Volume 280 — Federal Reporter

<p>1. Criminal law <g=s>29 — Separate and distinct offenses may be created out of the same transaction.</p> <p>It is competent for Congress to create separate and distinct offenses growing out of the same transaction; the test of identity of offenses being whether the same evidence is required to sustain each.</p> <p>2. Criminal law <g=»984 — Defendant cannot be punished for manufacturing intoxicating liquors and also for having implements and materials for manufacture.</p> <p>Defendant could not be punished under each of two counts, one charging the manufacture and possession of intoxicating liquors, and the other the possession of implements and materials designed for manufacture of such liquor, where the manufacture was the dominant feature of the first count, and though she did not ask that the government he required to elect, she was entitled to he relieved from punishment under the second count, on motions for a new trial and in arrest of judgment asserting double punishment.</p> <p>3. Criminal law <§x=»I2I5 — •Both fine and imprisonment not permissible punishment on first conviction for manufacture of liquor.</p> <p>Under Xational Prohibition Act, § 29, authorizing punishment by fine or imprisonment on a first conviction for manufacturing liquor, both fine and imprisonment are not permissible.</p>

<p>Internal revenue <3=>2 — Statute as to forfeiture of conveyance used to avoid tax repealed by Prohibition Act as to transportation of liquors.</p> <p>Rev. St. § 3150 (Comp. St. § 6352), providing for the forfeiture of any conveyance used in removing or concealing any goods in respect whereof any tax shall be imposed, with intent to defraud the United States, is impliedly repealed, so far as vehicles used in transporting or concealing intoxicating liquor manufactured and intended for beverage purposes are concerned, by Naiional Prohibition Act, § 26, providing for the condemnation' of vehicles so used, and section 35 repealing inconsistent acts.</p>

<p>f. Sales <g=^445 (6) — Action for breach of warranty not barred as matter of law by payment of price.</p> <p>Retention of goods and payment of purchase price, or suffering judgment therefor without defense, and with knowledge of breach of warranty, does not as matter of law bar action for the breach; the question of waiver being at the most one of fact.</p> <p>2. Sales <®=^>288{6) — Payment for goods held not to bar action for breach of warranty under Ohio statute.</p> <p>Retention of goods and payment of purchase price with knowledge of breach of warranty did not bar an action for the breach, under the Uniform Sales Act of Ohio (Gen. Code, § 8395), in view of Gen. Code, §§ 8129, 8449.</p> <p>3. Sales (6) — Extension of time for payment does not show waiver of breach of warranty under Ohio statute.</p> <p>While the extension of time for payment for goods -would furnish a good consideration for the waiver of action for breach of warranty, an extension does not as matter of law show such a waiver, under the Uniform Sales Act of Ohio (Gen. Code, § 8395, subd. 1), in view of Gen. Code, §§ 8429, 8449.</p> <p>4. Sales <@=>445(6) — 'Waiver of action for breach of warranty held for jury under Ohio statute.</p> <p>In action for purchase price of steel, wherein defendant counterclaimed for damages for breach of implied warranty of fitness of steel previously purchased and paid for, whether defendant waived its right to damages held, for the jury, under the Uniform Sales Act of Ohio (Gen. Code, § 8395, subd. 1) and Gen. Oode, §§ 8429, 8449.</p> <p>5. Customs and usages <@=>19 (3) — Testimony as to custom held not conflicting.</p> <p>Cross-examination of witness, testifying to custom of replacement of defective steel or credit for its value, held not to create a conflict in the testimony, so that trial court would have been justified in instructing the jury that the custom was established by uneontradicted evidence; the cross-examination affecting only the weight of the testimony of the witness, other witnesses testifying to the custom.</p> <p>6. Customs and usages <@=>7 — Custom as to replacement of defective steel held not unreasonable.</p> <p>A custom in the steel trade, under which the buyer’s only remedy for defective steel was replacement or credit for its value, at the buyer’s option, the seller not being liable for cost of labor or other consequential damages, was not unreasonable.</p> <p>7. Customs and usages <@=>10 — Custom as to remedies of buyer held not to forbid recovery for failure to replace defective steel.</p> <p>A custom in the steel trade, under which buyer’s only remedy for defective steel is replacement or credit for its value, at the buyer’s option, the seller not being liable for cost of labor or other consequential damages, does not forbid recovery for failure to replace defective and unused steel, whose purchase price was greatly in excess of its scrap value; buyer having asked replacement, and seller having failed to make replacement.</p>

<p>In Error to the District Court of - the United States for the Northern District of Iowa; Henry T. Reed, Judge.</p> <p>Action by the Hurni Packing Company against the Mutual Rife Insurance Company of New York. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the Western District of Kentucky; Walter Evans, Judge.</p> <p>Action by the United States Trust Company against T. Scott Mayes, Collector of Internal Revenue. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Kentucky, at Catlettsburg; Andrew M. J. Cochran, Judge.</p> <p>Suit by Maggie Allen and others against the Gibson Coal & Coke Company and another, to vacate a sale made by plaintiffs' guardian to defendants. Decree for plaintiffs, and defendants appeal.</p> <p>On July 11, 1906, A. P. Webb died intestate, seized in fee simple of the land described in the plaintiffs’ petition, leaving a widow and six minor children surviving him. The name and date of the birth of each.of these children are as follows: Oliver Webb, born November 15, 1891; Mary and Maggie Webb, born January 8, 1896; Troy Webb, bom May 10, 1899; Londa Webb, born Juno 24, 1901; and Willie Webb, born November 3, 1903.</p> <p>In the spring of 1909 Lizzie Webb, the widow of A. P. Webb and mother of these children, entered into a written contract with the Laclede Coal Company for the sale of the minerals underlying these premises and certain mining rights in the surface, at an agreed price of $10 per acre, and at that time the Laclede Coal Company paid to Lizzie Webb $500 on the purchase price. On July 26, 1909, Lizzie Webb was appointed guardian of her minor children, and on August 25th of that year brought an action in the circuit court of Floyd county, ICy., to sell the minerals and mining rights which she had before her appointment contracted to sell to the Laclede Coal Company, averring in her petition, filed in that action, that the proceeds of this sale were necessary for the maintenance and education of her children. On November 10, 1909, a judgment was entered by the Floyd circuit court, ordering and directing the sale of these minerals and mining rights, and in pursuance of this judgment, a sale of the same was made in due form of law to the Gibson Coal & Coke Company. .This sale was confirmed on March 17, 1910. In April, 1913, the Gibson Coal & Coke Company sold and conveyed these minerals and mining rights to the Beaver Ci-eek Consolidated Coal Company for stock in that company, two for one, which stock was distributed by the Gibson Coal & Coke Company among its stockholders.</p> <p>Evidence was offered tending to prove that W. F. Hite and his associates incorporated, or caused to be incorporated, all of these companies, the two last named being incorporated on the same date; that these companies were incorporated and controlled by the same interests, for the purpose of purchasing coal and mining rights in this locality, and that the Beaver Creek Consolidated Coal Company was incorporated for the further purpose of taking over all the properties purchased and owned by the Laclede and the Gibson Coal & Coke Companies; that after these properties were taken over by the Consolidated Company, and stock in that company issued in payment therefor, that this stock was distributed to the stockholders of the Laclede and Gibson Coal & Coke Companies, and thereupon these corporations were dissolved. It further appears from the evidence that W. F. Hite was general manager, director, secretary, and treasurer of both the Laclede Coal Company and the Gibson Coal '& Coke Company from the time of their organization until their dissolution, and that during this time he personally supervised and managed the buying of land, minerals, and mining rights by these companies, and particularly the minerals and mining rights in question; that W. F. Hite has also been the general manager, director, secretary, and treasurer of the Beaver Creek Consolidated Coal Company from the date of its organization, and that he still retained such official relation to that company at the time of the trial of this cause in the district court. There is also evidence tending to prove that W. F. Hite and his associates promoted and incorporated,' or caused to be incorporated, other companies for the purpose of buying coal and coke lands in this territory, all of which were eventually taken over by the Beaver Creek Consolidated Coal Company in pursuance of the original plan, purpose, and intention, in furtherance of which the corporation last above named was created.</p> <p>Early in 1917 the children above named of A. P. Webb, defendants in the action brought by their guardian in the Floyd circuit court, perfected an appeal in accordance with the statutes of Kentucky from the judgment, orders, and decrees entered by the circuit court of B'loyd county in that action, in reference to tract 776, containing 377.40 acres to the Court of Appeals of Kentucky, which court dismissed that appeal as to Oliver Webb for the reason that it had not been taken within 12 months next after he had reached the age of 21 years, and reversed, as to the other appellants, the decree of the circuit court ordering and directing the sale of these minerals and mining rights, but refused to reverse the decree confirming the sale of same to the Gibson Coal & Coke Company, for the reason that the record did not disclose that that company was not a bona fide purchaser, and further held, by a majority of the court, that the decree reversing the judgment ordering and directing the sale of these minerals and mining rights did not ipso facto reverse the judgment confirming the sale.</p> <p>Thereupon the children of A. P. Webb on tbe 7th day of January, 1918, filed tbe petition in this action in tbe circuit court of Floyd county, for the purpose of reversing the order and judgment of the circuit court of that county, confirming the sale entered in the original action brought by their guardian, and to set" aside that sale, for the reason that the Gibson Coal & Coke Company was not a bona fide purchaser for value, but, on the contrary had unlawfully, wrongfully, and fraudulently procured, by fraudulent collusion with their guardian, the institution of the suit by her to sell these minerals and mining rights, and conspired to bring about a sale of the infants’ property at less than its fair value, when there was not the necessity for it, as required by such statute, as a prerequisite to such suit, and that after having procured their mother, before sbe was appointed guardian, to enter into a written contract to sell this property for $10 per acre, and having induced her to be appointed guardian and file a petition as guardian to obtain an order for the sale thereof, the said Gibson Coal & Coke Company, through its agents and attorney, took absolute control and management of said cause, to the exclusion of said guardian, and fraudulently procured the erroneous order of sala to be entered, that was reversed by the Kentucky Court of Appeals, and pro- • cured said sale to be made to itself and confirmed by tbe court at a wholly inadequate and unfair price.</p> <p>Upon petition of the Gibson Coal & Coke Company this cause was removed to the United States District Court for the Eastern District of Kentucky, in which court the Beaver Creek Consolidated Coal Company was made a party defendant. Issues were joined by separate answers of the Gibson Coal & Coke Company and the Beaver Creek Consolidated Coal Company, denying all the material allegations of plaintiff’s petition and amendment thereto. The Gibson Coal & Coke Company also pleaded the 5-year statute of limitation and laches of the plaintiffs in failing and neglecting to bring this suit for more than 8 years after the date of the decree confirming the sale, and until the property had largely increased in value and other parties had become interested therein.</p> <p>Upon the issues so joined, the District Court found for the plaintiffs other than Oliver Webb, and entered a judgment and decree setting aside the order of confirmation and the sale of their interest in the minerals and mining rights, and further ordering and directing that the portion of the purchase price paid by the coal company for the five-sixths interests therein be returned to it, with interest from the date of its receipt, subject, however, to an accounting, upon a royalty basis, for the coal mined therefrom by the defendant coal companies, or either of them.</p>

Hook, Judge. Separate suits by the Commonwealth Steel Company against the Missouri Pacific Railway Company and against the St. Rouis, Iron Mountain & Southern Railway Company, each of which was consolidated with a suit by the Guaranty Trust Company <3f New York and another against the respective defendants, and in which a receiver was appointed for the defendant corporation.

<p>Petition to Review Order of the Federal Trade Commission of the United States of America.</p> <p>Original petition for writ of certiorari by the Chamber of Commerce of Minneapolis and others against the Federal Trade Commission of the United States and others.</p>

Earis, Judge. Suit by the St. Eouis Electrical Works and others against the Eore Electrical Manufacturing Company arid others. Erom a decree for plaintiffs (267 Ecd. 440), defendants appeal.

<p>I. Sales (®=^173 — Under contract, delay In making connections with seller’s oil wells held not breach, if buyer used best endeavor to prevent delay.</p> <p>Under a contract for the sale of oil, deliverable at the seller’s wells In approximately equal daily quantities to a third person’s pipe line, which required the purchaser to make all necessary arrangements for receiving the oil and to use their utmost endeavor to prevent delay, the purchaser was not absolutely bound to have pipe line connections made by the prescribed time for commencing delivery, and if it nsed its utmost endeavor to prevent delay in iiaving the pipe lino connected with the seller’s tanks, such delay did not constitute a breach, but merely increased the daily deliveries during the rest of the contract period.</p> <p>2. Sales ¡®=>151— Seller heM not ready and ai)!a to deliver oil, where its oil was mingled with thai of other persons.</p> <p>Under a contract for Hie sale of oil deliverable at the seller’s wells to a third person’s pipe line, the seller was not ready and able to deliver oil, whore other persons owned parts of the oil in seller’s tanks until the pipe line company or the buyer received authority from sucb other persons to take the oil, and if the buyer was ready, able, and willing to receive the oil the contract was broken by the seller.</p> <p>8. Saiea <©=>418(2)— Dam ages for nondelivery based es> market value reasonable time after seller’s promises to cleaver overdue instaiiruents.</p> <p>If a seller of oil which had failed to make delivery at times prescribed by the contract promised to make deliveries of overdue installments, and the buyer waited for a reasonable time thereafter, it was entitled to have its damages for the nondelivery of the oil ascertained on the basis of the dinerenoe between the contract price and market value of like oil on the expiration of such reasonable time.</p> <p>4. Salas <$=>384(1) — Buyer of oil held not liable for seller’s loss of oil by seepage from new wells, etc.</p> <p>Though a buyer of oil was informed that if it did not take the oil as required by the contract, the seller would lose oil through seepage, etc., buyer 7¡eld not liable for oil lost by seepage by reason of an increase in the number of wells in the vicinity, or in the activity of new wells, or in the greater activity of old wells on adjoining properties.</p> <p>5. Corporations (©=>514(1) — Averment of corporate existence means legal existence.</p> <p>An averment in a pleading that a corporation exists under and by virtue of the laws of a state ny legal intendment means that it legally exists.</p> <p>6. Corporations <3=3534 — Have no existence beyond limits, of state of creation.</p> <p>A corporation, a legal entity or person which exists by force of law, can have no existence beyond the limits of the state which creates it and endows it with faculties and powers, and it is a citizen of that state.</p> <p>7. Corporations ¡©=>634 — May not migrate, but may carry on business in other states.</p> <p>A corporation created in one state may not migrate from state to state, but may carry on business and exercise its charter powers in another state, by complying; with the laws of that state.</p> <p>8. Corporations <g=»634 — .Effect of special enabling act authorizing foreign corporation to do business stated.</p> <p>Whore the purpose of the Uegislature in passing a special enabling act authorizing a particular foreign corporation to do business in the state is to make such corporation its own, it thereby creates a new corporation, with a new existence, and, though the two corporations may have the same name and powers, each exists independently by virtue of the laws of its own state; but if the purpose is nol to create, but simply to enable, permit, and control, the corporation is not a citizen of the enabling state, but remains a foreign corporation.</p> <p>9. Courts ¡©=>322(3) — Allegation that corporation was created or exists under' lav/s of particular stale imports that It was both created and existed.</p> <p>Continuance, as well as creation, of corporate existence is essential to the jurisdiction of a federal court on the ground of diverse citizenship, and the proper allegation is that the corporation is a corporation created and existing under the laws of: a particular state; but an allegation that it was created or that it exists under the laws of a particular state imports that it was created and is existing under such laws.</p> <p>10. Courts @=>322(2) — Sufficient that requisite citizenship or facts constituting citizenship are alleged anywhere in the record.</p> <p>Where jurisdiction depends on diverse citizenship, the whole record may be looked to for the purpose of curing a defective averment of citizenship, and if requisite citizenship is anywhere expressly alleged, or if facts are stated which in legal intendment constitute such averment, it is sufficient.</p> <p>11. Courts @=>322(3) — Admission of corporate existence as alleged held admission that corporations were citizens- created and existing under laws of states named.</p> <p>Where the declaration alleged that plaintiff was a corporation existing under the laws of Michigan, and defendant a corporation existing under the laws of Delaware, an admission at the trial of the corporate existence of the parties as alleged and their citizenship was an admission that they were corporations and were citizens created and existing under the laws of the states mentioned.</p> <p>12. Appeal and error @=>273(5) — Exception to the charge, without pointing out matters obbjected to, held insufficient.</p> <p>An “exception to the charge” is a general exception, contrary to rule 10 of the Circuit Court of Appeals for the Third Circuit (224 Fed. vii, 137 O. C. A. vii), which provides that the party excepting shall state distinctly and separately the several matters in the charge to which he excepts, and that only such matters shall be included in the bill of exceptions.</p> <p>13. Sales @=>42I~-In buyer’s action for seller's breach, charge held full and correct.</p> <p>In a buyer’s action for breach of a contract for the sale of oil to be delivered at the seller’s’ wells to a third person’s pipe line, in which the seller charged the buyer with breaking the contract and filed a recoupment in damages, the charge held to clearly analyze the facts, fully state the issues, and correctly expound the law.</p>

Van Valkenburgh, Judge. Suit in equity by Edward A. Shedd and others against the Guardian Trust Company and others, in which Henry C. Flower was appointed receiver. From an order allowing in part only his claim against the Trust Company, Harry S. Mecartney appeals.

