Volume 281 — Federal Reporter

Warren Davis, Judge. Suit in equity by the De Uaski & Thropp Circular Woven Tire Company against the Empire Rubber & Tire Company for infringement of patent. From a decree-awarding plaintiff damages, but not profits, and refusing to treble the damages, both parties appeal.

Anderson, Judge. Suit in equity for infringement of patent by the I. T. S. Rubber Company against the Essex Rubber Company. Bill dismissed on motion (270 ‘Fed. 593), and plaintiff appeals.

<p>I. Carriers <©=>28—Greater rate for shorter haul without permission is illegal.</p> <p>Since the amendment of Interstate Commerce Act, § 4, by Act June 18, 1910 (Comp. St. § 8566), a carrier no longer has the right as it did prior thereto to determine in the first instance whether a dissimilarity in conditions justifies the charge of a greater rate for a shorter haul than for a longer haul over the same route, but any such charge is illegal, unless the Commission has previously made an order consenting to the higher rate to the intermediate point.</p> <p><S=>For. other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>2. Commerce <§=>89—Recovery of excess rate paid for shorter haul is permissible, without resort to Commission.</p> <p>The collection by a carrier of a rate in excess of the rate charged by it for a longer haul over the same route, without permission of the Commission first having been obtained, is the collection of an illegal rate, and the excess of such rate over the rate for the longer haul may be recovered by an action in the court without resorting first to proceedings before the Interstate Commerce Commission, since the question is clearly not administrative, and the remedy by action in court exists under Interstate Commerce Act, § 9 (Comp. St. § 8573).</p> <p>3. Carriers <©=>28—Long and short haul clause is no longer limited to single line.</p> <p>Since Interstate Commerce Act, § 4 (Comp. St. § 8566), which originally prohibited a greater rate under substantially similar circumstances for a shorter than for a longer haul over the same line, was amended by Act June 18, 1910, which added the words “or route” after the word “line,” the long and short haul clause is no longer limited to transportation over the line of a single carrier, but includes transportation under a joint rate by connecting carriers.</p> <p>4. Railroads <©=>51/2, New, vol. 6A Key-No. Series—Federa! Transportation Act did not vest in interstate Commerce Commission soie jurisdiction over claims against railroad administration.</p> <p>Transportation Act Feb. 28, 1920, § 206, giving jurisdiction of claims against the Railroad Administration for violations of the act to regulate commerce to the Interstate Commerce Commission but also providing that actions at law and suits in equity, which prior to federal control could have been brought against the carrier, might, after the termination of the control be brought against an agent designated for that purpose did not vest in the Commission sole jurisdiction over claims for a violation of the Interstate Commerce Act, but an action can be prosecuted by the shipper in the courts in cases where proceedings before the Commission are not a prerequisite to such action.</p> <p>5. Appeal anti error <©=>I70(I)—Interstate Commerce Commission’s order, not presented to court below, cannot be considered.</p> <p>On appeal from a judgment for shippers for the excess of rates collected by the carrier, a general order of the Interstate Commerce Commission increasing the rates, which was not presented to the court below, cannot be considered by the appellate court.</p> <p>6. Carriers <©=>28~Gen8ra! rate increase order did not authorize new violations of long and short haul clause.</p> <p>General Order No. 28 of the Interstate Commerce Commission authorizing a general increase in rates, and permitting carriers to violate the long and short haul danse in so far as necessary to permit the increase to go into effect, merely permitted such violation in cases where the greater charge for the shorter haul had been previously authorized, and did not legalize a continued violation by the carrier, which had previously violated Interstate Commerce Act, § 4, as amended (Comp. St. § 8568).</p> <p>7. Carriers <©=>28—Possibility of unloading at nearer point held not to authorize violation of long and short haul clause.</p> <p>Where goods transported under a joint water and rail rate were in fact unloaded from the vessel into the cars at a dock which made the total haul a greater distance than the haul by vessel alone, for which a greater rate was charged, the fact that the vessel could have been discharged at a dock nearer the point of destination, so that the haul would have been shorter, does not make the rate valid especially where the tariffs of the steamship company provided that cargoes would not be discharged other than at its regular landing place.</p> <p>@=>For other case;, see same topic & KEY-NUMBER in .all Key-Numbered Digests & Indexes</p> <p>8. Courts <g=>375—Limitation fixed by state statute, and not two-year limitation applicable to proceedings before Interstate Commerce Commission, held to apply to actions to recover excessive freight rate.</p> <p>Interstate Commerce Act, § 16, as amended in 1920, providing that all claims for the recovery of damages shall be filed within two years after the cause of action has accrued applies only to claims for damages filed before the Commission, and an action in .court to recover an excessive freight rate is governed by the period of limitation fixed by the state statute.</p> <p>9. Carriers <5=>36—Measure of damages in actions for excessive rates collected in violation of long and short clause of interstate Commerce Act stated.</p> <p>In actions by shippers to recover excessive freight rates collected in violation of the long and short haul clause of Interstate Commerce Act, § 4 (Comp. St. § 8566), it was proper to measure the damages by the difference between the rate collected for the shorter haul and the tariff rate for the longer haul.</p> <p>^s»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Appeal and error <§=>977(1)—Entry of judgment on verdict and denying new trial not reviewable on writ of error.</p> <p>Assignments of error that the court erred iu rendering judgment on the verdict and in denying plaintiff’s motion for a new trial are not subject to review on writ of error in the Circuit Court of Appeals.</p> <p>2. Trial <§=>295(1)—Whole charge on issue must be considered, to determine correctness.</p> <p>In order to determine the correctness of a charge the entire charge bearing on the issue in question must he considered.</p> <p>3. Carriers <§=>295(I), 316(1)—Negligence gist of action for injuries in failing through open trapdoor in train vestibule, and no recovery if carrier proves freedom from negligence; burden on carrier to prove freedom from negligence as to passenger falling through trapdoor in vestibule.</p> <p>Negligence of the carrier is the gist of an action for injuries from passenger falling through an open trapdoor in a vestibule in a train, and there can be no recovery if the carrier proves to the satisfaction of the jury that it was free from negligence; the burden of proof being on the carrier.</p> <p>4. Carriers <§=>284(2)—Not liable for injuries occasioned by act of stranger in opening trapdoor in vestibule.</p> <p>When the employees of a carrier exercised the highest degree of care by closing and securely fastening trapdoor in vestibule of train, and a stranger opened it so short a time before plaintiff fell through it that employees could not have discovered it by the exercise of reasonable care, the carrier cannot be said to have been negligent, and no rcovery may be had.</p> <p>5. Carriers <§=>321 (I I)—Refusal of instruction as to passenger’s assumption of risk of sudden and violent jerks held not error.</p> <p>In an action for injuries to passenger, who fell through trapdoor in vestibule of train, court properly refused,,,plaintiff’s request to instruct that a passenger who undertakes to go from one car to another while the train is in motion does not assume risk of sudden and violent jerks, that are not incident to the ordinary operation; the sudden jerk not being the proximate cause of the injury, though it contributed to it.</p> <p>6. Negligence <§=>62( I)— Proximate cause of injury must be natural consequence.</p> <p>In order to find that negligence is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence, and if a new force intervenes between the negligent act and the injury, sufficient of itself to cause the injury, the negligent act is too remote to warrant a recovery.</p> <p>7. Carriers <§=>332—Passenger, attempting to pass open trapdoor in vestibule, assumes risk.</p> <p>A passenger who went through vestibule in train and saw trapdoor open, assumed the risk of attempting to return through the vestibule while such trapdoor was open, and court- properly refused plaintiff’s request to instruct that “a passenger does not assume acts of negligence on the part of carrier’s servants.”</p> <p>ig^jFor other cases see same topic & KEY-NUMBER in ‘all Key-Numbered Digests & Indexes</p>

<p>1. Trade-marks and trade-names and unfair competition <§=>45i/2, New, vol, 7A Key-No. Series—Canceiiation of registration does not extinguish rights which the registration did not give.</p> <p>Cancellation of the registration of a trade-mark, at the instance of a competitor, as a geographical name, does not preclude the registrant from asserting the exclusive right to the use of the name to designate its product to which the name is applied.</p> <p>2. Trade-marks and trade-names and unfair competition <S=>7I — Long use may give exclusive right in geographical name.</p> <p>Where one has marked his goods with a geographical name for so long a time that they have become known in the market by that name, the use of that name to describe goods of- a subsequent maker will be restrained as unfair competition.</p> <p>3. Trade-marks and trade-names and unfair competition <§=>75—Unfair competition; actual intent to mislead not essential.</p> <p>To warrant relief against unfair competition, an actual intention to mislead tbe public.need not be proved; but- it is enough if such result is probable.</p> <p>4. Trade-marks and trade-names and unfair competition <®=>7!—Unfair competition to use trade-name of another.</p> <p>That one’s name is added to the trade-name of another is not a sufficient distinction to prevent a probable deception.</p> <p>5. Trade-marks and trade-names and unfair competition <@=>71—Complainant held entitled to protection in use of “Tabasco” as trade-name.</p> <p>Complainant and its predecessor for nearly SO years was the sole manufacturer of a pepper-sauce sold under the trade-name “Tabasco,” which became widely known to users as designating complainant’s product. Held-, that the use by defendant on the labels of a pepper-sauce made and sold by bim of tbe name “Tabasco,” in a manner calculated to lead purchasers to believe that it was complainant’s product, constituted unfair competition, against which complainant was entitled to an injunction.</p> <p>©=>For otter oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Eastern District of Oklahoma; Robert R. Williams, Judge.</p> <p>Suit by Mary Josephine Fish Unkle and another against Mary Wills, administratrix of Reander J. Fish, deceased, trustee for Joe P. Fish, and others. From a decree for defendants, plaintiffs appeal.</p>

Morton, Judge. Action at law by Walter Baker & Co., Limited, against John F. Malley, formerly Collector of Internal Revenue, to recover excise tax paid under protest. 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 Ohio; D. C. Westenhaver, Judge.</p> <p>Manuel Biskind and another were convicted of conspiracy to commit an offense against the United States, and defendant Biskind brings error.</p>

<p>In Error to the District Court of the United States for the District of Minnesota; Wilbur E. Booth, Judge.</p> <p>Action at law by the Elat Slab Patents Company against the Northwestern Glass Company to recover damages for infringement of patent. Judgment for defendant, and plaintiff brings error.</p>

J. Cochran, Judge. Suit in equity by Charles A. Wheatley and others against F. Huntington Clark and others. Decree for complainants, and defendants appeal. Wheatley was thé owner of oil leases covering three associated tracts of land in Eastern Kentucky, said to contain in the aggregate 187 acres. Upon one of the tracts three oil wells had been drilled.

Suit in equity by the Victor Talking Machine Company against the Starr Piano Company. Decree for defendant, and complainant appeals. Appeal by the plaintiff from a decree of the United States District Court for the Southern District of New York, dismissing the bill of complaint for lack of invention and for abandonment. The suit was to restrain alleged infringement or United States letters patent No. 896,059, granted August 11, 1908, to Eldridge R. Johnson.

Polk, 276 Fed. 128; George W. Anderson, Judge. Suit in equity by William A. Gaston and another, executors, against Malcolm E. Nichols, individually and as Collector of Internal Revenue. Decree for complainants, and defendant appeals.

Brown, Judge. Suit in equity by Frank L. Polk and others, as executors, against Frank A. Page, individually and as Collector of Internal Revenue,- to enjoin temporarily the collection of a tax assessed against an estate. From a decree granting the injunction as prayed (276 Fed. 128), defendant appeals.

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

Suit in equity for infringement of a copyright by the Jeweler’s Circular Publishing Company against the Keystone Publishing Company. Decree for plaintiff (274 Fed. 932), and defendant appeals.

<p>5. Bailment <@=»I4(I)—Repair contractor, not having made customary tests, must show test made was equally effective.</p> <p>Where the contractor, who made certain repairs on a vessel delivered to it, including the overhauling of the electric telegraph, failed to make the test of the telegraph after the repairs in the manner shown by the evidence to have been customary, it must show that the test it did make was equally effective, to enable it to avoid liability for an accident resulting from a wrong connection of the telegraph, especially where the repairs were made during the war, so that tampering with the apparatus might have been anticipated.</p> <p>2. Evidence <©==>!!— Court judicially knows attempts to injure ships in port were made during the war.</p> <p>The court takes judicial notice that constant attempts were being made throughout the war to injure American ships, not only on the high seas, but also in our own ports.</p> <p>3. Bailment <©=»I4(I)—Delivering ship to owner after repair with telegraph wires crossed is breach of contract to repair.</p> <p>Where a contractor to repair a steamship redelivered the vessel to the owners with the telegraph wires crossed, so that a signal to go ahead, sent from the bridge, indicated astern in the engine room, the contractor breached his contract to perform the work according to good steamship practice and with workmanship of the best quality, whether the crossing of the wires was due to the carelessness of the contractor’s workmen, or was the mischievous act of some third person while the vessel was in the contractor’s possession, and while the wires were nninclosed.</p> <p>4. Bailment <©=31 (I)—Repair contractor’s possession presumed coextensive sn time with work.</p> <p>Where a vessel was delivered to a contractor for repairs, it is presumed the contractor’s possession was coextensive in time with the work for whibh possession was surrendered to it, in the absence of any showing to the contrary.</p> <p>5. Bailment <©=>22—Of vessel for repairs held terminated only on removal from contractor’s dock.</p> <p>A bailment of the vessel to a contractor for repairs was terminated when the owner of the vessel attempted to remove it from the contractor’s dock, though the repairs were not then entirely completed.</p> <p><g=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>6. Bailment <§=>31 (I)—Bailee for repairs has burden of proving defect Immemediateiy after redelivery was not due to his fault.</p> <p>Where an accident occurred to a vessel immediately after its redelivery to the owner by a contractor, who had been repairing it, because the electric telegraph on which the contractor had been working the night before was wrongly adjusted, the burden is on the contractor to show it had done its work properly and without negligence.</p> <p>7. Admiralty <$m>6l— Repair contractor held to have had exclusive possession of ship, notwithstanding presence of its officers.</p> <p>Where the allegation of the libel that the vessel was delivered into respondent’s possession for repairs was expressly admitted by respondent’s pleading, the contractor cannot claim it did not have exclusive possession of the vessel during the progress of the work, merely because some of the officers of the ship remained on board while it was being repaired, so that the case does not fall within the admitted exception to the presumption of negligence where the bailee redelivers the goods in bad condition, recognized in cases where the bailee’s possession was not exclusive.</p> <p>8. Bailment <g=>14( I)—Bailee to perform labor owes duty to take ordinary care of property bailed.</p> <p>A bailee to whom property is delivered to have work performed thereon is a bailee for reward, who owes the duty to take ordinary care of the property bailed to him.</p> <p>9. Bailment <®=» 14(1)—Bailee for repair is required to use skill adequate to his undertaking.</p> <p>Where skill is required in performing the bailee’s undertaking to repair, as in the case of work to be done on the electrical apparatus of the vessel, the bailee is charged with engaging to use a degree of skill adequate to the performance of his undertaking.</p> <p>10. Bailment <§=>I4(I)—“Ordinary care” of bailee for repairs is that which prudent man would use in like circumstances.</p> <p>The “ordinary care” required of a bailee for hire is that which reasonably may be expected of one in the given circumstances, that degree of care and prudence which discreet persons skilled in the business in hand would be likely to exercise under the same circumstances.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Ordinary Care.]</p> <p>11. Bailment <®=»3I (I)—Libel held based on breach of contract to repair, requiring respondent to prove performance.</p> <p>Where the libel alleged a vessel was delivered into respondent’s possession under respondent’s agreement to execute certain work, including the overhauling of the engine room telegraph, according to good steamship practice and with workmanship of the best quality, and the answer alleged that respondent had completed its contract fully, the recovery was not sought on the ground of the respondent’s negligence, the burden of proving which would be on libelant, but on breach of contract, and, the libelant -having proved the contract and the return of the ship with the telegraph out of adjustment, the burden was on respondent to prove performance of its contract.</p> <p>12. Bailment <§=31 (3)—Evidence held not to show test of repairs was made in presence of ship’s officers.</p> <p>Evidence that officers of the ship being repaired were on the vessel at the time the contractor made a test of the engine room telegraph, but that such officers were not charged with the care of the telegraph and paid no attention to the test, except to ascertain the ease with which the handles would turn, belü, not to sustain the allegation of the answer that the test was made in the presence of the ship’s officers and to their satisfaction.</p> <p>®=s>For other eases see same topic & KEY-NUMBER in ail Key-Numbered Digests & Indexes</p> <p>13. Bailment <®=>I4(I)—Owner held not negligent in failing to test telegraph after redelivery of vessel.</p> <p>_ The owner of a vessel is not precluded from recovering damages occasioned by the improper adjustment of the engine room telegraph immediately after the vessel was redelivered to the owner, because the usual test of the telegraph was not made prior to starting the vessel, since such test, which consisted merely of signaling to stand by and the reply thereto, would not have disclosed that the wires were crossed, and since the owner could assume that the contractor had properly performed his work.</p> <p>©=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Separate libels in admiralty by the Tietjen & Dang Dry Dock Com-' pany against the steamship Sao Vicente, of which the Transportes' Marítimos do Estado was claimant-, and by Maxwell Rose, doing business as the Battery Operating Company and Whitehall Stevedoring Company against the steamship Murmugao and against the Transportes Marítimos do Estado. Decree for libelant in each case, and claimant or respondent appeals.

<p>Appeals from the District Court of the United States for the Southern District of New York.</p> <p>Separate libels in admiralty by Thomas De Simone against the steamshipMurmugao, of which the Transportes Marítimos do Estado was claimant, and against the Transportes Marítimos do Estado. Decrees for libelant, and. claimant appeals.</p>

<p>Appeal from the District Court of the United States for the District of New Jersey; Charles F. Dynch, Judge.</p> <p>In Jhe matter of Harry Michelson, bankrupt. On petition of Charles F. Dittmar, trustee, to revise an order of the District Court.</p>

<p>. In Error to the District Court of the United States for the Southern Division of the Eastern District of Tennessee; Edward T.' Sanford, Judge.</p> <p>L,. B. McWhorter was convicted of violating the Harrison Anti-Narcotic Act, and he brings error.</p>

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Ohio; D. C. Westenhaver, Judge.</p> <p>Criminal prosecution by the United States against Samuel Rembrandt. Judgment of conviction, and defendant brings error.</p>

<p>1. Criminal law @=»942(l)—Newly discovered impeaching evidence not ground for new trial.</p> <p>Newly discovered evidence, merely tending to impeach witnesses who testified on a collateral matter, and whose.testimony was not essential to conviction, held not ground for new trial.</p> <p>2. Criminal law 1156(3)—Refusal of new trial reviewable only for abuse of discretion.</p> <p>Motion for new trial for newly discovered evidence is addressed to the sound discretion of the trial judge, and his ruling cannot be reviewed, in the absence of a clear showing that such discretion was abused.</p> <p><®c^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Peck, Judge. Action at law by Woodson Townes against the Memphis Street Railway Company and T. H. Tutwiler and others, receivers. Judgment for plaintiff, and defendants bring error.

