pending the issuance of a new franchise.</p> <p>0. Appeal and error <§=5954(1)—Ruling on preliminary injunction within range of tria! court’s discretion will be sustained.</p> <p>On appeal from an order granting a preliminary injunction, the question of its issuance will not be examined as if the original application had been made to the appellate court’s discretion, but the action of the trial court will be affirmed, if it seems to have been fairly within the range of its discretion.</p> <p>1. injunction @=>136(1)—Equities will he balanced in determining right to preliminary injunction. '</p> <p>The trial court will balance the conflicting equities of the parties on an application for a preliminary injunction, and, if it appears reasonably probable that the plaintiff may prevail on the final hearing, will temporarily preserve its supposed right against destruction, if that temporary maintenance can be accomplished without danger of greater harm to defendant than there will he benefit to plaintiff.</p> <p>i2. Telegraphs and telephones <§=>33(1)—Trial period of rates held unnecessary before injunction.</p> <p>Where the ordinance complained of granted some increase in rates of a telephone company, the natural tendency of which would be to lessen the number of subscribers, and the rates so fixed would be confiscatory when applied to the volume of business done by the company the year preceding, it was unnecessary to give a period for trial under the ordinance before temporarily enjoining its enforcement, as is necessary in ease of a reduction of rates which may increase the business, and especially since telephone subscribers can be more effectively protected against loss if the rates are subsequently found to be valid than can the patrons of a railroad or of a gas company.</p> <p>§£5>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & indexes</p> <p>13. injunction <§=137(4).—Preliminary injunction may be issued, without requiring convincing proof of facts showing unconstitutionality of ordinance.</p> <p>.Even though an injunction against the enforcement of a rate ordinance is, in effect, a determination that the law of the state is unconstitutional, a preliminary injunction to restrain such rates may be issued, without requiring the same degree of demonstration which would be required at a final hearing, since the unconstitutionality depends on a disputed question of fact, and not on a proposition of law.</p> <p>14. Telegraphs and telephones <§=33(l)—Rates shewn to he insufficient.</p> <p>Evidence that the probable net income of a telephone company under the rates fixed by ordinance would yield a return of only 1 per cent, is sufficient to justify a preliminary injunction against enforcement of the ordinance, since, even if the company’s estimates of value and depreciation be greatly reduced, the probable return will still be insufficient to compensate.</p> <p>! 5. Telegraphs and telephones Fairness of franchise a judicial question.</p> <p>■Where the court requires compliance by the city with Ky. St. § 3037d, as a condition to dissolution of a temporary injunction against enforcement of a rate ordinance, the question whether tho new franchise offered the utility by the city is fair, as required by that statute, is a judicial question for the trial court to determine.</p> <p>16. Telegraphs and telephones (@=7-—FJcncwal of franchise need not be offered for maximum term. '</p> <p>A city need not, in' order to comply with Ky. St. § 3037d, requiring the offer of a new franchise before the expiration of an existing franchise, offer a new franchise for tho maximum term permití ed by statute, in view of the probability that costs would be materially reduced before the expiration of such term, but will be permitted to offer a franchise for a period of three years, at the expiration of which time it must again offer a new franchise, fair under the conditions then existing.</p> <p>17. Telegraphs and teiaphones <j=7—Franchise requirió periodical readjustment of rates sufficient compliance with Kentucky statute.</p> <p>Tho offer of a new franchise to a telephone company, which would provide for a readjustment of the rates at five-year periods during the existence of the franchise, would he a compliance with the requirements of Ky. St. § 3037d, that the city offer a franchise fair to the corporation, the city, and the consumers.</p> <p>is. Telegraphs and telephones .@=333(I)—Confiscatory rates ground for injunction.</p> <p>The court will not undertake to require a city council to enact an ordinance offering for sale a new franchise, as required by Ky. St. § 3037d; but if the company announces a willingness to accept such a franchise, and the city refuses to offer it, the city will then be restrained from excluding tho corporation from the streets for refusal to serve the public at confiscatory rates specified by the city.</p> <p>19. Telegraphs and telephones <®=»33( I)—Court cannot enjoin interference by city with rate prescribed by telephone company.</p> <p>Where the rates for telephone service fixed by a city ordinance were confiscatory, the court cannot grant a preliminary injunction, prohibiting the city from interfering with the collection by the corporation of rates established by the corporation, which would be a judicial fixing of rates.</p> <p>(@=For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>20. Equity <§=365(2)—Telephone company cannot ask injunction against rate ordinance, unless it comes into court with clean hands.</p> <p>Though a court cannot in terms prescribe the rates which may be charged by a corporation after confiscatory rates established by ordinance are enjoined, it can in effect accomplish the same result by refusing its aid to a company which, after the issuance of such injunction, undertakes to collect an exorbitant rate, so that it would not come into equity with clean hands.</p> <p>21. Appeal and error <§=3l 145—Affirmance of temporary injunction in rate case held not to prevent revision by trial court.</p> <p>The affirmance on aiipeal of a preliminary injunction issued to restrain the enforcement of a rate ordinance does not deprive the trial court of liberty to revise its conclusion at any time on a showing of reduced figures of cost and operation, or to refuse to continue the injunction in aid of any rate higher than may b'e reasonable.</p> <p>22. Telegraphs and telephones <§=333(1)—Injunction against rates should be conditioned on sworn monthly statements of net income.</p> <p>An injunction temporarily restraining the enforcement of a telephone rate ordinance should require as a condition that the company file each month a sworn statement showing with reasonable detail its operating income and operating expense incurred during the previous month.</p> <p><i;=3For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Sater, Judge. Action by Charles P. O’Reilly and others against the City of Cambridge. Erom a judgment dismissing the action at the conclusion of the trial before a jury, plaintiff brings error. The city of Cambridge, Ohio, decided to make additions to and improvements in its waterworks system. Accordingly it prepared specifications and plans covering what was proposed, and advertised for bids thereon.

