Volume 286 — Federal Reporter

Samuel C. Pandolfo was convicted of using the mails in furtherance of a scheme to defraud, and he brings error. Affirmed. Plaintiff in error, Pandolfo, with 12 others, was tried under an indictment of 11 counts, the first 10 charging violation of section 215 of the Penal Code (Comp. St. § 10385),* and the eleventh a conspiracy under section 31 (Comp. St. § 10201), to violate section 215.

<p>Appeals from the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Suit in equity by the Security Dock Company against the Perry Auto Dock Company and others, with cross-suits, consolidated. Decree for complainant, and defendants appeal. Reversed.</p> <p>Certiorari denied 43 Sup. Ct. 248, 67 D, Ed. ——.</p>

In Bankruptcy. On petition of H. B. Alexander and others to review an order of the refereee disallowing their claim on notes of the bankrupt. Order reversed and proof of claim returned to referee for further proceedings. In April, 1917, the Southern Pharmaceutical Co., for the purpose of raising money, executed two notes for $10,000.00 each, secured by the pledge of collateral stock, and endorsed by its individual stockholders.

In Equity. Suit by -the Churchward International Steel Company against the Carnegie Steel Company. On motion by plaintiff- for leave to discontinue without prej'udice. Motion denied.

<p>In Equity. Suit by Sumner L. Samuels against E. F. Drew & Co., Inc. In the matter of the claim of Eldorado Oil Works. Measure of damages determined.</p>

In Bankruptcy. In the matter of Goldenberg & Halbert, bankrupts. On motion to dismiss petition to set aside order granting discharge. Motion denied.

<p>1. Constitutional law <®=»290(I) — Due proeass of law permits state Legislature to determine property benefited by public improvements.</p> <p>In tbe absence of any more specific constitutional restraint than the general prohibition against taking property without due process of law, the Legislature of a state, in fixing the sum necessary to be levied for a public improvement, is authorized to determine both the amount of the tax and the class of lands which shall be benefited, and its determination is conclusive upon the owner and the courts.</p> <p>2. Constitutional law <§=»290(2) — State Legislature may determine method of assessment for public improvement.</p> <p>A state Legislature in its discretion may assess the cost of a public improvement upon property which it determines to be benefited in proportion either to position, frontage, area, or market value, and unless the exaction is a flagrant abuse of power it does not amount to a deprivation of property without due process of law.</p> <p>3. Constitutional law <§=»290( I) — Waters and water courses <g=»2l6 — Oregon Irri- , gation Law held constitutional.</p> <p>Oregon Irrigation Law, § 24, in providing that the directors of an irrigation district shall assess the cost of construction and maintenance of the irrigation system equally on each acre of irrigable land in the. district, is not unconstitutional, as depriving an owner of his property without due process of law, because it may be shown that some acres are benefited • less than others.</p> <p>For other cases see same topic &K13Y~NTJMB1IDR, in all Key-Numbered Digests & Indexes</p>

<p>1. Admiralty <©=>21 — Suit for death governed fey lav; of state.'</p> <p>The right of action for death of one other than a member of the crew in maritime jurisdiction within the boundaries of a state depends on the law of the state.</p> <p>2. Courts <©=>37! (4) — Contributory negligence, where defense to action for wrongful death under state statute, is defense in admiralty court.</p> <p>Where the right to recover for death in a court of admiralty is derived from a state statute, all limitations on that right imposed by the state law must be given effect by the- 'federal court, and where under the state law contributory negligence is a bar to recovery, it is p bar in that court.</p> <p><£=^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Petition for Revision of Order of and Appeal from the District Court of the United States for the Northern Division of the Eastern District of Washington; Frank H. Rudkin, Judge. In the matter of George R. Jesse, bankrupt. Appeal and petition to revise by J. E. Herrick, trustee to review an order in favor of the First National Bank of Colville, Wash. Reversed.