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Separate proceedings by the United States against John McGovern and William McGovern to punish defendants for contempt for violating orders abating a liquor nuisance. Erom judgments in each proceeding, convicting of contempt, defendants bring error. Proceedings dismissed as to William McGovern, who died subsequent to the judgment, and judgment as to John McGovern affirmed in the first proceeding and reversed in the second.</p>

<p>In .Error to the District Court of the United States for the Eastern District of New York.</p> <p>Action at law by George E. Benedict, sole surviving trustee under the will of William C. Eangley, deceased, against the United States and the City of New York. From the judgment, defendants bring error.</p> <p>Writs of error to a Judgment entered after trial with jury waived. Defendant in error (who will be hereafter referred to as the Bangley Estate) owned in 1918 a considerable body of land, consisting both of upland and land under wafer, in the county of Kings and city of New York, and. extending, according to the Bangley contention, from First avenue, Brooklyn, to the pierhead line in the waters of New York Harbor. It was separated into two parts, one extending from the center line of Fifty-Eighth street to the corresponding line of Fifty-Ninth street, and the other from the southerly line of Sixty-Third street to a point 118 feet north of the center line of Sixty-First street. The area of the whole property was, as found by the court below, 1,714,322 square feet.</p> <p>The property had been in the Bangley family for many years, but defendant in error held title by virtue of the will of William 0. Bangley, deceased, which conferred a power upon this defendant in error and his predecessors in ofhee in the following words: “I hereby authorize and empower my said executors and trustees and their successor and successors to sell at their discretion as to the time and terms, and at public or private sale, all and every part of my real estate, and to execute and deliver all necessary and proper assurances and conveyances for the same to the respective purchasers thereof.”</p> <p>In assumed compliance with this power the trustees of the Langley Estate for the time being conveyed on April 25, 1899, to the city of New York as much land as was necessary to continue (through the Langley property) Sixty-First, Sixty-Second, and Sixty-Third streets to (as the deed stated) “the New York Bay.” Such conveyance was executed, not only in pursuance of the testamentary power aforesaid, but of section 992 of the Charter of the city of New York (Laws 1901, c. 466), .which provides in substance that “the owners of land * ♦ * within the lines of any street * * * on the * * * plan of the city of New York, and comprising all the land within said lines in an entire block in extent, may” convey the same free of encumbrances to the city. If the city accepts such conveyance it “shall become vested with the title to said lands to the same effect and extent as if they had been acquired” in a condemnation proceeding for street purposes. After such conveyance “the lands fronting on that portion of the streets so conveyed, and extending to the center of the block on either side of such portion of said street as conveyed” shall not be chargeable (in effect) with any assessments consequent upon the “opening the residue or any portion of the residue of such street.”</p> <p>From 1899 to 1918 the streets in question remained unopened, in the sense that they were not used as highways. The entire property was not improved as a water front; some filling was done by which the area of land above water was somewhat increased, but whether by 1918 the process of filling had been extended to the bulkhead line as then authorized is a matter not specifically found by the lower court. On April 6, 1918, the United States acquired title to one of the above-stated parcels of Langley realty, and at a slightly later'date to the other parcel; such acquisition being by virtue of what is known as the Lever Act of 1917 (40 Stat. 276 [Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 3115%e-3115%kk, 31151,67-3115^]), whereof the important section is the tenth (section SllS^ii), as follows:</p> <p>“That' the President is authorized, from time to time, to requisition foods, feeds, fuels, and other supplies necessary to the support of the army or the maintenance of the navy, or any other public use connected with the common defense, and to requisition, or otherwise provide, storage facilities for such supplies; and he shall ascertain and pay a just compensation therefor. If the compensation so determined be not satisfactory to the person entitled to receive the same, such person shall be paid seventy-five per centum of the amount so determined by the President, and shall be entitled to sue the United States to recover such further sum as, added to said seventy-five per centum, will make up such amount as will be just compensation for such necessaries or storage space, and jurisdiction is hereby conferred on the' United States District Courts to hear and determine all such controversies.”</p> <p>Pursuant to that statute the Executive appointed a commission for the purpose of ascertaining and paying a “just compensation for what had been taken or requisitioned,” which included all that the Langley Estate had conveyed to the city of New York in 1899. The governmental commission determined that just compensation was $1,796,522.20, with interest at 5 per cent, from May 1, 1918. This was in effect a determination that the property was worth $1.10 per square foot, and that the Langley Estate was entitled to be paid at that rate for all of the land except so much as lay within the limits of Sixty-First, Sixty-Second, and Sixty-Third streets “if projected between the westerly line of First avenue and the high-water line” as shown on the plan attached to the city’s deed. The area of these street beds as above described was found to be 81,120 square feet.</p> <p>This award was not satisfactory to the Langley Estate, in that (1) $1.10 per square foot was not enough; and (2) the city’s title to the street beds was recognized in reduction of its acreage. Therefore this suit was brought, pursuant to the act of Congress above set forth.</p> <p>The United States was originally the sole defendant, and on its motion the court below ordered that the city be “brought in as a party defendant” and that a supplementary summons issue accordingly. Such summons issued; an amended complaint was filed, in which it was alleged that the city, “by reason of the alleged deed” above referred to, claimed an “interest either substantial or nominal in tlie streets hereinbefore referred to adverse to that of the plaintiff.” The city appeared and answered, asserting title in itself in said streets and in an area of 81,120 square feet, and prayed for the dismissal of the complaint, and for “such other and further relief as to the court may seem just and proper.”</p> <p>The trial court (270 Fed. 267) determined (by formal findings of fact and conclusions of law) that the fair and reasonable value, and therefore just compensation, for what the United States had taken, was $3,428,644, or at the rate of $2 per square foot, it further found that the value was the samo, “whether or not the city of New York held title to the lands within” the streets heretofore mentioned, but that the above referred to conveyance of April 25, 1869, was void, wherefore the title to the entire property taken was in Langley Estate, and to it should be awarded the entire recovery. To judgment accordingly both the United States and the city of New York took writs of error.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Missouri; Charles B. Earis, Judge.</p> <p>Suit in equity for infringement of a patent by Laclede-Christy Clay Products Company against the City of St. Louis. Prom a decree dismissing the bill (270 Fed. 338), complainant appeals.</p>

States for the Eastern District of Louisiana; Rufus E. Foster, Judge. Randall Sharp and others were convicted, respectively, on various counts of an indictment, charging theft of alcohol from an interstate shipment and conspiracy to violate the National Prohibition Act (41 Stat. 305), and they bring error.

<p>5. internal revenue Statute requiring “retail liquor dealers” to pay tax was not repealed by War-Time Prohibition Act.</p> <p>Itev. St. § 3241 (Oomp. St. §§ 5971, 6176, 6187), imposing a special tax on “retail liquor dealers,” who are defined as those who sell distilled spirits in less quantities than five gallons at one timo, and which required the tax to be paid, not only by persons engaged exclusively in the salq of liquor, but also by druggists and others who, in connection with their other business, sold liquor for medicinal, mechanical, or other purposes, was not repealed by the War-Time Prohibition Act (Comp. St. Ann. Supp. 1919, §§ 3115ii/i af-MlRiVish), which prohibited the sale of distilled spirits for beverage purposes during the war.</p> <p>I Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Retail Liquor Dealer.)</p> <p>2. Criminal law @=315 — Punishment for failure to pay special tax is not released by subsequent enactment of national prohibition.</p> <p>One who had committed the offense of selling intoxicating liquors without having paid the special tax required of retail liquor dealers, prior to the adoption of the Eighteenth Amendment and the enactment of the National Prohibition Act, can be tried and punished for that offense after national prohibition took effect, under Eev. St. § 13 (Oomp. St. § 14), providing that the repeal of any statute shall not have the effect to release any penalty unless the repealing act shall expressly so declare.</p> <p>3. Crimina! lav/ <§=»I035(2), 1129(1) — Error in consolidation of cases for trial not reviewable, where no objection nor assignments of error.</p> <p>Even if it was error to consolidate for trial a joint indictment against two defendants for failure to pay the special retail liquor -dealer’s tax, with separate indictments against each defendant charging a sale of liquor contrary to the War-Time Prohibition Act (Oomp. St. Ann. Supp. 1919, §§ 31151Vi2f-3115i1/i2h), the objection is not available to defendants, where it was not made before trial, nor included in the original assignments of error, but was sought to be raised for the first time in the appellate court.</p> <p>4, Criminal law ¡§=>1038(1), 1056(1), 1129( I) — Charge must be objected to, exception saved, and assigned as error, to be reviewable.</p> <p>Charges of the court are not reviewable, where no objection was made to them when they were given, no exceptions were taken, and no assignment of error was based upon them.</p>

Clayton, Judge. Suit in equity by J. D. O’Keefe, as receiver of the New Orleans Railway & Right Company, and others, against the City of New Orleans and others. From a decree granting an injunction pendente lite-to restrain interference with the receiver in charging an 8-cent street car fare (273 Fed. 560), defendants appeal.

<p>Appeal and error 192 — Maatlato to proceed in conformity with opinion held not to require Judgment far dofondant.</p> <p>Where the briefs of the parties on writ of error to review a judgment for plaintiff agreed that the only question for decision was whether the lands in controversy, which defendant claimed under a tax deed, were subject to taxation, though the pleadings in that case presented other.objections to the validity of the iax deed, a mandate, after reversal of that judgment, dirociing the trial court to proceed In conformity with the opinion, did not require it to enter a judgment in favor of defendant, but only required further proceedings to be hod in accordance with the determination that the land was subject to taxation.</p>

<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 G. C. Henson against the Canal Construction Company. Judgment for plaintiff, arid defendant brings error.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Arkansas; Jacob Trieber, Judge.</p> <p>Suit by the McWilliams Company, Inc., and others, against J. H. Reeves, trustee of the estate of T. D. Hunt, bankrupt. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from the District Court of the United States for the Western District of Oklahoma; John ID, Cotteral, Judge.</p> <p>Suit by the United States against Fneas J. McCurdy, County Treasurer of Osage County, Okl., and others. From a judgment dismissing the action, plaintiff appeals.</p>

<p>1. Criminal law &wkey;>242 (7) — Evidence of indictment and identity of defendant held to authorize order of removal to another district for trial.</p> <p>In a proceeding for the removal of defendant to .another district, in which ho had been indicted, for trial, where the indictment was produced and testimony of defendant's identity offered, there was sufficient evidence to sustain the order of removal.</p> <p>2. Courts <&wkey;>337 — Sufficient that state procedure followed, so far as it applied to proceedings for removal of defendant to another jurisdiction.</p> <p>An order for defendant’s commitment for removal to another district, where he had been indicted, for trial, was not invalid because the state laws relating to preliminary hearings and i>rocoedings thereon were not followed, where they were followed so far as they applied to proceedings for removal under an indictment found in another jurisdiction.</p> <p>3. Intoxicating liquors «&wkey;l7--Vo¡stoac! Act is constitutional.</p> <p>The Volstead Act is constitutional.</p> <p>4. Criminal law <&wkey;242(4) — Whether indictment open to motion to quash, or defective in form, not open in proceeding to remove to another district for trial.</p> <p>Where an indictment found against defendant in another district substantially charges á crime against the United States, tho questions whether it is open to a motion to quash, or to demurrer for defects in form, are for the court where the indictment is pending, and not for the court ordering defendant’s removal to such other district for trial.</p> <p>5. Hateas corpus <&wkey;4 — Matters of defense not determined in proceeding by one ordered removed to another district for trial.</p> <p>While, on appeal in a habeas corpus proceeding by one committed for removal to another district in which he had been indicted, greater liberality is exercised than in the usual case of habeas corpus, the writ is not a substitute for a writ of error, and the petitioner cannot have his matters of defense determined thereon.</p>

<p>Appeal from the District Court of the United States for the District of New Jersey; Charles E. Eynch, Judge.</p> <p>Suit by the Staso Eaminated Slate Company against the Stowell Manufacturing Company. From a decree for defendant, plaintiff appeals.</p>

Van Valkenburgh, Judge. Leon Hurwitz was convicted of selling opium without having registered, as a dealer therein, and he brings error.

Sheppard, Judge. Chester Wing and others were convicted of conspiracy to bring into the United States certain Chinamen, in violation of the Chinese Exclusion Act, and they bring error.

- Suit for infringement of letters patent No. 907,770 by Albert E-Jessurun against the Peerless Light Company. From a decree dismissing the bill, plaintiff appeals.

<p>Poisons &wkey;>9 — Charge of possession of narcotics without registering must allege accused was required to register.</p> <p>Harrison Narcotie Act, § 8 (Comp. St. § 6287n), making it an offense for a person not registered as required by section 1 (section 6287g) to have possession of narcotics, applies only to those who are required by section 1 of the act to register, so that an indictment charging failure to register and possession is insufficient if it fails to allege that defendant was one who was required to register, though section 8 makes proof of possession without registration sufficient to cast the burden of proof on the defendant.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Missouri; Jacob Trieber, Judge.</p> <p>Suit by John A. Eberle and others against the Stix, Baer & Fuller Dry Goods Company and others for infringement of patent No. 1," 304,951, issued May 27, 1919, to John A. Eberle, for an improvement in swings. Erorn a judgment dismissing the bill, plaintiffs appeal.</p>

<p>In Bankruptcy. In the matter of the estate of A. E- Hallbauer, bankrupt. On petition to review an order of the referee allowing a claim by the wife of bankrupt for the exemption of certain personal property.</p>

<p>Interna! revénue <©=>26 — 'Taxes due from insolvent have priority over state taxes.</p> <p>Under Const, art. 6, providing that “this Constitution and the laws oí the United States which shall be made in pursuance thereof * * * shall be the supreme law of the land,” and Rev. St. § 3466 (Comp. St. § 6372), enacted in 1797, providing that, “whenever any person indebted to-the United States is insolvent * * * the debts due to the United States shall be first satisfied,” taxes due to the United States from an insolvent corporation have priority over taxes due under the laws of the state.</p>

At Daw. Action by the Dock Contractor Company against the Niagara Falls Power Company. On motion to require plaintiff to make complaint more definite and certain and to strike out irrelevant allegations.

<p>In Bankruptcy. In the matter of Clement D. Cates and others, alleged bankrupts. On petition for the appointment of a receiver and motion to set aside the adjudication.</p>

<p>1. Deatfi &wkey;,';:;.-Rifjiit of action under federa! act accrues on appointment of administrator.</p> <p>Under the provision of Employers’ Liability Act, § 6 (Comp. St. § 8662), requiring an action thereunder to be commenced “within two years from the day the cause of action accrued,” a right of action for the death of an employe does not accrue until the appointment of an administrator who may maintain the action.</p> <p>2. Seamen <&wkey;29(5)~.Aetion at !aw for death bald maintamaMe under Seamats's Act.</p> <p>An administratrix appointed in 1921 for the estate of a seaman who died in-1919 held entitled to maintain an action at law for his death under the provisions of Seamen’s Act, § 20 (Comp. St. § 8337a), as amended by Act June 5, 1920, § 33.</p>

<p>Criminal prosecution by the United States against T. W. Everson. On motion to.quash information.</p>

<p>1. Bankruptcy <&wkey;482(l)— Allowance of attorney’s fees one of right.</p> <p>Under Bankruptcy Act, § 64a (3), being Comp. St. § 9648, tbe matter of an allowance to a bankrupt’s attorney is one of right; the amount only being left to the discretion of the court.</p> <p>2. Bankruptcy <&wkey;317 — Attorney’s fee held not allowable as preferred claim.</p> <p>An item covering services rendered by bankrupt’s attorney for the bankrupt in connection with a suit pending in the state court prior to the commencement of the bankruptcy proceeding was not allowable as a preferred claim.</p> <p>3. Bankruptcy <&wkey;327(l) — Bankrupt’s attorney’s claim for prior services must be filed.</p> <p>A claim of a bankrupt’s attorney for services rendered in a suit prior to commencement of the bankruptcy proceeding should be filed as a claim against the estate either in the secured or preferred class, where the attorney claims a lien on some particular fund, and where it has not been so filed the validity of such lien cannot be passed on on certificate by referee in connection with such attorney’s fee to be allowed as attorney in bankruptcy proceeding.</p> <p>4. Bankruptcy <&wkey;482(l) — Claim of attorney for services to receiver and creditors must set forth services rendered.</p> <p>On certificate of referee in connection with fee to be allowed attorney for the bankrupt, an item in the attorney’s claim of a certain amount tor making a trip in the interest of general creditors in order to have a receiver with authority to operate appointed by the court, and an item for services in acting as attorney for the receiver and rendering all services that tiie receiver required to be performed, without attempting to set forth what these services were, were insufficient.</p> <p>5. Bankruptcy <&wkey;482( I) — Services performed for receiver should be presented separately by bankrupt’s attorney.</p> <p>Any claim for services by bankrupt’s attorney performed for a receiver should be presented separately from tbe attorney’s claim for services as attorney in tbe bankruptcy proceeding.</p> <p>8.Bankruptcy &wkey;>482(I) — Compensation for legal services to bankrupt in hav-' ing exemptions allowed not allowable.</p> <p>Legal services to a bankrupt in having.bis exemptions allowed is a matter between tbe bankrupt and bis attorneys, and a claim tberefor is not allowable.</p> <p>7. Bankruptcy <&wkey;482(2) — Attorney’s fees allowable.</p> <p>Bankrupt’s attorney is entitled to an allowance for preparing and filing the petition and schedules of tbe bankrupt and for a trip to attend a meeting of creditors, Including necessary expenses in making tbe trip.</p> <p>8. Bankruptcy <&wkey;482(2) — Allowances made for bankrupt’s attorney.</p> <p>Attorney for a bankrupt with an estate of about $6,000 allowed $50 for preparing and filing schedules and $100 for other services, including a trip in attending a meeting of creditors, and expenses of tbe trip.</p> <p>9. Bankruptcy &wkey;>477 — Time held opportune to fix fees of. bankruptcy attorney.</p> <p>Where bankruptcy proceeding reached that stage where it would be difficult to understand how any further services from attorney on behalf of the bankrupt would be beneficial to the estate, the time was opportune for allowance of his fees.</p> <p>10. Bankruptcy c&wkey;482(I)— Bankrupt’s attorney entitled to retain only proper charge for services.</p> <p>Where bankrupt’s attorney was paid money and assigned a claim, immediately preceding his filing of the bankruptcy proceeding, to cover his services performed or to be performed in the proceeding in behalf of the bankrupt, the money rightfully belonged to the bankrupt estate, and the attorney could only be permitted to retain so much of it as was a legitimate and proper charge for the services performed.</p>

<p>In Equity. Suit by the Mathieson Alkali Works against Arnold Hoffman & Co., Inc. On application for instructions to the master.</p>

<p>1. Bankruptcy <s&wkey;354 — Notes held to evidence “individual debt” of partners, within Bankruptcy Act.</p> <p>Notes reading, “I, we, or either of us promise to pay,” two Of which were signed by both partners individually, and the other of which bore the name of the partnership by one of the partners, and all of which represented debts incurred for the benefit of the partnership, held to evidence the “individual debt” of the partners, within Bankruptcy Act, § 5f (Comp. St. § 9588), entitling the individual debts of the partners to be first paid out of the partners’ individual property on bankruptcy of partnership.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, Individual Debts.]</p> <p>2. Partnership <&wkey;2!7(l) — Burden is on firm to show it is not liable on paper bearing partnership name.</p> <p>Whenever a partnership name apears on commercial paper, the firm is presumably bound, and the burden is on the firm to show that it is not liable.'</p> <p>3. Partnership <&wkey;l46(l) — Obligation signed or indorsed in firm name, for benefits accruing to firm, a partnership debt.</p> <p>Any note or other obligation, signed or indorsed in the firm name, the benefits of which accrued to the firm, is a partnership debt.</p> <p>4. Partnership <&wkey;l46(l) — Note or obligation for sole benefit of firm, though signed or indorsed by individual partner, is a partnership debt.</p> <p>Where the note or obligation, though signed or indorsed by an individual partner, is for the sole benefit of the firm, it is a partnership debt.</p> <p>5. Evidence <&wkey;459(3) — Parol evidence admissible to show notes signed by in-dividua! partners to be partnership obligations.</p> <p>Parol evidence is admissible to show that notes signed by individual members of a firm are partnership obligations.</p>

<p>1. Bankruptcy &wkey;il40(3) — No absolute sde, when goods to he resold and proceeds to be remitted, lass cora'mission.</p> <p>Where the bankrupt was to sell goods shipped him by the claimant at a price fixed by the claimant, collect the money, and remit the price, less a commission of 12% per cent, and these provisions were carried out there was no absolute sale to the bankrupt.</p> <p>2. Bankruptcy &wkey;>228 — Refcreo’s finding not disturbed, unless without basis or contrary to evidence.</p> <p>A finding of fact by a referee in bankruptcy, after personal observation of the witnesses, will not be disturbed, unless without basis in the record, or clearly contrary to the evidence.</p> <p>3. Bankruptcy (&wkey;!63 — Settlement between bankrupt and party sending it goods for resale held not a “voidable preference.”</p> <p>Whether an agreement, made more than four months before bankruptcy, by which goods were sent to the bankrupt for sale and payment of the proceeds, less a comtrtission, to the claimant, was one of absolute sale, with attempted retention of title, a contract of conditional sale, or a pure ageiicy agreement, where the parties before bankruptcy made a settlement under which goods were slored by the bankrupt for the claimant, such agreement was supported by a present consideration, and not a voidable preference, under Bankruptcy Act, § 47a(2), being Comp. St. § 9631.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Voidable.]</p> <p>4. Corporations <&wkey;66l (6) — Foreign corporation, doing business through agent without obtaining license, not thereby deprived of right to recover goods.</p> <p>A foreign corporation selling goods in Michigan through an agent without obtaining a license, under Pub. Acts Mich. 1915, No. 64, is not thereby deprived of its right to recover goods in the agent’s possession on his bankruptcy, under Michigan decisions as to the rights of such a corporation.</p>

<p>At I,aw. Action by the Lilley Building & Loan Company against Newton M. Miller, as Collector of Internal Revenue, to recover corporate income taxes paid under protest.</p>