<p>1. Trade-marks and trade-names and unfair competition <@=>11—Exclusive right to use trade-mark of patented article expires with patent.</p> <p>On expiration of a patent, the exclusive right to use the generic name by which the patented article has been designated, in the nature of a trademark, also expires.</p> <p>2. Trade-marks and trade-names and unfair competition <§=>70(J)—Imitation of dress held to constitute unfair competition.</p> <p>For 25 years complainant has made and .sold rubber heels for shoes, and has built up an extensive trade. During that time it obtained a patent on its product, which has expired. Before, during the life of, and since the expiration of the patent, it has impressed on its heels in raised letters, and in a peculiar design, the words “O’Sullivan’s Safety Cushion Heel,” and such words and design have come to designate to the purchasing public complainant’s product, which for much' the greater part is sold through jobbers to cobblers, who sell to the users. Since expiration of the patent defendant has commenced th‘e manufacture of similar heels sold in the same manner, but at a lower price, on which are impressed in similar design and style of letters the words “The Genuine Safety Cushion Heel.” It also uses cartons, each containing one pair of heels, very similar in general appearance to those of complainant. Held, that defendant was chargeable with unfair competition.</p> <p>4zz»Por other cases see same topic & KEY-NUMBER in all Ke^-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Eastern District of Texas; W. D. Estes, Judge.</p> <p>Suit by the Empire Gas & Fuel Company against the Higgins Oil &: Fuel Company and others. From a decree dismissing the bill, plaintiff appeals.</p>

<p>In Error to the District Court of the United States for the Eastern District of Oklahoma; Robert R. Williams, Judge.</p> <p>C. T. Burns was convicted, with others, of conspiracy to commit an oifense, and he brings error.</p>

Appeals from the Rent Commission. Proceedings by H. L. Rust against Mrs. C. PI. Young and others, by PI. L. Rust, as agent for Charles K. Hudson, against C. W. Allen, and by H. I,. Rust, as agent for Charles K. Pludson, against H. W. Sessford, for fixing of rents by the Rent Commission. Prom orders of the Commission, fixing the rents, the complainant appeals in each case.

<p>I. Schools and school districts <@=>135(5)— Secretary’s letter advising teacher ot appointment held not to estop board from requiring physical examination.</p> <p>Where plaintiff was advised by tbe assistant superintendent of schools she had been recommended for probationary appointment as a teacher, subject to physical examination, and the next day the board appointed her to such position, subject to that condition, a letter from tbe secretary of tbe board, notifying her of the appointment without stating the condition, did not estop the board from denying she was appointed without the condition.</p> <p>>. Schools and school districts <©=> 135(1)—Secretary of board has no authority to employ teacher and can be given none.</p> <p>Under Act June 20, 1906. § 2, the authority to employ teachers is vested solely in the board of education, and that power of appointment requires an exercise of judgment, so that it could not be delegated to the secretary of the board or to any one else.</p> <p>3. Schools and school districts <@=>135(1)—Applicant for position as teacher is charged with knowledge of limitations on authority of secretary of the board.</p> <p>An applicant for appointment as school teacher is charged with knowledge that the secretary of the board of education had no authority to appoint her, and could be given none by the hoard, so that she cannot invoke the doctrine of apparent authority of the secretary to bind the board.</p> <p>%. Schools and school districts <@=>127—Rui|p requiring physical examination of teachers are reasonable and valid.</p> <p>The rules for the government of public schools of the District of Columbia, requiring a physical examination before appointment as teacher to be made by medical inspectors of schools detailed for that purpose by the health officer, are reasonable, and therefore valid.</p> <p>5. Schools and school districts 127—Physical examination of applicant by inspector must he approved by health officer.</p> <p>The examination of an applicant for appointment as school teacher by the medical inspectors detailed for that purpose does not become the work of the health department until it is approved by the health officer, so that the applicant cannot rely on a report by the inspectors finding her physically competent, where the health officer found from the report that she was incompetent.</p> <p><g=jFor other case's see same topic & KEY-NUMBER in all Key-Niimbered Digests & Indexes</p> <p>6. Schools and school districts <©=»I33—Board may appoint on probation person known to be unfit to fill position of permanent teacher.</p> <p>The board ol education may appoint as a probationary teacher a person whom they know to be unlit physically to lili the position of permanent teacher.</p> <p>oilier cases see same topic & K&Y-RUMBER in all Key-Numbered Digests & Indexes</p>