<p>In Error to the District Court of the United States for the Southern Division of the Western District of Washington; Edward E. Cushman, Judge.</p> <p>Actions at law by Maude E. Stewart against the Prudential Insurance Company of America and against the Mutual Life Insurance Company of New York. Judgments for plaintiff, and defendants bring error. Affirmed.</p>

<p>1. Patents <@=>191 — Do not Imply right to tpake or sell.</p> <p>A “patent” is not a grant of a right to make, use, or sell, and does not directly or indirectly imply any such right, but grants only the right to exclude others.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Patent.]</p> <p>2. Patents <S=»i — Granted in consideration of disclosure of secret invention.</p> <p>A patent is granted in consideration of the information or disclosure afforded by the patentee of the details of a new and theretofore secret improvement' in an art.</p> <p><®=sFor otlier cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>3. Patents <©=>303 — Whether expired patent permitted manufacture of alleged infringing article held question for fina! hearing.</p> <p>Where defendant claimed that his article was manufactured in the exact form shown by a patent wbicb had expired, while plaintiff claimed an infringement of a subsequent patent issued to its assignor, the question presents a matter to be considered at final hearing, and not on motion for preliminary injunction.</p> <p>4. Patents <©=303 — Debatable question as to anticipation not decided until final . hearing.</p> <p>Even though plaintiff’s patent had been held valid in another suit, a debatable question raised by defendant as to its anticipation by a patent not considered in the other suit warrants the court in the exercise of his discretion in refusing an injunction and postponing the determination of that question until the final hearing.</p> <p>5. Patents <g=303 — Defense, substituted specifications and claims were not sworn to, should be determined on final hearing.</p> <p>In a suit for infringement of a patent, the defense that the substituted specifications and claims which were issued contained new matter and were not sworn to, so that the patent was invalid, presents a question which can be postponed until the final hearing and not determined on motion for preliminary injunction.</p> <p><@=Eor other eases see same topic & KEY-NUMBER in ail Key-Numbered Digests & Indexes</p>

Division of the District of Idaho; Frank S. Dietrich, Judge. Suit in equity by William Klein and others against Charles Peter, and others. Erom a decree dismissing the bill, complainants appeal. Affirmed.

Trippet, Judge. ' Action by R. C. Klepper, doing business under the fictitious name of the Bethlehem Motors Company, against John P. Carter, Collector of Internal Revenue, Southern District of California. Judgment for defendant, and plaintiff brings error. Affirmed. This case involves the legality of certain taxes paid by the plaintiff in error for the year 1919.

<p>1. Admiralty @=>5 — Jurisdiction of suit between aliens declined.</p> <p>A United States court of admiralty in the exercise of its discretion, will refuse to take jurisdiction of a suit by a shipper for damage to a cargo shipped from Peru to British Columbia, where all parties are alien and the ship is of foreign registry, the evidence is not within the jurisdiction of the court, and where the parties contracted in the bill of lading that their rights should be governed by English law.</p> <p>2. Admiralty @=>44 — Filing of stipulation for value does not preclude claimant from objecting to jurisdiction.</p> <p>The filing of a stipulation for release of a libeled vessel does not preclude claimant from suggesting want of jurisdiction, nor take from the court its discretion to decline jurisdiction.</p> <p>other cases see same topic & KEY-NTJMBER in -all Key-Numbered Digests & Indexes</p>

In Admiralty. Libels by the Barendrecht Steamship Company, Limited, against the Moran Towing & Transportation, Compány, by the United States against the steamship Barendrecht and the steam tug Catherine Moran, and hy the Barendrecht Steamship Company, Limited,- against the United States.

In Admiralty. Libels by one Granberg and various other persons against the steamship Bethlehem, and by one Foster and various other-persons against the steamship Northern Wave. On exceptions to the commissioner’s reports. Exceptions sustained in part, and dismissed in part.

In Equity. Suit by the Great Northern Railway Company against Ered Brosseau and John Schimisik, respectively, chairman and secretary of the Brotherhood of Carmen, at Grand Forks, N. D., and others. Preliminary injunction granted.

