Volume 292 — Federal Reporter

<p>In Error to the District Court of the United States for the District ■of North Dakota. '</p> <p>Action by the United States against John Wandmaker and another. Judgment for defendants, and the United States brings error.</p>

<p>Appeal from the District Court of the United States for the District of New Mexico; Colin Neblett, Judge.</p> <p>Suit in equity by Walter S. Dickey against the Roswell Drainage District and others. Decree for complainant, and defendants appeal.</p>

<p>In Error to the District Court of the United States for the District of North Dakota, Andrew Miller, Judge.</p> <p>Action at law by Jacob J. Verbrugh against the Beulah Coal Mining Company. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the District of Kansas; John C. Pollock, Judge. ,</p> <p>Action at law by Fred Turner against the Standard Ice & Fuel Company. From a judgment for plaintiff for less than claimed, he brings error.</p>

<p>Appeal from the District Court of the United States for the Northern District of Iowa; George C. Scott, Judge.</p> <p>Suit in equity by Lorenz Lorenzen, trustee in bankruptcy of Frank W. Weber, against Lola S. Weber. From a part of the decree, defendant appeals.</p>

<p>In Error to the District Court of the United States for the District of New Jersey; Joseph L Bodine, Judge.</p> <p>Action by David H. Moore against George W. Shisler. Judgment for defendant, and plaintiff brings error.</p>

<p>Appeal from the District Court of the United States for the District of Delaware; Hugh M. Morris, Judge.</p> <p>Suit in equity by the. Cleveland Worsted Mills Company against the Consolidated Textile Corporation. Decree for defendant, and complainant appeals.</p>

<p>1. Judgment <©=>780(1) — Husband and wife, holding title to real estate with right of survivorship, may convey free from lien of judgment against either.</p> <p>Under tbe law of Pennsylvania, as settled by decision, title to real estate, which is in a husband and wife and the survivor of them, may be conveyed by them unaffected by judgments against either.</p> <p>2. Execution <©=»17f'(4) — Injunction granted to restrain levy and sale of land on judgments against complainant’s vendors.</p> <p>Where the law is settled that real property, title to which is in complainant, is not subject to levy and sale under judgments against complainant’s vendors, an injunction may properly be granted to restrain the judgment plaintiff from issuing execution and making such sale, as an abuse of legal process.</p> <p><gcs>For other cases see same topic & KEY-NUMBER in nil Key-Numbered Digests & Indexes</p>

<p>In Equity. Bill by the Camp Manufacturing Company, Incorporated, against Sarah Ella Jordan and others for specific performance of executory contract for sale of standing timber.</p>

At Law. Action by Albert Dietrich against Bath County, Ky. On motion to reconsider order overruling motion to strike out certain portions of the reply.

<p>Action by George A. Eyer & Co. against Mercer County, Ky. Judgment for plaintiff.</p>

<p>Trade-marks and trade-names and unfair competition @=»7I— Use of another’s trade-mark, without words of explanation, held unfair competition, regardless of validity of trade-mark.</p> <p>The use by defendant on toilet preparations of the name “Coty,” the surname of complainant’s predecessor in business, registered and used by him for a number of years as his trade-mark for similar preparations, held to constitute unfair competition, unless accompanied by words explaining that it had no connection with the original Coty.</p> <p><gz»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 Eastern District of Arkansas; Jacob Trieber, Judge.</p> <p>Criminal prosecution by the United States against Hiram C. Shaw. Judgment of conviction, and defendant brings error.</p>