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

<p>Master and servant 101, 102(5)—Master’s duty inapplicable to simple tools.1</p> <p>The general rule that it is the duty of the master to supply the servant with safe tools and appliances does not apply to simple tools and appliances, such as a chisel, and no different rule obtains in Louisiana.</p> <p>!@=3-For other oases see same topic & ¿EY-NÜMBER In all Key-Numbered Digests & Indexes</p>

<p>1. Criminal law <§=695(3)— Joint objection to evidence admissible against one oeTendant unavailing.</p> <p>The overruling of a joint objection by all defendants to evidence clearly admissible against one is not error. 5</p> <p>2. Witnesses <§=287(3)—Explanation by witness of statement made on cross-examination held proper.</p> <p>Where a government witness stated on cross-examination in response to a question that he had called defendant by a name not his own, it was proper to permit him in redirect to explain how he came to do so.</p> <p>3. Witnesses <@=277(1)—Defendant as witness open to full cross-examination.</p> <p>Where a defendant offers himself as a witness, he is open to full cross-examination.</p> <p>4. Criminal law <@=829(l)—Not error to refuse request covered by charge given.</p> <p>The court need not charge a request where the subject-matter has been fully and correctly covered by the charge given.</p> <p>5. Criminal law <@=8S3(I)— Additional charge to jury as to their duty to reach a verdict held not erroneous.</p> <p>An additional charge to a jury, given during their deliberations, as to their duty in endeavoring to reach a verdict which admonished each juror that it was his duty not to agree to a verdict' which did not accord with his convictions, held within the discretion of the court.</p> <p>@s»For other cases see same topic & KEY->NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Northern District of Texas; James C. Wilson, Judge.</p> <p>Criminal prosecuti1on by the United States against Albert Rowan and others. Judgment of conviction, and defendants bring error.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in equity by the Central Railway Signal Company against the Unexcelled Manufacturing Company, Inc. Decree for defendant, and complainant appeals.</p>

<p>In Error to the District Court of the United States for the Southern District of California; Benjamin F. Bledsoe, Judge.</p> <p>• Louis Strada was convicted’ of maintaining a common nuisance, under the National Prohibition Act, and brings error.</p>

<p>In Error to the District Court of the United States for the District of Arizona; Jeremiah Neterer, Judge.</p> <p>David B. Driskill was convicted of having unlawful possession of' intoxicating liquor, and he brings error.</p>

<p>1. Action <@=>32— Common-law forms abolished.</p> <p>Common-law forms of action have been abolished in New York and one form of civil action substituted in their place, that is, a statement in plain language constituting plaintiff’s cause of action. Code Civ. Proc. N. Y. §§ 481, 3339.</p> <p>2. Action <@=>17—Cause of action depends on law of place, and remedies on law of forum.</p> <p>A plaintiff’s cause of action depends upon the law of the place, while his remedies depend upon the law of the forum.</p> <p>3. Licenses <@=>51— Mines and minerals <@=>48—Oil rights held incorporeal hereditaments.</p> <p>Oil rights involved in a suit to recover damages for taking oil out of part of a lot upon which plaintiffs claim the exclusive right to explore for oil are incorporeal hereditaments, profits & prendre, resting in grant and not in livery and incapable of possession.</p> <p>4. Mines and minerals <@=>73—Oil leases are exclusive licenses to enter on property of another.</p> <p>Oil leases are really exclusive licenses to the grantees and their assigns to explore for oil, and for that purpose to enter on the premises not adversely, but subject to and consistently with the title and possession of the owner.</p> <p>5. Judgment <@=>679—Action between competing licensees under oil leases wilt not affect claims of grantors.</p> <p>Claims inter se of competing licensees under oil leases depend on the titles of their grantors respectively to the land, but the determination of these titles is incidental, and no judgment in an action between the licensees will in any way affect the claims of the grantors to the land inter se.</p> <p>6. Mines and minerals <@=48—Oil and gas belong to no one until brought to the surface.</p> <p>Oil and gas are of a fugacious nature, and belong to no one until actually brought to the surface of the ground.</p> <p>7. Mines and minerals <§=»81—Lessee takes subject to instruments spread on records.</p> <p>Lessee in oil lease took subject to statements in instruments referred to in the lease which were in the line of its title as spread on the public records.</p> <p><@=>For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>8. Lost instruments <®=j8(3)—Evidence held to show delivery.</p> <p>In an action to recover damages for taking of oil from land, evidence held to show that a deed was executed and delivered to the one through' whom plaintiffs claimed.</p> <p>9. Lost instruments <&=*8(3)—Degree of proof to establish lost deed depends on circumstances.</p> <p>The degree of proof to establish a lost deed depends upon the circumstances.</p> <p>10. Evidence <©=»83(!)—Certificate of justice of peace held to create presumption that deed was executed and witnessed.</p> <p>A certificate of a justice of the peace of the state of Vera Cruz, Mexico, notifying the tax office that a. deed had been executed conveying certain land, in order that taxes might be collected on the transfer of ownership, created a presumption that the deed was executed before two known witnesses as required by Civ. Code of Vera Cruz, art. 2761; the deed having' been lost or stolen.</p> <p>fl. Lost instruments <§=>8(3)— Grantees not deprived of rights because unable to name witnesses to lost deed.</p> <p>Parties claiming under a deed, consideration for the land conveyed by it not exceeding 200 pesos, could not be deprived of their rights under the deed because unable to state the names of the witnesses, where the deed was lost or stolen, under Civ. Code of Vera Cruz, art. 2761.</p> <p>12. Vendor and purchaser <®=»233—Record unnecessary in Mexico of deeds of property where consideration less than 200 pesos.</p> <p>Civ. Code of Vera Cruz, arts. 3057, 3081, requiring transfers of immovable property to be recorded, did not apply between 1897 and 1920 to transfers of land where the consideration was less than 200 pesos, and an unrecorded deed for land where consideration was less than such amount was good as against all the world, though not recorded, in view of articles 3056, 3058.</p> <p>13. Adverse possession <§=»105—Adverse holder not affected by knowledge of superior title.</p> <p>Generally speaking, an adverse holder of land under a sthtute of limitation is not affected by knowledge or notice of a superior title.</p> <p>14. Vendor and purchaser <§=»228(3)— Unrecorded Mexican deed good against party with knowledge.</p> <p>An unrecorded deed to land in the state of Vera Cruz, Mexico, was good as against third parties with knowledge of its execution and delivery, under Civ. Code of Vera Cruz, arts. 8057, 3081.</p> <p>!5. Mines and minerals <§=»81— Evidence held to show lessee in oil lease had knowledge of deed of land to person under whom plaintiff claimed.</p> <p>Evidence held to show that defendant lessee under oil lease in the state of Vera Cruz, Mexico, had knowledge and notice, before the taking of the lease, of plaintiff’s claim to the land and of the fraud of lessor who had previously executed a deed of the land to one under whom plaintiff claimed.</p> <p>16. Mines and minerals @=5>8i— Lessee held not entitled to oil as a possessor in good faith.</p> <p>In an action to recover damages for taking of oil from land owned by plaintiffs, defendant lessee held not entitled to the oil as a possessor in good faith under Civ. Code of Vera Cruz, arts. 809, 817, 818, 819, 821, 843.</p> <p>17. Parties <®=»88(4)—Misjoinder waived by failure to demur.</p> <p>An objection on the ground of misjoinder of parties appearing on the face of the complaint was waived where not taken by demurrer, under Code Civ. Proc. N. Y. § 499.</p> <p><5=»For other cases see same topic & KEY-NUMBER in all Key-Numbered-Digests & Indexes</p> <p>18. Parties <@=>16—Plaintiff held to have interest in subject of action.</p> <p>An oil company, licensee under a lease, was a proper party together with its assignee in an action to recover damages for the taking of oil out of land, where, under the assignment, a royalty was reserved, having an interest in the subject of the action under Code Civ. Proc. N. Y. § 4-16.</p> <p>19. Appeal and error <@=>1036(2)—Misjoinder of parties not prejudicial.</p> <p>In an action to recover oil taken out of land by defendant, defendant was not prejudiced by misjoinder of parties plaintiff in that one of them had assigned his rights to the other.</p> <p>20. Tenancy in common <@=>35—No conveyance of share without notice to co-owners.</p> <p>Under the law of the state of Vera Cruz, Mexico (Civ. Code, art. 2683), a tenant in common cannot convey his share of the undivided property without giving his co-owners notice so that they can make use of their preferential right to purchase.</p> <p>21. Partition <@=>4—Land held divided as between co-owners.</p> <p>Land held by tenants in common in the state of Vera Cruz, Mexico, was divided as between them by the cutting of brechas through the timber and setting apart, especially where ratified by a notarial division under Civ. Code of Vera Cruz, art. 1526.</p> <p>22. Deeds <@=>177—Nothing said or done by grantor after conveyance can affect title.</p> <p>Nothing that grantors do or say after conveyance to the prejudice of grantee’s title can affect it in any way.</p> <p>23. Husband and wife <@=>267(1)—Husband before civil marriage held to have right to convey without wife joining.</p> <p>One who bought land in the state of Vera Cruz, Mexico, after his ecclesiastical marriage, but before a civil marriage, had a right to convey it without his wife joining in the deed, under Civ. Code of Vera Cruz, arts. 1876, 1S78, and title 4, art. 43, relating to community property and civil status of persons.</p> <p>24. Mines and Minerals <@=>81—Action by one lessee to recover from another value of oil illegally taken from land, and not ejectment, held proper remedy.</p> <p>An action by one lessee under an oil lease against a lessee under an oil lease executed by a different grantor could be maintained for damages for the value of oil taken out by the defendant, instead of one in ejectment with a claim for mesne profits, as defendant was not in possession under any claim of title to the land, having only a possessiopedis not adverse to, but in strict acknowledgment of, the owner’s title; the mere raising of the oil to the surface not constituting a claim of ownership of the land.</p> <p>25. Mines and minerals <@=>81—Right to explore tantamount to possession of oil.</p> <p>The right to explore for oil is tantamount to possession after it is brought to the surface, as affecting form of action to be brought against one taking the oil or interfering with plaintiff’s rights.</p> <p>26. Action <@=>32—Technicalities of common-law forms disregarded under Code.</p> <p>The intention of Code Civ. Uroc. N. Y. § 3339, providing for only one form for civil action, is that any one who has a right can recover for any infraction of his right without regard to the technicalities which distinguish the forms of actions at common law.</p> <p>27. Courts <3=>7—Action maintainable in New York for injuries to real estate out of state'.</p> <p>An action may be maintained in the courts of the state of New York to-recover damages for injuries to real estate situate without the state, and an action could be maintained in the courts of the state by one lessee under an oil lease covering land in Mexico against a lessee from a different grantor to recover damages for interference with plaintiff's incorporeal hereditament or profits á prendre, the action involving the land only incidentally, under Code Civ. Proc. N. X. § 982-a.</p> <p><@=For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes'</p> <p>28. Mines and minerals <@=>81—Measure of damages for oil taken from land stated.</p> <p>Amount recoverable from one who has taken oil from land which plaintiff had the exclusive right to take is the value of the oil when raised to the surface, and not the increased value in the defendant’s hands, when plaintiff is entitled to compensation only.</p> <p><@=s>For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Mechanics’ liens <®=48—As between lien claimants, right exists only for material delivered on premises.</p> <p>Under Rem. & Bal. Code Wash. § 1129, giving the right to a lien to “every person performing labor upon or furnishing material to be used in the construction * * * of any * * * building,” as between lien claimants there is no right to a lien on the part of any claimant for any material or fixture not delivered on the premises where the building was in course of construction, nor for any labor performed on any such material or fixture.</p> <p>2. Mechanics’ liens <§=»208—Waivers of lien obtained by false representations held not binding.</p> <p>Waivers of lien in contracts by subcontractors for furnishing labor or material for the construction of a building, induced by false representations that all other contracts contained similar waivers, and that funds had been secured to pay for all the work and materials, held not binding.</p> <p>3. Mechanics’ liens <§=199—1-!eld superior to lien of vendor for purchase money.</p> <p>A bank, which organized and controlled a building company for the purpose of constructing a building for the bank on its property, which it conveyed teethe building company by warranty deed, held not entitled to assert a lien for purchase money as against mechanic’s lien claimants under contracts with the building company for construction of the building.</p> <p>4. Mechanics’ liens <§=48—Delivery on premises essential to lien for materials.</p> <p>The facts that a contract for furnishing mill work for a building provided that it should be taken as fast as completed, that a large part of it after completion and acceptance was kept by the contractor in storage at the request of the owner, because the building was not ready for it, and that payments were made thereon, held not to take the case out of the rule that under the statute, as against other lien claimants, the contractor was entitled to a lien only for material delivered on the premises.</p> <p>jfeoFor other cases see same topic & KEY-NUMBER in'all Key-Numbered Digests & Indexes</p>

In Equity. Petition by the Garnsey Coal Company to condemn rights of way through a seam of coal in the land of John H. Mudd. On motion to dismiss proceedings.

<p>1. Courts <©=>347—Separate and distinct causes of action may be Joined.</p> <p>Under equity rule 26 (201 Fed. v, 11S C. C. A.'v), a plaintiff may Join in one bill as many causes of action cognizable in equity as be may at the time wish to assert against the defendant, and those causes may be wholly independent, separate, and distinct, having no connection or relation whatever with each other.</p> <p>2. Courts <©=>347—Statement certificates of registration of trade-mark were fraudulently obtained is a conclusion.</p> <p>An allegation in a bill that the certificates of registration of a trademark issued to defendant were fraudulently, improperly, and illegally obtained is nothing more than the statement of a conclusion of law, and is not a statement of the ultimate facts required to be stated by equity rule 25 (198 Fed. xxv, 115 C. C. A. xxv).</p> <p>3. Trade-marks and trade-names and unfair competition <©=>44—Bill in equity does not lie to review registration.</p> <p>Rev. St. § 4915 (Comp. St. § 9460), providing that when an application, which is construed to- include application for trade-mark registration, is .refused either by the Commissioner of Patents or by the courts of the District of Columbia, the applicant may have his remedy by bill in 'equity to compel the -issuance of the trade-mark, does not authorize a bill in equity to review the issuance of a trade-mark to another, which can be reviewed by appeal to the courts of the District of Columbia, under Act Feb. 20,1905, § 10 (Comp. St. § 9494), taken by any one opposing the registration.</p> <p>4. Trade-marks and trade-names and unfair competition <©=>44—Whether allegations in bill, attacking defendant’s trade-mark are proper, reserved until hearing.</p> <p>Whether, in a bill to compel the issuance of a certificate of registration of a trade-mark, brought under Rev. St. g 4915 (Comp. St. § 9460), alle•gations attacking the issuance of certificate of registration for defendant's trade-mark are proper, can best be determined upon the final hearing, when the relation between the two trade-marks will be fully disclosed, so that such allegations will not be stricken on motion, as might be done under equity rule 21 (198 Fed. xxiv, 115 C. Q. A. xxiv), but permission will be granted to raise the question by answer, as authorized by rule 29 (198 Fed. xxvi, 115 C. C. A. xxvi).</p> <p>©=>For other oases see same topic & KEY-NUMBER In all Key-Numbered Digests & Indexes</p>

<p>Estoppel <s^>38—Subsequently acquired title of grantor held to inure to grantee as to timber.</p> <p>Where a grantor conveyed by warranty deed timber lands, which he held under contract, not having yet received title, the fact that he reserved certain timber, and also included in the deed timber on other lands, held not to evidence an intention to treat all the timber as personalty, and the title to the lands subsequently acquired by Min held to inure to his grantee, both as to" the lands conveyed and the timber thereon not reserved.</p> <p><©x»For other cases see same topic & KEY-NTJMBEK in ’all Key-Numbered Digests & Indexes</p>

<p>I. Bankruptcy <©=»140(1)—-Trustee held not to acquire title to property sold to bankrupt, but not delivered nor paid for.</p> <p>A trustee held not to have acquired title to tractors sold to bankrupt, accepted drafts, which were not paid, being taken for the purchase price, where the tractors were not delivered, but placed in charge of another as warehouseman, subject to seller’s order, and never, with its consent, came into possession of bankrupt.</p> <p><£s»For other cases see same topic & KEY-NUMBER in 'all Key-Numbered Digests & Indexes</p> <p>2. Sales <g^465—Delivery essential to passage of title.</p> <p>Under Civ. Code Ga. 1910, § 3318, a written retention of title by a seller, duly recorded, is necessary to prevent its passage as to third parties only where the property sold is delivered.</p> <p>@=»For other cases see same topic & KEY-NUMBER in ’all Key-Numbered Digests & Indexes</p>

<p>At Daw. Action by Edward T. Bannon against John F. Hennessey. On demurrer to declaration.</p>

<p>Seamen <§=>29 (5)— Seaman’s action for injuries must be brought in district in which defendant employer resides or has its principal office.</p> <p>A seaman’s action for personal injuries under Act June 5, 1920, must be brought in the district in which the defendant employer resides, or in which its principal office is located, under section 33, where the employer appears specially and files plea in abatement in action brought in another district.</p> <p><®=For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by the Locomotive Stoker Company against the Elvin Mechanical Stoker Company.</p>

<p>In Equity. Suit by the American Telephone & Telegraph Company against the Radio Audion Company and the De Forest Radio Telephone & Telegraph Company. On motion to dismiss bill and motion by complainant for preliminary injunction.</p>

<p>1. Criminal law <®=»395—Evidence obtained under lawful warrant may be used in prosecution for crime not alleged in affidavit.</p> <p>If intoxicating liquor is subject on importation to the customs laws, and was seized under a lawful search warrant issued under Kev. St. §§ 3061-30S2 (Comp. St. §§ 5763-57G5, 5767-5785), inclusive, which are applicable to goods subject to duty, the evidence so obtained may be used in the prosecution for a crime other than that described in the affidavit for the search warrant.</p> <p>2. Customs duties <&=>31, 65, 126—Prohibition Act did not repeal tariff on intoxicating liquors, nor provisions of declaration thereof; search warrant may issue to search.tor liquor.</p> <p>Since the prohibition of importation of intoxicating liquor under National Prohibition Act, title 2, § 3, does not apply to all intoxicating liquor, the Prohibition Act does not repeal the Tariff Act of October 3, 1913, levying customs duties on the importation of distilled spirits and wines, nor the provisions of law for the declaration and entry of intoxicating liquor, so that a search warrant issued under Kev. St. §§ 3061-30S2 (Comp. St. §§ .5763-5765, 5767-57S5), to search for liquor imported without payment of duties, is legal.</p> <p>itemFor other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Emanuel Bookbinder was convicted of unlawful possession of intoxicating liquor, and of knowingly receiving and concealing intoxicating liquor imported contrary to law. On motion in arrest of judgment and for a new trial.