<p>1. Shipping <©=3104 — 'Vessel owner may contract to carry contraband goods to blockaded port.</p> <p>A vessel owner may contract to carry contraband goods, and may also contract to carry such goods to a blockaded port.</p> <p>2. Shipping <g=>5l — Submarine activities of Germany constituted blockade of English ports, amounting to restraint of rulers.</p> <p>The activities of the German submarines off the coast of the British Isles for the avowed purpose of sinking all vessels entering the forbidden zone was an effective blockade of the English ports, which excused a vessel owner from performing his charter agreement, under the clause exempting restraint of rulers.</p> <p>3. Shipping <s=>51 — Warning of intention to sink ail vessels was extraordinary occurrence, beyond control of parties to charter.</p> <p>The published warning by tile German government that it intended to sink all vessels entering the forbidden zone around the British Isles was an extraordinary occurrence, beyond the control of either party to a charter, entered into before the warning was published, for the carrying of a cargo to England.</p> <p>4. Shipping <©=>51 — Charter is frustrated only when change is so great no rea-sonahie man would contract under the circumstances.</p> <p>A charter agreement to carry a cargo is frustrated only when the change in circumstances is so great, that no reasonable man would have entered into the contract under the new circumstances.</p> <p>5. Shipping <©=>51 — Charter held frustrated by notice of Germany’s intention to sink ail vessels in forbidden zone.</p> <p>A charter agreement to carry a cargo of lumber to England in a small sailing vessel was frustrated by the German warning of intention to sink all vessels in the forbidden zone around the British Isles, and by the effective efforts of the submarines to carry out the purpose, since no reasonable man would have contracted to perform such a voyage under those conditions, unless Ihe amount of freight would fully repay the value of the vessel.</p>

<p>In Admiralty. Ribel by Marion R. Payne against the Jacksonville Forwarding Company to recover for personal injuries.</p>

<p>Misnieipa! corporations <&wkey;>7! I — City held wiihoat power to make contract fixing unchangcahle rates for sewer company.</p> <p>Under Const. Ala. § 22, providing that “every grant or franchise, privilege, or immunity shall forever remain subject to revocation, alteration, or amendment,” the Legisla turo cannot confer on a municipal corporation power to make a contract fixing unchangeable rates to he charged by a public service corporation, and rates fixed by an ordinance ^granting a franehiso to a sower company are not enforceable when shown to be confiscatory.</p>

<p>1. Seamen <@=30 — Seaman held not guilty of willful disobedience, which Justified his imprisonment by the master.</p> <p>A seaman held, not chargeable with willful disobedience, which would authorize his imprisonment by the master, and awarded $100 damages for confinement in irons for 16 hours.</p> <p>2. Seamen <@=30 — Shipowner not liable for punitive damages for assault by master.</p> <p>•Shipowners are not liable for punitive damages for malicious assaults by master on seamen.</p> <p>3. Seamen <3=530 — Shipowner may be liable for punitive damages for abuse of seamen, authorized or ratified.</p> <p>Shipowners may be liable for punitive damages for abuse of seamen, if authorized or ratified by owners.</p> <p>4. Seamen <@=30 — Punishment at sea only for willful disobedience.</p> <p>Punishment may be legally inflicted at sea only when there is willful disobedience of lawful command.</p>

<p>In Equity. Suit by Webb Jay and the Stewart-Warner Speedometer Corporation against the Ireland & Matthews Manufacturing Company. Decree for complainants.</p>

<p>1. Salvage <§=27 — Salvage award made for services to leaking schooner off Capo Fear bar.</p> <p>A salvage award of $2,000 made for the services of three tugs rendered to the schooner Nisseqogue, which was anchored off Cape Fear river bar, in a leaking and dangerous condition. One of the tugs went out to the bar in the usual course of business to get a tow, and brought the schooner in and beached her at Southport; this service requiring 2% hours, with no particular danger to the tug. There the three tugs partially pumped the schooner out, and then towed her to Wilmington, where the pumping was continued, in all 39 hours. The schooner and cargo were appraised at about $71,000, and sold by the court for about $22,000.</p> <p>2. Seamen <@=27 — Election to accept discharge terminates right to lien for wages.</p> <p>A schooner became disabled on a voyage, and while in a port awaiting repairs was libeled for salvage and other claims', and seized by the marshal. The owners notified the master that the voyage, and in effect that the vessel, would be abandoned, which notice was read to the crew. The master having no funds, the crew filed a libel for wages, alleging their discharge, but remained on board until the vessel was sold, performing such duties as were required. Held, that their filing of the libel was an election to accept the action of the owners as terminating the voyage, and that, as against other lien claimants, they were entitled to a lien for wages only to that time.</p> <p>3. Maritime liens <@=37 — Furnisher of supplies to crew of vessel under nominal arrest oniy held entitled to lien.</p> <p>Where, in a suit in rem against a schooner then undergoing repairs at a way port in the course of a voyage, the marshal took only nominal possession, leaving the master and crew in charge, in the expectation that the owner would furnish bond and continue the voyage, until notified to the contrary, libelant, who furnished supplies for the crew in the meantime on orders of the master and without knowledge of the attachment, held entitled to a lien therefor with the same rank as to priority as that for wages of the crew.</p> <p>4. Maritime liens <§==>37 — Repairer held entitled to lien as against other lien claimants.</p> <p>At the time a vessel was seized under a libel she was undergoing repairs at a way port in the course of a voyage, made necessary by damage caused primarily by leakage through a split sea suction pipe. The repairs were contracted for by the master with approval of the owner, and were continued and completed after the seizure, which was only nominal, without objection by the marshal or libelant; the crew remaining on board and the intention being to resume the voyage when they were completed. Other libels were filed, however, and the vessel was sold. Held, that the repairer was entitled to a lien, and that, in the absence of any evidence to the contrary, it would be presumed that the repairs, which were necessary, enhanced the value of the vessel to the extent of their reasonable cost.</p> <p>5. Maritime liens <§= 14 — Libelant held entitled to lien for advances.</p> <p>Libelant, who op request of the master and on the credit of the vessel made , advances to pay the necessary expenses to enable a vessel, which had secured a cargo in- a foreign port, to clear and proceed on his voyage, held entitled to a lien therefor, and acceptance of a draft drawn by the master on the owners for the amount, which was dishonored, held not a payment, in the absence of evidence that it accepted as such.</p> <p>8. Maritime liens <s=»37 — Marshaling of liens; voyages of tramp vessel.</p> <p>Where a vessel, after leaving her home port with a cargo, before returning, carried other cargoes between different ports, as between claimants who made advances to hor in different ports, for the carriage of different cargoes, hor voyage must he held a continuing one, until her return to her home port, and their liens stand on an equality.</p>

<p>In Equity. Six separate suits by James A. Lowell and others, as trustees in bankruptcy of Charles Ponzi, against Benjamin Brown, against H. W. Crockford, against Patrick W. Horan, against Prank W. Murphy, against Thomas Powers, and against H. P. Holbrook, to recover preferences paid to defendants.</p>

<p>1. Bankruptcy <©=>188(0— Language construed, and held effective as pledge ot fund.</p> <p>Bankrupt was building a road under a contract with a county containing a provision for reservation by the county of 10 per cent, of all sums dtie on monthly estimates until completion of the work. Needing money to meet a monthly pay roll, claimant bank, after consultation with a member of the county court and the road engineer, and ascertaining that there was then in the reserved fund about $1,700, lent bankrupt $2,200, which was used in paying employees, taking a note containing a pledge as collateral "out of account due from estimates from the county court” of the county, notice of which was given to tho county court. No monthly estimate was then due. Held, that such language was intended to, and did, effect a valid pledge of the fund reserved, and that claimant was entitled to payment therefrom when received by bankrupt’s trustee on completion of the contract.</p> <p>2. Words and phrases — “Due” defined.</p> <p>tube word “due,” in its larger sense, covers liabilities matured and un-matured, and its meaning as used depends on the context and evident purpose intended.</p>

<p>1. Constitutional law &wkey;j255 — May be lawful for military commander to imprison citizen.</p> <p>Due process of law depends on circumstances, and varies with the subject-matter and the necessities of the situation, and imprisonment of citizens by a military commander may be lawful in some cases.</p> <p>2. Militia <&wkey;4 5 — Governor of state may use militia to suppress insurrection, and declaration of state of insurrection conclusive.</p> <p>Under Const. Neb. art. 5, § 14, and Rev. St. Neb. 1913, §§,3904, 3913, 3916, the Governor of such state may use the militia to suppress insurrection, and his declaration of the existence of a state of insurrection is conclusivé.</p> <p>3. Militia <&wkey; 15 — Proclamation held declaration of state of “insurrection.”</p> <p>Proclamation of Governor of Nebraska, describing condition as being lawless and disorderly beyond the control of the civil authorities, and declaring martial law, was equivalent to a declaration of the existence of that organized, resistance to authority known as “insurrection,” within Const. Neb. art. 5, § 14, and Rev. St. Neb. 1913, §§ 3904, 3913, 3916, authorizing him to call out the militia, though the word “insurrection” was not used,</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, Insurrection.]</p> <p>4. Militia «&wkey;l5 — Military commander becomes controlling authority in occupied territory.</p> <p>When a state of insurrection exists, and the Governor of Nebraska has legally called into action the military forces of the state, under Const. Neb. art. 5, § 14, and Rev. St.- Neb. 1913, §§ 3904, 3913, 3916, the will of the commander becomes the controlling authority in the occupied territory, so far as he chooses to exert it, subject to the laws and usages of war.</p> <p>5. Militia &wkey;>l5 — Military power in occupied territory extends to trial and punishment of offenders against regulations made by commander.</p> <p>The military power in occupied territory declared under martial law, under Const. Neb. art. 5, § 14, and Rev. St. Neb. 1913, §§ 3904, 3913, 3916, extends to the trial and punishment of offenders against regulations made by the military commander, such as those prohibiting the passing of the military lines by persons without permission, the possession of arms and ammunition, and the sale of intoxicating liquors; and the power of the military forces is not limited to the arrest and detention of offenders against fhe laws of the state, until they can be delivered to the civil authorities for trial on the restoration of peace and order, though the military commander may avail himself of the courts as a means of trial, instead of instituting tribunals during the emergency.</p> <p>6. Militia <&wkey;21 — Sentence of imprisonment by military tribunal continued after peace.</p> <p>A sentence of imprisonment by a military tribunal instituted by Governor of Nebraska as to a portion of the state in state of insurrection can be continued after peace is declared and order restored, under Const. Neb. art. 5, § 14, and Itev. St. Neb. 1918, §§ 3904, 8913, 3916.</p>

At Law. Action by Cornelia B. Kissam and another, as executrix and executor of Jonas B. Kissam, deceased, and Cornelia B. Kissam, individually and as sole beneficiary, against Richard J. McElligott, as late Acting Collector of Internal Revenue for the Third District of New York. On motion by plaintiffs for judgment on the pleadings on the first cause of action.

<p>In Equity. Suit by the Albers Bros. Milling Company against Roscoe Drumheller, Collector of Customs, and the Exporters’ & Importers’ Warehouse Company of Seattle. Decree of intervener.</p>

<p>1. Pleading <&wkey;360(I) — Motion to strike admits only facts well pleaded.</p> <p>A motion to strike out a complaint, under Practice Act N. J. 1912 (P. D. p. 877), for failure to disclose a cause of action is the equivalent of a demurrer, and does not admit conclusions of law, but only such facts as are well pleaded.</p> <p>2. Mechanics’ liens <&wkey;I 13(2) — Prerequisites to stop notice under New Jersey statute.</p> <p>Under Mechanics’ Lien Law N. J. (P. L. 1917, p. 821) § 3, which provides, inter alia, that whenever any contractor shall on demand refuse to pay a subcontractor “the money * * * due to him,” the subcontractor may servo a stop notice on the owner, which shall be the basis for a lien and impose liability on the owner, as construed by the courts of the state, in order that the stop notice shall be effective the contractor must first be put in fault by a refusal to pay an amount then presently duo and payable, and a demand for a sum which is not yet due under the terms of the subcontract is not effective to authorize a stop notice.</p>

<p>In Admiralty. Libel by Charles Pike against the steamship Munal-bro.</p>

<p>1. Bankruptcy <&wkey;288(2) — .Process in execution of judgment obtained more than four months before bankruptcy cannot be attacked in summary proceeding.</p> <p>Under Bankruptcy Act, § 67c (Comp. St. § 9S51[c]), providing that a lien obtained, in or pursuant to any suit or proceeding begun within tour months shall be dissolved by the adjudication, where an action was begun and judgment entered more than four months before the filing of the petition, the final process for the enforcement of the judgment by a sale of property seized under execution cannot be interfered with or annulled by a summary proceeding, but only by a plenary action.</p> <p>2. Bankruptcy &wkey;s288(2) — -Right to attack process on judgment governed by law in force four months before filing of petition.</p> <p>The right of the trustee in a summary proceeding to attack an execution sale under a judgment in an action commenced more than four months before the filing of the petition in bankruptcy depends on the law as it existed previous to a date four months prior to the filing of the petition.</p>

<p>In Equity. Suit by Annie Viola Douglass against J. W. Rhodes. On motion to dismiss the complaint.</p>

In Equity. Suit by Irene Claffy, as guardian of the estate of Agnes Claffy, a minor, against Charles R. Forbes, Director of War Risk Insurance. Disposition rendered for plaintiff. The plaintiff is guardian of Agnes Olafl’y. a minor niece of Clarence Swank, Who was killed in battle in the line of duty September 26, 1918, and who at the time of his death carried war risk insurance in the sum of $10,000, in which policy Malinda Swank, mother, was named as beneficiary.

<p>Collision <&wkey;S6 — Vessel colliding with ferryboat held at fault.</p> <p>In a collision between a vessel and a ferryboat in a river, while angling in to their respective berths, held,, that the vessel was at fault and that the ferryboat was not.</p>

<p>Appeals from tlie District Court of the United States for the Southern District of New York.</p> <p>Libels by the International Nickle Company against the ferryboat Oregon, the Brooklyn & Manhattan, Derry' Company, claimant, and by the Bro’oklyn & Manhattan Ferry Company against the steam lighter Frank Coe, the International Nickle Company, claimant. From a decree (280 Fed. 235) the last-named claimant appeals. Affirmed.</p>

<p>In Equity. Suit by the P. Lorillard Company against Max Wein-garden. On motion for a preliminary injunction.</p>

<p>At I,aw. Action by Wilson Calherwaod, Executor, against'the United Stales. On affidavit of defense raising question of law. Decision and jtidgmeiit for defendant.</p>

<p>1. Internal revenue <&wkey;48 — Prosecuting officers may take bill of sale without forfeiture proceedings.</p> <p>Prosecuting officers may accept a bill of sale to the United States for liquors forfeited under Rev. St. § 3149 (Comp. St. § 6351), by reason of their transportation under some other designation, without instituting proceedings to forfeit the liquors.</p> <p>2. Internal revenue <&wkey;46 — Liquor shipped as something else by one acting for the owner is forfeited.</p> <p>Tinder Rev. St. § 3149 (Comp. St. I 6351), liquor shipped under a bill of lading falsely describing it as hay is forfeited, no matter whose property it may bo, if the shipper was rightfully acting for the owner.</p> <p>3. internal revenue <&wkey;42 — Golieotor of internal revenue, not having possession of liquor delivered to his predecessor, wii! not he ordered to return it.</p> <p>An order will not be made requiring the collector of internal revenue to return liquor seized and turned over to his predecessor, where it appears that such liquor is not in his possession, and that it is not in hi» power to comply with such order.</p>

In Equity. Suit by the Colonial Trust Company, trustee, against the Stone Harbor Electric Eight & Power Company. On petition of the receiver to restrain the sheriff of Cape May county from levying on property of the defendant corporation an execution issued in favor of Annie Kerr against the corporation.

<p>Negligence <&wkey;121 (2) — Allegation of specific negligence does not exclude rule of res ipsa loquitur.</p> <p>Where the complaint in an action for wrongful death alleges that decedent was a passenger on a train of defendant railroad company and was killed in a collision between trains the rale of res ipsa loquitur is not excluded by the fact that the complaint also alleges specific acts of negligence.</p>

<p>In Admiralty. Suit by S. O. Stray & Co., Inc., against Trottier, Ide & Co., with cross-libel. Decree for libelant, and for respondent in cross-suit.</p>

<p>1, Collision- &wkey;s98 — No duty to sound whistle, when similar lights shown.</p> <p>There was no duty resting on the master of either of two vessels to sound his whistle in a river, when each vessel showed the same colored light.</p> <p>2. Collision <&wkey;93 — Ferryboat held at fault in colliding with tug and barge.</p> <p>Pilot of ferryboat, after leaving slip to cross river, held at fault in not seeing the lights of a tug and barge, with which it collided.</p>

<p>In Equity. Suit for infringement of patent by Charles J. Callahan against the Capron Company.</p>

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

Wilson, Judge. In the matter of the Ranger Refining & Pipe Line Company, alleged bankrupt. From a decree dismissing the petition for want of jurisdiction, J. E. Dryden and' others, petitioners, appeal.

<p>In Error to the District Court of the United States for the Southern District of West Virginia, at Charleston; George W. McClintic, Judge.</p> <p>Action at law by the Ft. Dearborn Coal & Export Company against the Norfolk & Western Railway Company. Judgment for plaintiff on directed verdict, and defendant brings error. Reversed.</p>

Sawtelle, Judge. Suit in equity by the Tucson Gas, Electric Right & Power Company against the Tucson Rapid Transit Company, in which Edwin E. Jones was appointed as receiver of defendant corporation, and in which Asma Rubaiz intervened as a judgment creditor of the defendant company, and the International Trust Company intervened as trustee under the mortgage securing the corporation’s bonds.

<p>In Error to the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge.</p> <p>Action by Samuel D. Eisenhart against the Philadelphia & Reading Railway Company. Judgment for plaintiff, and defendant brings error.</p>

Suit in equity for infringement of a patent by Alfred Kurtz and another against the Belle Hat Dining Company, Inc. Bill dismissed, and plaintiffs appeal.

Appeals from thp District Court of the United States for the' Southern District of New York. Suit in admiralty for collision by the Eehigh Coal & Navigation Company against the steamship Coamo (the New York'& Porto Rico Steamship Company, claimant) and the steamtug Essex (the Northern Transportation Company, claimant). Decree Cor libelant against the Coamo aloné, and her claimant appeals.