<p>Í. Courts <©=3273 — Jurisdiction of action for damages for personal injury to seamen stated.</p> <p>Under Merchant Marine Act June 5, 1920, § 33, providing that any seaman who shall suffer personal injury in course of his employment may maintain an action at law for damages in the court of the district “in which the defendant employer resides or in which his principal office is located,” where the employer is a partnership, the action may be brought in a district in which one of the partners resides.</p> <p>2. Commerce <©=80 — Seamen <©=>4 — Provision of Merchant Marine Act giving remedy to injured seamen held constitutional.</p> <p>Merchant Marine Act June 5, 1920, § 33, giving a legal remedy to injured seamen, is limited in application to navigable waters of the United States, and is not unconstitutional as an attempted interference with intrastate commerce over waters of a state.</p> <p><§E5>For other cases see same topic & KEY-NUMBER in all Key-Nwmhered Digests & Indexes</p>

<p>1. Evidence <§=»!79(2) — Claimant held entitled to introduce secondary evidence of contract.</p> <p>Where letters written by bankrupts to claimant and alleged to constitute part of a contract of sale between them were obtained from claimant by a member of the bankrupt firm ostensibly for examination, but were never returned, and after diligent effort neither the letters nor such member could be found, nor his testimony obtained, claimant was entitled to introduce secondary evidence of their contents.</p> <p>2. Evidence ®=»I79(2) — Party wrongfully deprived of possession of written instruments may introduce secondary evidence of contents.</p> <p>A party who is deprived of possession of written instruments belonging to him by fraudulent representations or devices of another person is entitled to give secondary evidence of their contents, on showing that he has exercised reasonable diligence for their recovery.</p> <p>íg=3>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by W. R. Bowles and others against J. W. Kinney, as Supervisor of Game and Game Eish for the State of Washington, and others.</p> <p>The complainants allege: That they are citizens of the state of Oregon and that they are owners of land in the state of Washington through which the Washougal river flows. That the said river, flowing through each parcel of land set out, is not navigable, and is a rough mountain stream, the channel of which is filled with rocks and boulders, the waters in many places-being less than one foot in depth across the channel, and that it cannot be used for commerce. That canoes or boats of any kind cannot navigate said river where it flows upon and over plaintiffs’ land. That said river is a natural habitat of trout and game fish, and the waters of said stream contain large numbers of said fish. That the plaintiffs use the stream throughout its course through said lands as a common fishing preserve for each of the plaintiffs. That the lands are of nominal value for agricultural or any other purpose than fishing in said stream, but that the fishing privilege is worth in excess of $10,000, and that “the matter in controversy exceeds, exclusive of costs, the sum and value of $3,000.” It is alleged: That the defendants Hu'ffard, chairman of the game commission of Skamania county, and Alex Mc-Nagan and John Wachter are citizens of Skamania county, and with Huffard constitute the Skafnania county game commission. That Gilmore is a citizen of the state of Washington and game warden of Skamania county. That the deféndants Pio are each a citizen of the state of Washington and resident of Clark county. That numerous persons have frequently come into and upon the premises of the plaintiffs without right or authority, over the protest of the plaintiffs, and have taken fish from the said Washougal river on the premises of the plaintiffs in defiance of the rights and wishes of the plaintiffs. That because of the area and character of the land of the plaintiffs it is impossible to patrol all of the said premises for the purpose of catching and identifying parties entering upon the same, and preserve the evidence of each of such trespasses. “The damage done by each separate trespass of each person who goes to and upon said premises and takes fish from said Washougal -river is small, and the expense of attempting to recover the amount thereof is so great that such measure would afford no relief to plaintiffs; also to attempt to prosecute actions at law against such persons who trespass upon said lands and fishes in said water of the said Washougal river would require a multiplicity of suits.”</p> <p>April, 1922, plaintiffs, to prevent trepasses on said lands and taking fish from said river upon lands of the plaintiffs, appealed to the defendants game commission of Skamania county to assist in preserving said fish in said Washougal river, and protect the plaintiffs’ rights in said stream on said lands, but that members of said game commission, “conspiring with the said defendant J. W. Kinney, as state supervisor of game and game fish of the State of Washington, and with numerous persons desiring to trespass upon plaintiffs’ said land and take fish from the said Washougal river upon said land, encouraged and urged said persons, whose name's to the plaintiffs are unknown, to take fish from the said waters of the said Washougal river, and as a result of said concerted action of said supervisor of game and game fish, and said members of the Skamania county game commission, many persons did take fish from the waters of said river, and did overawe, threaten bodily injury to, and intimidate the watchmen whom plaintiffs maintained to warn persons from said premises, and did frighten said watchmen from the premises. That in pursuance of such conspiracy the defendants Skamania game commission caused to be published in a newspaper of general circulation at Washougal, Wash., the following notice:</p> <p>“To Whom It may Concern: Certain parties owning land along the Washougal river in Skamania county have men in their employ to patrol the river, and keep people from fishing along their holding for several miles, and are exceeding their authority in regard to said stream. Through Mr. J. W. Kinney, State Supervisor of Game and Game JTish, I am instructed to notify all sportsmen their interests will be protected in regard to fishing on the Washougal river or any other stream that is navigable. * * ”</p> <p>That plaintiffs addressed a letter to the department of game and fisheries of the state of Washington with relation to the rights of said plaintiffs, and in response thereto J. W. Kinney, state superviser of game and game fish, pretending to act in accordance with the law of Washington of 1915 (section 5925, Rem. Comp. Stat.), threatened to close the Washougal river where the same flows through and over the lands of the plaintiffs, if the plaintiffs would not give to the public the right of fishing thereon, and threatened to deny the plaintiffs the enjoyment of said lands. That the defendant Gilmore, pretending to act as game warden for Skamania county, wrongfully and willfully tore down and destroyed the printed notices which plaintiffs had posted on the said premises, warning’ the public not to trespass thereon, •and threatened to tear down all notices plaintiffs might post in the future, and threatened to arrest said watchmen, and threatened to put them in jail if they warned any persons not to‘fish on plaintiffs’ premises, and that persons “assert that they were advised to so fish by the said defendant Gilmore,” and refused to leave the premises of the plaintiffs upon plaintiffs’ request. That the action of the said defendants so conspiring will, unless restrained by the court, deprive the plaintiffs of their private right and exclusive right of fishing, and deprive plaintiffs of their property without due process of law, in violation of the Constitution of the United States. Thar neither of the defendants has any interest in the said premises, nor in the said Washougal river where the same flows across and over the premises of the plaintiffs, or the fish living in the said water of said premises. That since the publication of the said notices persons are asserting rights and privileges of fishing and hunting on plaintiffs’ premises without the consent of the plaintiffs.</p> <p>The defendants move to dismiss, on the ground that the bill of complaint does not state matters of equitable relief and that several causes of action are improperly joined.</p>