<p>Collision <@=>95(2)—Tows meeting; failure of tug to conform to own signal.</p> <p>Collision between a barge in tow on the starboard side of a tug bound down East River at night and the tow of a meeting tug, within from 100 to 400 feet of the New York piers, held due solely to the fault of the ' down-bound tug, which signaled for passage starboard to starboard, but failed to go far enough to port, though there was ample room while the other tug was not far off the pier ends.</p> <p>jg=»For other cases see same topic & KEY-NUMBER in 'all Key-Numbered Digests & Indexes</p>

Suit in admiralty for collision by Frank B. Tuttle and Winthrop M. Tuttle, doing business as S. Tuttle’s Son & Co., against the Lehigh Valley Railroad Company and the Cornell Steamboat Company. Decree for complainants against the Cornell Steamboat Company (281 Fed. 212), from which it appeals.

<p>1. Corporations <§=225—Corporation, using its stock ownership in another to control it, liable for latter’s breach of contract.</p> <p>Mere stock ownership does not make the stockholder responsible for the obligations of a corporation; but, where stock ownership is resorted to for the purpose of so controlling a subsidiary company that it becomes a mere agent of the owning company, the latter company may not escape liability for breach of a contract by the subsidiary.</p> <p>2. Parties <§= 16—Persons jointly damaged by tort may join as plaintiffs.</p> <p>Where breach of a contract causes damage to two persons having a joint interest therein, they may join as plaintiffs in an action against a third person, who wrongfully caused the breach.</p> <p>i§=For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests' & Indexes</p>

<p>Sales <®=>4I5— In action for breach, plaintiff must prove readiness and ability to perform on his part; “immediately;" “reasonable time.”</p> <p>Where a contract required plaintiff to open a confirmed bank credit in favor of defendant “immediately” on receipt of notice from its agent confirming sale, in an action for breach plainthr has the burden of alleging and proving, either that it opened such credit with as much promptness and dispatch as the circumstances permitted, or, if prevented, that it was ready and Mle to do so; “immediately” meaning, not instantly, but witbin a reasonable time, and a “reasonable time” meaning without delay and with as much celerity, promptitude, and dispatch as the circumstances of the case permit.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Immediately; Reasonable Time.]</p> <p>@=5>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Index©*</p>

<p>Bankruptcy c§=»399 (2)—Waiver of exemptions not available to levying creditor.</p> <p>Statutory exemptions are for the benefit of the debtor, and may be waived by him, and, on withdrawal by a bankrupt of the claim to exemptions made in his schedules, the property will not be set apart in favor of a levying creditor who holds a waiver of exemptions.</p> <p><@=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Bankruptcy. In the matter of Enos Gary and others, bankrupts. On petition of M. Halff & Bro., a corporation, to review an order of the referee disallowing the claim of petitioner as a secured claim.

In Equity. Suit by the Brookings State Bank, an Oregon banking corporation, against the Federal Reserve Bank of San Francisco. The Brookings State Bank, the plaintiff herein, is an Oregon corporation, with a_ capital stock of $15,000, and is engaged in the banking business at Brookings, a small town in the extreme southwestern part of the state, in Curry county. The town is without express facilities. The bank has correspondents at San Francisco, Cal., and Portland, Or.

Yuck Kee was indicted for an offense, and he moves to quash the indictment, and for an order directing the return to him of property alleged to have been unlawfully seized and taken from him.

<p>In Admiralty. Libel by the Trafikatiedolaget Grangesberg Oxelosand, a corporation under tlie laws of the kingdom of Sweden, against the Ainesworth Coal & Iron Company.</p>

<p>In Equity. Suit by Edna Long against C. A. Rasmussen, Collector of Internal Revenue for the District of Montana, and another.</p>

In Admiralty. Separate libels by the United States, as owner of the steamship Lake Fairlie and five other steamships, against the Sugar-land Industries to recover demurrage.

Libel of information filed by the United States to forfeit thirty-six cases and two hundred and sixty-seven bottles of intoxicating liquor.

<p>Libel of information filed by the United States to seize two hundred and fifty-four bottles of intoxicating liquor.</p>

<p>Criminal prosecution by the United States against Thomas Cleveland. On demurrers to indictment.</p>

<p>1. Patents <§=>328—1,167,499, claim I, for improvement In primary batteries, held not anticipated and infringed.</p> <p>The Holland patent, No. 1,167,499, claim 1, for an improvement in primary batteries, the novel feature of which was a ribbed zinc plate constructed so as to retain its shape, while a greater proportion of the metal was consumed than in ordinary batteries, held not anticipated by prior patents, nor by defendant’s prior plates, so as to disclose invention, and not to show estoppel by reason of failure to complain of the manufacture of defendant’s prior plate, and also held infringed by defendant’s later plate, applying the ribbed construction to a cylindrical form.</p> <p>2. Patents <§=>118—Disclosure need make invention clear only to one skilled in the art.</p> <p>The specification of a patent is directed to those skilled in the art, and the disclosure is suificient if it makes the invention clear to one so skilled, although to a layman the specification may need explanation.</p> <p>3. Patents <§=>328—1,061,541, claims I and 5, for improvements in primary batteries, held valid, but not infringed.</p> <p>The Hudson and Elmes patent, No. 1,081,541, claims 1 and 5, for improvement in primary batteries, the distinguishing feature of which was a depression in the zinc plate, which would become a hole in the plate as the latter was eaten away, so as to give warning of the necessity for procuring a new plate, held not anticipated, but not infringed by defendant’s plate, where perforations appeared at the bottom of the plate where it was thinnest, after which the body of the plate was eaten away upwardly.</p> <p><J=>For other cases see same topic & KEY-NUMBER in ail Key-Numbered Digests & Indexes</p>

<p>1. Admiralty <§=350—Courts <§=»332— Rules do not authorize court to enforce nonmantime contract, or the bringing.in of parties whose rights rest on non-maritime contracts.</p> <p>Rev. St. § 917 (Comp. St. § 1543), authorizing the Supreme Court to prescribe rules of practice in the District Courts in equity and admiralty, does not confer power to enlarge the jurisdiction of such courts, and new admiralty rule 56 (267 Fed. xxi), permitting a claimant or respondent to bring in any other parties, who may be partly or wholly liable, either to libelant or to such claimant or respondent, does not authorize the bringing in of a party whose liability, if any, rests on a nonmaritime contract.</p> <p>2. Shipping <§=3121 (I), 128—Liability of ship for damage to cargo of hides.</p> <p>A steamship held not liable for damage to a cargo of pickled hides, except as to a small number stored in one corner of a hold, which were apparently damaged by sea water; the damage to others, distributed throughout the cargo, being due to causes existing when they were loaded.</p> <p>-3. Shipping <§=3132(5)—Repairs of ship held not to warrant inference of previous unseaworthiness.</p> <p>The fact that extensive repairs were made to a vessel after a voyage held not to warrant an inference that damage to cargo on such voyage was due to unseaworthiness, where the repairs were not made to correct defects which could have caused the damage.</p> <p><£saFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Equity. Suit by the Luhrig Collieries Company and others against the Interstate Coal & Dock Company. On motions to dismiss ancillary bill by Elias McLellan Poston and John B. Johnston, receivers of the Interstate Coal & Dock Company, against Frankel Bros, and others. This ease comes up on motions to dismiss in whole or part a bill of complaint in equity for various reasons and in various respects, as appears below.

<p>In Admiralty. Suit by the Jewell Tea Company against the barge Jay Street Terminal No. 3, and others, with John Barton Payne, Director General of Railroads, impleaded.</p>

Suit in admiralty by the Jewell Tea Company against the barge Jay Street Terminal No. 3, and others, with John Barton Payne, Director General of Railroads, impleaded. Decree for respondents (281 Fed. 275), and libelant appeals.

<p>1. Collision (@=s 125—Testimony of crew as to signals of more weight than that of witnesses on other vessel.</p> <p>The crew of a vessel are in much better position to know what is actually done on board her than witnesses on another vessel, and their testimony as to her maneuvers and signals preceding a collision will usually be accepted, unless the court discredits it as untruthful.</p> <p>2. Collision <@=»82(I)—Naval vessel held in fault for collision with schooner in fog. '</p> <p>A collision at sea at night in a fog between a naval monitor and a meeting schooner held due solely to the fault of the monitor in failing to stop on hearing the fog signals of the schooner ahead, as required by International Rules, art. 16 (Comp. St. § 7854); there being no good reason why she should not have done so.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Bankruptcy. In the matter of the estate of Frank J. R. Shiffert, voluntary bankrupt. On certificate for review of referee’s order on petition of the B. L. P. Motor Company, Inc.

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Action by the W. F. Roberts Company against William E. McReynolds and another.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Louisiana; Rufus E. Foster, Judge.</p> <p>Suit by Thomas W. Miller, Alien Property Custodian, against the Columbia Brewing Company. Decree for complainant, and defendant appeals.</p>

<p>1. Intoxicating liquors <§=>13—Under Eighteenth Amendment Congress has power to make possession unlawful.</p> <p>Under Const. Amend. 18, prohibiting the manufacture, sale, and transportation, but not the possession, of intoxicating liquor, section 2 of which gives Congress power to enforce the amendment by appropriate legislation, the provision of the National Prohibition Act making the possession of intoxicating liquor unlawful was reasonably proper to enforce the prohibition against the manufacture and sale of such liquor, so as to be within the power of Congress, even though the statute may embrace some instances in which possession is not the result of unlawful manufacture, sale, or transportation.</p> <p>2. Constitutional law <§=>70(3)— Appropriateness of legislation enforcing Eighteenth Amendment is question for Congress.</p> <p>The appropriateness of the legislation to be enacted to enforce the Eighteenth Amendment is for Congress to select, and such legislation cannot be held invalid, unless it has no substantial relation to the enforcement of the amendment.</p> <p>3. Intoxicating liquors <§=>222—Indictment need not negative conditions making possession lawful.</p> <p>An indictment for violating National Prohibition Act, tit. 2, § 8, making it unlawful for any person to possess intoxicating liquor, except as authorized by the act, need not negative the purposes for which accused might have possessed the liquor, in view of section 32 of title 2 of that act, which provides it shall not be necessary to include any defensive negative averments, but it shall be sufficient to state that the act complained of was prohibited and unlawful.</p> <p>4. Intoxicating liquors <§=>216—Indictment charging possession of intoxicating liquors is sufficient, without specifying kind of liquor.</p> <p>An indictment for the unlawful possession of intoxicating liquor contrary to the National Prohibition Act need not specify the particular kind of liquor possessed by accused; but a description of it as intoxicating liquor is sufficient in view of title 2, § 1, of the act, defining the term “intoxicating liquor.”</p> <p><S=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>5. Indictment and information 132 (7)—Possession and transportation of liquor are different offenses, and election between counts is unnecessary.</p> <p>Under the National Prohibition Act, the offense of unlawful possession of intoxicating liquor is a distinct offense from that of transportation of such liquor, so that the district attorney cannot be compelled to elect as to whether he will rely for conviction on a count of the indictment charging transportation or on that charging unlawful possession.</p> <p>6. Criminal law <®=»I202(3)—Information charging previous conviction can be read to the jury.</p> <p>Under National Prohibition Act, tit. 2, § 29, providing more severe punishments for subsequent offenses than for a first offense, and requiring a previous conviction to be pleaded in the indictment, it was not error to permit the district attorney to read tó the jury an indictment containing the allegation that the accused had been previously convicted of a similar offense.</p> <p>i@r»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Southern District of Ohio; John W. Peck, Judge.</p> <p>Criminal prosecutions by the United States against Benjamin N. Ford and against the Matthew Addy Company. Judgments of conviction, and defendants bring error.</p>

<p>Sales <®=s339—On refusal of purchaser to accept delivery made seller may retake and sell property for purchaser’s account.</p> <p>Under a contract for sale of sugar, delivery to be made to carrier, Where plaintiff made due delivery and the sugar was transported to the proper terminal warehouse in defendant’s city, where it was held subject to defendant’s order, but he refused to accept it, plaintiff held to have the right at its election to retake and sell the sngar, on dne notice to defendant, at any time thereafter, and after crediting defendant with the proceeds to recover from him the remainder of the contract price.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Bankruptcy <@=345—Living members of bankrupt benefit association held not entitled to share in funds as against death claims.</p> <p>On the bankruptcy of a beneut association, which collected assessments solely for the payment of benefits to the beneficiaries of deceased members, tbe living members held to have no claim to any of its funds as against the claims of such beneficiaries, who occupy the position of creditors.</p> <p>2. Bankruptcy <@=345—Members of benefit association held not entitled to recover assessments paid, as against creditors.</p> <p>Members of a benefit association, who, after application for a receiver for the association, continued to pay their assessments, held not entitled, as against creditors, to recover such payments after the association had been adjudged bankrupt.</p>

<p>Trial <§=>165—Matter drawn out by defendant on cross-examination cannot be basis of compulsory nonsuit.</p> <p>Under the law of Pennsylvania, when defendant introduces a matter of defense on cross-examination of plaintiff’s witnesses, and succeeds in having the matter admitted in evidence, such matter cannot be the basis of a compulsory nonsuit, but the case should be submitted to the jury, which should consider the evidence so drawn out and admitted as though the witness had been called and examined in chief by defendant.</p> <p><§=>For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Eastern District of Pennsylvania; J. Whitaker Thompson, Judge.</p> <p>Suit in admiralty by the Turney Transportation Company against the National Dredging and Lighterage Company. Decree for libelant, and respondent appeals.</p>

<p>I. Partnership <5=>73—Held to have assumed pre-exisiisjg debts of a partner; “equity,”</p> <p>Where a partnership agreement provided for the purchase by one partner of a half interest in the business previously conducted by his co-partner, and for an inventory, and required the purchasing partner to pay “the amount of equity” the selling partner “has in said merchandise,” and goods previously ordered were received and mingled with the merchandise in stock when the inventory was taken, and some pre-existing debts were paid by the firm check and some by the selling partner, who was thereafter as to some of payments reimbursed by the firm, held, that the pre-existing debts were assumed by the partnership, since under the agreement the purchasing partner did not pay anything for so much of the goods as were equal in value to the debts; the word “equity” meaning the value of the property beyond the debts.</p> <p>igsoFor other cases see samo topic & KEY-NUMBER in -all Key-Numbered Digest! & Indexes</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Equity.]</p> <p>2, Partnership <®=>73—Incoming partners’ agreement to assume debts of former owner of business may be established by indirect evidence, or be inferred from facts and circumstances.</p> <p>An agreement by incoming partners to assume the debts of the former owner or owners of a business may be established by indirect, as well as by direct evidence, and may, in the absence of an express agreement, be inferred from facts and circumstances which justly raise an implication of its existence.</p> <p>@—>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Bankruptcy. In the matter of the petition of Henry K. Gustin and others to have Israel J. London, doing business as the London Land Company, adjudicated a bankrupt. On motion by petitioning creditors to strike from the record certain pleadings filed by other, creditors in opposition to the involuntary petition.</p>

In Equity. Suit by the Atlantic Coast Line Railway Company against the Railroad Commission of Georgia restrain enforcement of an order for refund of a portion of the r_*ce collected by the carrier.

<p>Habeas Corpus, on relation of Arthur A. Helmecke, against Col. Sedgwick Rice, Post Commander, Ft. Brown, Tex.</p>

<p>1. Salvage <@=?36—Contract for payment not binding under all circumstances.</p> <p>While a contract for salvage services is presumptively valid, it will not be enforced, where the compensation demanded was clearly exorbitant, in view of the anticipated service and risk, and was agreed to only under circumstances amounting to compulsion.</p> <p>2. Salvage @=>38—Contract for services -held not enforceable, though one for salvage; compensation for towage fixed.</p> <p>An oil-laden barge, without motive power, was anchored in the Gulf of Mexico, while her tug went for coal, and remained for three days when she was out of fresh water and fuel for her pumps. Libelant’s tug, on the way to Tampico with a tow, offered to take the barge in for $20,000. Tbe master of the barge after trying without success to reach his owners by wireless, in view of his situation, the danger of storms at that season, and the threat of the tug to leave him, finally signed a contract for $15,000, though protesting that it was unreasonable. The tug towed the barge to Tampico, without risk, and with a delay to its own voyage of not more than eight or ten hours. Reid that, while the service was one" of salvage, the contract was inequitable, and would not be enforced, and the tug given an award of $3,000.</p> <p>3. Salvage <@=>26—Service rendered under unconscionable contract not liberally. rewarded.</p> <p>Where a salvage service is rendered, not in a spirit of humanity or helpfulness, in reliance on a fair and reasonable reward, hut in the faith of an unconscionable contract, such fact will be taken into consideration, and warrants a departure from the general rule of liberality.</p> <p>4. Shipping @=>50—Owner held not liable to charterer for damage caused by defective coal.</p> <p>Under a charter party for a tug for towage services, providing that the master should be under the orders and direction of the charterer, the owner cannot be held liable for damage sustained by a tow, because the master, by direction of the charterer, left port without a supply of proper coal.</p> <p><gz=>For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes-</p>

In Equity. Suit by the Columbia Investment Company against the Long Branch and Lakeside Special Road and Bridge District and others. On motion for preliminary' injunction under Judicial Code, § 266 (Comp. St. § 1243).

