Volume 288 — Federal Reporter

Rud-kin, Judge. Action at law by Levi P. Austin and Jay R. Austin, partners as Austin Bros., and others, against Fairbanks, Morse & Co., a corporation. Judgment for plaintiffs, and defendant brings error.

<p>1. Post office <§=>48(5) — Indictment for embezzlement from mails held sufficient; “or;” “and.”</p> <p>An indictment charging that a railway mail clerk did embezzle, secrete, and destroy a letter’ and its contents, with intent to defraud, and also with intent to convert the money therein to his own use and benefit, contrary to Criminal Code, § 194 (Comp. St. § 10364), was not demurrable, since the conjunction “and” in the indictment took the place of “or” in the* statute, it was not necessary to prove all of the acts denounced by the statute, and the indictment was therefore consistent with the idea that defendant did not destroy the money, but embezzled it and afterwards converted it to his own use.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, And; Or.]</p> <p>2. Criminal law <§=>4 13 — Railway mail clerk may be prosecuted in district in which he had stolen money in his possession.</p> <p>The offense of theft or embezzlement by a railway mail clerk from the mails is a continuing offense, so that he can be prosecuted in a district in which he was found to have had the letter and its contents, which he had taken from the mails, in his possession, under Judicial Code, § 42 (Oomp. St. § 1024), regardless of where he abstracted the letter from the mail.</p> <p>3. Post office <§=>42 — Taking money from decoy letter is an offense.</p> <p>It is no defense to a prosecution of a railway mail clerk for taking a letter containing money from the mails that the letter so taken was a decoy letter.</p> <p>4. Criminal law <@=>814(16) — Instruction to ignore confession, unless voluntary, held unnecessary.</p> <p>Where there was no showing that the confession made by defendant was involuntary, or made on threat or compulsion, it was properly admitted in evidence, and it was not error to refuse to charge the jury to ignore the confession, unless it believed defendant had been advised of his rights and privileges.</p> <p>,©=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>5. Criminal law <§=3827 — Request for proper charge on issue' is insufficient.</p> <p>When a defendant is not satisfied with the charge which the court gives, it is incumbent on him to make a request for such instructions as he desires, and he cannot assign error on the refusal of a request merely for a proper charge on an issue.</p> <p>6. Criminal law <§=>4 134(3) — Errors affecting other counts immaterial where sentence is sustainable under valid count.</p> <p>Where defendant was indicted and convicted on several counts, but the sentence imposed was sustainable under one count, which was not subject to demurrer, it is unnecessary to consider rulings on demurrers to the other counts.</p> <p>«gc^For other cases see same topic & KEY-NUMBER in .all Key-Numbered Digests & Indexes</p>

<p>At Law. Action by Joseph Amedeo against the American Railway Express Company, Inc. On motion by defendant for bill of particulars.</p>

Appeals from the District Court of the United States for the Southern District of Alabama; Robert T. Ervin, Judge. Suit in equity by Albert Baldwin Wood against the Atlantic, Gulf & Pacific Company for infringement of letters patent, No. 1,182,439, issued to the plaintiff.

<p>1. Eminent domain <@=>166— In proceedings to enjoin overflow of plaintiff’s land by municipal sewerage plant, defendant entitled to condemn right of way for ditch.</p> <p>In an action to enjoin a city from permitting the overflow of its sewerage disposal plant to be carried onto plaintiff’s adjoining land in times of flood or heavy rainfall, it was error to strike from respondent’s answer that part thereof seeking to condemn such part of plaintiff’s land as was necessary to take care of the overflow by ditches, where the maintenance of the sewerage system was a public necessity, maintained for many years.</p> <p>2. Equity <@=>-39(4) — In proceedings to restrain overflow of plaintiff’s land from municipal sewerage disposal plant, federal court has jurisdiction to entertain condemnation proceedings by city.</p> <p>A federal court of equity, having taken jurisdiction at plaintiff’s suit to restrain the overflow of his land by a municipal sewerage disposal plant, had jurisdiction' to dispose of the entire controversy, including the granting of relief to the municipal corporation on its prayer for condemnation of sufficient of plaintiff’s land to provide ditches for the proper disposal of such overflow, and under proper pleadings the court can ascertain the compensation to be paid and allow damages meanwhile inflicted on plaintiff’s land.</p> <p>©ssFor other cases see ¿ame topic & KEY-NXJMBER.in all Key-Numbered Digests & Indexes</p> <p>3. Municipal corporations <S=»827(I)— Property owner not entitled to damages caused by natural flow of water, but restricted to injury caused by overflow of sewerage on his land.</p> <p>A property owner, whose land adjoining a municipal sewerage disposal plant was injured by the overflow from such plant during times of flood and high water, was entitled to damages therefor; but under evidence showing that/if there were-no sewerage, his land-at time of heavy rains would still be flooded with water, he can recover nothing for damage effected by the natural flow.</p> <p><gp>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 District of Nebraska; Joseph W. Woodrough, Judge.</p> <p>Action at law by Isaac Konecky against the Jewish Press and others. From an order of dismissal, plaintiff brings error.</p>