<p>Í. Courts @=3201 — Nebraska probate court, in discharge of powers granted, can construe wiii disposing of real estate.</p> <p>Under Const. Neb. art. 6, § 16, giving county courts probate jurisdiction, but denying them jurisdiction in actions in which title to real estate may be drawn in question, and Kev. St. Neb. 1913, §§ 1206, 1494, 1495, 1497, 1499, the probate court, when acting in discharge of powers granted to it, has the incidental right to construe a will disposing of real property for the purpose of appropriately discharging its duty, notwithstanding the apparent constitutional limitation.</p> <p>2. Partition @=336 — Cannot be decreed by the probate court between life tenant and remainderman.</p> <p>The power of the probate court to partition land belonging to the estate given by Kev. St. Neb. 1913, §§ 1494, 1495, 1497, 1499, can be exercised only among joint tenants, tenants in common, or coparceners, and cannot be exercised where the will, as construed by the court, gave to one of the parties a life estate, and to the other the remainder in fee.</p> <p>3. Judgment @»828 (2) — Decree of Nebraska probate court, in partitioning real estate, that will gave only life estate to widow, is beyond its jurisdiction, and not conclusive.</p> <p>A decree by a Nebraska probate court, in the attempted exercise of its powers to partition real property devised by the will, that the widow of testator took only a life estate under the will, is beyond the jurisdiction of the probate court to render in such proceedings, so that such decree is not conclusive as to the construction of the will in a subsequent suit between the same parties.</p>

<p>1. Judgment 160 — Affidavits as to defense on merits held insufficient to require opening default.</p> <p>Where the court gave defendant repeated opportunities to present affidavits showing a defense to the merits, the first affidavits being based only on information and belief, and the subsequent affidavits showed, contrary to defendant’s claim, that it had assumed the obligation of the contract sued on, there was no error or abuse of discretion in the refusal to open the default.</p> <p>2. Contracts 187(I) — Suit on assumption of contract can be maintained by other party to original contract only in equity.</p> <p>At common law, as interpreted by the federal courts, a party to a contract which had been assigned by the other party to a stranger, who assumed to perform the other party’s obligations, could not maintain an action at law on the assumption of the obligation, but could maintain a suit in equity.</p> <p>3. Contracts @=3175(1) — Presumed to have been made in common-law jurisdiction.</p> <p>In the absence of any showing to the contrary, the court will presume that the contract in suit was made in a common-law jurisdiction.</p> <p>4. Courts c§^>372(4) — Federal courts are not bound by state court’s interpretation of common law.</p> <p>The federal court in an action brought therein is not bound, in determining the rights of the parties, by the interpretation placed upon the common law by the courts of the state where the contract was made, but will determine the common law independently of the holding of the state court.</p> <p>5. Appeal and error @=^883 — Defendant, consenting to trial at law, waives objection remedy was in equity.</p> <p>A defendant, who consented to the trial at law of an action brought against him on his assumption of the obligation of a contract made between plaintiff and defendant’s assignor, waives his right to object that plaintiff’s remedy was Dy suit in equity, and the judgment for plaintiff will not be reversed under equity rule 22 (198 Fed. xxiv, lio O. O. A. xxiv), authorizing transfer of causes to the law side of the court when they are erroneously brought as suits in equity, and Act March 3, 1915, § 274b (Comp. St. § 1251b), permitting equitable defenses in actions at law, and authorizing the appellate courts on review, either by appeal or writ of error, to render such judgment on the record as law and justice shall require, especially where a jury was waived and the facts found by the trial court, who would also find- the facts if the judgment were reversed and the cause transferred to the equity side.</p>

<p>Appeal from the District Court of the United States for the District of Nebraska; Joseph W. Woodrough, Judge.</p> <p>Suit in equity by H. F. Close and others against the Brictson Manufacturing Company. From an order appointing a receiver for defendant corporation, defendant appeals.</p>

<p>In Error to the District Court of the United States for the District of Nebraska; Joseph'W. Woodrough, Judge.</p> <p>Action by Charles' G. Binderup against the Pathe Exchange, Inc., and others. Judgment for defendants, and plaintiff brings error.</p>

<p>1. Negligence <&wkey;85(2) — Contributory negligence of boy depends on age, knowledge, and surrounding circumstances.</p> <p>In determining whether a boy was contributorily negligent three tests are to be applied; his age, his knowledge, and the circumstances surrounding the case.</p> <p>2. Negligence <&wkey;136(29) — Contributory negligence of child for court on conclusive evidence.</p> <p>Whether ,a boy 13 years of age was capable of negligence contributing to his death is a question for the court, where the evidence admits of but one conclusion, and the fact is one about which reasonable minds cannot differ.</p> <p>3. Negligence &wkey;>!36(29) — Contributory negligence of boy under 14 for court on clear evidence.</p> <p>The rule established by the Supreme Court of Appeals of Virginia that a boy under 14 years of age is presumed to be incapable of negligence, but that such presumption may be rebutted by evidence, does not prevent the court from holding him capable of such negligence as matter of law, if the evidence admits of no other conclusion.</p> <p>4. Railroads &wkey;>382(I) — Thirteen year old boy held capable of appreciating danger from train.</p> <p>A boy, 13 years and 3 months of age, who had lived for several years adjacent to a railroad track and had worked in coal mines, and occasionally had ridden on the trains, and who was shown to be bright and intelligent, was, as a matter of law, capable of appreciating the danger of going on a railroad track in front of an approaching train.</p> <p>5. Railroads &wkey;>398(4) — Contributory negligence of boy going on track shown.</p> <p>In an action for the death of a 13 year old boy, who was capable of appreciating the danger of going on a railroad track, evidence held to show that the approaching train could have been seen and heard by him, though no warning signals were sounded, and it was backing without a headlight on the tender, so that he was negligent in going on the track In front of it.</p> <p>6. Railroads &wkey;>396(l) — Presumption person looked and listened does not apply, where contradicted by Tact.</p> <p>The presumption that a person looked and listened as required by ordinary care before going on a railroad track does not apply, where the evidence shows he could have seen and heard the approaching train, if he had done so, but nevertheless went on the track in front of the train.</p> <p>7. Railroads <&wkey;398(I) — Evidence held to show cause of boy’s death was speculative, not supporting recovery.</p> <p>In an action for the death of a 13 year old boy, who was found injured on the side of a railroad track shortly after a train had passed, evidence held to show that plaintiff’s contention he was sitting on the track, whore he could have been seen by defendant’s employees in time to hare avoided the accident, was contradicted by the physical facts, and that the defendant’s Iheory that he was injured by a rock thrown by another boy, or by attempting to board the train as it came by was equally plausible, so that the cause of his death was speculative, and there could b'e no recovery therefor.</p>

<p>1. Jury <&wkey;125 — Common-law practice of calling jurors.</p> <p>At common law the usual practice was to call each juror separately, ascertain his qualifications, and present him for challenge.</p> <p>2. Jury <&wkey;il25 — Common-law method of examination not essential.</p> <p>Observance of the common-law practice of calling each juror separately, ascertaining his qualifications, and presenting him for challenge is not essential.</p> <p>3. Courts <&wkey;352 — Federal court not bound to follow state statute in examining jurors.</p> <p>A federal court is not bound to follow the state statute respecting the practice of calling jurors for examination, or the usual practice of the state court.</p> <p>4. Courts <&wkey;352 — Federal District Court ean examine jurors in any manner not impairing exercise of challenge.</p> <p>A federal District Court is free to order any method in presenting qualified jurors which does not impair the free exercise of the right of challenge.</p> <p>5. Jury <&wkey; 125 — Method of presenting jurors held proper; “right of challenge.”</p> <p>Complaint cannot be made of the fact that the presiding judge ordered jurors divided into three panels of 12 each, and when case was tried one panel was called into the box, and the 12 examined on their oaths as to their qualifications, and if any were disqualified their places were filled from the other panels, until 12 apparently qualified were obtained, and these 12 were presented to the accused and the government for the exercise of the right of challenge for cause, and, as a juror challenged retired. another was called jo his place and examined, and this method proceeded until further challenge was waived or the right exhausted; the right of challenge being a right of rejection, not of choice.</p> <p>6. Criminal law <&wkey;l IGG'/kiGj — Mo complaint of method of presentation of jurors, where peremptory challenge is not exhausted.</p> <p>An accused, who did not exhaust his peremptory challenges, could not complain that jurors had been improperly presented.</p> <p>7. Witnesses &wkey;3S7(5) — Aeet!36d may iae asked on cross-examination whether he has been guilty of other like offenses.</p> <p>A defendant, indicted for carrying on the business of retail liquor without paying a special tax, could bo ashed on cross-examination if he had not been guilty of other like offenses, on the issue of his credibility.</p> <p>Waddill, Circuit Judge, dissenting.</p>

Suit in’ equity by the Harris Automatic Press-Company against the Hall Printing Press Company. Decree for complainant, and defendant appeals. For the purposes of this opinion, it is sufficient to set forth claims 6 and'll, which are as follows-: “6.

<p>Appeal from the District Court of the United States for the District of Maryland, at Baltimore; John C. Rose, Judge.</p> <p>Bibel in admiralty in personam by the Maru Navigation Company, as owner of the steamship St. Charles, and by the master, officers, and crew of the steamship, against the Societa Commerciale Italiana Di Navigazione, to recover salvage. From a decree awarding to libelant $34,COO, with interest .(271 Fed. 97), respondent appeals.</p>

Middleton Smith, Judge. Action by the United Slates, for the use of W. B. Guimarin & Co., against R. H. Arnold, doing business as the R. H. Arnold Company, and the Globe Indemnity Company, to recover on the bond of a government contractor, in which other subcontractors and materialmen duly filed their petitions of intervention. Judgment for the plaintiff, after trial of his claim alone, and defendants bring error.

<p>In Error to the District Court of the United States for the Eastern District of South Carolina, at Charleston; Henry A. Middleton Smith, Judge.</p> <p>Action at law by the Southern Railway Company against the Columbia Compress Company. Judgment for defendant, and plaintiff brings error.</p>

Action by the Seaboard Air Line Railway Company and others against the United States to recover for property seized by the government for war purposes. Judgment for plaintiffs, and the United States brings error.

<p>•|. Removal of causes <§=»48 — Separable controversy.</p> <p>In a suit in a state court between citizens of the same state to enforce specific performance of a contract for the sale of standing timber, plaintiff joined a.s defendant a corporation of another state, alleging that it claimed some interest in the timber which constituted a cloud on the title of its codefendant, and asking that such claim be adjudicated. Held., that such allegation created a separate controversy, in which the interests of both the other parties were adverse to those of the nonresident defendant, and which entitled it to remove the cause.</p> <p>2. Removal of causes <§=^95, 111 — Federal court may protect its acquired jurisdiction by injunction.</p> <p>Where a cause is removable and has been properly removed, the state court loses jurisdiction, and the federal court may protect its jurisdiction by enjoining further proceeding by the parties in the state court.</p> <p>3. Specific performance <&=»106(1)— Persons interested in subject-matter of suit properly made parties.</p> <p>A complainant, which had contracted for the purchase of standing timber, in a suit for specific performance of the contract, held entitled to join as a defendant a third party, which claimed an interest in the timber, to the end that the rights of all parties therein might be adjudicated in a single suit.</p> <p>4. Courts <®=»352 — Jury may be called to try legal issue.</p> <p>Under equity rule 23 (33 Sup. Ot. xxiv), providing that if, in a suit in equity, a matter ordinarily determinable at law arises, such matters shall be determined in that suit according to the principles applicable, without sending the case or question to the law side of the court, where an issue triable by jury arises, a jury is called to try' such issue, and when it has been settled the court adjudicates the equitable issues in the light of the verdict.</p>

, Judge. Action by John Wiley Reynolds against James C. Davis, Director General and Agent under the Transportation Act of 1920 (41 Stat. 456), operating the Atlantic Coast Line Railroad. Judgment for plaintiff, and defendant brings error.

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Action at law by the Pulton Bag & Cotton Mills against the Charles F. Murphey Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Patents <®=»328 — 1,307,070, for device for dissipating-heat in underground conduits, held void for lack of invention.</p> <p>The Wennagel patent, No. 1,307,070, for a device for dissipating heat in underground conduits, consisting of the insertion in one compartment of the conduit of a small perforatea water pipe, by means of which the surrounding earth may be moistened, held, void for lack of invention, as merely applying a well-known device to a new use; other sprinkling devices being then in use.</p>

<p>3. Justices of the peace <§»25 — Liable for negligent issuance of illegal search warrant.</p> <p>A justice of the peace, who, without the complaint under oath required by statute, issues a search warrant in a civil case, acts entirely outside of his jurisdiction, and is liable Cor actual compensatory damages resulting from invasion of defendant’s premises or other wrongs done by the officer in attempted execution of the illegal warrant, but not for malicious or vindictive acts of such officer which he did not authorize or sanction.</p> <p>2. Trial ©^252(6) — Instruction held not warranted by evidence.</p> <p>An instruction authorizing a verdict for damages against a justice of the peace on a finding of malice in the issuance of a search warrant held erroneous, where there was no evidence to support a finding of malice.</p>

<p>Sales <j==.8! (j) — Delivery held not in compliance with contract.</p> <p>A contract by plaintiff for sale to defendant of sugar to be Imported, which stated that the sugar was “expected to arrive in New York June and July,” held not to bind defendant to accept sugar tendered in September, where it was not shipped in such vessel and by such route as warranted a reasonable expectation of its arrival in New York in July.</p>

<p>Appeal from the District Court of the TJRiled States for the Eastern District of Virginia, at Norfolk, in Bankruptcy; Edmund Wad-diii, jr., judge.____</p> <p>In the matter of the W. P. Wilkin Company, Inc., bankrupt. From an order denying the petition of the Patterson-Sargent Company, Inc., against H. H. Rumble, and others, trustees, to reclaim property, it appeals.</p>

<p>Appeal from the District Court of the United States for the Western • District of Oklahoma; John H. Cotteral, Judge.</p> <p>In the matter of the bankruptcy of Scott '& Blackmer, bankrupt. Claim by Ida A. Dunlap, opposed by U. S. Reed, as trustee in bankruptcy. Claim disallowed by referee, but allowed by the District Court on petition for review of referee’s action, and the trustee appeals.</p>

Suit in equity for infringement of patent by the One Piece Bifocal Lens Company against Harold J. Stead, doing business as the H. J. Stead Optical Company. Decree for plaintiff (274 Red. 667), and defendant appeals.

<p>Bankruptcy <2=>339 — -Referee must hoar objections to claim on the ground that creditor has received preferences.</p> <p>Whore objections are made to the claim of a creditor on the ground that he has deceived voidable preferences, it is the duty of the referee to hear evidence in support of such objections, and, if sustained, to disallow the claim as required by Bankruptcy Act, § 57g (Comp. St. § 9011), unless the preferences ate surrendered.</p>

<p>Telegraphs and telephones (@=326%, New, vol. 7A Key-No. Series — Company not liable for torts during federal control.</p> <p>A telegraph company is not liable for acts of its former employees while engaged under government control in the operation of its property.</p>

<p>In Equity. Suit by the Chicago & Northwestern Railway Company against the Railroad and Warehouse Commission of Minnesota and others to enjoin the enforcement of a state statute. On final hearing. Decree for permanent injunction directed.</p> <p>This is a suit brought by plaintiff for an injunction to restrain the defendants and each of them from enforcing against the plaintiff certain state laws of the state of Minnesota, to wit, chapter 514, Session Laws 1919, as amended by chapter 481, Session Laws of 1921; the latter act amending section 3 only of the original act. Jurisdiction is based upon the ground of diversity of citizenship, and also upon the ground that the suit is one arising under the Constitution and laws of the United States; jurisdictional amount being sufficient. At the commencement of the suit, a temporary restraining order was issued. By, written stipulation of the parties, duly filed, a hearing for an interlocutory injunction, before three judges was expressly waived, the temporary' restraining order continued in force, and the case has been brought on for final hearing, and heard upon the merits, upon bill, answer, and proof.</p>

<p>Highways <s=e M2 — Statutory proceedings for relief against Arkansas road district assessment is exclusive.</p> <p>A provision oí Rood Daws Ark. 1919, vol. 1, p. 387, § 5, ior an appeal by a landowner, deeming himself aggrieved by the assessment of Ms lands, to the chancery court, with right of appeal to the Supreme Court, provides an exclusive method for review of assessments for a highway, so that suits in equity attacking the assessment must be dismissed.</p>

Petition in admiralty for limitation of liability by the Cornell Steamboat Company, as owner of the steam tug Saranac, with separate libels by Kate Dougherty and by Oliver Gildcrsleeve & Sons, Inc., against the steamship Lampasas, of which the Mallory Steamship Company was claimant, and in which tlic steam tug Saranac, the Cornell Steamboat Company, claimant, was impleaded. From decrees holding both vessels at fault, the Cornell Steamboat Company appeals.

<p>1. Receivers <g==>35(3) — Lienholder cannot complain that notice was not given debtor of application for receiver.</p> <p>A lienholder cannot complain that appointment of a receiver in an ancillary proceeding was coram non judiee, because the debtor was net given notice of the application for a receiver and no subpoena was served on it; such debtor having filed its answer and consented to the jurisdiction of the court, which it had a right to do.</p> <p>2. Receivers <§=>206, 208 — Court in ancillary proceeding has right to protect rights and preserve liens of all creditors, and discharge one and appoint another receiver.</p> <p>The court in which, an ancillary receivership proceeding is filed has the power to protect the rights and preserve the liens of all creditors and may adrninister the funds and proceeds of the property of the debtor in its jurisdiction, and may, in the exigencies of the warrant, discharge receiver appointed in the ancillary proceeding and appoint another.</p>

<p>In Bankruptcy. In the matter of John Adelberger, doing business as the Havana Hat Company, bankrupt. On petition to review order of the referee, overruling exceptions of certain creditors.to the report of the trustee, setting apart exemptions to the bankrupt.</p>

<p>In Admiralty. Suit by Robert Auman against the Yacht Mee Too; Robert D. Moore intervening iien claimant. Decree for libelant and intervener.</p>

In Bankruptcy. In the matter of Morris Theiberg, trading as the Ea France Silk Company, bankrupt. On review of an order of the referee for the sale of property free and clear of the lien of chattel mortgages, the lien to attach to the proceeds.

<p>In Equity. Suit by the Ambassador Chocolate Company against the Chocolate Products Company.</p>

<p>Shipping í&wkey;35 — Respondents heid bound by a charter made by brokers as their agents.</p> <p>Brokers, in chartering libelant’s vessel, field to have been acting as agents for respondents, who were bound by the contract.</p>

<p>In Admiralty. Libel by the Compañía Navigazione Sota y Aznar against Coale & Co., Incorporated.</p>

<p>At Law. Action by Benjamin Fox against William H. Edwards.</p>

<p>Fixtures &wkey;>(8(5) — Property of milk company held personalty.</p> <p>Machinery sold a milk and cream company under contracts of conditional sale did not attach to the realty and become subject to mortgage liens, where it could be removed with very little, if any, damage to walls or to the building,, though foundation had to be placed under a boiler and a wall erected to protect it.</p>

<p>In Equity. Suit by the Ball & Boiler Bearing Company against E. C. Sanford Manufacturing Company. Decree for defendant.</p>

In Admiralty. Action in personam by Giovan Battista Riehichi and another against James B. Drake & Sons and others, as former owners of the schooner James B. Drake. Judgment for defendants.

<p>Mortgages <&wkey;38(l) — Evidence held insufficient to show that deed was Intended as mortgage.</p> <p>Evidence held insufficient to sustain the burden resting on complainants of proving that a quitclaim deed executed by them, absolute on its face, was given as security, and under the state statute did not convey title.</p>

At Law. In the matter of application of Julius Alpern and David K. Gritz, partners doing business as the Alpcrn-Gritz Drug Company, for an order directing return of certain intoxicating liquors, canceled physicians’ prescriptions, and internal revenue record book, seized under a search warrant.

In Bankruptcy. In the matter of Morris Naletsky, bankrupt. Proceedings certified by the referee to obtain a ruling as to the obligation of the bankrupt to file schedules, to deliver assets, and to answer questions propounded. Matter referred to referee, with instructions.