<p>Habeas Corpus. Petition by A1 Horn for writ to secure release from custody as an undesirable alien.</p> <p>The petitioner, a Hebrew alien, native of Russia (now Poland), entered at the port of New York, in July, 1913, proceeding to Seattle, where he has since resided. He has a wife and children living in Poland. In December. 1920, he went to Canada, became involved in the importation of 22 cases of liquor, and re-entered the United States, was arrested, and prosecuted under the Washington state Prohibition Act, pleaded guilty, and was fined and imprisoned. He was thereafter arrested and charged with being found in the United States in violation of Immigration Act Feb. 5, 1917 (Oomp. St. 191S, Comp. St. Ann. Supp. 1919, § 4289Via et seq.), to wit: “That he was a person likely to become a public charge at the time of his entry and that he entered without inspection.” A hearing was duly had, and he was ordered deported by the Secretary of Labor to his home in Poland. A petition for rehearing was thereafter filed, the order of deportation was suspended, and the record was again reviewed, and the petition for rehearing and cancellation denied, and the former order of deportation permitted to stand.</p> <p>On February 8, 1928, the matter was before the Board of Review again for reconsideration of warrant proceedings. The Board of Review made the following findings: “On January 27, 1921, it was directed that the alien' be deported. Again on June 1, 1921, a like order issued. Habeas corpus proceedings were then instituted, but the petition was subsequently withdrawn. On June 20, 1922, the department denied an application for rehearing. However, inasmuch as the facts are so apparent in this case, the Board of Review is of the opinion that a rehearing can serve no good purpose. It will be noted that the alien was fined $450, and was sentenced to a term of 80 days for his connection with the liquor deal. The usual statements concerning hardships incident to deportation are set forth in the application. It is likewise stated that the man should be given an opportunity to send for his family. However, it is noted that, although he has been able to maintain a Chandler automobile, he apparently has not evidenced, at least by his acts, a desire to bring his family over here during the several years he has resided in this country. It is recommended that the application for rehearing be denied, and that the alien’s deportation be effected without further delay.” And it was so ordered.</p> <p>The petitioner states, further, that he was not accorded a fair trial, and that the charges are without foundation. At the hearing before the immigration inspector the petitioner was represented by counsel. With relation to the entry into the United States and the importation of whisky as a basis for the charge he said: “A. I will tell you the truth. I purchased the whisky at Vancouver, B. C., and then made arrangement with this man Rogers to meet me at White Rock, B. C. I took the whisky from Vancouver to White Rock, B. C., by automobile, met Rogers, and turned the whisky over to him. Rogers smuggled it across the line into the United States. I met him again at Blaine, and for what he did in connection with this I paid him 8200. Q. How much whisky did you purchase? A. Twenty-two cases. Q. What did you pay for it? A. Eleven hundred dollars.” He further testified with relation to his financial condition: “Q. How much money have you got? A. Ten thousand dollars. Q. Invested in mortgages?' A. Loan and cash. Q. Ton have money in the Guardian Savings Bank, and the National Bank, and also some mortgages? A. Yes, sir.”</p>