Action by Philip M. Jullien against Charles Dick. Judgment for the plaintiff, for insufficiency of the affidavit of defense, and defendant appeals.

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Action by Katie M. O’Connor, administratrix of the estate of Maurice F. O’Connor, deceased, against the American Express Company and another. Judgment for plaintiff against the named defendant, and that defendant appeals.</p>

Aji>peal from the Supreme Court of the District of Columbia. Landlord and tenant proceedings by F. H. Duehay against Miss M. McCoy to recover possession of an apariment. Judgment for landlord, and tenant appeals.

<p>1. Appeal and error @=>260(1)— Exception is necessary to predicate error on admission of testimony.</p> <p>Error cannot be predicated on the admission of testimony, where no exception lias been reserved.</p> <p>2. Trial @=76—Objection to testimony should be made before answer is given, if possible.</p> <p>The practice of omitting to object to questions asked a witness, but thereafter moving to strike the answers, is not to be approved; but objections should be made to the question when asked, unless counsel has no opportunity io make it before the answer is given.</p> <p>3. Appeal and error @=>1047(3)—Admission of evidence is not prejudicial, where other evidence to same effect is in record.</p> <p>No prejudicial error was committed in refusing to strike out answers, which were only cumulative to other testimony properly in the record.</p> <p>4. Death @=72—Evidence of surviving parent’s means admissible.</p> <p>In an action by a father and mother to recover for the death of their son, evidence that the father had no means of suppoi't except his earnings, is admissible to aid the jury in determining the reasonable probability of the boy’s contributing to the support of his parents.</p> <p>5. Tria! @=281—Objection to whole instruction on damages is insufficient, if part is correct.</p> <p>An objection to a prayer for instruction as a whole is too broad to require consideration of a particular portion of the instruction, where other statements in the instruction were unquestionably correct.</p> <p>6. Death @=104(6)—instruction on damages held confusing on account of. word “merely.”</p> <p>A request by defendant that the jury should fix damages at that sum which represents the present cash value of the reasonable expectation of pecuniary advantage to the next of kin of decedent, and not merely by multiplying tile amount deceased might have contributed to the next of kin for a ;v ear by the number of years, was confusing, since the word “merely” means “only,” so that the instruction means that the amount shall bo fixed, not only by multiplying as indicated, but also by ascertaining the present value.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, Merely.]</p> <p>7. Trial @=261—Court need not rewrite incorrect request.</p> <p>It is no part of the trial court’s duty to rewrite an incorrect request to charge, though it would have been correct if one word had been omitted therefrom.</p> <p>8. Trial @=260(3)—Request on burden of proving negligence held covered.</p> <p>A request for a charge that the burden of establishing negligence was on plaintiff, and that, if the evidence on that subject was evenly balanced, the verdict must be for defendant, was sufficiently covered by another instruction. given at the request of defendant, though the one given did not specifically state that plaintiff could not prevail, if the evidence was evenly balanced.</p> <p>@=For other cases see same topic & KEY-NUMTSHR in all Key-Numbered Digests & Indexes</p> <p>9. Trial <§=260(8)—Request denying liability if defendant’s servant could not nave avoided accident is covered by instruction requiring negligence.</p> <p>A request to charge that defendant was not liable for the death of plaintiffs’ son, if defendant’s servant could not have avoided the accident, was sufficiently covered by instructions that plaintiffs could not recover, unless they established that defendant’s servant was negligent.</p> <p><§=For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

■ Appeal from the Supreme Court of District of Columbia. Suit by Abner C. P. Shoemaker, as executor of Louis P. Shoemaker, deceased, against Edwin A. Mooers and another, as surviving trustees under the will of Pierce Shoemaker, deceased, in which Harriet S-Shoemaker, as administrator d. b. n. c. t. a., was substituted as petitioner. Decree for petitioner, and defendants appeal.