<p>Ill Admiralty. Suit for collision by the Flannery Towing Line, Inc., owner of the steam tug Annie E. Flannery, against the steam tug Interstate.</p>

<p>In Bankruptcy. In the matter of the National Consumers’ Exchange, bankrupt. On petition of the Maryland Finance Corporation to establish a mortgage.</p>

<p>1. Pleading 155 — Affidavit of defense, not alleging amount of depreciation and use value, in action by infant to recover payment on automobile, is insufficient.</p> <p>In an action by an infant to recover payments made by him on am automobile retaken by defendant after sale to plaintiff, an affidavit of defense, charging that the use of the automobile had depreciated its value and that plaintiff had received a large, income from the use of the automobile, without alleging the amount either of the depreciation or of the income, is insufficient under the seventy-third rule.</p> <p>2. Pleading *&wkey;>155 — Requirements for affidavit of defense must be complied with.</p> <p>The requirement of the seventy-third rule that the affidavit of defense, to present a question of fact' for a jury, must specifically state in precise and distinct terms the grounds of defense, which must be such as would, if true, be sufficient to defeat the plaintiff’s claim, in whole or in part, is plain and definite, and must be complied with, since the purpose of the rule will not be served, if laxity of statement is countenanced where particularity may be employed.</p> <p>3. Infants <&wkey;58(I) — Payments for automobile may be recovered, subject to set-off for value of use.</p> <p>Where an automobile was sold to an infant, who made partial payments on the purchase price, the contract is not executed as to the payments made by the infant, so as to prevent recovery of them by him, but there can be set- off against such recovery the value of the use of the automobile while it was iii the infant’s possession.</p>

<p>1. IVIasier and servant <@==>80(4) — Affidavit of defense to recover for servant’s breach of confidence held insufficient.</p> <p>In on action by an employee to recover advancements to his employer, an affidavit of defense admitting the amount claimed by plaintiff, but alleging by way of set-off that plaintiff was under contract not to reveal confidential information relating to the manufacture of defendant’s goods, and that ho wrongfully divulged to divers persons the matters he was obliged to keep secret, and conspired by other means to injure defendant’s business, without alleging who the divers persons were, or the means by which he conspired, or that any act was done in furtherance of the conspiracy, is too indefinite.</p> <p>2. Damages <@=>5 — Only “special damage” recoverable, if act might have been committed without injury.</p> <p>If all of the acts by plaintiff complained of by defendant might have occurred without causing any injury to defendant, the damage, if any, to tlie defendant, was special; that is, such damage as is the natural, but not the necessary, consequence of the act complained of.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Special Damages.)</p> <p>3. Damages <@=142— Facts showing special damage must be pleaded.</p> <p>To permit recovery of special damages, the facts which show how the special damages arose must be stated, though it is not required that evidence shall be pleaded.</p> <p>4. Damages <@=>142 — Affidavit of defense must allege facts causing special damage.</p> <p>Where the affidavit of defense did not allege the facts showing special damage to defendant from plaintiff’s acts, such damage could not he recovered.</p> <p>5. Damages <@=>!41 — Affidavit of defense, stating ground for nominal damages, is not sufficient.</p> <p>Where the affidavit of defense admitted plaintiff’s claim, but relied on a set-off, on which only nominal damages could be recovered, because the facts causing special damages were not pleaded, the affidavit was insufficient.</p>

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Action by Albert IÍ. Long against John W. Dissette. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Separate suits by Lucretia- Ellis against Abron Ellis and others and against Elmyra Ellis and another, consolidated for trial. Decrees for the plaintiff, and defendants appeal.</p>

<p>Appeal from tlie Commissioner of Patents.</p> <p>Interference proceeding between Charles A. Widmer and Grant Sipp. From a decision of the Commissioner of Patents, awarding priority of invention to Sipp, as to all seven counts in interference, Widmer appeals.</p>

<p>Patents &wkey;>8l (4)- — Fa&ts held to show senior applicant had no right to make claim in issue:</p> <p>Whore the junior, applicant was the first to conceive the invention for concrete slab construction, but was lacking in diligence, proof that the senior applicant, at a time when his application did not contain the counts in issue, had endeavored to obtain from the junior applicant the right to use the invention for the company represented by the senior applicant, and that on the failure of such endeavor he copied the two claims in interference into his application, held to show that the senior applicant had no right to make the claim in issue.</p>

<p>1. Criminal law <&wkey;¡ 177 — Wiser® sentences are concurrent Judgment is sustained by evidence warranting conviction on any count.</p> <p>A judgment of conviction under which sentences imposed on different counts run concurrently, and no sentence exceeds tlie maximum penalty under any one count, is sustained by evidence which warranted conviction on any count.</p> <p>2. Banks and banking <&wkey;257(S) — Evidence held to sustain conviction for aiding in misapplying funds of national bank.</p> <p>Evidence that defendant caused fictitious drafts to be drawn and sent to the president of a national bank, who in accordance with an understanding between them caused the drafts to bo credited at once, before collection or acceptance, to accounts of which defendant, or a corporation in which both were interested, had the benefit, the drafts on maturity being taken up by means of others, the purpose being to obtain loans from the bank without approval by the directors, and with the final result that the bank was illegally subjected to the risk of loss, held to sustain a conviction under Rev. St. § 5209 (Comp. St. § 9772), for aiding and abetting the president in misapplying funds of the bank.</p> <p>3. PanSosi &wkey;sl! — Amnesty proclamation heiril not io apply to a defendant, whose sentence had bean deferred awaiting settlement cf bill of exceptions.</p> <p>The President’s proclamation of dune 14, 1917, granting amnesty and pardon to all persons under suspended sentences of United States courts and to all defendants “in cases where pleas of guilty were entered, or verdicts of guilty returned, prior to June 15, 3916, and in which no sentences have been imposed,” included in the second class only defendants on whom the court had purposely refrained from imposing sentence as an act of grace, in accordance with a prevailing, but illegal, practice, and did not apply to a defendant against whom a verdict of guilty had been returned, but who had not yet been sentenced, because the case was still in course of adjudication, and in accordance with the practice in the district imposition of sentence was awaiting settlement of a bill of exceptions.</p>

Tuttle, Judge. Joseph Greenbaum was convicted of fraudulently concealing property from a trustee in bankruptcy, and he brings error. On the 10th day of May, 1916, a petition in involuntary bankruptcy was tiled against Joseph Greenbaum in the District Court, Eastern District of Michigan. Southern Division. On June 5, 1916, Greenbaum was adjudged a bankrupt and on the 6th day of July, A. D. 1916, II. 0.

<p>Appeal from the District Court of the United States for the Eastern District of Kentucky, at Covington; Walter Evans, Judge.</p> <p>Bill by the Chesapeake & Ohio Railway Company to enjoin the collection from it by the Vanceburg & Stout’s Lane Turnpike Road Company and others of any further tax levied upon its property. Decree for plaintiff, and defendants appeal.</p>

<p>1. Estoppel <®=s>68(I) — One appearing in representative capacity estopped to deny appearance as such.</p> <p>One who appeared in an action and was recognized by the court as guardian for an incompetent is estopped to deny or question that he appeared in that capacity.</p> <p>2. Insane persons <g=»92 — One not entitled to intervene as guardian of incompetent party. ,</p> <p>In a suit in equity between heirs, claiming the estate of a decedent, held, that an application to "intervene by one claiming to be guardian of one of the parties, an incompetent, on the ground that another claiming to be her. guardian had neglected to protect her rights, and had been a party to a disposal of her estate for a wholly inadequate consideration, was without equity.</p> <p>3. Equity 114 — Intervention held properly refused after decree.</p> <p>In a suit in equity between persons claiming to be heirs of a deceased Indian, court did not err in refusing to permit one to intervene as guardian of one of the parties, an incompetent, after a decree had been entered, based on a contract or contracts having the approval of the Secretary of Interior, Indian officials, and the probate judge; there being a final and complete adjustment and settlement of the claims of the incompetent.</p> <p>4. Attorney and client <§=>155 — Counsel of one claiming to be guardian of incompetent held not entitled to compensation out of fund.</p> <p>Counsel employed on contingent basis by one claiming to be guardian of incompetent Indian, claiming as heir of an estate of a decedent, held, not entitled to compensation for services out of the sum adjudged to the incompetent under a settlement contract approved by the Secretary of Interior, the decree providing that such sum be paid to the Superintendent for the Five Civilized Tribes for the use and benefit of such incompetent; property involved being an allotment and proceeds of oil taken therefrom during the litigation.</p>

<p>Courts <®=»278 — Federal court hold to have jurisdiction, after dismiesai as to government, the property involved being in hands of receiver.</p> <p>Where the, government filed a bill in federal District Court to cancel an allotment made to an Indian, and on the death of the Indian various persons intervened and claimed to be his heirs, and a receiver was appointed to take care of the property, and thereafter the United States was dismissed from the cause, jurisdiction in the court continued until title to the property and the fund should be finally adjudicated and distributed to those entitled to receive the same, though it thereby determined controversies that arose wholly between citizens of the same state.</p>

<p>1. Pleading <&wkey;>92— Defense of breach of warranty and counterclaim for deceit may be joined.</p> <p>When growing out of the same transaction, deceit and breach of warranty are not inconsistent, so that defendant, in an action on notes given for the purchase price of machinery, can join with his defense of broach of warranty a counterclaim for deceit.</p> <p>2. Sales <&wkey;285 (3) — Notice machine did not perform well is sufficient notice of breach of warranty.</p> <p>Where the warranty of a machine was in general terms, that it was made of good material and would perform well if properly operated, a notice that machine did not perform well was sufficient compliance with the requirement that the notice state wherein it failed to conform to the warranty.</p> <p>3. Sales c&wkey;288(2) — Provision that use for 10 days without notice of defects shall be conclusive evidence of fulfillment of warranty is valid.</p> <p>In a contract for the sale of machine with warranty of satisfactory performance, a provision that use for any 10 days without notice of failure to conform to warranty shall be conclusive evidence of the fulfillment of the warranty was valid.</p> <p>4. Sales &wkey;>285(3) — After one notice of breach of warranty, buyer may wait reasonable time for repairs.</p> <p>Where buyer of machine gave notice to seller, within 10 days after it was put into operation, that it did not conform to the warranty, the buyer could wait a reasonable time after giving such notice for the seller to make proper adjustments in the machine to remedy the difficulty, as it had a right to do under the contract, and the operation of the machine during that time without giving additional notices did not defeat the buyer’s right to claim breach of warranty under the clause that operation of the machine for any 10 days without notice should bo conclusive evidence of fulfillment of the warranty.</p> <p>5. Sales 4&wkey;285(4) — Provision that assistance by seller does not excuse failure to give notice does not apply to attempt to remedy defects under warranty.</p> <p>A provision that, if the seller shall, at the request of the buyer, render assistance in operating the machinery, that fact shall not excuse the failure of the buyer to perform the conditions of the warranty, apxdies to a voluntary assistance on the part of the seller, and does not prevent the attempt by the seller to malte the machine conform to the warranty, after complaint by the buyer, from being a waiver of defects in the notice of breach of warranty.</p> <p>6. Sales &wkey;>44l (I) — Evidence held to warrant inference of sufficient notice of breach of warranty or of waiver thereof.</p> <p>'Evidence that, the day after the buyers put the machine in operation, they telegraphed to the seller to send an enginoman at once, to which the seller replied by promising to send a man, who, thereafter came, with subsequent correspondence between the parties, and later attempts to make the machine satisfactory, held to warrant the jury in finding that the telegram and the subsequent correspondence were sufficient notice of breach of warranty, or that the requirement for such notice had been waived by the seller.</p> <p>7. Sales &wkey;>441 (4) — Evidence that cotton gin, which did not produce marRei-abie product, was worthless, is not incredible.</p> <p>Testimony by defendants, who had considerable experience in ginning cotton, after describing the results secured by the use of the machine sold by plaintiff, that the gins and feeders were worthless, is not incredible’, since a machine which fails to produce a standard product may be not only worthless, but a great detriment, to one engaged in the business of ginning for the public.</p>

<p>1. Sales <©==>285(3)— Notice of breach of warranty held sufficient.</p> <p>Where the machine sold was warranted to perform well, and the buyer was required to give notice stating wherein the machine failed to conform to the warranty, a telegram, requesting the seller to send a man to look over the engine and gin, which were not satisfactory now, was sufficient notice.</p> <p>2. Sales <©=3286 — Seller cannot complain buyer waited unreasonable time for seder’s performance of promise.</p> <p>Where the sale contract required the buyer to give the seller an opportunity to remove defects, so as to make the machine conform to the warranty, and the seller, after notice from the buyer the machine was not satisfactory, promised to send a man to adjust it, the seller cannot complain that the buyer thereafter waited an unreasonable time for the seller to perform his promise.</p> <p>3. Sales <@=3285(4) — Statement seller would do' nothing more waives requirement of future notice of breach of warranty.</p> <p>A statement by the seller, after several attempts to make the machine conform to warranty, that it would do nothing' further, was a waiver of future notices that the machine did not conform to warranty, required by the contract.</p> <p>4. Sales <@=>445(5) — Evidence held to take to the jury questions whether notice of breach was given or was waived.</p> <p>In action on n'otes given for the purchase price of machines, evidence held sufficient to take to the jury the issues whether the buyer had given notice of the breach of warranty, as required by the contract, and whether the seller had waived such notice.</p>

Williams, Judge. W. M. Kirk and others were convicted of violating regulations concerning the distillation of liquors, and they bring error.

<p>In Error to the District Court of the United States for the Northern District of West Virginia, at Parkersburg; William E. Baker, Judge.</p> <p>Action at law by the W. E. Hey ser Dumber Company against the Mayton Dumber Company. Judgment for defendant, and plaintiff brings error.</p>

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Criminal prosecution by the United States against William Yohn. Judgment of conviction, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the Eastern District of Virginia, at Norfolk; Edmund Waddill, Jr., Judge.</p> <p>Criminal prosecution by the United States against Maggie E. Martin and Thomas H. Martin. Judgments of conviction, and defendants bring error.</p>

<p>Patents <§=>328 — 1,054,677, for water cooler, held void for lack of invention.</p> <p>The Cordley patent, No. 1,054,677, for improvements in cooler for liquids, held void for lack of invention.</p>

<p>Criminal prosecution by the United States against Martin Ernest. Judgment of conviction.</p>

Libel by the United States to forfeit one Buick roadster, tools, and accessories, and whisky therein, found in possession of R. A. Nulph and another, and claimed by the Kennedy Motor Company.

<p>1. War <g=oi2 — Order requiring property conveyed to Alien Property Custodian not a judgment.</p> <p>An order requiring property to be turned over to the Alien Property Custodian is not a judgment which renders res judicata any question which may be raised in a suit brought under Trading with the Enemy Act Oct. 6, 1917, § 9 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 311544c).</p> <p>2. War <g=s>33 — Right of Alien Property Custodian to hold property not affected ny peace resolution.</p> <p>The joint resolution of July 2, 1921, terminating the war with Germany and Austria-Hungary, did not affect the right of the Alien Property Custodian to take and hold property.</p>

<p>1. Appear and error <@=>882(14) — Request to submit question to Jury precludes contention evidence was insufficient.</p> <p>Where, plaintiff had requested the submission of a particular issue to the jury, it cannot contend on appeal that it was error to submit the issue, because there was no evidence to support a finding for defendant thereon, since the request implied there was conflicting evidence on the subject, and therefore a question for the jury.</p> <p>2. Principal and agent <@=>92(2) — Bank not liable for cashing cheek oh agent’s authorized indorsement, regardless of its knowledge of authority.</p> <p>Where an agent had express authority to cash checks payable to his principal, the bank is not liable to the principal for paying the checks on the agent’s indorsement, regardless of whether it knew of such authority before it paid the checks.</p> <p>3. Corporations <@=>432(7) — Resolution revoking authority of bank to cash checks on agent’s indorsement is admissible to show agent’s prior authority to indorse.</p> <p>A resolution adopted by a corporation, revoking the authority of a bank to cash checks on the indorsement of an agent of the corporation, is admissible against the corporation as evidence that the agent had authority to indorse the checks for the corporation, cashed by him before the adoption of the resolution.</p>

<p>Í, Judgment <§=>822(3) — Cause on which foreign judgment is based cannot be inquired into.</p> <p>Tito requirement of Const. TJ. S. art. 4, § 1, that full faith, and credit be given to the judgments of the several states, precludes an inquiry into the cause of action on which the foreign judgment was based, except in so far as necessary to ascertain whether the court rendering the judgment had jurisdiction and whether the action was for a penalty.</p> <p>2. Judgment <§=>823 — Of slat® court enforced against property of married woman in District of Columbia.</p> <p>Under Const. U. S. art. 4, § 1, providing that “full faith a,nd credit shall be given in each state to the * * * judicial proceedings of every other state,” a judgment rendered in another state on a guaranty by a married woman of her husband’s indebtedness will be enforced, notwithstanding Codo D. O. § 1151, providing that a married woman’s property shall not in any way be liable for payment of her husband’s debts.</p>

<p>Trade-marks and trade-names and unfair competition @=568 — Ceasing to purchase from manufacturer, unless sales to competitor cease, is not unfair competition.</p> <p>A wholesaler has a right to purchase merchandise or refuse to purchase it from any person he chooses, and for any reason, or no reason at all, and to refuse to make further purchases from a manufacturer, unless that manufacturer agrees to cease selling to another wholesaler, who was also engaged in the retail business, without being guilty of unfair methods of competition, contrary to the Federal Trade Commission Act (Comp. St. §§ 8836a-8836k).</p>

<p>Appeal from the District Court of the United States for the District of Minnesota; Wilbur E. Booth, Judge.</p> <p>Suit by A. II. Karatz against the Lion Bonding & Surety Company. From an order denying defendant’s motion to dismiss the complaint and vacate the appointment of receivers, defendant appeals.</p>

Wbodrough, Judge. Suit by A. J. Hertz and others, as receivers, against Dion Bonding & Surety Company and others, to compel the delivery of all assets of the defendant corporation to the receivers. From a decree dismissing the suit, complainants appeal.

Suit in equity by Beecroft & Blackman, Inc., against Lawrence J. Rooney, doing business as the Lawrence J. Rooney Company, with the Long Furniture Company intervening. Decree for complainant, and defendant and intervener appeal.

<p>1. Bankruptcy <&wkey;373 — Trustee’s surety held liable for acts of trustee in maliciously defeating lien claim of holders of bankrupt’s note, whether acts were solely for benefit of bankrupt’s estate or in part for personal advantage.</p> <p>If trustee ,in bankruptcy, for the wrongful purpose of destroying the lien of holders of bankrupt’s note secured by deed of trust on land, obtained possession of bankrupt’s note secured by prior deed of trust on the same land, knowing it had been paid, and caused land to be sold under such prior deed of trust, and, after purchasing land at such sale, caused it to be sold at a trustee’s sale, and, under collusive agreement with purchaser, purchaser quieted title in action by process calculated to escape actual knowledge by holders of such other note, the trustee’s surety was liable to such holders, regardless of whether trustee acted solely for the benefit of the bankrupt’s estate, or in part for personal advantage under color of his office.</p> <p>2. Officers &wkey;> 129 — Sureties on official bonds liable for negligence or malfeasance of principal in performance of acts done virtute officii.</p> <p>Sureties on official bonds are liable for negligence or malfeasance of their principal in the performance of acts which are done virtute officii.</p> <p>3. Officers &wkey;>l29, 135 — Condition of bond providing only for faithful discharge of official duties broken by mere negligence, without corruption, in the performance of a ministerial duty.</p> <p>Where official bond provides only for the faithful discharge by the principal of his official duties, the condition is broken by the mere negligence, without corruption, of the principal in the performance of a ministerial duly, which performance does not involve the exercise of discretion, and, where the duty which has not been faithfully discharged was owing to the person injured, such person may sue on the bond.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in equity by Samuel Dumiere against the Robertson-Cole Distributing Corporation. Decree for defendant, and complainant appeals.</p>

Libel by the S. A. Companhia Geral Commercial do Rio de Janeiro against the schooner St. Johns N. F., of which the St. Johns N. F. Shipping Corporation was claimant. Decree for libelant, and claimant appeals.

<p>Appeal from the District Court of the United States for the Western District of North Carolina, at Asheville; James E. Boyd and Edwin Y. Webb, Judges. -</p> <p>Suit in equity by the Champion Eibre Company against the Pigeon River Railway Company and another. Decree for complainant, and defendants appeal.</p>

Lewis, Judge. Suit in equity by Rufus C. Elder and Frank E. Mann, executors of the will of George W. Elder, deceased, and Frank E. Mann, against The Western Mining Company and others. Complainants appeal from the decree, and by George R. Elder and Ida D. Elder appeal from an order denying them leave to intervene.

<p>Appeals from the District Court of the United States for the Southern District of New York.</p> <p>Suit in admiralty for collision by J. Langfeldt, master of the bark Edon, against the ship Avon. Charles A. McCullough, claimant, and the steam tug Leonard Richards, the Cahill Towing Line, Inc., claimant, with cross-libel by McCullough against the Edon. Decree for cross-libelant, and libelant appeals.</p>

Suit in equity for infringement of patent No. 1,113,149, by Edwin H. Armstrong and another against the De Forest Radio Telephone & Telegraph Company. Decree for plaintiffs (279 Fed. 445), and defendant appeals.