<p>Corporations <S=»527i/2, New, vol. I7A Key-No. Series — Appeal erroneously taken' transferable to proper appellate court.</p> <p>Under Judicial Code, § 238 (Comp. St. § 1215), jurisdiction of an appeal from a decree dismissing a suit on the sole ground of want of jurisdiction is vested exclusively in the Supreme Court, but where erroneously taken to the Circuit Court of Appeals, it will be transferred to the Supreme Court, under section 238a, as added by Act Sept. 14, 1922.</p> <p>ig — aFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Bankruptcy <$=>308 — Surety is entitled to subrogation.</p> <p>Both at common law and under Bankruptcy Act, § 57i (Comp. St. § 9641), a surety who has paid a debt of the bankrupt, in whole or in part, is subrogated to the rights of the creditor pro tanto.</p> <p>2. Bankruptcy <$=>312 — Surety, who paid part of valid judgments against bankrupt, held not estopped to enforce judgment liens as subrogee.</p> <p>A surety on notes of bankrupt, which were reduced to judgments and secured by attachment liens on land in another state mote than a year prior to the bankruptcy, who had paid part of the judgments, but asserted his right, with the knowledge of all parties; to stay out of the bankruptcy proceedings, held not estopped to enforce the judgment liens as subrogee pro tanto, by a sale of the property by the trustees free from incumbrance and payment from the proceeds of the remainder of the judgments under a compromise agreement with the judgment plaintiffs, to which arrangement the surety was not a party.</p> <p>3. Bankruptcy <$=>364 — Proof of unsecured claims does not affect claimant’s rights as to secured claims.</p> <p>Proof and receipt of dividends on unsecured claims does not estop the claimant from enforcing a lien securing other claims.</p> <p>4. Bankruptcy <$=>268 — Bankruptcy Act does not authorize injunction restraining suit in state court at instance of purchaser of bankrupt’s property.</p> <p>The Bankruptcy Act does not, within the meaning of Judicial Code, § 265 (Comp. St. § 1242), authorize a federal court to grant an injunction staying a suit in a state court to protect the interests of a purchaser of property at a bankrupt sale.</p> <p>5. Bankruptcy <$=>217(3) — Court may not enjoin enforcement of valid judgment liens.</p> <p>A court of bankruptcy is without power to enjoin enforcement of liens obtained through judgments of a state court in attachment suits more than four months prior to the bankruptcy proceedings, which under Bankruptcy Act, § 67f (Comp. St. § 9651), are not affected by such proceedings.</p> <p><g=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Equity. Patent infringement suit by Arthur C. Badger against the E. B. Badger. & Sons Company, in which the defendant answered, claiming ownership of the patents, and counterclaimed for damages for infringement and for other acts of plaintiff.

Cushman, Judge. Suit in equity by Thomas W. Miller, Alien Property Custodian, against Edward Clifford, Superintendent of the Department of Labor and Industries of the State of Washington, and another. Decree for complainant, and defendants appeal.

<p>In Error to the District Court of the United States for the District of Oregon; Robert S. Bean, Judge.</p> <p>Action at law by Chriss Eandsberg against the San Francisco & Portland Steamship Company. Judgment for defendant on directed verdict, and plaintiff brings error.</p>

<p>Corporations <®=»309(I) — President not entitled to recover from the corporation ■ expenses of prosecution by government for fraud In tax returns. i</p> <p>President of a corporation is not entitled to recover therefrom expenses to which he was subjected in defending a prosecution against him, under Criminal Code, § 87 (Comp. St. § 10201), for conspiracy to defraud the United States in connection with the making of tax returns, though he acted for the corporation in good faith and was not guilty of the charge set forth in the indictment.</p> <p>j@s»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Equity. Suits by the North American Company and by the Rail Joint Compány against the St. Louis & San Francisco Railroad Company, consolidated. In the matter of interventions of. E. B. Spiller and of E. B. Spiller and others against the St. Louis-San Francisco Railway Company, purchaser at foreclosure sale.