Interference proceedings between John Q. Sherman and Douis F. Hagemann and three others. From a decision of the Commissioner of Patents, awarding priority to Hagemann, the senior party, Sherman appeals.

<p>1. Patents 13(7)—Burden is on appellant to show concurrent conclusions of tribunals of Patent Office were without substantial support.</p> <p>Where the three tribunals of Patent Office found against the appellant in interference proceedings, tbe burden is on bim clearly to establish that the Commissioner’s conclusion is without substantial basis in tbe testimony.</p> <p>2. Patents @=»90(5)—Structure not containing element of issue in interference held not reduction to practice of invention.</p> <p>Where one of the elements of the issue in interference in an air-cooling system for internal combustión engines was a port connecting a chamber with the intake of the engine, to regulate the capacity of the cooling system, a structure built and tested by the junior applicant before the filing date of the senior applicant, which did not have such a port, was not a reduction to practice of the invention in issue.</p> <p>^»Por other eases seo same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Proceeding by the N. L. Sansbury Company, Inc., against Mrs. M. A. Harris. Judgment for the landlord in the Supreme Court, on appeal from the municipal court, because of insufficiency of affidavit of defense, and the tenant appeals.</p>

<p>Appeal from ihe District Court of the United States for the Southern District of New York. Suit in equity by the American Radium Company against the Hipp. Didisheim Company, Inc., and others. Decree for defendants, and complainant appeals.</p>

<p>Appeal from the District Court of the United States for the District of Delaware; Hugh M. Morris, Judge. Suit by the Andrew Jergens_Company against Woodbury, Incorporated, and others. From a decree dismissing the )ill (273 Fed. 952), plaintiff appeals.</p>

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

<p>Appeal from the District Court of the United States for the Southern District of New York. Suit in admiralty by James H. Oullen against the Pennsylvania Railroad Company. Decree for respondent, arid libelant appeals.</p>

<p>Appeal from the District Court of the United States for tho Northern District of New York. Suit in equity by William H. Dupre against Howard P. Denison and the Bowen products corporation. Decree for defendants, and complainant appeals.</p>

<p>Appeal from the District Court of the United States for the District of Kansas. L. P.</p>

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

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

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

<p>Appeal from the District Court of the United States for the Southern District of New York. Appeal from the District Court of the United States for the Eastern District of New York. Separate suits in equity by the Fox Film Corporation against Frederick M. Knowles, William O. McWatters, and others, and against Frederick M. Knowles, Joseph Klein, and others, for infringement of copyrights. Decrees for defendants in each case (274 Fed. 731, 275 Fed. 582), and complainant appeals.</p>

<p>Appeal from the District Court of the United States for the Eastern District of New York. Libel in admiralty by Leo Ryder and others against the steamship Inland, of which the Coastwise Transportation Company was claimant, to recover penalty for wrongful discharge. From a decree dismissing the libel (271 Fed. 1008), libelants appeal.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York. Libel in admiralty by the Cornell Steamboat Company against the steam tug Irving G. Keller, of which Gerard N. Keller and another were claimants. Decree dismissing the libel, and libelant appeals.</p>

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

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

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

Libel in admiralty by the Lehigh Coal & Navigation Company against the steam tug Lehigh, of which the Lehigh Valley Transportation Company was claimant. Decree for respondent, and libel-ant appeals.

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

Suit in equity by Cesare Marcucci, doing business as the National Tin Can Manufacturing Company, against the United Can Company, Inc. From a decree (278 Fed. 741) granting a motion for preliminary injunction. defendant appeals.

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

<p>In Error to the District Court of the United Spates for the Southern District of Iowa.</p>

<p>In Error to the District Court of the United S:ates for the Western District of Missouri.</p>

Libel in admiralty by Socrates Moscahlades and another, doing business under the firm name and style of Moscahlades Bros., against Kuhara & Co., Limited. Decree for respondent, and libelants appeal.

<p>Appeal from the District Court o: the United States for the Western District of New York. In the matter o! the Movette Camera Corporation; bankrupt. From orders of the District Court, confirming a decision by the special master that the chattel mortgage given by the alleged bankrupt was invalid (279 Fed. 174), Firgil J. Fruth appeals.</p>

In Errar to the District Court of the United States for the Western District of blew York. Action at Jaw by the Iroquois Hotel 'Company against the National Drug Stores Corporation. Judgment for plaintiff on directed verdict, and defendant brings error.

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

<p>In Error to the District Court of the United States for the Southern District of Now York. Action at law by Ellen Moody, administratrix, against the Netherlands American Steam Navigation Company. Judgment for plaintiff, and defendant brings error.</p>

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

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

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

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

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

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

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

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

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

<p>In Error to the District Court of the United States for the Southern District of New York. Fred Vance was convicted of possessing property stolen while moving in interstate commerce, and he brings error.</p>