<p>In Error to the District Court of the United States for the Southern-District of West Virginia, at Charleston; Edwin Y. Webb, Judge.</p> <p>Criminal prosecution by the United States against Mack Carpenter.Judgment of conviction, and defendant brings error.</p>

Suit in admiralty by the Douis Werner Stave Company against the Harden, Orth & Hastings Company. Decree for libelant, and respondent appeals. Appeal from a decree entered March 15, 1921, awarding libelant damages in the principal sum of $3,284.41. There was a shipment of oak staves which libelant delivered to a steamship at Galveston, Tex., for transportation to Bordeaux, France. At Bordeaux there was short delivery.

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Action at law by the Hilton Company, Inc., against Winfield A. Foreman and Roren O. Foreman. Judgment for plaintiff and defendants bring error.</p> <p>There is here involved right of possession after April 1, 1921, under two leases covering together the second, third, and fourth floors, part of basement, and 25 feet front on State street side of first floor, of the five and six story building on northwest corner of State street and Jackson boulevard, Chicago, agreed to be used only as a clothing store by lessee, a partnership. The term of the leases was 10 years, beginning April 1, 1916, and the clause of the leases under which the controversy arises is: “It is further mutually understood and agreed that, if the parties of the first part shall desire to make a 99-year lease on said property, or shall desire to sell or rebuild the building now upon said premises, the parties of the first part shall have, and they are hereby given, the right and option to terminate said term and cancel this lease on the 30th day of April, 1921, provided that they shall on or before the 1st day of November, 1920, serve a written notice on the parties of the second part, stating in said notice that they have exercised their said option to cancel and terminate said lease, and provided further that they shall pay to the parties of the second part at the time of the service of said notice the sum of twenty-five thousand ($25,000) dollars.” The amount stated appears in one of the leases; the amount in the other is $5,000.</p> <p>In 1920, or earlier, the lessors, being desirous of making a 99-year lease of the entire building and premises (having total frontage on State street of 120 feet), in the early part of that year entered into negotiations with defendant in error for such lease. The negotiations, which were carried on by brokers, continued, for most of the year, culminating September 29, 1920, in the execution of such lease, whereby lessors leased the entire building and premises to defendant in error for a term of 99 years, the lease containing a proviso that at the end of the first, 15 years of the term, lessees may terminate the lease by giving to lessors notice of intention so to terminate not less than 6 months before the end of the 15 years.</p> <p>Plaintiffs in error were nonresidents of Illinois. Their Chicago store was one of many they were running in various large cities from coast to coast. They had offices in New York and Los Angeles, and a large Eastern factory, and their presence at Chicago was intermittent and uncertain. On October 13, 1020, lessor undertook to serve upon plaintiffs in error notice of termination of the two first-named leases, pursuant to the quoted clauses therein, and to deliver the $30,000 as provided, and they persisted in such effort to and including November 1. Repeated calls by phone and in person at the demised premises failed to locate lessees. Visits were made to a hotel at Chicago where lessee W. A. Foreman had for a short time been stopping, but he could not be located. The notice and money were brought to the premises and ('tiered to one or more of lessees’ employees there in apparent authority or charge, but were refused. Notice was finally left at the oflice there with a cashier and telephone operator, and one or more of the employees then present and in apparent charge was informed of its nature, though they had refused to take physical possession of notice or money. The money was deposited in one of the leading Chicago hanks, and a letter, addressed to lessees, sent by an officer of the bank, informing lessees that the money had been left there for them, as payment on termination of the lease.</p> <p>Defendant in error, learning that the principal office of the partnership was at Los Angeles, Cal. (where they had two stores), sent a messenger there with a notice and $30,000 in cash, but on diligent search and inquiry, assisted by detectives, was unable to find plaintiffs in error there, and at one of the stores he left a similar notice with, and tendered the money to, an employee of lessees in apparent charge of the store, explaining the object and purpose; but this person declined to receive it. A registered letter containing a notice, with a statement of the various attempts to serve it and tender the money, and notification that the money had been deposited with the hank, so that plaintiffs in error might get it, was sent to the tenant, addressed to the demised premises, but was returned as having been refused. All this took place prior to November 1, and on the afternoon of that day persons in the employ of the tenants brought back, apparently unopened, the notice which had-a few days before been left at the office on the demised premises. From October 13, until some days after November 1, plaintiffs In error were absent from Illinois. They testified they were, when absent, in frequent, perhaps daily, communication with the Chicago store, but that up to about a week after November 1 they had no knowledge or intimation that the lessor was desirous of terminating tile lease or of serving notice of termination or paying the specified amount. At the dose of all the testimony the court directed the jury to return a verdict for defendant in error.</p>

Action at law by Florence E. Taber, as administratrix of the goods, chattels, and credits of Harry T. Taber, deceased, against James. C. Davis, Director General of Railroads and Agent under Transportation Act, §• 206 (41 Slat. 461). Judgment for defendant, after the court at the close of plaintiff’s case had granted a motion for nonsuit, and plaintiff brings error.

<p>1. Master and servant 120 — Stevedore must furnish employees with safe place to work.</p> <p>An employing stevedore is required to furnish its employees with a safe place' in which to perform their work and with safe implements or tools in connection therewith.</p> <p>2. Master and servant <&wkey;124(4) — Employing stevedore must make reasonable inspection of vessel’s equipment.</p> <p>Though an employing stevedore is not required to make a thorough inspection of equipment for work furnished by a vessel, he is required to make a reasonable inspection, and where the slightest inspection would have disclosed that a board holding up a pile of dunnage was rotten, the stevedore is liable for' injuries to an employee caused by the breaking of that board and the fall of the pile of dunnage.</p> <p>3. Master and servant &wkey;»l24(4) — Employing stevedore’s inspection of vessel’s equipment must be such as reasonable stevedore would make.</p> <p>An employing stevedore must make such inspection of the equipment furnished by the vessel as a reasonably prudent stevedoring company would have made under like circumstances, and, if such casual inspection • indicated danger, it was required to go further and make a more careful inspection, in order to eliminate the danger.</p> <p>4. Master and servant <&wkey;2l7(7) — Risk of dangers ascertainable by inspection not assumed.</p> <p>The fact that the danger was one which could be ascertained by casual inspection by the employing stevedore of the equipment furnished by the vessel does not establish that the employee had assumed the risk of the danger, since the employee owed no duty to inspect, but assumed the risk of injuries only if the defect was plainly observable, or so obvious that an ordinarily prudent person under the circumstances would have appreciated it.</p> <p>5. Master and servant <&wkey;2l7(24) — Risk of fall of dunnage not assumed.</p> <p>Though a servant of a stevedoring company would assume the risk of stepping or stumbling into a hatchway, which he could see was unguarded, he did not assume the risk of being knocked into the hatchway by the rail of a -pile of dunnage not properly secured.</p> <p>6. Admiralty @=520 — Injury of stevedore’s employee is maritime tort.</p> <p>The negligent injury of an employee of a stevedoring company on a vessel,, resulting from the employer’s failure to inspect equipment furnished by the vessel, , is a maritime tort, which might have been the subject-matter of admiralty jurisdiction, since the locality of the tort determines whether or not it is maritime.</p> <p>7. Admiralty <&wkey;31 — Contributory negligence does not bar the recovery for a maritime tort.</p> <p>A person injured on a vessel through a maritime tort, is not debarred from all recovery because of the fact that his own negligence contributed to his injuries.</p> <p>8. Admiralty <&wkey;3l — Suing at law for maritime tort does not make contributory negligence a bar.</p> <p>The right to recover damages for a maritime tort, irrespective of contributory negligence, is a right, and not a matter of procedure, nor governed by the choice of the forum, so that the fact that an injured employee sought his remedy at common law, instead of in admiralty, does not make his contributory negligence a bar to recovery.</p>

<p>In Error to the District Court of the United States for the Western District of New York.</p> <p>Action at law by the Monroe Cider Vinegar & Fruit Company against Vincent H. Riordan, late Collector of Internal Revenue, to recover taxes* paid under protest. Judgment for defendant on dismissal of the complaint (274 Fed. 736), and plaintiff brings error.</p> <p>In November, 1920, plaintiff, a domestic corporation engaged in the sale of sweet cider, sold and delivered to its customers 290 barrels of sweet cider for §3,862.17. Of this amount, $2,702.17 represented the sales price and value of the sweet cider, and §1,160 the sales price and value of the barrels. Plaintiff under protest paid to defendant collector $386.22 beverage taxes. A claim for refund was filed by plaintiff with the Commissioner of Internal Kevenue, which was thereafter rejected upon the ground that sweet cider was taxable as a beverage, and that the aggregate amount paid for the sweet cider and the barrels was the basis for computing the tax. Plaintiff thereafter brought this action to recover the amount paid under protest, alleging that sweet cider was not taxable as a soft drink or otherwise, and that the sales price or value of the container was not taxable.</p> <p>By stipulation the essential facts are undisputed, and thus only questions of law were argued at bar.</p>

Petition to Revise and Appeals from the District Court of the United States for the Southern District of New York. In the matter of the Tidewater Coal Exchange, bankrupt. The New England Coal & Coke Company, the Delaware Steamship & Commerce Corporation, and the Achibald McNeil & Sons Company, Inc., appeal from and petition to revise different orders of the District Court.

Petition to Revise Order of the District Court of the United States for the Southern District of New York. In the matter of the Tidewater Coal Exchange, bankrupt. As to an,order of the District Court dismissing the ^petition of James C. Davis, Director General of Railroads, to review an order of the referee approving appointment of William R. Coyle, as trustee, said petitioner' appeals and petitions to revise.

<p>I. Conspiracy <&wkey;37 — Not merged in completed offense.</p> <p>The crime of conspiracy to commit an offense is not merged in the completed offense.</p> <p>.2. Conspiracy <&wkey;40 — Mere acquiescence in unlawful act not sufficient to constitute.</p> <p>The mere knowledge, acquiescence, or approval of an unlawful act, without co-operation or agreement to co-operate, is not sufficient to constitute one a party to a conspiracy to commit the act.</p> <p>3. Conspiracy <&wkey;47 — Conviction held sustained by evidence.</p> <p>A conviction of conspiracy to commit an offense held, sustained by evidence showing that each defendant intentionally participated in the attempt to commit the offense.</p> <p>4. Criminal law &wkey;>37 — Purchase of drugs by government agents held not entrapment.</p> <p>The fact that government agents, who suspected defendants of dealing in prohibited drugs, went to them as purchasers, and after negotiations purchased morphine from them, held not an entrapment, which invalidated defendants’ conviction.</p> <p>5. Criminal law &wkey;>l 186(4) — Error in instruction held harmless.</p> <p>Error in refusal of a requested instruction held not ground for reversal, under Judicial Code, § 269, as amended by Act Feb. 26, 1919 (Comp. St. Ann. Supp. 1919, § 1246), prohibiting reversal for technical errors?* where the guilt of defendants was clearly established.</p>

<p>I. Internal revenue &wkey;>ll — Ouija boards taxable as “games.”</p> <p>Ouija boards held “games,” within the meaning of Revenue Act 1918 (Act Feb. 24,1919, § 900 [Comp. St. Ann. Supp. 1919, § 6309Voa5]), imposing a tax of “games and parts of games,” in view of the facts that they are sold generally through retail stores, are used generally as means of amusement, that the Patent Office has granted a patent for the board as a game, and that they have been so classified by the internal revenue department.</p> <p>[Ed. Koto. — 'Por other definitions, see Words and Phrases, First and Second Series, Game.]</p> <p>2. Evidence <&wkey;83(I) — Construction of statute by administrative officers presumed correct.</p> <p>The findings and practice of the administrative officers of the internal revenue department are presumed to be based on fair conclusions as the result of the investigation required of them by Rev. St. §§ 3165, 3172, as amended by Revenue Act 1918, § 1317 (Comp. St. Ann. Supp. 1919, §§ 5885, 5895).</p> <p>Knapp, Circuit Judge, dissenting.</p>

Action at law by Annie S. Simons against William Nelson Cromwell and Louis J. Cramer, executors of the will of Mrs Frank Leslie, deceased. Judgment for plaintiff, and defendants bring error. Affirmed.

Three separate suits in equity were brought by the American Engineering Company against the Metropolitan By-Products Company, Inc., and by the Title Guarantee & Trust Company and by the Columbia Trust Company each against the Metropolitan By-Products Company, Inc., and others.

Appeals from and in Error to the District Court of the United States for the Eastern Division of the Northern District of Illinois. Suit in equity by the United States, on the relation of Edward J. Brundage, against Phillip Grossman, Milton R. Frank, and others to abate a nuisance.

<p>Appeal from the District Court of the United States for the District of Indiana. -</p> <p>Suit in equity by Amelia S. Long and another against the Union Trust Company, trustee, and others. Decree for defendants, and complainants appeal.</p>

Action at law by the Bencoe Exporting & Importing Company, Inc., against the Erie City Iron Works and the John O’Brien Boiler Works Company. Judgment for defendants, and plaintiff brings error. Writ of error to judgment for defendant based on a general demurrer to the complaint. The complaint contains two causes of action.

Suit in equity by the Osage Oil & Refining Company against Alice E. Haller and W. R. Chandler. From a decree dismissing the bill, and directing that defendant Chandler recover of plaintiff and the sureties on an injunction bond such damage as he had suffered by reason of the issuance of a temporary injunction restraining him from transferring the stock in controversy, the plaintiff appeals.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in equity by William R. Jones and another, doing business under the firm name and style of Jones & Baker, against Ike -Osage Oil & Refining Company. Decree for plaintiffs, and defendant appeals.</p> <p>Affirmed.</p>

<p>In Error to District Court of the United' States for the Western District of New York.</p> <p>Criminal prosecution by the United States against Ralph Heaton and others. Judgment of conviction, and defendants bring error.</p> <p>The indictment was for violation of section 117 of the United States Criminal Code (Comp. St. § 10287), which, so far as applicable, reads: “Whoever, being an officer of the United States, or a person acting for or on behalf of the United States, in any official capacity under or by virtue of the authority of any department or office of the government thereof, * * * shall ask, accept, or receive any money * * * with intent to have his decision or action on any question, matter, cause, or proceeding which may at any time be pending, or which may by law be brought before him in his official capacity, or in his place of trust or profit, influenced thereby, shall be fined * * * and imprisoned. * * * ”</p> <p>The indictment (briefly summarized) sets forth that the defendants and one Ahern on September 11, 1920, “being then and there officers, agents, and employees of the United States of America, to wit, federal prohibition agents, acting under the direction of the prohibition commissioner of the United States” knowingly, etc., asked and received $1,000 from one Van Auken to have their decision and action on a matter then pending before them in their official capacity ¡ influenced, the pending matter being the charge against Van Auken of selling and possessing intoxicating liquor contrary to the provisions of the act known as the National Prohibition Act (41 Stat. 305).</p>

Actions at law by the Argos Mercantile Corporation, as trustee for E. French & Co., limited, and by Frederick E. Crotois, trustee for L. French & Co., Limited, against the Kokusai Kisen Kabushiki Kaisha. Judgments for plaintiffs, and defendant brings error. One question, and only one, is presented by both these writs, which may therefore be treated as if there were but one case.

<p>1. Intoxicating liquors <§=>21g_indictment for sale held sufficient.</p> <p>An indictment charging the sale for beverage purposes of intoxicating liquor, further defined as distilled spirits containing more than one-half of 1 per cent, of alcoholic* content, held sufficient, under National Prohibition Act, tit. 2, § 3.</p> <p>2. Criminal law <g=3493 — Indictment for sale of intoxicating liquor held supported by testimony that the beverage ordered and roceived was whisky.</p> <p>An indictment for sale for beverage purposes of intoxicating liquor held supported by testimony of witnesses, who stated that they were experienced in the use of whisky and that the beverage they ordered and received and drank was whisky.</p> <p>3. Intoxicating liquors <§=>168, 169 — Owner and manager of place where liquor was illegally sold held chargeable as principals.</p> <p>Where two persons were associated as owner and manager of a place where liquor was illegally sold and served by waiters, each is chargeable with the offense as principal.</p> <p>4. Indictment and information <e=>l 75 — Erroneous averment in indictment of place of sale held immaterial.</p> <p>An averment in an indictment that the place where an illegal sale of liquor was made was in Chicago held immaterial, where the sale proved, while not within the city, was in the same district.</p> <p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p>

<p>Bankruptcy <§=»396(3) — Under Iowa statute, insurance for benefit of wife is • exempt, notwithstanding right to change beneficiaries.</p> <p>Under Code Iowa, § 1805, providing that a-life insurance policy shall inure to the separate use of the husband, or wife and children, of insured, independently of his creditors, and making similar provisions concerning the proceeds of an endowment policy and other policies, a life insurance policy payable to the wife of insured is exempt, notwithstanding a provision in the policy permitting insured to change the beneficiary, and the trustee in bankruptcy is not entitled to the cash surrender value of the policy.</p>

<p>In Error to the District Court of the United States for the Eastern District of South Carolina, at Charleston; Henry A. Middleton Smith, Judge.</p> <p>Action at law by E. N. Wadford, administratrix of Crestón Wad-ford, deceased, against James C. Davis, Federal Agent. Judgment for plaintiff and defendant brings error.</p>

Suit in admiralty by F. Dougherty & Co. against the steam tug Eastern; the Eastern Transportation Company, claimant. Decree for respondent, and libelant appeals.

<p>Patents &wkey;>328 — 881,561, for waxed candy labels, held anticipated.</p> <p>The Eckstein patent, No. 881,561, for a paper supersaturated with wax in which to wrap candy and pop com, was void for anticipation, in view of the provision of the specification that the quantity of the paper and the per cent, of wax might be varied, even if a patent for the particular kind and weight of paper and the fixed per cent, of wax used by the patentee could have been sustained.</p>

<p>I. Bankruptcy ©=331 — Debt cannot be expunged from schedule, because not dis-chargeable.</p> <p>It is beyond the power of a court in bankruptcy to expunge from the debts scheduled by the bankrupt, as required by Bankruptcy Act, § 7 (8) being Comp. St. § 9591, a debt which would not be released by the discharge in bankruptcy.</p> <p>2. Bankruptcy <®=»404(l)— Order enjoining any future application for 'discharge from particular debt is beyond power of bankruptcy court.</p> <p>Under Bankruptcy Act, § 14 (Oomp. St. § 9598), authorizing a bankrupt to apply for discharge, and section 17 (Oomp. St. § 9601), providing such discharge shall release him from all provable debts and the prescribed form of discharge releasing him from all debts provable against his estate, it is beyond the power of a bankruptcy court to enjoin the bankrupt from applying in the future for a discharge as to a particular debt; but the question whether the debt is released by the discharge is one to be determined by the court before which an attempt is made to enforce the debt.</p> <p>3. Bankruptcy @=o39l (3) — Proceeding on a nondischargeable debt cannot be stayed.</p> <p>Under Bankruptcy Act, § 11 (Oomp. St. § 9595), the stay of proceedings to enforce a scheduled debt or the lifting thereof is largely discretionary with the court; but proceedings on a plainly nondischargeable debt cannot be stayed.</p> <p>Petition to Revise Order of the District Court of the United States for the Eastern District of New York.</p>

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Action at Daw by Jesse I. Straus and others against the Victor Talking Machine Company and' others. Judgment for plaintiffs, and defendants bring error. On motion by defendants in error to strike from the assignment of errors certain statements, and for a direction that said statements be omitted from the printed record herein.</p>

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Suit in equity by the Dand Development & Dive Stock Company against W. W. Holmes and Elizabeth Holmes. Decree for defendants, and complainant appeals.</p>

<p>Bankruptcy <§=>444 — Rule of Second circuit limiting time for filing petition to revise.</p> <p>■ " Under rule 15, subd. 3, of the Circuit Court of Appeals, Second Circuit (235 Fed. vii, 148 C. C. A. vii) requiring petitions to revise to be filed within 10 days of the.order sought to be revised unless the time is previously enlarged by the judge, a petition filed after such time will.not be considered.</p>

<p>In Error to the District Court of the United States for the Eastern District of New York.</p> <p>Action at law by the United States against John Reed to recover penalties for violations of the customs laws. Judgment for defendant (274 Fed. 724), and the United States brings error.</p>

<p>At Raw. Action by Morton F. Plant against James J. Walsh, Collector of Internal Revenue.</p> <p>Decree ordered for plaintiff.</p>

<p>In Admiralty. label by Rollin Powery against the Emergency Fleet Corporation, as owner of the steamship Cliftwood.</p>

In Equity. Separate suits for infringement of a patent by the Perkins Glue Company against the Gould Manufacturing Company and' others and against the Wisconsin Chair Company and others.