<p>1. Removal of causes <g=»34—Suit by assignee of bill of lading is not removable, unless original parties were of diverse citizenship; “chose in action.”</p> <p>A bill of lading is a “cbose in action,” within Judicial Code, § 24, subd. 1 (Comp. St. § 991), providing that the District Court shall not have cognizance of any suit to recover upon any promissory note or any chose in action in favor of an assignee, unless such suit might have been prosecuted in such court if no assignment had been made, so that a suit by an assignee of the bill of lading cannot be removed from the state court on the ground of diversity of citizenship, unless the original parties to the bill of lading were citizens of different states.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Chose in Action.]</p> <p>2. Removal of causes <@=s>86(2)— All jurisdictional facts must be alleged to sustain removal.</p> <p>Since the original Judiciary Act was amended, so as to confine suits which might be removed to those of which courts of the United States had original jurisdiction, all jurisdictional facts must be alleged to sustain a petition for removal, and a cause must be remanded, where the action was brought by the assignee of a bill of lading, and the petition, seeking removal solely on the ground of diversity of citizenship, does not show such diversity between the defendant and the original party to the bill of lading.</p> <p>4§c»!For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>At Law. Action by the United States against the Duluth, South Shore & Atlantic Railway Company. On motion to direct verdict in favor of plaintiff.</p>

<p>In Equity. Suit for infringement of a patent by John E. Gilchrist against the E. B. Mallory Company.</p>

<p>In Admiralty. Suit by Charles F. Obrecht, trading as the Charles F. Obrecht Company, against the United States Shipping Board.</p>

Suit in equity by the Louisville Railway Company against the City of Louisville to enjoin the enforcement of a five-cent fare. From an order granting a temporary injunction, defendant appeals. .

Morton, Jr., Judge. Actions at law by Louis Hecht, Jr., and others, trustees, by Arthur L. Howard and others, trustees, and by Alvah Crocker and others, trustees, respectively, against John F. Malley, formerly Collector of Internal Revenue, and by Arthur L. Howard and others, trustees, against Andrew J. Casey, acting Collector of Internal Revenue. From adverse judgments (Hecht v. Malley, 276 Fed. 830), John F. Malley and Andrew J. Casey bring error.

<p>1. Criminal law <@=37—Acts of secret service agent held not to constitute entrapment.</p> <p>That a secret service agent, presenting himself as a customer, contracted to purchase counterfeit internal revenue stamps then in possession of defendants, did not constitute an entrapment, which would defeat a prosecution for conspiracy to commit an offense and for buying, receiving, and keeping in their possession such stamps, with intent to defraud, acts which necessarily preceded their attempted sale.</p> <p>2. Criminal law <@=l 171 (I)—Improper remarks of counsel not ground of reversal, unless prejudicial.</p> <p>A defendant will be guarded from prejudice arising from irrelevant and inflammatory remarks of prosecuting counsel, and in applying this principle in an appellate court the first inquiry is whether such remarks were prejudicial, and, second, if so, whether the prejudice was cured by the action of court or counsel.</p> <p>3. Criminal law <@=729—Prej'udico which might have resulted from remarks of district attorney held obviated by prompt withdrawal.</p> <p>Where, on objection to remarks of a district attorney which went beyond the evidence, he explicitly withdrew them before the jury, stating what the evidence showed, and restating his argument within proper limits, any prejudice which might have resulted from such remarks held cured.</p> <p><@=For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Appeal and error @=>849(2)—Without written waiver of jury, only sufficiency of findings to support judgment can be reviewed.</p> <p>In the absence of any written stipulation, under Rev. St. § 649 (Comp. St. § 1587), for trial of an action at law without a jury, so as to permit the full review contemplated by section 700 (Comp. St. § 1668), a judgment rendered on report of a referee can be reviewed only to determine whether the finding of fact made by the referee supports the judgment entered by the court, and a hill of exceptions certified by the District Judge and stating that it contained all the evidence, is ineffective.</p> <p>2. Contracts @=>354—Referee’s finding held to authorize allowance of charge Tor additional labor.</p> <p>Where the contract required defendant to pay plaintiff for labor at the rate of $1 an hour on the work performed for defendant, a finding by the referee that a charge of 17% per cent, in addition to the amount of labor charged by plaintiff’s workmen for their work on defendant’s job was not an unreasonable amount to cover the labor of those who did not make a report of time on specific items of production, and that such addition was according to custom in the locality on similar contracts, sustains a judgment for the item for additional labor.</p> <p>3. Contracts @=>354—Referee’s finding held to sustain allowance in excess of labor rate specified in contract.</p> <p>Where the contract required defendant to pay plaintiff a stated hourly rate for labor on defendant’s work, and to pay the cost of materials, plus 10 per cent., a charge by the plaintiff for work done outside its plant on the basis of what it was required to pay for such work, plus 10 per cent., which exceeded the labor rate specified* by the contract, was not so clearly contrary to the terms of the contract as to show that the referee’s allowance therefor, on the ground that the parties had construed the contract by their course of conduct, was insufficient to sustain a judgment allowing that item.</p> <p>4. Contracts @=>244—Facts held to show acquiescence in manner of charging adopted by plaintiff for work done outside of plaintiff’s plant.</p> <p>Even if employees of defendant, charged with the duty of inspecting the work done by plaintiff for defendant and seeing that no improper charge therefor was made, had no authority to bind defendant to allow charges for work done outside of plaintiff’s plant at the rate fixed for materials furnished, instead of at the rate fixed by the contract for labor, it must be presumed such employees reported that fact to defendant, so that defendant’s continued payments on the account including such items was an acquiescence in that charge, which waived its right thereafter to contend it was liable only on the basis of the contract rate for labor.</p> <p><©ss>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Eminerat domain <§=>123—Owner of confiscated property entitled to “just compensation.”</p> <p>The owner of coal requisitioned for railroad use during government operation cannot be compelled to accept a price fixed by the government, but is entitled under the Fifth Amendment to “just compensation.”</p> <p>2. Carriers <®=>158(1)—'Value stipulated in bill of lading relates to risk of carriage only.</p> <p>Limitations of value in an ordinary bill of lading have no relation to loss due to conversion of the property by the carrier.</p> <p>a?—'Fnr other cases see same topic & KEY-NUMBER in 'all Key-Numbered Digests & Indexes</p> <p>3. Carriers <s=sl58(l)—Statute imposing full ¡¡ability for loss notwithstanding limitation not applicable to overseas shipments.</p> <p>The provision oí Interstate Commerce Act, § 20, as amended (Comp. St. § 8604a), imposing on a carrier liability for the full loss or damage to interstate shipments, or shipments “to an adjacent foreign country," notwithstanding any limitation in the hill of lading, held not to apply to a shipment to a foreign country not adjacent.</p> <p>4. War <g=>l4—Government regulations for shipment of coal held not to affect essential nature of shipment.</p> <p>Under order of the Fuel Administrator of January 17, 1919, providing that all contracts for sale of coal should provide that the coal deliverable thereunder should be subject to requisition by the Fuel Administrator, and that in the absence of a government price such requisition should be “at the price at which such shipment has been consigned by the shipper thereof,” where shipments were made to apply on foreign contracts, and the coal was requisitioned, the shipper is entitled to the foreign contract price, notwithstanding the fact that under government regulations the shipper was compelled to consign the coal to the Tidewater Coal Exchange for shipper’s account.</p> <p>5. Appeal and error <s=>850(3)~-Refusal -of requested findings held “special findings” for purpose of review.</p> <p>In an action tried to the court by written stipulation, refusal of findings requested by plaintiff on undisputed evidence constitute “special findings,” within Eev. St. § 700 (Comp. St. § 1668), and when duly excepted to authorize the ajjpeilate court to determine the sufficiency of the facts found to support the judgment.</p> <p>[Ed. Note.-—For other definitions, see Words and Phrases, First and Second Series, Special Finding.]</p> <p><g^=sFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>Waddill, Circuit Judge, dissenting.</p>

<p>Adverse possession <g=»48—Not interrupted by recording of deed by adverse claimant.</p> <p>Mere recording of a deed by one claimant does not interrupt tbe actual possession of an adverse claimant under a previously recorded title.</p> <p>f§zs>For Gtber cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Salvage @=»2I—Denied for services of doubtful value, where salvor was guilty of misconduct.</p> <p>Salvage denied to a tug, wiiicii came alongside a loading steamship, in one hold of which a fire had started, and commenced pumping water on the deck, and which refused to move out of the way for a fire boat; it further being doubtful whether its services were of any value.</p> <p><g=>For other cases see same topic & KEY-NUMBER in all Key-Numberea Digests & Indexes</p>

Petition by Edward J. O’Connor for the return of whiskies taken from his place of business by agents of the federal Prohibition Commissioner.

<p>1. Domicile <@=¿>5—Confinement of insane person in another state held not to effect change of domicile.</p> <p>Decedent, as were her parents, was born in Delaware, where she resided until 22 years of age, when she became incurably insane, and, there being-no state asylum in Delaware, was placed by her mother in an asylum in Philadelphia. Her mother removed to Philadelphia and resided there for 12 years, when she returned to Delaware and remained until her death. After decedent’s commitment, her mother, on her own application, was appointed by the Delaware court trustee of her person and estate, consisting of property in Delaware, and after the mother’s death a successor trustee was appointed. Neither ever took any steps to change the domicile of decedent. Held that, though she had no near relatives residing in Delaware for many years before her death, her domicile continued in that state.</p> <p>2. Domicile <@¿¿>4( I)—Residence alone will not effect change of domicile.</p> <p>Residence alone, however long continued, will not effect a change of domicile.</p> <p>3. Domicile <@¿¿>4(1)—Insane adult cannot change domicile.</p> <p>One who, after attaining majority, becomes mentally incompetent to change his domicile, retains the domicile which he had when he became insane.</p> <p>4. Domicile <@=>4(1)—Trustee of insane person cannot change state of his domicile..</p> <p>The trustee or committee of an insane adult is without power to change his domicile to another state.</p> <p>ig^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by Raymond L. Frick and N. Satow against U. S. Webb, as Attorney General of the State of California, and another. On motion for preliminary injunction.</p>

In Admiralty. Petition of the Crew Transportation Company, own•er of the steam tug Neponset, for limitation of liability. Tug held not liable for damage claim.

Petition of the Crew Transportation Corporation, as owner of the steam tug Neponset, for limitation of liability. From a cueree absolving the tug from liability for the damage claimed (281 Fed. 409), Mary Labate and another, as administrators, appeal.

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Action by Mary H. Jackson, a minor, by Sidney M.'Jackson, her next friend, against Simeon D. Carson, to recover damages for malpractice. Judgment for plaintiff, and defendant appeals.</p>

Action by Jacob A. Ruedy and another against Gilbank Twigg to recover damages for breach of a broker’s contract. Judgment for defendant on directed verdict, and plaintiffs appeal.

<p>1. Pateiits <s=»l 13(7)—Concurrent decision of Office tribunals will be reversed for material error.</p> <p>Since tlie statute permits appeals from the Patent Office, and imposes upon the Court of Appeals the duty to determine the merits thereof, that court, while regarding as persuasive concurrent decisions of the Patent. Office tribunals, and giving such decisions due consideration and respect, will reverse such a decision, if material error is made to appear.</p> <p>2. Patents <s=3Í0l—Interference claims should be read with reference to vis■ closure cf party who originated them.</p> <p>Claims in interference should be interpreted with reference to the disclosure of the party with whom they originated, and should not be so restricted as to exclude his construction.</p> <p>3. Patents 101—Interference claims will lie given broadest reasonable interpretation.</p> <p>Claims in interference will be given the broadest interpretation ih&t their terms reasonably will permit.</p> <p>4. Patents cg»9! (4)— Senior inventor held entitled to four of the eight claims its interference.</p> <p>In interference proceedings involving eight claims for a die for casting metal under pressure, four of which were specific and four general, an exhibit, constructed by one of the parties prior to the date of invention claimed by the other party, held to disclose the general claims in issue, but not the special claims, so as to entitle that party to priority as to the four general claims.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In the matter of the application of Simon E. Schroeder for reissue of a patent. From a decision of the Commissioner of Patents, denying the application, applicant appeals.

<p>Patents 106 (2)-—Application of senior party heid to entitle iiim to make claim in interference.</p> <p>in interference proceedings relating to a process of producing hydrocarbon oil of low ooiling point from hydrocarbon oils of high boiling point, the application of the senior party, disclosing the method of accomplishing the result, held to entitle him to make the claims in issue, even though he did not fully understand what took place, and did not describe the pro-, cess in the same terms as used in the claims.</p> <p><£=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Patents <§=>91(4)—Evidence held to show reduction to practice by senior party before junior entered the field.</p> <p>In interference proceedings relating to improvements in stone and ore crushers of the disc type, held, that the senior party, who conceived the invention four years before the junior party, had actually reduced the invention to practice before the conception by the junior party, so that he was not chargeable with want of diligence, which prevented his making the claim.</p> <p><§=>For oilier cases see same topic & KEY-NUMBER in ail Key-Numbered Digests & Indexes</p>

<p>Appeal from the Commissioner of Patents.</p> <p>Application by Nicholas Power for a patent. Application denied, and applicant appeals.</p>

<p>Patents <§=>l 12(4)—Claims of applicant held not materially different from claims awarded to another in interference.</p> <p>Claims of an application for a patent, rejected by the Patent Office, held not materially different from claims as to which another had been awarded priority over applicant in interference proceedings, though couched in different language, so that the applicant was not entitled to make them.</p> <p><§ps>For other cases see same topic & KEY-NUMBER in -all Ke^-Numbered Digests & Indexes</p>

Sessions, Judge. Petition by William Maxwell, trustee in bankruptcy of Thomas L. Hamden, to discharge the proceeds of a sale of property from the lien of a chattel mortgage in favor of Lincoln H. Titus. From an order adverse to the mortgagee, he appeals.

<p>Appeal from the Supreme Court of Porto Rico.</p> <p>Action at law hy Francisco Flores Costa against Sucesores de Perez Hermanos. Judgment for plaintiff, and defendants appeal.</p>

C. Westenhaver, Judge. Suit in admiralty by Olav Aslaksen against the United States. Decree for libelant, and the United States appeals. This is an appeal by the United States from an award in a salvage case. Both the salving vessel (the Lake Ellenorah, of which appellee was master) and the salved vessel (the Avondale) were government owned. No question is raised respecting liability to salvage award.

<p>1. Appeal and error <§=>846(1)—Record in action tried to court held to present no question revieurable.</p> <p>Where, in an action at law tried to the court, a party made no request for findings of fact or declarations of law, and took no step which, if ruled upon and an exception taken,.would have presented a question for review he cannot raise any such question by filing exceptions or requests three months after the court has filed its findings and directed judgment.</p> <p>2. Appeal asid error <§=>969—Trial <§=>388(1)—Discretionary rulings not reviewable.</p> <p>The making of special findings of fact in an action at law tried to the court is discretionary, and its action in making or refusing such findings or in refusing to amend findings made is not subject to exception or subsequent review in an appellate court.</p> <p>3. Appeal asid error <§=>750(7)—Assignment of error insufficient; “assignment that facts found do not support judgment.”</p> <p>An assignment of error in an action tried to the court, that “the court erred in entering judgment for defendants because the facts do not support the judgment,” is not an assignment that the facts found do not support the judgment, within Rev. St. § 700i (Comp. St. § 1668), which authorizes a review on that ground.</p> <p>4. Appeal and error <§=>242(5)—Objection to evidenca not reviewable, in absence of ruling;</p> <p>Where exceptions to evidence were presented in briefs after close of the trial, as permitted by direction of the court, but no rulings were asked or made tliereon, no question is presented for the appellate court.</p> <p>5. Judgment <§=>2!0, 272—In casa under advisement may bs rendered anti entered at any time.</p> <p>Where a cause was submitted and taken under advisement, the court had jurisdiction to render its decision and enter judgment at whatever time it should reach a conclusion.</p> <p>6. Judgment <§=>283—Failure to enter at once merely clerical error, subject to correction.</p> <p>Where the court directed entry of judgment, failure to enter it is merely a clerical error, which may be corrected at any time.</p> <p>«gxxaFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge.</p> <p>Suit by the Westinghouse Electric & Manufacturing Company against the Wagner Electric Manufacturing Company. From a judgment for plaintiff for an insufficient amount (248 Fed. 508), both parties separately appeal.</p>

In Equity. Suit by the Computing Scale Company against the Toledo Scale Company. On petition to the Circuit Court of Appeals by complainant to enforce a final decree previously rendered against defendant and affirmed by the Circuit Court of Appeals.

<p>1. Principal and agent <©=>69(3)— Contract between principal and agents held void for fraud.</p> <p>Complainant was induced by defendants to agree to purchase certain mining property, then in the hands of the bankruptcy court, for $50,000. Defendants bought the property for less than $42,000, the initial payment of $25,000 being furnished by complainant, who was then induced by representations that defendants had been the means of securing the property at much less than its actual value, to sign a contract to advance $25,000 more for a half interest, the property to be purchased by a corporation organized by defendants and complainant to receive one-half the proceeds. Defendants divided between themselves $8,000 of the money received from complainant. Held, that defendants were complainant’s agents in the purchase of the property and that the contract by which they were to obtain a half interest was without consideration and void for fraud.</p> <p>2. Trusts <@=>84—Agent holds title to property of principal in trust.</p> <p>An agent, who takes title in his own name to property paid for with money of his principal, holds it in trust for his principal.</p> <p>3. Principal and agent <©=69(l)—Agent cannot use relationship to detriment of principal.</p> <p>An agent is required to work and act with an eye single to the interest of his principal, and cannot use the relationship to his own advantage and the detriment of his principal.</p> <p><@zs>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Consolidated salvage suits in admiralty by Henry Gillen’s Sons Literage, Inc., and others, against the steamship Thorvald Halvorsen and her cargo, claimed by K. Lied, and the lighters Liberty No. 26 and her cargo, the Dauntless and her cargo, claimed by the American Cotton Oil Company, and the Central Railroad of-New Jersey No. 206 and her cargo. Decree for libelants (The Hallfried, 278 Fed. 536), and claimants appeal.

<p>In Error to the District Court of the United States for the Southern District of Ohio; John W. Peck, Judge.</p> <p>Criminal prosecution by the United States against Meyer Albert. Judgment of .conviction, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the Northern District of Ohio; D. C. Westenhaver, Judge.</p> <p>Criminal prosecution by the United States against Ben Rudner and others. Judgment of conviction, and defendants bring error.</p>

Suit in equity by the United States against the Bellingham Bay Improvement Company and others. Decree for defendants, and complainant appeals. The United States brought this suit against the Puget Sound Traction, Light & Power Company and other appellees, to cancel a land patent issued in 1904 to P. B. Cornwall, and to annul mesne conveyances and mortgages, and for other relief.