In Admiralty. Ribel by the Johnson Iron Works, Dry Dock & Shipbuilding Company and others against the Steamship Owego, ■wherein J. 'M. Rutherford and others intervened. Decree awarding wages to seamen.

<p>Patents <§=»328 — 1,411,231, for vulcanization accelerator, held invalid.</p> <p>The Weiss patent, No. 1,411,231, for a vulcanization accelerator, which covers the process and product of vulcanization by the use of diphenylguanidine (called D. P, G.) as an accelerator, in the same manner as other guanidines had previously been used, held invalid on the ground that the discovery of . the superiority of D. P. G. as an accelerator, which is all that is claimed by the patentee, was not made by him, but by others before him.</p> <p>Mayer, Circuit Judge, dissenting.</p>

<p>(. internal revenue <§=>8 — Interests in estate of decedent are determined by laws of state.</p> <p>Interests in the estate of a testator, for the purpose of the federal tax laws, are determined by the laws of the state in which testator was domiciled at the time of death.</p> <p>2. Powers <@=>41 — Appointee under power created by will takes under will of donor of power.</p> <p>Under the law of Pennsylvania, the appointee under a power given by will takes, not under the will of the donee of the power, but under that of the donor.</p> <p>3. Internal revenue <@=>8 — Estate of testator subject to estate tax includes property passing under power of appointment.</p> <p>Under Revenue Act 1918, § 402 (e), being Comp. St. Ann. Supp. 1919, § 6336%c(e), providing that the gross value of the estate of a decedent, for the purpose of the estate tax thereby imposed, shall be determined by including the value of all property “to the extent of any property passing under a general power of appointment exercised by the decedent,” the gross value of the estate for tax purposes is the value of all property of decedent passing under the will, plus the value of all property which passed by the will by virtue of a power of appointment exercised-by the testator, though such property passed under the will of the donor of the power.</p> <p>4. Constitutional law <@=>38 — Statutes “unconstitutional” only when In conflict with some provision of written Constitution.</p> <p>Legislation is not “unconstitutional” in the legal meaning of that term in the United States, unless in conflict with a provision of the written Constitution.</p> <p>„ [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Unconstitutional.]</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digest^ .& Indexes</p>