<p>In Equity. Suit by the Gulf & Ship Island Railroad Company against D. W. Duckworth, Sheriff and Tax Collector of Simpson County, Miss., and the Board of Supervisors of said Simpson County. On motions by complainant for preliminary injunction, and by defendants to dismiss bill.</p> <p>The map herewith shows the boundaries of Central Highway Road District:</p> <p> </p>

In Admiralty. Suit for salvage by the Texas Company, owner of steamship Alabama, against the United States, owner of the steamship Brandywine. Decree for libelant and for intervening owner of the tug El Aguila.

<p>At Law. Action by William W. Vaughan and another, as executors of the will of William Austin Wadsworth, deceased, against Vincent H. Riordan, as United States Internal Revenue Collector for the Twenty-Eighth District oí New York. Judgment directed for plaintiffs.</p>

<p>In Equity. Suit by Cheney Bros, against Gimbel Bros., New York. On motion for injunction pendente lite to restrain alleged unfair competition.</p>

<p>At Daw. Action by Hashimoto, Esq., against the American Union Eine, Inc. Jury waived. Judgment for plaintiff, less items of counterclaim allowed.</p>

<p>In Error to the District Court of tlie United States for the Southern District of New York.</p> <p>Action at law by Hashimoto, Esq., against the American Union Line, Incorporated. Judgment for plaintiff (280 Fed. 748), and defendant brings error.</p>

<p>In Equity. Suit by the Buffalo Union Furnace Company against the United States Shipping Board Emergency Fleet Corporation. On plaintiff’s motion for rehearing.</p>

<p>Appeal from the District Court of the United States for the District of Massachusetts; George W. Anderson, Judge.</p> <p>Suit in equity, by the Victory Bottle Capping Machine Company, Inc., against the O. & J. Machine Company and others. Decree for defendants, and plaintiff appeals.</p>

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Ohio; D. C. Westenhaver, Judge.</p> <p>Ralph Parilla and others were convicted of offenses, and they bring error.</p>

<p>1. Indictment and information &wkey;?3 — All felonies must be prosecuted by Indictment; “infamous crimes.”</p> <p>All felonies, as helmed by Criminal Code, § 335 (Comp. St. § 10509), are “infamous crimes,” within the Fifth Amendment, for which no civilian may be held to answer, unless on the presentment or indictment of a grand jury.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Infamous Crime.]</p> <p>2. Indictment and information &wkey;>3 — Offenses subject to prosecution on information; “infamous crimes.”</p> <p>Misdemeanors, punishable by fine, or by fine and imprisonment not exceeding one year, unless there is coupled with the punishment of imprisonment some specific provision making the particular misdemeanor infamous, are not “infamous crimes,” and may be prosecuted by information.</p> <p>3. Indictment and information <&wkey;3 — Misdemeanor, if punishment may include term at hard labor, must be prosecuted by indictment.</p> <p>Imprisonment at hard labor for any definite term, regardless of the length of the term or the place of imprisonment, is infamous punishment, and an offense for which such a sentence may be imposed, though a misdemeanor, must" be prosecuted by indictment.</p> <p>4. Criminal law &wkey;>l217 — Ohio statutes held not to authorize employment at hard labor of federal prisoner sentenced to imprisonment in county workhouse.</p> <p>Ohio statutes relating to county prisons held not to authorize employment at hard labor of a federal prisoner sentenced to imprisonment in a county workhouse, where neither the statute under which he was convicted nor the sentence imposed authorized imprisonment at hard labor.</p>

Pollock, Judge. Suit in equity by the Wichita Water Company against the City of Wichita, to have the amount which the city should pay for a water system ascertained. From a decree (271 Fed. 973), both parties appeal.

Woodrough, Judge. Action at law by Emmett E. James against James C. Davis, Director General of Railroads and Agent. Judgment for defendant, and plaintiff brings error. The parties will be designated as they were in the trial court.

<p>1. Waters and water courses <®=o228!/i>! New, vol. IGA Key-No. Series — Irrigation cliuiriet lioüholdors cannot complain of terms of surrender made by their appointees, unless ihsy defeat consideration for bondholders’ agreement.</p> <p>Where the bondholders of an irrigation district proposed to surrender a part of the bonds and to accept payment of the balance in smaller installments at lower interest, if the United Stales would take over the district, and provided that the details of the taking over should be worked out by a board composed of the persons named in the proposal, the bondholders cannot object to ihe details as worked out by the board so appointed by them, unless they invalidated the contract with the United States, so as to defeat the consideration for the bondholders’ agrooment.</p> <p>2. Statutes 141 (2)— Nebraska statute car.foirlng additional power cti Irrigation districts hold net an amending act subject to requirement as to inclusion of section or sections amended.</p> <p>Laws Nob. 1917, c. 191, passed to enable irrigation districts organized under the laws of Nebraska to co-operate with the United States in the matter of irrigation projects, as contemplated by Act Feb. 21, 1911 (Comp. St. §§ 4738-4740), was an Independent act complete in itself, and not affected by Const. Neb. art. 3, § 11, providing that no law shall be amended, unless the new act contains the section or sections so amended.</p> <p>3. Waters and watercourses .@=>2281/2, New, vo!. I0A Key-Mo. Series — Nebraska irrigation district has authority to contract for operation by United States.</p> <p>Under Rev. St. Neb. 1918, § 3467, as amended by Laws 1917, c. S3, and under Laws Neb. 1917, c. 191, an irrigation district of Nebraska was given authority to make a contract for the operation of its project by the United States.</p> <p>4. Waters and water courses '@=>231— Operation of irrigation system does not give United States right to determine amount of taxes to be levied.</p> <p>A contract by a Nebraska irrigation district giving the United States authority to operate the district’s system and obliging the district to collect taxes sufficient to meet the expenses of operation, and to exercise the control of the service given by Rev. St. Neb. 1913^ § ¿465, as amended by Laws Neb. 3917, c. 82, for the purpose of enforcing irrigation taxes, did not deprive the district of its power to determine the amount,of taxes to be levied, and did not invade the sovereign powers of the state.</p> <p>5. Waters and water courses @=>217 — Operation of irrigation system for landowners is not exercise of stats sovereignty.</p> <p>The management and operation of an irrigation system for the benefit of the landowners is not an exercise of any of the powers of state sovereignty, so that a contract giving such management to the United States was not a grant of state sovereignty.</p> <p>6. Waters and water courses @=222 — interest of United States in irrigation district held to authorize contract by it.</p> <p>Where a state irrigation district had purchased from the United States Reclamation Service a water right which was not yet paid for, and had contracted to carry through its canals water for the reclamation project, and there was grave danger the irrigation district would be unable to operate its system, the Reclamation Service had such an interest in the district that it might contract for the operation of the district under Act Feb. 21, 1911, § 2 (Comp. St. § 4739), authorizing the Secretary of the Interior to co-operate with irrigation districts for the construction or use of reservoirs, canals, or ditches.</p> <p>7. Water's and water courses @=222 — Reclamation Service may operate irrigation system without acquiring title.</p> <p>The Reclamation Service has authority to take over the operation of a state irrigation district system for the purpose of protecting its claims against the district without acquiring absolute title to the project.</p> <p>8. Contracts @=300(3) — Party causing delay cannot object contract was not completed in time.</p> <p>A party to a contract cannot object that the terms of the contract were not settled within the time specified in his proposal, where the delay was caused by him.</p> <p>9. Waters and water courses @=228i/2, New, vol. I0A Key-No. Series — Contract that Reclamation Service should “take over” irrigation system does not require transfer of title.</p> <p>In a proposal by the bondholders of an irrigation district, agreeing to reduce the principal and interest of their bonds if the United States should take over the district, the words “take over” must be given their primary meaning, to assume control or management of, and do not require the transfer of absolute title to the United States, especially where the other provisions of the proposal were not consistent with an outright sale of the property to the United States, but were consistent with the assumption of management and control by the United States.</p> <p>10. Waters and water courses @=228/2, New, vo!. I0A Key-No. Series — Contract between irrigation district and Reclamation Service held not burdensome to bondholders.</p> <p>■A contract between the bondholders of an irrigation district, which was unable to continue the operation of its system, the failure of which would have resulted in loss to the bondholders, whereby the bondholders agreed to surrender less than 10 per cent, of their bonds and to give additional time at lower rate of interest for payment of the remaining bonds, In consideration of the taking over and operation of the district by the United States, was not burdensome.</p> <p>II, Waters and water courses <^s22SVz, New, vol. I0A Key-No. Series — District held liable for interest on bonds to be canceled during deiay in procuring acceptance by Reclamation Service.</p> <p>Where tho bondholders of an irrigation district agreed to release a portion of the bonds and to accept a lower rate of interest on the last of the bonds, on condition that the United States should take over the operation of the system and should procure from the Secretary of the Interior the approval of the United States for the terms of payments of the remaining bonds of the district, the district was properly charged with interest on all its bonds prigr to the time it procured the approval of the Secretary of the Interior, though before that date it had performed the condition of securing a contract for the operation and maintenance of its system by the United states.</p>

Woodrough, Judge. Action begun at law by the New York Trust Company and another against the Farmers’ Irrigation District, but transferred to the equity docket when defendant filed an equitable answer.

Suit in Equity hy the Shenango Furnace Company and others against The Village of Buhl and others.

<p>1. Removal of causes <&wkey;30 — Citizenship of nominal party held not to defeat right of removal.</p> <p>Joinder of a defendant, which is a citizen of the same state as complainant, hut is merely the depository of the fund in controversy between the other parties, without any interest therein, held not to defeat the right of removal by the principal defendant, which is a nonresident.</p> <p>2. Courts <&wkey;>372(l) — Federal courts not bound by state decisions as to priority between assignees.</p> <p>The question whether, as between two successive assignees of the same chose in action, the fact that the second first gave notice to the debtor gives him priority is one of general jurisprudence, on which the federal courts are not hound by the decisions of the courts of the state where the parties reside and the assignments were made.</p> <p>3. Assignments c&wkey;83~-First notice to debtor gives priority as between successive assignees of chose in action.</p> <p>Under the rule of the federal courts, as between two successive assignees of the same chose in action, the second prevails if he was the first to give notice to the debtor.</p> <p>Brown, District Judge, dissenting.</p>

<p>Original application by the United States for a writ of mandamus, directed to the Honorable Harland B. Howe, District Judge of the United States for the District of Vermont, and to the District Court of the United States for the Southern District of New York.</p>

Thomas and St. John, Virgin Islands; Thiele, Judge. _ Libel in attachment by the St. Thomas Ship Brokers’ Association against the schooner Edgewood and her cargo, in which the Sugar Products Company appeared and gave bond to release the cargo from attachment. From a judgment sustaining the attachment, and awarding execution for the amount of libelant’s claims, the Sugar Products Company appeals.

<p>1. Admiralty <&wkey;>l- -Court hs'c! to have properly assumed jurisdiction.</p> <p>libelant, an American corporation, as agent for a Spanish shipowner, contracted for carriage of a cargo from the United States to Spain with an American firm, which was acting as agent for a Spanish corporation, but such fact was not known to libelant. Held, that a court of admiralty of the United States should not decline to take jurisdiction of a suit by libelant against the undisclosed principal to recover freight under the contract.</p> <p>2. Evidence &wkey;37 — Laws of foreign country to be proved as facts.</p> <p>A law of Spain, which affects only persons within its jurisdiction, when invoked in a court of tho United States, must be proved as a fact.</p> <p>3. Shipping &wkey;> 147 — Contract of carriage held valid under Spanish law.</p> <p>Under a Spanish royal order fixing a maximum rate of freight on tobacco from the United States to Spain, with a proviso that “agents abroad of Spanish vessels shall charge freely according to the varying exigencies of the moment in the market, and shall abide by the prevailing rates,” a contract for a higher rate, made by an American agent of a Spanish shipowner, held, valid and enforceable.</p>

Suit in admiralty by the José Taya’s Sons Company, of Now Orleans, against Charles A. Brassier and others, doing business as Kremelberg & Co. Decree for respondents, and libelant appeals.

Suits in equity by the Pintsch Compressing Company and by the New York Trust Company, trustee, against the Buffalo Gas Company, in which George H. Church intervenes. Heard on cross-appeals. Cross-appeals from a final decree of tho District Court for the Western District of New- York, entered May 9, 1921. One appeal is by George II. Church, intervener, and tho other by William J. Judge, assignee of the purchaser at foreclosure sale.

Appeals from the District Court of the United States for the Southern District of New York. Separate suits in equity for infringement of patent by the General Electric Company against Continental Damp Works, Inc., and against the United Lamp Manufacturers’ Corporation. From orders denying injunctions pendente lite, plaintiff appeals.

Suit in equity for infringement of a patent by the General Electric Company against E. Alexander and another. Decree for plaintiff (277 Fed. 290), and defendants appeal. Action is upon the Just and Hanaman patent, No. 1,0.18,502, and the Langmuir patent, No. 1,180,159.

<p>In Equity. Suit for infringement of a patent by the General Electric Company ¿against the Incandescent Products, Inc. On application for a preliminary injunction.</p>

<p>1. Insurance &wkey;>222 — Rights of assignee of life policies held not to have lapsed.</p> <p>Where life policies were assigned to secure payment of notes, the as-signee’s right to amount of notes out of proceeds of policies was not barred by laches because of the long period which had elapsed since the notes were made, since, if notes had lapsed, all conditions to the return of the policy had also lapsed, so that assignor could not successfully demand payment of policies without first paying the moneys which the assignment was made to secure.</p> <p>2. Interpleader <&wkey;35 — In insurance company’s suit, begun by bill of interpleader, prevailing defendant not entitled to costs or attorney’s fees as against other defendant.</p> <p>In suit begun by insurance company’s bill of interpleader, under Act Feb. 22, 1917 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 991a), the prevailing defendant will not be allowed costs and attorney’s fees, where the fund was not created by the defendant claiming it.</p>

<p>Í. Judgment <&wkey;l99(l) — Notwithstanding verdict entered only when adverse party is not entitled in law to judgment.</p> <p>The judgment notwithstanding the verdict is entered for the pláintifE when it appears on the record, either from some matter growing out of the pleading or because the fact found by the jury is immaterial, that the defendant is not in law entitled to the judgment.</p> <p>2. Judgment ¡&wkey;l99(3) — Notwithstanding verdict cannot be entered, where material issue of fact was submitted on cenflicting evidence.</p> <p>Where a material issue of fact has been raised bjr proper pleadings and submitted to the jury on conflicting evidence, the court has no authority to review the facts or to make a different finding, even if it were disposed to do so, and cannot, therefore, grant plaintiff’s motion for judgment notwithstanding the verdict for defendant.</p>

<p>Criminal law &wkey;>424(l) — Conspirators’ statements after offense held inadmissible.</p> <p>Testimony of statements made by alleged coconspirators, after commission of the offense charged, is not competent to connect a codefendant therewith.</p>

<p>Petition to Revise from the District Court of the United States for the Western District of Pennsylvania; W. FI. Seward Thomson, Judge. _</p> <p>In the matter of the Frie-Buffalo Tube Company, bankrupt. On Separate petitions by Fudwig Wolffgram against Ritchie T. Marsh, as trustee in bankruptcy, to revise an order of the District Court refusing to set aside a sale of property of the-bankrupt.</p>

<p>1. Sales <&wkey;45l— Contract held to show delivery was intended to be made in Alaska.</p> <p>A conditional sale contract., stating that vendor had delivered to buyer property at a designated point in Alaska, with evidence that property had not then been delivered, but that vendor thereafter put it on shipboard at Seattle, and that physical possession of it was not taken by buyer until it was delivered by ship in Alaska, where the conditional sale contract was recorded, shows that, between the parties, delivery was to be in Alaska, and that no creditor was misled by failure to file the conditional sale contract in Washington.</p> <p>2. Bankruptcy <&wkey;!4l — Adjudication vésts in trustee title to property, wherever situated.</p> <p>The adjudication of bankruptcy vests in the trustee the title of the bankrupt, wherever the property is situated.</p> <p>3. Bankruptcy <&wkey;>l5l — Trustee’s title is that of an execution creditor.</p> <p>An adjudication in bankruptcy operates as a judgment in favor of the creditors, and gives the trustee the title of an execution creditor, under Comp. St. § 9631.</p> <p>4. Bankruptcy <&wkey;l84(2) — Creditor, petitioning for delivery of certain property In Alaska to him, is not regarded as seeking relief in the courts of Washington.</p> <p>Where a bankruptcy court sitting in Washington has taken possession of property of the bankrupt located in Alaska, a creditor, who petitions for delivery of the property to him under a conditional sale contract, is not to be regarded as seeking to enforce its remedy in the courts of Washington, within the rule that a party so seeking is governed by the law enforced by those courts, since the creditor did not come into that court voluntarily, but because it was the only forum where relief could have been obtained.</p> <p>5. Bankruptcy <&wkey;I84(2)— Conditional sals contract held governed by laws of territory of delivery.</p> <p>Where goods sold under conditional contract were delivered in the territory of Alaska, where physical possession of them was first taken by the bankrupt, so that no creditor could have been deceived by apparent possession in the state of Washington, where both seller and bankrupt had their principal place of business, and there was no showing as to where the contract was executed, the right of the seller to the properly as against the trustee is to be governed by the, laws of Alaska (haws 1913, <:. 66), which do not require the conditional sale contract to be recorded.</p>

<p>In Equity. Suit by the Anchor Line (Henderson Bros.), Limited, against George W. Aldridge, Collector of Customs for the Port of New York, to enjoin defendant from interfering with a transshipment in the port of New York from one foreign vessel to another of five cases of whisky.</p>

<p>In Admiralty. Libel by the Crew Transportation Corporation against the steamship Siboney, of which the New York & Cuba Mail Steamship Company was claimant.</p>

<p>Appeal from the District Court of the United States for the Eastern District of New York. 1</p> <p>Libel by the Crew Transportation Corporation against the steamship Sibo-ney, of which the New York & Cuba Mail Steamship Company was claimant. From a decree dismissing the libel (280 Fed. 877), libelant appeals.</p>

<p>Bankruptcy <@=>81 (I) — ■Petition against partnership for insolvency must allege insufficiency of firm and individual assets to pay firm debts.</p> <p>A petition praying that a partnership, but not its members, he adjudged a bankrupt because of the insolvency of the firm, which does not allege either that the members of the partnership are insolvent or that firm assets, combined with the assets of the members in excess of their individual debts, are insufficient to pay the partnership debts, must be dismissed.</p>

<p>At Law. Action by the Portsmouth Cotton Oil Refining Corporation against the Fourth National Bank of Montgomery. On motion to direct verdict for plaintiff.</p>

<p>!. Mines and minerals <§=>108 — Foreign mining corporation held not “doing business within the state.”</p> <p>A mining corporation of Nevada, engaged in mining in Alaska, owned stock in a bank in Washington in which it kept a checking account, and from which it borrowed money, giving notes payable at the bank. It also on three occasions in three years bought supplies in Washington for ito Alaska business. Held, that no one nor all of such acts constituted “doing business within the state,” within the meaning of Hem. & Bal. Code Wash. § 220, which subjected it to suit in that state on the notes.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Doing Business.]</p> <p>2. Corporations <^x3642(6)~Singie business transaction in stats held not to render foreign corporation subject to suit in relation thereto.</p> <p>A single business transaction in a state by a foreign corporation, incidental only to the business for which it is incorporated, as borrowing money from a bank and the giving of a note therefor payable at the bank, does not give a court in that state jurisdiction of an action against it on the note.</p>

<p>In Equity. Suit by the Lion Coal Company against Matthew Bun-ten, County Treasurer and ex officio Tax Collector of • Sweetwater County, Wyo. On motion to dismiss bill.</p>

<p>In Equity. Suit by Benjamin I,. Armstrong against Belding Bros. & Co. On exceptions to master’s report on accounting.</p>

In Equity. Suit by the Southern Bell Telephone & Telegraph Company, a corporation created and existing under the laws of. the state of New York, against the Railroad Commission of South Carolina and others. On motions for temporary injunction and to dismiss a complaint.