<p>1. Conspiracy <®=»43(2)—Indictment need not charge unlawful purchasers as conspirators.-</p> <p>That an indictment for conspiracy to receive, buy, and sell opium, knowing it to have been imported contrary to law, in violation of Act Feb. 9, 1909, § 2, as amended by Act Jan. 17, 1914, § 2 (Comp. St. § 8801), alleged as overt acts, sales of such opium to persons named did not make it necessary to charge such persons as conspirators.</p> <p>2. Poisons <@=>4—Dealing in opium unlawfully imported is an offense.</p> <p>The concealment or sale of opium of any kind, whether smoking opium or not, knowing it to have been imported contrary to law, constitutes an offense under Act Feb. 9, 1909, § 2, as amended by Act Jan. 17, 1914, § 2 (Comp. St. § 8801).</p> <p>3. Territories <@=>18—Statute prohibiting importation of opium applicable to Hawaii.</p> <p>Under Act April 30, 1900', § 5 (Comp. St. § 3648), providing that all laws of the United States not locally inapplicable shall be in force in the territory of Hawaii, Act Feb. 9, 1909, as amended by Act Jan. 17, 1914 (Comp. St. §§ 8800-8801Í), applies to that territory.</p> <p>4. Indictment and information <§=»87 (2)—Not invalidated fay immaterial clerical error.'</p> <p>An indictment held not invalidated by a clerical error in the repetition of a date, where the mistake was obvious and not prejudicial to defendant.</p> <p><§35>For other cases see same'topic & KEY-NUMBER in all Key-Numbered Digests & Indexes’</p>

<p>Appeal from- the District Court of the United States for the Eastern District of New York</p> <p>Suit by the Westinghouse Electric & Manufacturing Company against the Metropolitan Electric Manufacturing Company. From an interlocutory decree, holding valid and infringed claims 5, 6, 7, 10, and 12 of the Kries patent, No. 1,224,880, dated May 1, 1917, for an 'electric switch and fuse box, and ordering a reference (278 Fed. 666), defendant appeals.</p>

Bean, Judge. In the matter of Theodore Arenz, bankrupt. From an order denying a discharge of the bankrupt, the bankrupt appeals, opposed by the Astoria Savings Bank, a corporation. This is an appeal from an order denying a discharge to the bankrupt.

<p>1. Criminal law @=>822(16)—Instructions on measure of proof held not erroneous.</p> <p>A charge on the subject of reasonable doubt and measure of proof, construed as a whole, held not erroneous.</p> <p>2. Intoxicating liquors @=^224— Instruction as to burden of proof approved.</p> <p>In a prosecution for operating a still without registering it and giving bond, an instruction that the prosecution need only prove circumstances from which lack of registry and filing of bond could be presumed, whereupon the burden of proof shifted to defendants to prove registration and filing of bond, held not erroneous.</p> <p>@=oFor other cases see same topic & KEY-NUMBER in all Key-Numberea Digests & Indexes</p>

' Appeal from the District Court of the United States for the Eastern District of Louisiana, New Orleans Division; Rufus E. Foster, Judge. Libel in admiralty by Earl Saucier against the steamship Santurce, of which the New York & Porto Rico Steamship Company was claimant; to recover wages and subsistence and damages for personal injuries. From a decree for wages and maintenance only, refusing to allow damages, libelant appeals.

<p>In Error to the District Court for the Western District of Tennessee; J. W. Ross, Judge.</p> <p>Criminal prosecution by the United States against Lloyd Johnson and Clabern Stephens. Judgment of conviction, and defendants bring error.</p>

Rose, Judge. Suit in admiralty by the Nippon Yusen Kabushiki Kaisha, owner of steamship Ceylon Maru,' against the steamship Jeannette Skinner; the United States, owner and claimant. Decree for libelant, and claimant appeals.

<p>At Law. Action by the Commercial Health Sc Accident Company against J. L. Pickering, Collector of Internal Revenue, to recover taxes paid under protest.</p>

<p>At Law. Action by Benjamin P. Davidson against John Barton Payne, Director General of Railroads, and others. On demurrer to amended petition.</p>

<p>In the matter of applications for leave to file informations under the Migratory Bird Treaty Act.</p>

<p>In Equity. Petition of Leo K. Barber for return of property.</p>

<p>At I,aw. Action by E. Page against Samuel Levenson and others,, copartners trading as the Textile Mills Products Company.</p>

<p>I. Injunction <§=»I0I (I)— Suit held not within purview of Clayton Act.</p> <p>This case not being one between “an employer and employees,” nor between “employers and employees,” nor between “employees,” nor .one between “persons employed and persons seeking employment,” but one between a citizen of Delaware and citizens of Kentucky, in which relief by Injunction is sought on general principles of equity only, held, that it is not within section 20 of the Olayton Act (Comp. St. § 1243d).</p> <p><g=For other cases see same topic & KEY-NUMBER in ail Key-Numbered Digests & Indexer</p> <p>2. Jury <®^I0—Judicial -Code, § 268, not repealed by Clayton Act.</p> <p>Clayton Act Oct. 15, 1914, § 1 (Comp. -St. § 8835a), defines the anti-trust laws as including Act July 2, 1890 (Comp. St. §§ 8820-8823, 8827-8830). Section 16’ (Comp. St. § 8835o) provides for injunctive relief against threatened loss or damage “by a violation of the anti-trust laws.” Sections 21 and 22 (Comp. St. §§ 1245a, 1245b) provide broadly for punishment for contempt for violation of an order or decree of court, if the act be “of such character as to constitute also a criminal offense,”, and that “in all cases within the purview of this act,” on demand of accused, trial shall be by jury. Section 24 (Comp. St. § 1245d) provides that “all other cases of contempt, not specifically embraced within section twenty-one of this act, may he punished in conformity to the usages of law and equity now prevailing.” Held, that such provisions do not repeal Judi- « cial Code, § 268 (Comp. St. § 1245), which provides generally for punishment of contempts, under which trial is without a jury; that cases “within the purview of this act,” are those brought for violation of the antitrust laws, under section 16, and that the provisions of sections 21 and 22 apply only to such cases; that all other proceedings for contempt for violation of injunctions are governed by Judicial Code, § 268.</p> <p><gs^For other casés see same tbpic‘& KEY-NÜM33ER in all Key-Numbered Digests & Indexes</p>

<p>Bankruptcy <§=>68—Persons subject to adjudication; ranchman held not “person engaged chiefly in farming or tillage of soil.”</p> <p>A ranchman, whose principal business was the raising of live stock for market, whose 1,400 acres of land,' except 180 acres, was used for grazing, and of the 180 acres three-fourths was in alfalfa cut for winter feed, and the remainder in cultivated crops used on the ranch, held not “a person engaged chiefly in farming or tillage of the soil,” within the meaning of Bankruptcy Act, § 4l> (Comp. St. § 9588).</p> <p><©s»For other cases see same topic & KEY-NUMBER in all Key^Numbered Digests & Indexes</p>

At Law. Action by Harry -E. Bodine against the First National Bank of Merchantville and others. On motion by plaintiff to suppress demand by a defendant for bill of particulars.

<p>In Bankruptcy. In the matter of S. R. Smith, trading as S. R. Smith & Son, bankrupt. On review of order of referee on intervention of the Louisville Fertilizer Company.</p>

<p>In Bankruptcy. In the matter of E. F. Ramseur and Frank Simpson, bankrupts. On review of referee’s order setting aside exemption.</p> <p>The stock of merchandise of the bankrupts was levied upon on February 10, 1921, by virtue of the foreclosure of two mortgages thereon; on February 18 an involuntary bankruptcy was begun against them; on February 24 the stock of merchandise was sold by the sheriff; on March 11 adjudication in bankruptcy was had, and later the sheriff paid over to the trustee in bankruptcy the remainder of the proceeds of sale after satisfying the mortgage fi. fas. The bankrupts claimed homestead exemptions out of this money; the trustee set apart the exemptions claimed, which the referee confirmed. It was contended on review of his decision that cash could not be exempted, that there was no sufficient description of the property claimed, and that, the assets having been sold and reduced to cash, no homestead could be allowed.</p>

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Separate suits by William T. George and Chester A. Parvin against the Forest Glen Land Company and Eugene H. Taggart, as trustee, to restrain sale of property under a trust deed. From a decree overruling exceptions to a report of the auditor after sale was made, and fixing the commission of the trustee, the plaintiff George and the trustee appeal.</p>

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Bill of review by Gladys E. Knorr Eavagnino against Jennie M. Prall and others. Erom a decree dismissing the complaint, complainant appeals.</p>

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Suit by Elizabeth C. Prall against Jennie M. Prall and others for partition. Prom an order appointing Albert Harper as receiver to take possession of the property, defendants appeal.</p>

<p>1. Patents <©=195—Acceptance of option by assignee relates back to contract.</p> <p>The acceptance by an assignee of an option given him by an inventor for the purchase of the patent rights relates back to the date of the option contract.</p> <p>2. Patents <©=583—Diligence of assignee and not of inventor governs rights.</p> <p>Where an inventor has assigned all his rights to another and has placed the control of invention into the hands of the other, the diligence of the assignee, and not the inventor, is controlling, since the assignee is the real party in interest.</p> <p>3. Patents <©=>83—Assignee and original inventor held both wanting in diligence.</p> <p>Evidence that an inventor had given another an option on all of his inventions, and that for nine months after the conception of an invention in controversy in interference proceedings ' the assignee failed to indicate whether he would exercise his option with reference to that invention or not, giving as his only excuse that he was busy, and in that time the inventor did nothing except to write two letters urging a decision on the exercise of option, held to show that neither the assignee nor the original inventor used reasonable diligence in adapting and perfecting his invention within the meaning of Rev. St § 4920 (Comp. St. § 9466).</p> <p>4. Patents <©=>90 (3)—Delay of six months in tiling application held want of diligence.</p> <p>Delay by an inventor of six months after conception of the invention during which attention was deliberately given to another invention in no way imperiled by interference or otherwise held such want of diligence as to defeat the right of the inventor to claim the invention in interference proceedings.</p> <p>®=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexe»</p>

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Assumpsit by Robert H. McNeill against Oliver J. Sands and another, to recover for services rendered. Judgment for plaintiff against the named defendant, and that defendant appeals.</p>

<p>1. Patents <@=>91 (I)—Junior party has burden of proof in interference proceeding.</p> <p>In interference proceeding, tbe junior applicant bas tbe burden of proof.</p> <p>2. Patents <§=>106(2)— Claims in interference held to read on application of senior party filed before junior’s conception.</p> <p>Tbe claims in an interference proceeding involving a gyroscope compass, tbe novel feature of wbieb was means for transmitting the effect of tbe earth’s rotation to tbe gyroscope, held to read on tbe disclosure made by tbe senior party’s application before tbe junior party bad undertaken any work along that line, as stated by tbe junior party when be first saw tbe senior party’s device, notwithstanding tbe testimony of tbe junior party at tbe bearing that tbe senior party’s device could not work as stated.</p> <p>{g^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digest! & Indexes</p>

<p>Appeal from the Commissioner of Patents.</p> <p>Interference proceeding between Carolyn G. Leonard, as administratrix of the estate of Harry Ward Leonard, deceased, and Stephen W. Everett. From a decision of the Commissioner, awarding priority to Everett, Leonard appeals.</p>

<p>1. Mortgages i§=>32(I)— Agreement purchaser should share profits from resale does not make conveyance a mortgage.</p> <p>Where one joint owner of property conveyed her interest in the property to her co-owner at an appraised valuation, an agreement that, if the purchaser should thereafter sell the property at a price in excess of the appraised valuation, he would share with the vendor the profit resulting therefrom, after deducting ^certain expenditures, does not make the conveyance a mortgage creating a right of foreclosure.</p> <p>2. Trusts <§=»! 93—Purchaser will not be required to exercise discretion to sell and share profits, unless refusal to set! shocks conscience.</p> <p>Where the purchaser of his cotenant’s interest in the property agreed that, in the event of sale at a profit he would share the profit with his former cotenant, the right of the cotenant depends upon the will of the purchaser, since the time and terms of sale reside in his discretion, and equity will not compel the purchaser to sell and share the profits, unless the available price is such that the refusal to sell would shock the conscience of the court.</p> <p>3. Trusts <®=»I93"-Equity will not intervene to control trustee merely because of diversity of judgment</p> <p>Where the instrument relied on as creating a trust confided to the discretion of the alleged trustee, because of his superior knowledge and experience, the determination of when to sell the property, equity will not intervene to control such discretion merely because of a diversity of judgment as to the advisability of selling.</p> <p>4. Appeal and error <@=»I099(I)—Chancellor’s findings, after seeing witnesses, are highly persuasive.</p> <p>While in equity cases questions of fact as well as of law are open to appellate review, the conclusions of the chancellor upon issues of fact are highly persuasive, where the testimony has been taken in open court, with full opportunity to observe the demeanor of the witnesses.</p> <p><gx=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Action by William D. Sullivan against Christian Heurich. Judgment for plaintiff on appeal from the municipal court, and defendant appeals.</p>

<p>1. Courts <§=508(I)— Courts of District are “courts of the United States” under statute forbidding injunction against state courts.</p> <p>The courts of the District of Columbia are courts of tbe United States within Jud. Code, § 265 (Comp. St. § 1242), prohibiting injunction by any court of the United States to stay proceedings in any court of a state.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Courts of the United States.]</p> <p>2. Courts <§=>508(2)—Courts of District cannot enjoin party from proceeding with state suit previously tiled.</p> <p>Under Jud. Code, § 265 (Comp. St. § 1242), prohibiting injunction by any court of the United States to stay proceedings in a state court, the courts of the District of Columbia cannot enjoin a party from proceeding with a suit previously filed in a state court, even in so far as it relates to bonds within the District which the plaintiff in the suit for injunction deposited in the registry of the court, since the parties were within the jurisdiction of the state court, and its power to'control the disposition of such bonds is ample.</p> <p>3. Courts <§=493 (3)—Court of District will permit state court first acquiring jurisdiction to exhaust remedy before proceeding therein.</p> <p>As a matter of comity the courts of the District will permit a state court which has first acquired jurisdiction of the controversy to proceed to exhaust its remedy before entertaining a suit with reference thereto, and where the state court can give full remedy the suit in the District will be dismissed.</p> <p><@c»For other cases see same topic & KEY-NUMBER in all Key-Numhered Digests & Indexes</p>

<p>Appeal from the Supreme Court of the District of Columbia.</p> <p>Action by the N. D. Sansbury Company, Inc., against John .W. Peake, to recover possession of premises and the past-due rent therefor. Judgment for plaintiff in the Supreme Court of the District, on appeal from the municipal court, and defendant appeals.</p>

Interference proceeding between Robert W. Scott and William J. Rongtin and others. From a decision of the Patent Office, to the effect that Scott was not the prior inventor, Scott appeals.

<p>Trade-marks and trade-names and unfair competition <@=»3 (4)—“Honest weight” is descriptive term, and not registerabie; “honest.”</p> <p>The word “honest” is not restricted to animate beings, but is defined as “characterized by, or indicative of, honest and fair dealing, free from fraud, equitable, fair,” so that the term “honest weight,” applied to scales, indicates that they show the weight correctly, and is therefore a descriptive term, which is not registerabie as a trade-mark.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Honest.]</p> <p><@==>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Courts <§=>406(1)—United States Circuit Court of Appeals, on error to Supreme Court of Hawaii, involving construction of territorial statute, will lean toward interpretation adopted by such court.</p> <p>On error to review the judgment of the Supreme Court of the_ territory of Hawaii, involving the construction of a statute of such territory, the Circuit Court of Appeals may review the ruling of the Supreme Court of the territory in the same manner as it would review the decision of a state Supreme Court under similar circumstances, but will naturally lean toward the interpretation adopted by the territorial court, and will not disturb such court’s decision, unless there is clear error.</p> <p>2. Taxation c=>876 (3)—Property devised to trustees, with discretion to devote income either to “educational purposes” or in promotion of new enterprises, held not exempt from inheritance tax.</p> <p>Where testator devised his property to trustees, with authority to devote the income to educational purposes at such times as in the judgment of the trustees the estate would be amply able to carry on without closing its commercial character, and after fulfillment of other requirements specified in the will, subject to the discretion of the trustees, to devote the property and its income to any public enterprise whatever of which they might approve, the property was not exempt from inheritance tax as property transferred for “educational purposes,” within Rev. Laws Hawaii 1916, § 1324.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Educational Purposes.]</p> <p>3. Taxation <®=>856—Act of transferring property and not the property itself subjected to inheritance tax.</p> <p>Under Rev. Laws Hawaii 1915, as amended by Acts 1917, No. 223, i)roviding for an inheritance tax, it is the act of passing property by will which is taxed, and not the property itself.</p> <p>4. Taxation <§=88S--3nheritance tax on annuity to son, to be paid by trustees, held payable by the trustees, and not by the son.</p> <p>Where testator devised property to trustees, and directed them to pay annuity to his wife, and after the wife’s death to his son, if the state permitted payment thereof, in the discretion of the trustees, inheritance tax provided for by Rev. Laws Hawaii 1915, as amended by Acts 1917, No. 223, on tbe value of the annuity to the son, are to he paid by the trastees, and not by the son.</p> <p><@s»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Evans, Judge. Action by Lamborn & Co. against the W. H. Goff Company.

Appeals from the District Court of the United States for the Canal Zone; John W. Hanan, Judge. Libel by the Anglo-American Steamship “Agencies, Inc., against the schooner Astoria and cargo, in which Charles R. McCormick & Co. claimed the cargo, and J. W. Olsen and others, as the crew, intervened. From decrees in favor of libelant, the crew, and the Panama Canal, which was not a formal party, claimants of the cargo and libelant appeal.