<p>1. Patents ©=>328 — 1,061,731, for electric self-starter, valid and infringed.</p> <p>The Foster patent, No. 1,081,731, for an elective self-starter for internal combustion engines, held not anticipated, valid and infringed.</p> <p>2. Patents ©=>259 — Knowingly supplying parts for infringing device "contributory infringement.”</p> <p>Defendant, which supplied motors and switches to a manufacturer of motor cars, knowing that they were used in making starting devices for such cars, which devices, when completed, were an infringement of complainant’s patent, held a contributory infringer. '</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series,' Contributory Infringement.]</p> <p><©rs>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. Uynch, Judge.</p> <p>Suit in equity by the Westinghouse Electric & Manufacturing Company against the Simms Magneto Company. Decree for complainant (286 Fed. 558), and defendant appeals. Reversed and remanded.</p>

<p>In Bankruptcy. In the matter of Henry Schapiro, bankrupt. Order denying lien by levy of distraint warrant.</p>

In Equity. Suit by Charles C. Blackmore against Jeffrey N. Collins and others. On motions by both parties for preliminary injunctions. Denied. Also on objections by complainant to interrogatories propounded by defendants. Sustained in part.

<p>Appeal from the District Court of the United States for the Eastern District of Texas; W. Lee Estes, Judge.</p> <p>Suit by Jane Gustine Stewart against Louis Lipsitz and others. ■From a decree for defendants, plaintiff appeals. Affirmed.</p>

<p>Appeal from the District Court of the United States for the Southern District of Mississippi; Edwin R. Holmes, Judge.</p> <p>Suit by the Gulf & Ship Island Railroad Company against D. W. Ducksworth, Sheriff and Tax Collector of Simpson County, Miss., and others. From a decree dismissing the bill of complaint (280 Fed. 733) plaintiff appeals. Affirmed.</p>

<p>Seamen <§=29(5) — Action at law for injuries must be brought in district wfserti employer resides or has principal office.</p> <p>Under Act June 5, 1920, § 33, amending Seamen’s Act March 4, 1815, i 20, authorizing a seaman suffering personal injuries to sue at law for damages and providing that jurisdiction shall be in the court of the district in which the employer resides or in which his prneipal office is located, the action cannot be maintained in a district other than that specified.</p> <p><@c»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Bankruptey <S=>I9, 195 — First of two petitions filed in different districts fixes status of property.</p> <p>Where proceedings are instituted against a bankrupt in different districts in different states, and later consolidated, the first petition filed fixes the status of his property, and a subsequent levy of execution from a state fourt is ineffective to create a lien thereon.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

At Law. Action by the American Sugar Refining Company against Colvin Atwell & Co. On statutory demurrer by affidavit of defense raising question of law. Demurrer overruled, with leave to answer the facts.

<p>1. Landlord and tenant <@=>56(2) — Possession of those replacing tenants induced to vacate by adverse claimant held possession of landlord.</p> <p>Where the premises in dispute had been in the possession of plaintiff through numerous tenants, when defendant entered on the land and induced two of those tenants to leave, replacing them with two others, who were acting on defendant’s behalf, the possession of the two replacing tenants was still the plaintiff’s possession.</p> <p>2. Adverse possession <@=>100(I) — Possession by tenants who replaced plaintiffs tenants is limited to houses occupied.</p> <p>Where plaintiff, who claimed a 'large tract of land under deeds of conveyance, had been in possession thereof by numerous tenants, when defendant entered the premises, induced two of the tenants to leave, and replaced them by two who were acting in defendant’s interest, the possession of the two new tenants, if it inured to the benefit of the defendant, was limited to the houses occupied by them, and did not extend to th® timber on the tracts.</p> <p>3. Injunction <@=>52 — Person out of possession may bo restrained from cuttiisg timber.</p> <p>One in possession of a tract of land, claiming to be the owner, may enjoin one out of possession of the land from cutting and removing th© timber, which constitutes the chief value of the land, and compel him to account for the timber already cut, since there is no adequate remedy at law.</p> <p>4. Adverse possession <@=>101 — Possession by grantee under several deeds to eontiguous tracts of any portion of boundary is sufficient</p> <p>Where plaintiff had acquired his claim to the land in controversy by deeds to several contiguous tracts which together formed one tract, Ms possession of any portion of the land within the boundary gave possessions of the entire tract under the law of Kentucky, and was not limited to the portion of it described in the deed conveying the part actually possessed.</p> <p>5. Adverse possession <@=>106(1) — Possession of vacant land extends te well-riis^ fined boundary, if claimed.</p> <p>One who enters on the land in dispute, not then in the actual possession of the owner, claiming it to he a well-defined boundary, acquires adverse possession to the full extent of the boundary.</p> <p><&s>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indesc*</p>