In Equity. Suit by the Southern Pacific Company against the City of Calexico afid others.

<p>Appeal from the District Court of the United States for the South•ern District of New York.</p> <p>Proceeding at law by Thomas W. Miller, Alien Property Custodian, to require Gustav Schwab and" another, as executors, to deliver to him all the moneys due certain residuary legatees of the estate of Herman C. Von Post, deceased. From a decree as prayed, the executors appeal.</p>

<p>1. Trade-marks and trade-names and unfair competition <§=80f/2, New, vol. 8A Key-No. Series — Federal Trade Commission without jurisdiction to regulate business methods unless unfair.</p> <p>The purpose of Federal Trade Commission Act Sept. 26, 1914 (Comp. St. §§ 8836a-8836k), was to prevent unfair methods of competition in interstate commerce, and unless a person, partnership, or corporation is using unfair methods the Commission has no authority to interfere.</p> <p>2. Trade-marks and trade-names and unfair competition <§=8(fl/2, New, vol. 8A</p> <p>Key-No. Series — Allegation that practice of varying discounts tended to hinder competition a pleader’s conclusion.</p> <p>In proceedings by the Federal Trade Commission to require respondent to desist from unfair methods of competition, the allegation that respondent’s practice of varying discounts tended (¿duly to hinder competition between distributors of its products to retailers or directly to the consuming, public is a pleader’s conclusion.</p> <p>3. Statutes <@=217 — Reports and statements of committee in charge of bill may be considered to resolve ambiguity.</p> <p>■ In the case of an ambiguous or obscure statute the intent of Congress may be gathered from statements in reports of committees having the legislation in charge in either House of Congress, and statements made on the floor of either House by the committee in charge of the bill in the course of its passage may in like manner be considered.</p> <p>4. Trade-marks ad trade-names and unfair competition <§=68 — Allowance of varying discounts to wholesalers and retailers not unfair competition.</p> <p>Where a manufacturer sold both to wholesalers and retailers, its allowance to wholesalers of a discount which it denied, to retailers and its classifying in the group of retailers, mutual or co-operative corporations organized and owned by retailers, and its refusal to sell to such retailers’ organizations at wholesale prices, was not unfair competition in violation of Clayton Act, § 2 (Comp. St. § 8835b), and the Federal Trade Commission Act, § 5 (Comp. St. § 8836e); there being no attempt by the manufacturer to fix resale price and no discrimination between retailers or between wholesalers.</p> <p>* — ,irnr other cases see same topic & KEY-NUMBER in all Key-Ntimbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Criminal prosecution by the United States against Morris S. Rach-mil. Judgment of conviction, and defendant brings error.</p> <p>Defendant was convicted of the crime of a violation of section 253 of the Act of February 24, 1919 (40 Stat. 1057 [Comp. St. Ann. Supp. 1919, § 63361/8v]) and section 37 of the United States Criminal Code (Comp. St. § 10201).</p>

<p>In Error to the District Court of the United States for the Eastern District of Illinois.</p> <p>Criminal prosecution by the, United States against Joe Jozwich. Judgment of conviction, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Louis Cohen was convicted of violation of Criminal Code, § 151, and brings error.</p>

Libel by O’Brien Bros., Inc., against the New York Central Railroad Company, in which the New York Marine Company was inter-pleaded by petition of the respondent. From a decree for the libelant against the respondent only, respondent appeals.

At Law. Action by the Boston Elevated Railway Company against John E. Malley, formerly an internal revenue collector, to recover taxes paid under protest. On demurrer to the declaration.

Middleton Smith, Judge. Suit in equity by Minnie M. Galluchat, administratrix of the estate of M. C. Galluchat, deceased, substituted complainant, against Robert H. Pittman, Thomas Hume, and the Michigan Trust Company, executors and trustees of the estate of Charles H. Hackley, deceased. Decree for defendants (288 Fed. 917), and complainant appeals.

<p>In Equity. Suit by the United States Harness Company against W. A. Graham and others. Motion by defendants to dissolve injunction denied.</p>

In Admiralty. Tib els by J. P. Clark against the steamship Helen and the steam tugs W. S. Holbrook, S. W. Holbrook, White Ash, and A. S. Sherman, and by Burns Bros, against the steamship Helen, the the Hull Insular Steamship Company, claimant, with the Holbrook Towing Tine, Inc., and others impleaded.

<p>At Law. Action by the Old Colony Trust Company against the Continental Bank of New York. On demurrer to complaint.</p>

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

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

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

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

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