<p>1. Appeal and error <§=>80(6)— Judgment for specified amount on all counts except one, and granting a new trial as to such excepted count, held a final judgment, reviewafole on writ of error.</p> <p>Judgment for plaintiff for a specified amount “upon all causes of action contained in plaintiff’s complaint except the fourth cause of action, and upon all counterclaims of defendant except the one contained ■ in subdivision 6 of defendant’s amended answer, and that a new trial herein he granted, restricted to the said fourth cause of action contained' in plaintiff’s complaint and to the counterclaim contained in subdivision 6 of defendant’s amended answer,” and authorizing execution thereon after expiration of 60 days’ stay, held a final judgment, subject to review on writ of error.</p> <p>2. Execution <S=>i58(l)—Withheld where judgment is awarded on certain counts and new trial granted as to other counts.</p> <p>Where judgment awards plaintiff, a foreign corporation, a specified amount on all counts except one, and grants a new trial as to such excepted count, and as to a counterclaim thereto, a proper practice is to withhold execution of any part of the judgment or decree on proper terms of securing the payment of the judgment, if finally found to be right, until the entire litigation is determined, so that the whole case may be carried up and reviewed on a single appeal.</p> <p>@=»For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes-</p> <p>3. Sales <©=389—Evidence held admissible to prove that buyer agreed to changes in goods ordered.</p> <p>In action by seller of machinery, including smelters, for balance of purchase price of goods, in which the seller claimed, as against contention that the machinery was defective, that the failure of the machinery was due in part to defective foundations, with which seller had nothing to do, and that the buyer participated in designing the machinery, the smelters being manufactured by seller only on special orders, letters from buyer to seller, stating that the drawings for the double smelter were made in seller's office, and a telegram from seller to buyer, asking buyer’s superintendent to come to seller’s office, where the seller would help him design the smelters and the machinery, held admissible to show that buyer consented to changes, and accepted the machinery substantially different from that specified in the contract with full knowledge of the changes. .</p> <p>4. Witnesses <©=>269(1)—Cross-examination must ba confined to testimony brought out on direct examination.</p> <p>The cross-examination of a witness must be confined to testimony brought out on direct examination, and, if the adverse counsel desire to examine a witness, they must make him their own witness at the proper time.</p> <p>5. Appeal and error <©=>971 (2)—Evidence <©=>546—Competency of expert witness discretionary with court.</p> <p>The competency of an expert witness is to a great extent discretionary with the trial judge, and the ruling of the court will be reversed only for abuse of such discretion.</p> <p>«gxzsFor other cases see same topic & KEY-NUMBER in ’all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Eastern District of Missouri; Charles B. Earis, Judge.</p> <p>Suit by the United States Fidelity & Guaranty Company against Henry W. Eddy. From an interlocutory order granting an injunction, defendant appeals.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Missouri; Charles B. Faris, Judge.</p> <p>Suit by the Pyle National Company against the Oliver Electric Manufacturing Company. From a decree for defendant, plaintiff appeals.</p>

<p>In Error to the District Court of the United States for the District of Nebraska; Joseph W. Woodrough, Judge.</p> <p>Suit by the United States against W. W. Mace on a forfeited recognizance. Judgment for defendant, and the United States brings error.</p>

<p>1. Carriers <§=196—Notice .to shipper of consignee’s refusal to accept goods required in statement of claim for demurrage.</p> <p>In action by carrier against shipper for a deficiency resulting after deducting price for which carrier sold the coal shipped from the amount claimed for freight and demurrage, where it did not appear in the statement of the claim that carrier notified shipper of consignee’s refusal, as required by the demurrage rules, under 'the conformity section of the Revised Statutes (Comp. St. § 1537), in view of Pennsylvania Practice Act 1915, §§ 5, 20 (P. L. 483; Pa. St. 1920, §§ 17185, 17200), the statement of the claim was insufficient.</p> <p>2. Carriers <§=I97(7)—Shipper entitled to notice of time and place of sale for charges.</p> <p>A shipper of goods is entitled to notice of the time when and the place where the goods are to be sold to pay carriage and storage charges.</p> <p>3. Pleading <§=8(2)— Stating conclusions of pleader, rather than ultimate facts, held insufficient.</p> <p>Where the statement of claim, in an action by carrier against shipper for deficiency resulting after deducting price for which carrier sold the coal shipped from the amount claimed for freight and demurrage, alleged that the coal was refused by consignee and it was necessary for carrier to sell it, as shipper, after notice, had failed to give orders, and that the selling price was the highest amount which could be obtained at public sale after notice, was defective, in that it stated the pleader’s conclusions, rather than the ultimate facts.</p> <p>4. Jury <§=31 (7)—Entering judgment for failure to properly frame issues not violation of right to jury trial.</p> <p>The method of requiring parties to frame their issues by proper affidavits, and of entering judgment in default of proper affidavits, is not a violation of the right to jury trial.</p> <p>5. Carriers <§=188—Shipper entitled to rely on general order of Director of Railroads to sell goods before freight and demurrage charges exceeded their value.</p> <p>A shipper was entitled to rely on a railroad selling goods pursuant to a general order of the Director of Railroads before the freight and demurrage charges equaled or exceeded their value.</p> <p>«gzxoFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Appeal and error <8=1008(1)—Findings of fact conclusive on writ of error.</p> <p>The District Court’s findings of fact are conclusive in the Circuit Court of Appeals on writ of error.</p> <p>2. Internal revenue <8=7—Stock issued to stockholder on his purchase or other stock held not subject to “income” tax.</p> <p>Where a corporation, which was using its earnings in extending its business and was not in a financial position to declare or pay a cash dividend, in order to secure funds with which to pay existing indebtedness and to conduct its business, adopted a plan providing for the sale at par of an amount of stock equal to the outstanding stock to existing stockholders pro rata, and for the issuance to each purchaser, in addition to the stock purchased at par, 100 per cent, of extra stock, and where large stockholders, to insure the success of the plan, agreed to take and pay for shares declined by other stockholders, the extra stock issued to such a heavy stockholder, who had purchased stock other than his proportionate share, on other stockholders’ refusal to subscribe therefor, held not subject to income tax, since the receipt of such stock did not increase his income; “income” being something coming to a man.</p> <p><S=For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other definitions, see Words and. Phrases, First and Second Series, Income.]</p>

<p>Appeal from the District Court of the United States for the District of Nebraska; Thomas C. Munger, Judge.</p> <p>Action by the United States against William J. Medland. Judgment for defendant, and the United States appeals.</p>

<p>Appeals from the District Court of the United States for the West- • era District of Oklahoma; John H. Cotteral, Judge.</p> <p>Suit in equity by the Alabama Bound Oil & Gas Company, Inc. and others against U D. Gaunt. Decree for complainant, from which both parties appeal.</p>

Booth, Judge. Habeas corpus by United States, on the relation of Mike Weisman, against Earle Brown, Sheriff of Hennepin County, Minn. From an order discharging the writ, relator appeals. Defendant moves to dismiss the appeal and to vacate the restraining order. Motions to dismiss the appeal and to vacate restraining order denied.

<p>In Error to the District Court of the United States for the District of Minnesota; Page Morris, Judge.</p> <p>Action at law by Oscar O. Miller against the Canadian Northern Railway Company. Judgment for defendant, and plaintiff brings error.</p>

C. Westenhaver, Judge. Proceeding by the United States against the Pittsburgh Taxicab Company to condemn and forfeit an automobile taxicab and certain intoxicating liquor. Judgment for the United States (U. S. v. One„W. W. Shaw Automobile Taxi, 272 Fed. 670), and defendant appeals.

<p>Appeal from the District Court of the United States for the Eastern District of Kentucky; Andrew M. J. Cochran, Judge.</p> <p>Actions by J. E. Lyon and another, by L. T. Sparks and another, and by O. B. Kazee and others, against the Union Gas & Oil Company and another. Judgments of dismissal, and plaintiffs appeal.</p>

<p>1. Patents ©=>328—1,046,066, relatng to spot-welding, held invalid.</p> <p>The Harmatta patent, No. 1,046,066, for process of electric spot-welding and for the product of such process, held invalid for want of invention, in view of the prior art.</p> <p>2. Patents ©=66—'Welding and soldering held analogous arts.</p> <p>As respects invention, the art of soldering is analogous to that of welding. .</p> <p>3. Patents ©=26(l)—Combination must involve invention.</p> <p>Although invention is not necessarily negatived by the fact that each element of the combination is old, the combination itself must involve invention, in view of the prior art.</p> <p>4. Patents ©=l 12(4)—Award of priority weakened, when not based on the merits.</p> <p>That an award of priority by the Patent Office was not based on an adjudication on the merits, but on the failure of the junior party to take testimony in support of his claim of priority, tends to weaken its force.</p> <p>5. Patents ©=s9l (4)—Unsuccessful or" abandoned experiment held to discredit claim of invention by another.</p> <p>Assuming that the successful joining of two pieces of lapped metal at isolated spots by means of a so-called butt-welding machine were not considered by the inventor a commercially practical experiment, and did not amount to a reduction to practice, or became an abandoned experiment, it strongly discredited the claim of invention on the part of one claiming to have subsequently invented a process for welding in spots by means of pin electrodes or otherwise.</p> <p>Denison, Circuit Judge, dissenting.</p> <p>^s>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Cushman, Judge. Action by the United States against King County, Wash., a municipal corporation, and others. Judgment for defendants, and the United States brings error.

Appeal and Cross-Appeals from the District Court of the United States for the Canal Zone. Suit in admiralty for salvage by Leopold Falk and others against the United States Shipping Board Emergency Fleet Corporation, owner of the Steamship Olockson, and Thomas Fndresen, claimant of cargo. From the decree, all parties appeal.

<p>In Error to the District Court of the United States for the Western-District of Virginia, at Big Stone Gap; Henry Clay McDowell, Judge.</p> <p>Criminal prosecution by the United States against J. C. Smith. Judgment of conviction, and defendant brings error.</p>

<p>1. Sales @=»179(3)—Provision of contract that acceptance shall ha waiver of delay in delivery held valid and binding.</p> <p>A provision in a contract for sale of machinery that receipt of the machinery by the purchaser shall he a conclusive waiver of all claims for damages by reason of delay in filling the order is valid and binding.</p> <p>2. Sales <S=> 179 (6)—Acceptance under protest held unavailing to negative waiver of delay in delivery under contract.</p> <p>Where a contract for sale of machinery provided that its acceptance by the purchaser should he a conclusive waiver of any claim for damages for delay in delivery, the purchaser cannot avoid the binding effect of such provision by an acceptance under protest.</p> <p>3. Bilis and notes @=»537 (I)—Amount of attorney’s fees recoverable, when fixed by contract, not question for the jury.</p> <p>In an action on promissory notes which provided for recovery of an attorney’s fee of 10 per cent, in case of suit, where there was undisputed testimony that such sum was reasonable under the circumstances, plaintiff was entitled to an instruction for its allowance.</p> <p>—.Fnr other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Ohio; D. C. Westenhaver, Judge.</p> <p>Action at law by the Midland Linseed Products Company against the Charles R. Sargent Company. From the judgment, both parties bring error.</p>

<p>I. Appeal and error <®=»850(I)— Limitation by record of review of case's tried to court.</p> <p>In an action tried to the court, where no special findings of fact were made, no question of the sufficiency of the evidence raised by motion for judgment- on the evidence, and no exception taken by defendant to judgment for plaintiff, the only question for review is whether plaintiff, on satisfactory proof of the material allegations of the petition, was entitled to judgment.</p> <p><§=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>2. Internal revenue <$=345—Corporation held not subject to penalty for failure to make timely return for munitions tax.</p> <p>Where a corporation, believing in good faith, on reasonable grounds, and after taking advice of reputable counsel, that it was not liable for munitions tax, made no return within the time prescribed by statute, but later, on advice of the collector, made a voluntary return without prejudice, the imposition of the penalty for failure to make timely return, prescribed by Rev. St. § 3176, held not authorized.</p> <p>3. Penalties <$=33—Should be imposed only for substantial delinquency.</p> <p>Courts are reluctant to construe a statute so as to impose a penalty, unless there has been a substantial delinquency.</p> <p>4. Statutes <$=3219—Construction by administrative department entitled to . weight.</p> <p>The construction of a statute by the department charged with its enforcement should be given due consideration, regardless of the length of time such construction has been adopted and enforced by that department.</p> <p><§ss>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Petition to Revise and' Appeal- from the District Court of the United States for the Eastern District of Tennessee; Edward T. Sanford, Judge.</p> <p>In the matter of Dooley, bankrupt; J. M. Stuart, trustee. On petition to revise and appeal from an order of the District Court by J. P. O’Neal.</p>

<p>Patents t§=o328—1,180,030, for biscuit machine, Held not infringed.</p> <p>The Green patent, No. 1,180,030, for a biscuit-cutting machine, claim 30 which relates to mechanism for periodically accelerating the speed of the pan conveyor, helé valid, but, as limited by the prior art and amendments made in the Patent Office, not infringed.</p> <p><@=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

1 • Suit in admiralty by the American & Cuban Steamship Dine, Inc., against 3,600 tons of copper ore in bulk, lately laden on board the steamship Santa Clara; Beer, Sondheimer & Co., Inc., claimant. Decree for libelant, and claimant appeals. This case comes here on appeal from the United States District Court for the Southern District of New York.

Uibel in admiralty by the Dampskibs Aktieselskabet Thor against tire Tropical Fruit Company, in which the Atlantic Fruit Company was brought in as a party defendant. From the judgment rendered, the defendant Tropical Fruit Company appeals. Libelant sues as owner of the Norwegian steamer Catherine Cuneo, and upon a charter party for that steamer, executed during December, 1914, at New York City.

<p>Petition to Review Order of the Federal Trade Commission.</p> <p>Petition by the Royal Baking Powder Company to revise an order of the Federal Trade Commission.</p>

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Action at law by the National City Bank of New York against the United States. Judgment for plaintiff (275 Fed. 855), and the United States brings error.</p>

L. Estes, Judge. Suits in admiralty for salvage by the Texas Company and others against the steamship Santa Rita and others. From the decree, the Texas Company and others appeal.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>In the matter of the application of Thomas W. Miller, as Alien Property Custodian of the United States, for an order directing Eugene Schaefer and another, as trustees under the last will and testament of Dr. Louis Schaefer, deceased, to deliver to the said Alien Property Custodian the property in their hands as trustees for the benefit of Helene Kyriss and Amalia Janner and' remaindermen. From an order directing them to pay over the property involved, the trustees appeal.</p>

<p>1. Evidence <©=87—Proof of mailing letter not conclusive evidence of notice.</p> <p>While proof of mailing a letter raises a presumption that it was received, this is a disputable inference of fact, and the burden of proving notice by the letter is not shifted by proof of mailing, and when its receipt is denied by the addressee the question is one fon the jury.</p> <p>2. Sales <©=440(1)—In action by seller for price, evidence of'.promise of prompt remittance admissible.</p> <p>In an action by the seller of warranted goods, where the defense was that the articles bought were defective, evidence that on request for payment from the person in charge of defendant’s office no such objection was made, but prompt remittance was promised, heM admissible; its weight being for the jury.</p> <p>3. Sales <©=285 (2)—Reasonable notice of breach of warranty required under . Ohio statute.</p> <p>Under Gen. Code Ohio, § 8429, notice of defects must be given within a reasonable time to render a seller liable for breach of warranty.</p> <p><S=For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Towage <©=»11 (7)—'Tug has sole responsibility for movement, in absence of contrary agreement.</p> <p>A tug engaged in moving a steamship, which is without steam and unable to participate in the movement, has the sole responsibility for directing the movement, and is liable for collision with dock and injury to the' steamship, in the absence of an agreement that the steamer should watch, and give the tug warning and information.</p> <p>2. Evidence <©=>7(—Proof of mailing properly addressed letter raises presumption of delivery.</p> <p>Proof that a letter, properly addressed and stamped and bearing the sender’s return address, was deposited in the same mail as two other letters adressed to other offices of the libelant, and that the other two letters were received, raises a presumption, which, however, is rebuttable, that the first letter was received.</p> <p><gs»For otter cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes-</p> <p>3. Evidence <@=89—Evidence held not to rebut presumption letter was received.</p> <p>Where a letter containing the tariffs of a towing company was properly mailed to the accounting department of a steamship company, evidence that the letter was not received in the operating department of the steamship company, at which it would have been received, in the absence of such direction, and was never seen by any of the executive officers of the company, without proof it was not received in the accounting department, or search made there for it, and that the steamship company paid bills rendered in accordance with the tariff, helé not to rebut the presumption the letter was duly received.</p> <p>4. Appeal and error <@=1022(1)—Concurrent findings of master and court cannot prevail on issue not dependent on credibility.</p> <p>The respect due to the concurrent findings of the master and trial court cannot prevail over what the appellate court thinks is the reasonably clear and fairly necessary inference from the proofs on an issue not depending at all on the credibility of the witnesses, who were personally seen.</p> <p>o. Corporations <@=428(1)—Cannot avoid responsibility by showing written notice by mail went to wrong department.</p> <p>A corporation cannot avoid responsibility by showing that, when a written notice by mail was received in its general office, it was sent to the wrong department.</p> <p><6. Towage <@=3— Express assent to tariffs is unnecessary to make them part of the contract.</p> <p>Where a towing company had mailed to a steamship company a copy of its regular tariffs, the towing company can assume that a request for towage was made pursuant to that offer and on the conditions thereon stated, so that no express assent was necessary to bind the steamship company to such conditions.</p> <p>7. Towage <@=3—Provision of contract limiting liability for demurrage held vaiid.</p> <p>The provision in a contract for towage limiting the liability of the towing company for demurrage in case of delay to a vessel due to the tug’s fault to §1C0 per day, unless an increased rate has been paid for increased demurrage, is valid.</p> <p><©=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>t. Appeal and error @=>843(2)—Question of assumption of risk not reached, where dismissal is at end of plaintiff’s case.</p> <p>Assumption of risk being a defense to be proved by defendant, the question thereof is not reached, where the servant’s action is dismissed at the end of his proof for not making out a prima facie case.</p> <p>2. Master and servant @=>265(3)— Servant held not to have sustained burden of showing act causing injury by car.</p> <p>Plaintiff, whose duty in a switchyard was to go to the track onto which a ear was next to be switched, according to signal, to be observed by him, of the conductor to a switchman, whose duty it was to throw the switch to the proper track, by showing merely that, after switching of a car onto track 2, the next signal was for switching to track 6, and that while proceeding there he was struck by a car switched onto an intervening track, does not sustain his burden of proving affirmatively that his injury was occasioned by negligence of the company; he not showing what act of it, if any, caused the injury.</p> <p>@=>For other oases see same topic & KEY-NUMBER in h.11 Key-Numbered Digests & Indexes</p>

<p>1. Contracts <®=>!05—Where act prohibited is net malum in ss, contract violating statute not illegal, unless statutory purpose so requires.</p> <p>When a criminal statute imposes specific penalties for its violation, where the act is not malum in se, and the purpose of the statute can be accomplished without declaring contracts in violation thereof illegal, the inference is that it was not the intention of the lawmakers to render such contract illegal and unenforceable.</p> <p>2. Champerty and maintenance <®=»7 (3)—Champerty Act of Oklahoma held not applicable to assignment of oil and gas lease.</p> <p>The Champerty Act of Oklahoma, making one who takes any conveyance of any lands or tenements, or of any interest or estate therein, from any person not being in possession thereof, while such lands or tenements are the subject of controversy, by suit in any court, knowing the pendency of such suit, and that the grantor was not in possession of such lands or tenements, is guilty of a misdemeanor, held not applicable to an assignment of an oil and gas lease granting lessee an exclusive license, on prescribed terms and conditions, to go on the prescribed premises and explore for oil or gas.</p> <p>«§=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Bankruptcy <@=»257—Bankruptcy court may sell interest of bankrupt in property, leaving question of title to be litigated between purchaser and adverse claimant.</p> <p>Where a bankruptcy court finds assets in its hands which are claimed by a third party, it has the right, without disposing of the question of title, to sell the bankrupt’s interest therein, leaving the purchaser of such interest and the adverse claimant to contest their rights elsewhere.</p> <p><§=>For other cases see same topic & KEY-NUMBER in .all Key-Numbered Digests & Indexes</p>

Petition to Revise Order of the District Court of the United States for the District of South Dakota; James D. Elliott, Judge. In the matter of Elmer’ E. Jones, bankrupt. Proceeding by N. J. Folsom, trustee, against the Citizens’ Bank & Trust Company and others. An order of the referee in favor of the trustee was confirmed, and the Citizens’ Bank & Trust Company petitions to revise the order of the District Court.