<p>In Equity. Suit by the Bromwell Brush & Wire Goods Company against the State Board of Charities and Corrections. On general demurrer to the bill. Demurrer sustained.</p>

<p>In Error to the District Court of the United States for the District of Massachusetts; James M. Morton, Judge.</p> <p>Action at law by the Mills Woven Cartridge Belt Company against John F. Malley, formerly Collector of Internal Revenue. Judgment for defendant, and plaintiff brings error. Affirmed.</p>

<p>1. Receivers <§=>91 — Rule requiring compensation for premises occupied held not 0 applicable under terms of sale.</p> <p>The general rule that, where a receiver uses premises for the benefit of receivership, the owner is entitled to compensation for such use, and in the absence of ¿n express agreement a quantum meruit will lie, does not apply where the premises occupied by the receiver had been sold by him to the claimant, and the order confirming the sale regulated the use of the premises thereafter.</p> <p>2. Receivers <§=>81— Court acts for benefit of creditors, not of purchasers from receivers.</p> <p>The court acts in insolvency and bankruptcy proceedings for the benefit of the creditors, and not for the benefit of purchasers from the receivers, so that a provision in an order confirming sale of real estate giving the purchaser of the personal property the right of free storage on the real estate for 40 days after the confirmation of the sale of personalty was for the evident purpose of enabling the receivers to make the hest possible sale. *</p> <p>3. Receivers <§=>91 — Order confirming purchase of real estate held to deprive purchaser of compensation for occupation by receiver.</p> <p>Where an order confirming a receiver’s sale of the real estate of an insolvent corporation gave the purchaser of the personal property the right of free storage for 40 days after the confirmation of the sale of the personalty, and showed that a resale of the personal property was contemplated, it was manifestly intended to permitv,the receiver to have free storage of the personal property until the resale was ordered, so that the purchaser of the real property is not entitled to compensation for the receiver’s possession before the resale, especially where the evidence showed that such was the understanding of the parties, except that .the resale was delayed by an appeal from the ord.er vacating the first sale.</p> <p>cg^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Van Fleet, Judge. Suit in equity by W. S. Overton and another against the Presidio Mining Company and others. From an order confirming the final account of the receiver, and allowing compensation to him and his counsel, to be deducted from the funds in his hands, but reserving the question of taxing such compensation against the plaintiffs until final decree, defendants appeal. Appeal dismissed.

Suit in equity for infringement of a patent by the Krantz Manufacturing Company, Inc., against the Metropolitan Electric Manufacturing Company. Decree for plaintiff (282 Fed. 288), and defendant appeals. Affirmed.

<p>Appeal from the District Court of the United States for the District of Massachusetts; Mack, Judge.</p> <p>Dibel' in admiralty by the Wright & Gowen Company against the schooner Alice M. Colburn, of which Osgood A. Gilbert was claimant. Decree for libelant, and claimant appeals. Amended and affirmed.</p>

<p>In Admiralty. Libel by Musher & Co., Inc., against the steamship Wimbledon, to recover for damage to a cargo. Interlocutory decree granted to libelant.</p>

<p>At Law. Action by the Haverty Furniture Company against the United States. Judgment for plaintiff.</p>

<p>In Error to the District Court of the United States for the Western District of Louisiana; Rufus E. Foster, Judge. On rule for contempt by J. L. Lancaster and another, as receivers of the Texas & Pacific Railway Company, against Clay Guidry. Judgment against defendant, who brings error. Aifirmed.</p>