<p>1. Shipping <§=>106 — Assignee of bill of lading held entitled to ail rights of shipper unner contract of affreightment made before issuance of the bill.</p> <p>Where goods were shipped under and against a contract of affreightment previously made between shipowner and shipper, the fact that hills of lading were made out by other company operating the ship under a charter from the shipowner to a bank, and assigned by the bank to a company of which the shipper was a subsidiary, did not debar the subsidiary from claiming all the rights that the shipper would have had, had the documents been made out in its name.</p> <p>2. Shipping <©=>106 — Bill of lading not construed to modify previously made inconsistent contract of affreightment.</p> <p>Where goods were shipped under and against a contract of affreightment, so that the rights of the parties were not necessarily based on the bill of lading subsequently issued, and the bill of lading differed from the contract of affreightment, prima facie, and in the absence of any intention to the contrary as between the parties, the bill of lading is not to be construed to modify the contract of affreightment.</p> <p>3. Shipping <S=>197 —Contract of affreightment held not to debar shipper from sharing in general average.</p> <p>Contract of affreightment, providing that the meat “is received and carried, as regards perils of any kind whatsoever, at the” shipper’s “own risk absolutely,” held not to deprive shipper of the right to share in the general average for the jettison of unsound meat; such provision relating solely to the liability of the. shipowner as such to the shipper for the carriage of the cargo, and not to his obligation to share with others in the general average loss.</p>

S. Iy. Reece was indicted for misapplication of bank funds and for making false entries in returns to the Comptroller of the Currency. On demurrers to indictments, and on motion for change of place of trial to other division of district, should demurrers be overruled.

<p>At Law. Action by Sam Silberschein against the United States. On motión to dismiss petition.</p>

<p>Prosecution by the United States against Alexander & Reid Company and others under the Sherman Act.</p>

<p>I,, Admiralty <s=»l, 15 — Cofflgress may enlarge jurisdiction; Ship Mortgage Act held constitutional.</p> <p>Congress lias power to enlarge tlie jurisdiction of the courts of admiralty by altering and amending the maritime law to embrace new causes of action, or causes not previously considered maritime, and Ship Mortgage Act Juno 5, 1320, § 30, providing for preferred mortgages, and conferring on courts of admiralty jurisdiction in rem to enforce the same, is within such power, and valid.</p> <p>2. Maritime liens Liens on American ships asserted in American courts governed by law of forum.</p> <p>A claimant, asserting a lien in an admiralty court of the United States for supplies furnished to an American ship in a foreign'port, is bound by the law of the forum.</p> <p>3. Maritime liens <@==>38 — Default of mortgagor held not to affect status of preferred mortgage.</p> <p>A mortgage on an American ship, which is made to conform to all the requirements of Ship Mortgage Act 1920, § 30, subsec. d (a), to give it the status of a preferred mortgage, does not lose that status by the failure of the mortgagor to keep a certified copy of the mortgage on board the ship, or of the master to exhibit it to the claimant of a subsequent lien, as required by subsection E.</p>

In Equity. Suit by the Atlantic Refining Company against the Port Lobos Petroleum Corporation and the Atlantic Lobos Oil Company. On petition of Marcel Denis to intervene for the protection of his rights as stockholder of the Atlantic Lobos Oil Company.

In Equity. Suit by the American Bank & Trust Company and others against the Federal Reserve Bank o! Atlanta and others. Decree entered for injunction as to part only of the acts of defendant complained of.

<p>In Bankruptcy. In the matter of W. C. Nabors, bankrupt. On petition to set aside discharge and reopen cause.</p>

Appeal and Cross-Appeal from the District Court of the United States for the Southern Division of the Western District of Michigan; Clarence W. Sessions, Judge. Suit in equity by the Marshall Ventilated Mattress Company against the D’Arcy Spring Company. 'From the decree, both parties appeal.

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Ohio; D. C. Westenhaver, Judge.</p> <p>Solomon Rossman was convicted of violations of the National Prohibition Act and revenue laws, and he brings error.</p>

<p>1. Negligence i@=»20 — Shipper of dangerous machine held negligent as to carrier’s employó.</p> <p>In a complaint for injuries to a ship employee while handling a potato digger, allegations that the defendant manufacturer shipped the machine without removing therefrom sharp knives, which were concealed from view, and without guarding those knives, or informing the carrier of the danger, held, to show the machine was so inherently dangerous as to impose a liability on the shipper independent of any contract relation with the injured employee.</p> <p>2. Negligence @L>III(3) — Intervention of independent cause between negligence alleged and injury is matter of defense.</p> <p>The intervention of a failure of the carrier to warn its employees of the danger of handling a machine shipped by defendant as an independent cause of the employee’s injury, while handling the machine, is a matter of .defense.</p> <p>3. Negligence <§=>56(l)— Shipment of dangerous machine held proximate cause of injury to carrier’s employee.</p> <p>The negligence of a shipper in delivery for shipment of a machine on which there were concealed knives, not guarded to protect those who handled the machine, without warning to the carrier of the character of the shipment, is the proximate cause of the injury to an employee of the carrier while handling the machine.</p>

C. Westenhaver, Judge. Action at law by Hettie McCree against James C. Davis, Director General of Railroads, as Agent (Michigan Central Railroad Company). Judgment for defendant, and plaintiff brings error.

Action at law by Orion A. Woodson against Walker D. Hines, Director General of Railroads. Judgment for plaintiff, and defendant brings error. Held: the water would go over the top of the Wabash rails.

<p>Appeal from the District Court of the United States for the District of Maine; Clarence Hale, Judge.</p> <p>Uibel in admiralty by Frederick J. Galley against Robert M. Smith to recover for personal injuries to libelant, sustained while in employment of libelee. Decree for libelant (272 Fed. 999), and respondent appeals.</p>

<p>Appeal from the Commissioner of Patents.</p> <p>Interference proceeding between John C. Wahl and Fred F. Main. From a decision of the Commissioner of Patents, awarding priority to Main, Wahl appeals.</p>

Application by Chas. R. Long, Jr. Company for registration of a trade-mark. From a decision of the Patent Office requiring a disclaimer of a descriptive word as a prerequisite of the registration of the mark, the applicant appeals.

<p>1. Appeal a in! error &wkey;!003(I)— Finding of trial judge should not be disturbed, unless if is clearly error.</p> <p>In a suit to establish a trust, a decision of the trial judge, who observed the witnesses, that plaintiff’s conveyance was made to defraud his wife, will not be disturbed, unless clearly error.</p> <p>2. Trusts &wkey;>48 — Piainiiif, because of fraud, held not entitled to enforce trust.</p> <p>Where plaintiff conveyed realty to defendant’s ancestor, and took a secret deed back, to defraud his wife of her inchoate dower interest, and later let; a mortgage he foreclosed, after which his grantee repurchased, plaintiff, because of his fraud, cannot enforce a trust against his grantee’s heir.</p>

Landlord and tenant proceedings between E. J. Knabe and Terrell & Little, Inc. From a judgment dismissing an appeal from a judgment in the municipal court, Knabe appeals.

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Suit by R. Harris & Co., a corporation, against Joseph I. Weller and others. From a decree dismissing the bill, plaintiff appeals.</p>

Separate actions by Mary A. T. Hanlon and by J. Leo Hanlon against Harry Wardman, to recover damages for personal injuries to the plaintiff in the first action. Judgment for the plaintiffs in each action, and defendant appeals.

<p>1. Municipal corporations <&wkey;>706(8) — Evidence held to authorize instruction under last clear chance doctrine.</p> <p>Evidence that plaintiffs intestate started across the street diagonally away from defendant’s approaching truck and without paying attention to the truck, whose driver was sounding his whistle and horn, and that the driver of (he truck, though intestate was in plain view and could have been avoided by stopping the track or swerving to the right, made no attempt to do either until he was within two feet of intestate, warranted the court in giving an instruction authorizing verdict for the plaintiff under the last clear chance doctrine.</p> <p>2. Municipal corporations <s&wkey;705(10) — Possibility that pedestrian could have saved himself at any moment does not prevent recovery under last chance doctrine.</p> <p>The fact that a pedestrian, injured by a truck, could have saved himself by the exercise of the slightest degree of care at any time before he entered upon the line of danger, does not prevent recovery under the last chance doctrine, where the driver could have seen that tlie pedestrian was oblivious to the danger and could have avoided the accident.</p> <p>3. Municipal corporations <&wkey;>705(!0) — Concurrent negligence no defense to recovery under last chance doctrine.</p> <p>Where the evidence warranted a recovery by plaintiff under the doctrine of last clear chance for the death of his intestate, caused by defendant’s motor truck, a charge requested by defendant that there could be no recovery if the injury was caused by the concurrent negligence of both parties was properly refused, since the rule of concurrent negligence does not defeat recovery under the last chance doctrine, which considers the negligence of the party having an opportunity to avert the accident as the sole proximate cause of the injury.</p> <p>4. Municipal corporations ¡&wkey;706(8> — Requested instruction that truck driver could presume pedestrian would save himself until danger was imminent held properly refused.</p> <p>In an action for the death of a pedestrian, who was struck by defendant’s motor truck, a requested instruction that the truck driver could presume that pedestrian would exercise reasonable care so long as the danger of striking him did not appear imminent was properly refused, since the word “imminent” does not indicate how near the danger must be, and the test is whether the driver employed reasonable care, which is usually a question for the jury.</p>

Suit by Harry D. Eichelberger and another against the Arlington Building, Incorporated, and others. From a decree sustaining motions to,quash the service and dismissing the bill, claimants appeal.

Action by Charles W. Morris against B. R. Rhees and others to recover on a contract for broker’s commission. Judgment for plaintiff against the named defendant, and that defendant appeals.

<p>Dower <@=»46(4) — Inchoate right of wife of tenant in common is defeated by sale for partition.</p> <p>Under Code, § 88, providing that the wife of a tenant in common need not be made a party to partition, but that her rights shall attach to the portion assigned to her husband, section 89, authorizing the court to assign dower to a widow before sale, section 90, authorizing sale for partition free from right of dower by the wife of any cotenant, and section 93, providing for division of the proceeds of the partition sale among the parties, the inchoate dower right of a wife of a tenant in common,' as distinguished from the vested right of the widow of such tenant, is not to be set off to the wife on sale of the property for partition, but her husband is entitled to his entire distributive share.</p>

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Suit by Anna M. Knox and others against Cuno H. Rudolph and others, as Commissioners of the District of Columbia, and the District of Columbia, to cancel a special assessment. Decree for plaintiffs, and defendants appeal.</p>

<p>1. Divorce <&wkey;2ll, 286 — Temporary alimony rests in trial court’s discretion.</p> <p>The granting or refusing of temporary alimony is committed to the sound discretion of the trial court, and that discretion will not be disturbed by the reviewing court, unless the latter is thoroughly satisfied if has been abused.</p> <p>2. Appeal and error &wkey;>1074(3)~-Denial of supersedeas held harmless, where order was affirmed.</p> <p>Error in denying a right to supersedeas on appeal from an order is harmless to appellant, whore the order was affirmed on the appeal.</p> <p>3. Mandamus c&wkey;>57(I) — -Proper remedy on denial of supersedeas.</p> <p>The remedy of an appellant to tost his right to a supersedeas is by application for mandamus.</p> <p>4. Mandamus <&wkey;l72 — On mandamus to compel supersedeas court will examine propriety of order.</p> <p>Since mandamus does not issue to further a wrong, but only to protect a right, the Court of Appeals, on an application for mandamus to compel the lower court to grant a .supersedeas on appeal from an order fixing temporary alimony, would ascertain whether the order was proper, and, if so, would refuse the writ.</p>

Action by Jesse W. Rawlings against Elena P. Campbell to recover a broker’s commission on the sale of real estate. Judgment for plaintiff, and defendant appeals.

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Suit for divorce from bed and board by Addis H. Snow against Chester A. Snow. Erom a decree modifying the previous order as to the custody of a minor child, defendant appeals.</p>

<p>I. Injunction <©=528 — Liability for costs does not authorize injunction to restrain Interstate Commerce Commission from proceeding with hearing before it.</p> <p>The fact that the Interstate Commerce Commission has no authority to award costs, and that a party to a proceeding before the Commission under an unconstitutional statute would be liable for its costs, does not establish irreparable injury, entitling such party to restrain the proceedings.</p> <p>2. Injunction 15=5X8 — .Possibility of multiplicity of suits does not make statutory remedy against Commission’s action inadequate.</p> <p>The possibility that numerous proceedings may be instituted before the Interstate Commerce Commission under Transportation Act 1920, § 206f, does not make the statutory remedy by proceeding in court for the enforcement of the award, or to have the award set aside as inadequate, so as to authorize an injunction against such proceedings if the statute is unconstitutional, since a decision of that question- could be obtained by a resort to the statutory remedy in a test case almost as speedily as through the injunction proceedings.</p>

<p>Covenants 130(3)— Grantee cannot compromise with tenants by sufferance and recover amount paid thereunder from covenantor.</p> <p>Where property, occupied by tenants under a parol agreement for a term of nve years, which is made a tenancy by sufferance under Code, § 1116, and could be terminated upon 30 days’ notice under section 1221, was conveyed by a special warranty, the grantee could not, ignoring the legal procedure to oust the tenants, compromise with them to secure possession of the property, and recover on the special warranty the amount paid under the compromise agreement.</p>

<p>I. Public lands t&wkey;l09 — Successful applicant is indispensable party to suit to enjoin issuance of patent.</p> <p>Where the Land Office had decided a contest in favor of one of the applicants, to whom a patent would ordinarily issue, the successful applicant was an indispensable party to a suit to restrain the Secretary of the Interior and the Commissioner of the General Land Office from issuing the patent.</p> <p>2. Public lands <&wkey; 106(1)— Decision of Land Department within jurisdiction cannot be controlled by injunction, unless arbitrary.</p> <p>The decision of a land contest is within the jurisdiction of the Department of the Interior, and its decision may not be controlled by injunction, in the absence of a showing of capricious or arbitrary action.</p>

<p>uidlord and tenant &wkey;>278i/2, New, voi. IIA Kcy-No. Series — Possessory proceedings are maintainable, if no appeal is taken by tenant from dismissal by rent commission.</p> <p>Where the tenant's complaint to the rent commission had been _ dismissed by that commission, and no appeal from the order of dismissal was taken within 10 days after it was rendered, the determination o£ the rent commission became final under the Hall Act, and the landlord could institute possessory proceedings against the tenant in the municipal court.</p>

<p>Pleading <&wkey;> 155 — Affidavit of defense on information and belief must allege ability to prove facts at trial.</p> <p>Where the essential averment in an affidavit of defense is made on information and belief, it'is incumbent on defendant to allege his ability, to prove at the trial the facts on which he based his defense, or the affidavit is insufficient.</p>

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Action by Rufus A. Fletcher against Felix Bake and another. Judgment for plaintiff, and defendants appeal.</p>

Appeals from the District Court of the United States for the Eastern District of New York. Separate libels by the Pennsylvania Coal Company and by Cleary Bros, against the steam tug .T. II. Williams, of which the Cornell Steamboat Company was claimant, and against Walker D. Hines, ns Director General of Railroads. From decrees in favor of libelants, the Cornell Steamboat Company appeals.

<p>In Error to the District Court of the United States for the Eastern District of New York. Joseph Laski was convicted of violation of the National Prohibition Act, and brings error.</p>

<p>Appeal from the District Court of the United States for the District of Massachusetts; Clarence Piale, Judge. Petition by Charles Ponzi for writ of habeas corpus against Franklin G. Fessenden and others. Writ denied, and petitioner appeals.</p> <p>The following question of law was certified by the United States Circuit Court of Appeals for the First Circuit to the Supreme Court of the United States: The facts in this case are as follows: September 11, 1920, 22 indictments were returned against Charles Ponzi in the superior court for Suffolk county in the Commonwealth of Massachusetts, charging him with certain larcenies, with being an accessory before the fact to certain larcenies, and with conspiracy to commit larceny. October 1, 1920, two indictments charging violation of section 215 of the Penal Code (Comp. St. § 10385) were returned against said Ponzi in the District Court of the United States for the District of Massachusetts. November 30, 1920, he was arraigned and pleaded guilty to the first count of one of these indictments, and was sentenced by said court to imprisonment for five years in the House of Correction at Plymouth, in the county of Plymouth and the commonwealth of Massachusetts. April 21, 1921, the superior court for Suffolk county issued a writ of habeas corpus, directing the master of the House of Correction, who, as federal agent, had custody of Ponzi by virtue of the mittimus issued by the United States District Court, to bring said Ponzi forthwith before said court and from day to day thereafter for trial upon the 22 indictments pending before it, but to hold Ponzi at all times in his custody as an officer of the United States, subject to the sentence imposed by the United States District Court. Blake, the master of the House of Correction, made a return to said writ to the effect that he held Ponzi pursuant to process of the United States and prayed that the writ be dismissed. After service of this writ upon Blake, the Assistant Attorney General of the United States, by direction of the United States Attorney General, stated in open court that the United States had no objection to the issuance of the writ, to the compliance with the writ by Blake, or to the production of Ponzi for trial in the superior court, and that the Attorney General directed Blake to comply with the writ. Upon Blake’s refusal to produce Ponzi, the superior court adjudged him in contempt and committed him to the custody of a sheriff. Blake thereupon filed in the United States District Court a petition for a writ of habeas corpus, directed against the sheriff, which was dismissed April 27, 1921. From this order of dismissal no appeal was taken by Blake. Thereafter Blake produced Ponzi in the superior court pursuant to. the writ of habeas corpus issued by said court. May 23, 1921, Ponzi filed in the said District Court a petition for a writ of habeas corpus, directed against the justice of the superior court who issued the writ in the state proceedings, and against Blake, the master of the House of Correction, alleging in substance that he was within the exclusive jurisdiction of the United States, and that the state court had no jurisdiction on habeas corpus proceedings directed against said Blake, holding him as a federal agent, to try' him for said alleged crimes. If material, it further appears in the record that Ponzi, having been produced under said state process before the state court, was arraigned and stood mute, and, a plea of not guilty having been entered at tho direction of the court, thereupon requested to be admitted to bail, the offense for which he was indicted being bailable, and that said request was denied. Ponzi’s petition for writ of habeas corpus was denied by said District Court on May 21, 1921, and an appeal was taken to this court. We desire the instruction of the Supreme Court upon the following question: May a prisoner, with the consent of the Attorney General, while serving a sentence imposed hy a District Court of the United States, be lawfully taken on a writ of habeas corpus, directed to the master of the House of Correction, who, as federal agent, under a mittimus issued out of said District Court, has custody of such prisoner, into a state court, in the custody of said master and there put to trial upon indictments there pending against him? It is now, to wit, November 29, 1921, ordered that the foregoing statement of facts, and question of law arising thereon, be certified nnder the seal of this court and transmitted to the Supreme Court.</p>

<p>Appeal from the District Court of the United States for the District of Maryland, at Baltimore; John C. Bose, District Judge. Suit in admiralty by the American-Hawaiian Steamship Company against the United States Fidelity & Guaranty Company. Decree for libelant, and respondent appeals.</p>