<p>Constitutional law <©=>286— Internal revenue <©=>2— Income tax not unconstitutional because of inequality as between domestic and foreign corporations.</p> <p>The imposition of income taxes under Revenue Act 1918, §§ 230, 233 (Comp. St. Ann. Supp. 1919, §§ 6336%nn, 6336%p), on a domestic corporation on income derived from the business of selling goods manufactured or acquired in the United States in foreign countries, held not unconstitutional, as depriving the corporation of its property without due process of law, because under the law as construed and enforced the income of foreign corporations so derived is not subject to tax.</p>

<p>1. Pilots <®=>7 — Obligation to take pilot; port situated on boundary waters between stEtcs</p> <p>Under Rev. St. § 4236 (Comp. St. § 7982), providing that the master of a vessel bound to a port “situate upon waters which are the boundary between two states may employ any pilot duly licensed or authorized by the laws of either of the states bounded on such waters,” such waters must be in a real and substantial way the boundary between two jurisdictions.</p> <p>2. Pilots <&=>7 — Obligation to take pilot; federal statute held inapplicable.</p> <p>Such statute does not apply to a port in Massachusetts situated on waters of Narragansett Bay; the boundary between Massachusetts and Rhode Island there being an arbitrary line, crossing waters of the bay or its branches at certain places, but having no relation to such waters as a boundary.</p> <p>3. Pilots <S=>8— Offer of services need not be within waters of his state or port.</p> <p>A pilot’s offer of his services need not be made within the territorial waters of his state or port.</p> <p>4. Pilots <§=»I0 — Pilot whose services were refused held entitled to pilotage fees.</p> <p>A Massachusetts pilot, whose offer of services to a vessel bound for Fall River was refused, held entitled to recover pilotage fees under G. L. Mass. c. 103, though the offer was made when the vessel was 24 miles from port, in Narragansett Bay, in waters of Rhode Island.</p> <p><§=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

United States for the Northern Division of the Western District of Washington; Jeremiah Neterer, Judge. In the matter of the Patterson-MacDonald Shipbuilding Company, bankrupt.

<p>Petition to Review Order of Pederal Trade Commission.</p> <p>Petition of the B. S. Pearsall Butter Company to review an order of the Federal Trade Commission.</p>

<p>1. Internal revenue <@=>46 — Automobile held subject to forfeiture for use In removing liquor with intent to evade the tax thereon.</p> <p>The fact that distilled spirits, being illegally transported in an automobile, not on tbe way to a port of export, were in quart bottles bearing export strip stamps, but no other stamps, is prima facie evidence that tbe spirits were withdrawn for export, tax free, and were being removed with intent to defraud the United States of the tax thereon, and under Rev. St. § 3450 (Comp. St. § 6352), the automobile is subject to forfeiture as against the owner and any lienholder.</p> <p>2. Internal revenue <@=>2 — Statute as to forfeiture of vehicles held not repealed by Prohibition Act.</p> <p>Rev. St. § 3450 (Comp. St. § 6352), providing for prosecution and forfeiture of vehicle in case of arrest for removal of any commodity with intent to defraud the United States of a tax thereon, was not repealed as to intoxicating liquors by National Prohibition Act, tit. 2, § 26.</p> <p>e=>For ether cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes'</p>

<p>In Equity. Suit by the Worthington Pump & Machinery Corporation against the Traylor Engineering & Manufacturing Company.</p>

Morton, Judge. Action by Thomas E.,Wing against Alexander McCallum. Alexander McCallum died, and plaintiff secured a writ of scire facias, summoning George B. McCallum, as executor of deceased, to appear and to become a party. An order was entered, quashing the petition for thé writ and dismissing the action, and plaintiff brings error.