<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>Action at law by Albert H. Eanz against the Pennsylvania Railroad Company. Judgment for defendant, and plaintiff brings error.</p>

In the matter of Morris Bros., Inc., bankrupt, Earl C. Bronaugh, trustee, William P. Hopkins and another, trustees of the estate of A. C. Plopkins, deceased, appeal from an order of the District Court.

<p>In Error to the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge.</p> <p>John Paoni and another were convicted of violations of the Harrison Anti-Narcotic Act, and they bring error.</p>

<p>Appeal from the District Court of the United States for the District of New Jersey; John Rellstab, Judge.</p> <p>Suit by Thomas W. Miller, as Alien Property Custodian, against the Commercial Trust Company of New Jersey. From a decree for plaintiff (275 Fed. 841), defendant appeals.</p>

Petition to Superintend and Revise from the District Court of the United States for the Northern District of Mississippi; Edwin R. Holmes, Judge. In the matter of Wright & Weissinger, bankrupts; E. O. Wynne, trustee. Petition of the Brown Shoe Company to revise an order of the District Court.

<p>In Error to the District Court of the United States for the District of Montana; George M. Bourquin, Judge.</p> <p>Murray D. McGrew and another were convicted of violating the National Prohibition Act, and they bring error.</p>

Petition to Revise Order of the District Court of the United States for the Southern District of New York. In the matter of the bankruptcy of Harry Bryer, trading as the A. & B. Clothes Shop. On petition to' revise an order of the District Court, confirming the report of a special commissioner, denying the bankrupt leave to withdraw his offer of composition.

<p>In Error to the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge.</p> <p>Suit by the Barde Steel Products Corporation against the Franklin National Bank. Judgment for defendant, and plaintiff brings error.</p>

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Ohio; D. C. Westenhaver, Judge.</p> <p>Criminal prosecution by the United States against John Glenberg and another. Judgment of conviction, and defendant Glenberg brings error.</p>

<p>1. Mortgages <©==> 151 <3)—Mechanic’s Hen held not to date back, as to priority, of mortgage.</p> <p>Under Comp. St. Idaho, § 7345, providing that a mechanic’s lien shall have preference over any lien, mortgage, or other incumbrance attaching subsequent to the time when the building or structure was commenced, work done, or materials furnished, or of which the lienholder had no notice, and which was unrecorded at the time the building or structure was commenced, work done, or materials commenced to be furnished, as construed by the Supreme Court of the state, the lien of a subcontractor attaches, as against a mortgage, when he commences to work or to furnish materials,- and does not date back to the time of the making of the contract by the principal contractor.</p> <p>2. Courts <®=>366(I)—Federal courts follow construction of state statutes by state courts.</p> <p>Where a state statute has been definitely construed by the highest court of the state, such construction is binding on the federal courts.</p> <p><©s»For other cases see same topic & KEY-NUMBER in-all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the District of New Jersey; Charles F. Eynch, Judge.</p> <p>Bill by Ernest Hence against the Morris County Traction Company. Decree for plaintiff, and defendant appeals.</p>

<p>1. Criminal law 1090 (14)—Giving or refusal of instructions not reviewable, unless contained in the record.</p> <p>The giving or refusal of instructions is not reviewable, unless the instructions given or requested are set out in a bill of exceptions.</p> <p>2. Criminal law <S=»9II, 1156(1)—Ruling on motion for new trial not reviewable.</p> <p>The granting or refusing of a motion for new trial is within the sound discretion of the trial court, and not subject to review by an appellate court, unless an abuse of discretion appears.</p> <p><§=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>In the matter of the National Steamship Lines, Limited, bankrupt. From an order approving the report of a special master and adjudicating it a bankrupt, the bankrupt appeals.</p> <p>Appeal from an order of the District Court for the Southern District of New York, entered May 14, 1921, approving the report of a special master, and adjudicating appellant a bankrupt. The sole question requiring consideration is whether National Steamship Lines, Limited, was insolvent when it made certain payments on November 22, 1919.</p>

Petition to Revise and Appeal from the District Court of the United States for the Western District of Pennsylvania; Charles P. Orr, Judge. In the matter of the Universal Rubber Products Company, bankrupt. Petition by the Earish Company, opposed by the South Side Trust Company, receiver. Order made, and the Farish Company petitions to revise the order and appeals.

<p>Petition to Superintend and Revise in Matter of Daw, Proceedings of the District Court of the United States for the Eastern District of South Carolina, at Charleston; Henry A. Middleton Smith, Judge.</p> <p>In the matter of the Chesterfield .Dry Goods Company, bankrupt; C. D. Huntley, trustee. Petition by Williams & Shelton and others to revise an order of the District Court.</p>

<p>Judgment <§=256(2)—Inconsistent verdict held not to support judgment.</p> <p>A verdict, in an action for damages for false imprisonment, that “we, the jury, find in favor of the defendant, provide, however, we award the plaintiff seven hundred and fifty dollars damages,” héld inconsistent, and not determinative of the issues, and not to sustain a judgment for either party.</p> <p><@£^>For other cases see same topic & KEY-NUMBER in Tail Key-Numbered Digests & Indexes</p>

<p>Sales <§=>71 (5)— Contract for minimum and maximum quantities held binding on both parties.</p> <p>A contract wherein plaintiff agreed to buy and ’defendant to' sell gravel of specific type in the amount of the minimum of 10,000 tons and a maximum of 25,000 tons within an agreed time and at an agreed price per ton will be construed to give every provision of it effect, and the obligations of defendant to sell up to the maximum and of plaintiff to buy up to the minimum stand on a place of reciprocal equality.</p>

<p>1. Courts <®=>356—Settlement by federal judge not affected by state procedure.</p> <p>Whether a federal judge may settle a hill of exceptions after the term is a question of jurisdiction, not affected by state laws or procedure.</p> <p>2. Exceptions, bill of <S=»38—Judge held without power to settle after term.</p> <p>Where by stipulations of counsel, on which no order was entered by the court, the time for settlement of a bill of exceptions was extended, but no bill was presented until after expiration of tile time stipulated, and also of the term at which judgment was entered, the judge held without power to settle the same.</p>

<p>At Law. Action by the United States against John H. McCallum and others, constituting the State Board of Harbor Commissioners of the State of California. On motion by defendants to dismiss.</p>

<p>In Admiralty. Suit by Peter H. Crowell and others against the United States. On petition for allowance of appeal.</p>

<p>Trusts ©=>352—Estate of trustee, who mingled specific trust fund with his own funds, held chargeable only with origina! amount, with interest.</p> <p>Where decedent held a specific fund in trust to pay the income to his wife during her life, and on her death to distribute the principal among her children, but no distribution was made on the death of his wife, which preceded his own by two years, and there was no evidence as to what disposition he had made of the fund, his estate held, chargeable only with the amount of the original fund, with interest from the date of his wife’s death.</p> <p>@=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Wills <@=>687(1)—Trustee cannot substitute his will for that of donor.</p> <p>The trustee of a testamentary fund, the corpus of which is to be distributed. on the death of a life beneficiary, cannot dispose of the fund by his own will on his death, though it is bequeathed to the same persons in the same proportions, and an attempt to do so will not affect the right of a beneficiary to claim under the first will.</p> <p>?. Trusts <@=>352—Where trustee commingles trust funds with his own, his entire estate is chargeable with the trust.</p> <p>The usual rule that is applied where a trustee commingles trust funds with his own is that the will be held to have intended that the joint fund should be chargeable with the trusts, and it is only where necessary, to protect rights of the cestui que trust that the whole fund is treated as trust property.</p> <p>3. Trusts <@=>358(1)—Where trust fund is money, and is mingled with other money, equity will take out the same sum.</p> <p>Where money constitutes the trust fund, equity will follow the money, even if put into an indistinguishable mass, by taking out the same quantity.</p> <p>4. Trusts <@=^374—Extent of relief to. beneficiary in trust fund which had been commingled.</p> <p>A trustee held money in trust, the income to be paid to bis wife during her life, and on her death the fund to be distributed equally between ber children. On her death she left a son and two daughters; but, the son being then under restraint as incompetent, tbe trustee did not distribute the trust fund, but undertook on his death later to distribute the same by his own will, by placing the equal’ share of the son in both the trust fund and his own estate, which had not been kept separate, in trust. Held that, while such attempt was ineffective as to the trust fund, the son was entitled to recover only his one-third share of the principal of such fund, with legal interest from his mother’s death; there being no evidence that she had not received the income therefrom during her lifetime.</p> <p>®=>For other cases see same topic & KEY-NUMBER in .all Key-Numbered Digests & Indexes</p>

<p>!. Courts <3=508(3)—federal court has jurisdiction to enjoin execution of judgment of state court.</p> <p>A federal court has the same authority as a state court to enjoin execution of a judgment of a state court, the enforcement of which would be inequitable or unconscionable, because obtained by fraud, accident, or mistake, without fault or negligence of defendant.</p> <p>2. Courts <3=508(3)—Enforcement of judgment against garnishee without actual notice enjoined.</p> <p>Enforcement of a judgment for $15,000 against a foreign corporation as garnishee, by service on its agent for citation appointed under the state law, who was defendant in the principal judgment on which the garnishment proceedings were based, Jwld unconscionable, and enjoined, where complainant was not indebted to the principal defendant, and had no actual notice or knowledge of the proceedings, and it did not appear, whether the agent forwarded the papers and they were lost in the mails, or failed to do so in his own interest.</p> <p>®=For other eases see same topic & KEY-NUMBER In all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by the O’Sullivan Rubber Company against the Genuine Rubber Company and another.</p>

<p>In Equity. Separate bills by the Commercial Trust Company, a Pennsylvania corporation, and by the Maryland Trust Company, a Maryland corporation, against the Chattanooga Railway & Eight Company and others, to foreclose trust deeds or mortgages executed by the Chattanooga Railways Company, which were consolidated for hearing.</p> <p>Bill in equity by the Commercial Trust Co., a Pennsylvania corporation, against the Chattanooga Railway & Bight Co., a Tennessee corporation, et al., to foreclose a trust deed or mortgage executed in 1906 by the Chattanooga Railways Co., a Tennessee corporation, to the plaintiff’s predecessor in trust. Subsequent bill, by the Maryland Trust Co., a Maryland corporation, against the Chattanooga Railway & Light Co. et al. to foreclose a prior trust deed or mortgage executed to it by the Chattanooga Railways Co. in 1898. Each bill prayed a mortgage foreclosure and that it be sustained as a general creditors’ bill. The two causes were consolidated.</p> <p>Default in the two mortgages and' the general rights of foreclosure thereof were not denied; but a controversy was presented between the two plaintiffs on the one side and the. Chattanooga Railway & Light Co. and the Fidelity Trust Co., a Pennsylvania corporation, a defendant under the Maryland Trust Co.’s bill, as to the extent of the property of the Chattanooga Railway & Light Co. covered by the liens of the two mortgages, arising out of the following general situation: In 1909, after the Chattanooga .Railways Co., a street railway corporation, had executed these two mortgages, each of which contained an after-acquired clause, the Chattanooga Railway & Light Co. was organized as a Tennessee corporation, authorized to operate both a street railway and a light and power plant. After its organization it acquired, by deeds, all the property of the Chattanooga Railways Co., subject to the two mortgages in suit, and also all the property of the Chattanooga Electric Co., a Tennessee light and power company. Thereafter all these street railway and light and power properties were operated by the Chattanooga Railway & Light Co., which in turn executed a third trust deed, or blanket mortgage, on all its properties, to the Fidelity Trust Co., and thereafter added extensively to its properties.</p> <p>On preliminary applications receivers were appointed by the court, under the two bills, of all the street railway properties of the Chattanooga Railway & Light Co., but not of its light and power properties.</p> <p>Hearing on various interlocutory motions and on pleadings and proof as to decree of foreclosure. Bills not sustained as general creditors’ bills; but foreclosure decree awarded and scope determined.</p>

<p>1. Patents <@^>328—1,174,738, for slitter and rewinder, held valid and infringed.</p> <p>The Langston patent, No. 1,174,738, for a slitter and rewinder, with mechanism for slitting the material and guiding it to the rewinding mechanism, held valid and infringed.</p> <p>2. Patents <S=>317—When plaintiff entitled to injunction stated.</p> <p>Plaintiff, suing for patent infringement, is entitled to injunctive relief whenever further infringement is threatened, or the probability of infringement is shown; but where a different type of machine is now being used, and it is reasonably certain that no infringement has been intended for a long time, or is now contemplated, an injunction will be denied.</p> <p>/r—,T?nr other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Petition of Soo Hoo Doo Hon against John P. Johnson, Commissioner of Immigration, for writ of habeas corpus.</p>

<p>Petition of Lum Hoy Kee against John P. Johnson, Commissioner of Immigration, for writ of habeas corpus.</p>

<p>1. Seamen <§=>29(2)—Not entitled to compensatory damages for negligent Injury.</p> <p>A seaman is not entitled to recover compensatory damages for injury by falling through an open hatchway in the dark, above the expense of maintenance and cure and wages for the voyage, though the hatchway was unlighted, where facilities for protecting and lighting it were provided by the owners.</p> <p>2. Seamen <§=>29(5)—Ship held not chargeable with improper treatment of injured seaman.</p> <p>Charges that a vessel did not give a seaman with a broken leg prompt and proper care, and that it was responsible for nonsuccess of his treatment in hospital, which left him permanently disabled, held not sustained by the evidence.</p> <p><§==>For other cases see same topic & KEY-NUMBER in .all Key-Numbered Digests & Indexes</p>

<p>1. Seamen <®=»29(2)— May recover compensation for injury, through «seaworthiness.</p> <p>A vessel and her owner are liable for indemnity for injuries received by seamen in consequence of unseaworthiness of the ship or a failure to supply and keep in order the proper appliances.</p> <p>2. Admiralty <®=20—Without jurisdiction to enforce remedy at law.</p> <p>The remedy at law for personal injury given seamen by Merchant Marine Act June 5, 1920, § 33, cannot be enforced in a court of admiralty; the right in admiralty being limited to recovery of expense of maintenance and cure and wages, except where the injury occurred through unseaworthiness.</p> <p>3. Common law <®=I4—Common-law principles govern in federa! courts.</p> <p>While there is no body of federal common law, separate from the common law existing in the several states, the principles of the common law are operative, so far as they have national application, except as modified by congressional enactment.</p> <p><$c»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

John P. McCann was informed against for violation of the National Prohibition Act. On plea to the jurisdiction, and motion to quash the information, on the ground of previous conviction in the state courts.

<p>In Equity. Dependent bill by the Equitable Trust Company of New York against the Port Wentworth Terminal Corporation and others. On motion to dismiss bill.</p>

<p>1. Shipping <S= 177—Demurrage for delay in discharging not recoverable, where vessel is authorized to discharge at consignee’s risk.</p> <p>Demurrage for delay after vessel is ready to discharge is essentially a claim for damages for failure to accept delivery, and is not recoverable, where the vessel is authorized to discharge at consignee’s risk.</p> <p>2. Shipping c®^jI77—Claim for demurrage disallowed.</p> <p>Demurrage for delay in discharging field, not collectable where the delay was caused by an unjustifiable demand by the agent of the vessel, made on the nrst day the vessel was ready to discharge, and for prepayment of freight which was not payable until the output of the ore cargo' was known.</p> <p>£=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>5. Citizens <§=>13—War <§=>12— Presumption of loss of citizenship by naturalized citizen rebuttable; burden on alleged alien to show citizenship.</p> <p>Under Act March 2, 1807, § 2 (Comp. St. § 3959), providing that, “when any naturalized citizen shall have resided for two years in the foreign state from which he came, * * * it shall be presumed that he has ceased to be an American citizen: * * * Provided, however, that such presumption may be overcome on the presentation of satisfactory evidence to a diplomatic or consular officer of the United States, under such rules and regulations as the Department of State may prescribe”— the fact that a naturalized citizen of German birth, who had resided in Germany for more than two years, was unable to present satisfactory evidence and was denied a passport to return, held not conclusive on the question of citizenship, when raised in a suit to recover property seized by the Alien Property Custodian, brought under Trading with the Enemy Act, § 9 (Comp. St. .1918, Comp. St. Ann. Supp. 1919, § 3115%e), but the burden of establishing his citizenship rests on the plaintiff.</p> <p>.2. Citizens <§=13—Residence of naturalized citizen in Germany held not a renunciation of bis citizenship.</p> <p>The residence of a naturalized citizen of German birth in Germany for more than two years prior to the war held, under the evidence, not with intent to renounce his American allegiance, nor to have effected his loss of citizenship.</p> <p><3r»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Carriers ®»I94—-Consignee accepting interstate shipment is liable for freight charges.</p> <p>A consignee cannot accept delivery of an interstate shipment of goods without incurring liability for the carrier’s lawful charges, known or unknown, supposed to be prepaid or otherwise, and no matter what the consignee’s actual relation to the shipper is.</p> <p>@=oB'or other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Admiralty. Eibel by U. S. Pacific Company, Inc., against the steamship West Cawthon.</p>

<p>In Admiralty. Suit -by Charles F. Adams and others against the United States. On objections to jurisdiction.</p>

<p>Crimina! law <§=394—Evidenco held not obtained through unlawful search.</p> <p>Evidence obtained by deputy revenue collectors, by visiting defendant’s drug store while open in the daytime and obtaining a bottle of a beverage which was being openly sold over the counter, and which proved to have a large alcohol content, held not inadmissible on trial of defendant for carrying on the business of retail liquor dealer without having paid the special tax, on the ground that it was obtained by an unlawful search, in violation of Const. Amend. 4.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Dietrich, Judge. Consolidated actions by the Washington Water Power’ Company against John Swendig, against James W. Miller, against Remigus Grab, and against Anthony Kerr. Decree for plaintiff, and defendants appeal.

<p>1. Contracts <©=3|27(2)—Engineer’s decision can be made conclusive only as to questions involving construction.</p> <p>A provision of a contract for the grading of a railroad, providing that the decision of the railroad’s engineer on all controversies will be conclusive on both parties, is invalid, as ousting courts of. jurisdiction, unless it can be limited to questions as to the manner of construction, and, if so limited, it does not prevent recovery in a contractor’s action for failure to provide the right of way on which the work was to be done.</p> <p>2. Contracts <©=3299(2)—Provision empowering engineer to direct order of work no defense to action for delay in furnishing place of performance.</p> <p>A provision of a contract for the grading of a railroad, providing that the railroad’s engineer shall have power to direct the order of performance, does not prevent recovery for delay in furnishing a right of way, unless the delay is only such as may be assumed would have occurred under directions of the engineer, if the whole right of way had been available.</p> <p>3. Contracts <©=3287(1)—Plaintiff’s failure to secure engineer’s certificates no defense to action for delay in furnishing place of performance.</p> <p>Failure to secure engineer’s final estimates and certificates, as required by the contract, does not prevent contractors for the grading of a railroad from recovering for failure to provide the right of way in due time.</p> <p>4. Contracts <©=3299(2)—Provision allowing additional time for performance, if delayed by defendant, held not to prevent recovery for such delay.</p> <p>A provision, in a contract for the grading of a railroad, giving contractors additional time for performance, if delayed by railroad company, does not prevent recovery for delay in furnishing the right of way.</p> <p>5. Contracts <©=3284(4)—Provision authorizing engineer to decide disputes relating to execution of work held to prevent recovery for damages resulting from furnishing unsuitable material and working conditions.</p> <p>A provision in a contract for the grading of a railroad, authorizing the engineer to decide questions arising between the parties as to the execution of the work, held to prevent recovery for damages resulting from the furnishing of unsuitable material 'and the diversion of water course.</p> <p><@=For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Northern District of Iowa; Henry T, Reed, Judge.</p> <p>Suit by George H. Merten against John C. Eertig. Erom a decree dismissing the suit, plaintiff appeals.</p>

<p>In Error to the District Court o£ the United States for the Eastern District of Arkansas; Jacob Trieber, Judge.</p> <p>Action by John V. Hemler, trading as the Hemler Bros. Land & Lumber Company, against the Arkansas Short Leaf Lumber Company. Judgment for plaintiff, and defendant brings error.</p> <p>Instruction No. 3, requested by defendant, told the jury that, even though defendant refused to accept logs tendered by plaintiff, unless such refusal was accompanied by a declaration that defendant did not intend to accept any other timber which plaintiff might thereafter, tender, or acts amounting to such a declaration, plaintiff could not recover prospective profits on timber which he did not deliver or tender, and that it made no difference that plaintiff was without means to continue logging in the absence of prompt payment.</p> <p>Instruction No. 4 told the jury that if defendant broke the contract by refusing to scale and pay for logs gotten out by plaintiff at the end of the first two weeks of the contract period, and if after such breach plaintiff continued to get out logs and deliver them to defendant under the contract, then plaintiff waived the breach of the contract, and could not recover.</p>

<p>1. Constitutional law <§=>210—Corporation a “person,” within equal protection of iaws clause of Constitution.</p> <p>A corporation is a “person,” within Const. Amend. 14, providing that no state shall deny to any “person” -within its jurisdiction the equal protection of the laws.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Person.]</p> <p>2. Constitutional law <@=>229(1)—Taxation <§=>37—Statute imposing-greater tax on foreign corporations doing business in the state than domestic corporations held denial of equal protection.</p> <p>Where a foreign corporation was doing business in the Indian Territory under Act Feb. 18, 1901, § 3, at the time of the admission into the Union of the state of Oklahoma, and thereafter continued for more than three years prior to enactment of Rev. Laws Okl. 1910, § 7539, to do business in the state, complying with all the laws thereof relating to foreign corporations, and prior to the enactment of such statute had expended more than §2,000,000 in permanent improvements within the state consisting of pipe lines, pumping stations, steel tankage, telephone and telegraph systems, etc., the levy under such statute of a license tax of §1 for each §1000 of its capital stock employed in its business done in the state, as against a tax of only 50 cents for each §1,000 imposed on domestic corporations, held violative of the equal protection clause of the Fourteenth Amendment.</p> <p>igc^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Action by the Ho'ffmann-Ea Roche Chemical Works, Inc., against Morganstem & Co., Inc. Judgment for defendant, and plaintiff appeals.</p>

Petition to Review and Revise Order of the District Court of the United States for the Eastern Division of the Northern District of Illinois. Bankruptcy proceeding against Marcuse & Co., alleged bankrupts, on petition of C. B. Giles and others. An order found that Henry Vette and others were general partners of the firm, and they petition to review and revise the same.

<p>1. Exchange of property <@=>6—Delivery of third party’s bondi for deed pursuant to contract held performance.</p> <p>Where plaintiff agreed to convey his land in Colorado to defendant, and defendant agreed to deliver to plaintiff a bond of a surety company, in which this company obligated itself to convey land in Mexico to plaintiff, defendant’s delivery of such a bond constituted a full performance.</p> <p>2. Exchange of property <§=>6—Strict performance as to kind of bond for deed waived by acceptance.</p> <p>Where a contract provided that plaintiff was to receive a bond for a warranty deed, the acceptance by plaintiff of a bond requiring the conveyance of a good title, free and clear of all liens and incumbrances, was a waiver of any right to a bond for a warranty deed.</p> <p>3. Exchange of property <@=>6—Plaintiff, agreeing to accept third party’s bond for deed in action against defendant, not entitled to object to impossibility of third party’s performance.</p> <p>Where pursuant to a contract plaintiff conveyed land in Colorado, and defendant delivered a bond of a surety company, in which this company obligated itself to convey land in Mexico to plaintiff, plaintiff having stipulated to look to the surety company alone for performance of the obligation to convey, in an action against defendant for the value of the Mexican land, the fact that lawless conditions in Mexico made it impossible to deliver a good title to the Mexican land was of no avail.</p> <p>4. Trial <@=>176—Error to direct verdict for defendant on defendant’s opening statement.</p> <p>Where plaintiff moved for a directed verdict on defendant’s opening statement, it was error to direct a verdict for defendant.</p> <p>'5. Trial <@=>109—Verdict may be directed against party on his opening statement.</p> <p>The trial court may direct a verdict against a party on his opening statement.</p> <p>6. Trial <@=>176—Motion for judgment on opening statement held not waiver of right to jury trial.</p> <p>Plaintiff’s motion for a judgment on defendant’s opening statement was not a waiver of plaintiff’s right to a jury trial.</p> <p>@s»For other cases see same topic. & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Suit by Lee Blakemore, Incorporated, and others against P. J. Lewelling and others. From a decree for defendants, complainants appeal.

<p>In Error to the District Court of the United States for the District of New Mexico; Colin Neblett, Judge.</p> <p>Action at law by Etienne de P. Bujac against Bertha Pauchet. 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 First National Bank of Statesboro, Ga., against Charles H. Knight. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Bankruptcy ©=»I75—State law determines whether transfer is fraudulent.</p> <p>The question whether a particular transfer of property by a bankrupt is fraudulent, under Bankruptcy Act, § 70e (Comp. St § 9654), must be determined by tbe laws of the state which govern the transaction in question.</p> <p>2. Fraudulent conveyances <§=> 155—Purchaser must have had actual knowledge of fraudulent purpose.</p> <p>Under the law of Massachusetts, as settled by decision, to set aside a transfer because in fraud of creditors, it must be shown that the pur- • chaser, if paying a valuable consideration, had actual knowledge of, or participated in, the fraudulent purpose of the seller.</p> <p>QzaJFor other cases see same topic & KEY-NUMBER in .all Key-Numbered Digests & Indexes</p>

Middleton Smith, Judge. _ _ Suit in equity by the Augusta-Aiken Railway & Electric Corporation against the Railroad Commission of South Carolina and others. From an order denying a motion for preliminary injunction, complainant appeals.

<p>Appeal from the District Court of the United States for the Eastern District of Virginia, at Norfolk; Edmund Waddill, Jr., Judge.</p> <p>Suit in equity by the Portsmouth Cotton Oil Refining Corporation against H. P. Converse and Edwin P. Bliss, partners as H. P. Converse & Co., and the United Dredging Company. Decree for com-</p> <p>plainant, and defendants appeal.</p>

<p>Allens <§=s>32 (I)—Deportation for violation of Chinese Exclusion Act only after judicial hearing.</p> <p>Immigration Act, § 19 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 42891A3i). hoes not authorize deportation of a Chinese citizen for violation of the Chinese Exclusion Act without a judicial hearing in accordance with the requirements of that act, as provided in Act Sept. 13, 1888, § 13 (Comp. St. § 4313).</p> <p><S=oFor other oases see same topic & KEY-NUMBER in .all Key-Numbered Digests & Indexes</p> <p>Van Valkenburgh, District Judge, dissenting.</p>

<p>I. Banks and banking <§=»I7I (I)—Payee, who deposited! check with bank for collection, could sue other bank, to which check was forwarded for coliestion for negligence in course of collection.</p> <p>Under a statute authorizing a bank in which a check is deposited for collection “to forward, en route, the same, without delay, in the usual commercial way in use according to the regular course of business of banks,” a payee, who deposited check with a bank for collection, heiil entitled to sue other bank, to which the check was forwarded for colleetion by tbe first bank, for damages caused by negligence of the second bank in. the course of collection, as against contention that there was no contractual relation between payee and second bank, since under such statute the second bank became the payee’s subagent.</p> <p><£cs>For ether cases see same topic & KEY-NUMBER £n all Key-Numbered Digests & Indexer?</p> <p>2. Statutes <@=3174, 175—Construed to apply only to persons or corporations resident in state, unless otherwise clearly expressed.</p> <p>In construing statutes, provisions in respect to persons coming within their scope will be construed to apply merely to citizens or corporations resident in the state, unless otherwise clearly expressed.</p> <p>3. Banks and banking <@=3171 (3)—Federal Reserve Bank, to which cheek was sent for collection, heitl not negligent in sending check to drawee bank.</p> <p>In view of regulation made by Federal Reserve Board providing that the board will require member and nonmember clearing banks to authorize its Federal Reserve Bank to send checks for collection to banks on which checks are drawn, and that except for negligence such Federal Reserve Bank will assume no liability, it was not negligence for a Federal Reserve Bank, to which a check had been sent for collection, to mail the cheek to the bank on which it was drawn.</p> <p>4. Banks and banking <@=3(63—Drawer’s liability held discharged.</p> <p>Where drawee bank, to which the check had been sent for collection by other bank, sent other bank the drawee bank’s check on third bank in payment thereof, stamped the check drawn on it paid, charged it -to drawer’s account, and delivered it to drawer, who had to his credit subject to his check an amount more than sufficient to pay check, the check was paid, and drawer’s liability as such was discharged.</p> <p>5. Banks and banking <@=3161 (3)—Bank to which check was sent for collection held not authorized to accept in payment drawee bank’s check on other bank.</p> <p>Bank to which check was sent for collection acted at its peril in accepting in payment of such check drawee bank’s check on other bank, having no authority to accept in payment thereof anything other, than money.</p> <p><@=3For other cases see same topic & KEY-NUMBER in .all Key-Numbered Digests & Indexes</p>

In Equity. Suit by the United States against the Lake Shore & Michigan Southern Railway Company and others. On petition by the United States to enforce a sale of the interests of certain defendants in the capital stock and bonds of other companies.

<p>1. Internal revenue <©=>11—“Demurrage” held taxable as a part of the charge for transportation.</p> <p>Demurrage charges for failure to load and unload cars within “free time” permitted by the rules of railroad companies held taxable as a pax-t of the charge for transportation, under Revenue Act 1917, §§ 500-503, and Revenue Act 1918, §§ 500-502 (Comp. St.-Ann. Supp. 1919, §§ 63Q9%a-6309%c), imposing a tax on the amount paid for transportation, since “demurrage” is a terminal charge, a part of the charge for transportation, even if' the purpose of demurrage is primarily to prevent the detention of cars.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Demnxrxage.]</p> <p>2. Interna! revenue <§=>38—Taxes paid voluntarily not recoverable.</p> <p>Taxes paid under Revenue Act 1917, §§' 500-503, and Revenue Act 191S, §§ 50b-o02 (Comp. St. Ann. Supp. 1919, §§ 03091/(!a-6309%c), voluntarily, and not under protest or duress, cannot be recovered.</p> <p><gx=^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Frauds, statute of <$=>113(2)— Essential terms and conditions of written contract cannot be added to by parol.</p> <p>Where a written memorandum of sale is required under the statute of frauds provisions of Pennsylvania Sales Act (Pa. St. 1920, § 19652), which must contain all the essential terms and conditions of the contract, in an action for breach of such contract, terms or conditions cannot be added by parol.</p> <p>(§E»For other cases see same topic & KEY-NUMBER in nil Key-Numbered Digests & Indexes</p>

<p>-I. District of Columbia <§=»36—Party awarded contract is necessary defendant to bill to compel award to plaintiff.</p> <p>In a suit to compel tbe commissioners of tbe District of Columbia to award to plaintiff, wbo was tbe lowest bidder, a contract wbicb tbey bad awarded to tbe next lowest bidder, tbe successful party is a necessary defendant, since tbe bill is aimed especially at tbe destruction of bis rights.</p> <p>.2. Appeal and error ■©=»! 178(8)—Equity held not to require remand, with leave to amend.</p> <p>Tbougb equitable power exists to remand a proper case, witb instructions to grant leave to amend tbe bill by adding a necessary party defendant, sucb power will not be exercised, where tbe attention of complainant asking to have a public contract awarded to him was called, by tbe answer to the rule to show cause and tbe motion to dismiss, to the failure to make tbe bidder to whom the contract was awarded a defendant, and no offer to amend was tendered, and, before the decision on appeal, tbe work under the contract bad progressed to tbe extent that large public interests were involved.</p> <p><g^7>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the Commissioner of Patents.</p> <p>In the matter of the application of Eugene K. Plumly for a patent. From a decision of the Patent Office, refusing to allow the claims, applicant appeals.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York. Libel in admiralty by the Bashinsky Cotton Company, Inc., against the Sunset Lighterage Corporation and another. From a decree for defendants (272 Fed. 120), libelant appeals.</p>

<p>Appeal fromi the District Court of the United States for the Southern District of New York. Action by the Beaver Board Companies against James Imbrie and others, in which John B. Johnson and Theodore G. Smith were appointed receivers for defendants, and in which the State of Santa Catharina, Republic of Brazil, intervened. From an order relating to a settlement of intervener’s claim, opposed by the Cleveland Trust Company, a creditor of defendants, the receivers and the Cleveland Trust Company appeal.</p>

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois. Suit by the United States against Charles Caramelli. From the decree, defendant appeals.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York. Libel in admiralty by the Grace Steamship Company against the North Atlantic Shipping Corporation, claimant of the steamship Carthagena, her engines, etc. Decree for libelant, and claimant appeals.</p>

Action by Benjamin Rozensweig and Edmund J. Stafford, administrators of the estate of Prances Adlaide Doherty, deceased, against James C. Davis, Director General of Railroads, and another. Judgment for plaintiffs, and the named defendant brings error.

<p>In Error to the District Court of the United States-for the Eastern District of New York. Peter Doba was convicted of interfering with a federal prohibition agent in the performance of his duty, and he brings error.</p>

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois. Suit by the United States against Frank Gianovi. From the decree, defendant appeals.</p>

<p>Appeal from the District Court of the United States for the-Eastern District of New York. Libel by Edward J. Reilly, as owner of the-barge Good News, against Tuchy & Upton, Inc. Decree for libelant (272 Fed. 482), and respondent appeals.</p>

<p>Appeal from the District Court of the United States for tne Southern District of New York. Libel for loading by the Union Transport iCompany, Inc., against the steamship Gozan Maru, claimed by _ I. Saito. Libel dismissed, on the ground that libelant was charged with notice of the charter placing on the charterer the obligation of paying for such services, and libelant appeals.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York. Libel for collision by Clarence A. Small and others against the steam tug James Hughes, claimed by the A. S. Hughes Towing & Transportation Company, and James C. Davis, as Director General of Railroads, operating the Cape Cod Canal. From a decree holding the Director General primarily liable, and the tug secondarily liable, the Director General appeals.</p>

<p>Appeal from the District Court of the United States for the District of Minnesota. Suit by A. H. Karatz against the Lion Bonding & Surety Company. . From the judgment rendered, defendant appeals.</p>

<p>In Error to the District Court of the United States for the Eastern District of New York. Action by Thomas M. Donaldson against the Maryland Casualty Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal of the District Court of the United States for the Eastern District of New York. Libel for collision by Thomas J. Scully against the steam tugs North America and W. S. Taylor, claimed by the Atlantic Coast Transportation Company, with the steam tugs Thomas J. Scully and Mercury, claimed by Neptune Line, Inc., impleaded. Decree against the North America and the Thomas J. Scully, each for half of the damages (273 Fed. 263), and the Atlantic Coast Transportation Company appeals.</p>

<p>Appeal from the District Court of the United States for the Eastern District of New York. Suit by Piel Bros, against Ralph A. Day, Federal Prohibition Director for the State of New York, and others. From an order denying a temporary injunction (278 Fed. 223), complainant appeals.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Kentucky; Andrew M. J. Cochran, Judge. Suit by H. W. Roettcher against Elwood Hamilton, Collector of Internal Revenue for the District of Kentucky. From the decree rendered, complainant appeals.</p>

<p>In Error to the District Court of the United States for the Southern District of New York. Action at law by the J. G. White Engineering Corporation against the Standard Shipbuilding Corporation. From a judgment for plaintiff, defendant brings error.</p>