<p>Aliens ©=>68 — Allen woman, wife of alien, not eligible to naturalization without previous declaration of Intention.</p> <p>Act Sept. 22, 1922, § 2, does not authorize naturalization of an alien woman, married to an alien, without previous declaration of Intention.</p> <p>©=>For other cases see same topic & KEV-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Bankruptcy. In the matter of Hansen & Birch, bankrupts. Petition by the Liquid Carbonic Company to review an order of the referee.</p>

<p>1. Internal revenue <§=>7 — Bankrupt corporation’s income tax determined by deduction of salaries of officers credited them, and not by amount of salary paid them.</p> <p>Where the amount of salaries actually received by a bankrupt corporation’s officers was much less than the amount shown by the corporation’s books, whether the difference was due to the fact that salaries as entered on the books were based on supposed profits, which did not materialize, in consequence of which the salaries were not drawn, or whether the salaries were fixed absolutely, but not paid, because of lack of ready cash, the amount of taxes should be fixed by the salaries actually credited to the officers, although never paid, and not by the amounts actually received by them.</p> <p>2. Taxation <§=>501 — A tax has only such lien and priority as is given it by statute.</p> <p>A tax has only such lien or priority as is given it by statute.</p> <p>3. Bankruptcy <§=>346 — Taxes due by bankrupt to United States, state, county, district, or municipality prorated, if fund insufficient to pay each in full.</p> <p>Under Bankruptcy Act, § 64a (Oomp. St. § 9648), providing that taxes due to the United States, state, county, district, or municipality shall be paid before dividends to creditors, and under Civ. Code Ga. 1910, § 1140, making all taxes prior liens, taxes due to the United States have no priority over other taxes due under section 64a.</p> <p>4. Bankruptcy <§=>346 — Necessary and reasonable expenses of preserving a bankrupt’s estate payable before taxes are paid.</p> <p>In the distribution of a bankrupt’s estate, though Bankruptcy Act, § 64a (Comp. St. § 9648), gives payment of taxes priority over payment of dividends to creditors, the necessary and reasonable expenses of preserving the fund while in the custody of the court must be paid before taxes are paid, in view of Bev. St. 3191 (Comp. St. § 5913), authorizing the collector of federal taxes who sells property to first pay the expenses of sale.</p> <p><gzs>For other cases see same topic & KEY-NUMBER in .all Key-Numbered Digests & Indexes</p>

<p>At Law. Action by the Great Northern Railway Company against E. J. Lynch, Collector of Internal Revenue.</p>

Cushman', Judge. Garnishment by Martin Rozema, assignee of the judgment of the Hale Company against the International Trading Company, against the National City Bank of Seattle as garnishee. Judgment for garnishee, and plaintiff brings error. There is no controversy over the facts in this case.

<p>Mandamus. Petition of the Pacific Telephone & Telegraph Company against Edward C. Cushman, District Judge, for writ of mandamus.</p>

<p>1. Criminal law <§=359 — Evidence introduced by defendant not inadmissible because of effect on codefendants.</p> <p>Where defendants are tried together, each is entitled to introduce evidence competent and material to his own defense, regardless of its effect on his codefendants.</p> <p>2. Criminal law @=422(9)— Statements of one defendant admissible, though not competent as to others.</p> <p>Statements made by one defendant after his arrest were competent as to him, and properly admitted, though inadmissible as to the other defendants.</p> <p>3. Criminal law <§=824(8) — Failure to limit evidence not considered without request.</p> <p>The failure to limit the consideration of testimony to the defendant against whom it was competent cannot be considered, in absence of a request to so limit it.</p> <p>4. Criminal law <§= 1169(7) — Admission of defendant’s statements harmless. when he testified to the same effect.</p> <p>Admission of evidence of statements of one defendant, if error as to the other defendants, was without prejudice, when he reiterated such statements in testifying.</p> <p><g=For other cases see same topic's KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Courts <g=»328( 10) — Amount claimed in good faith is test of federa! jurisdiction; “amount in controversy.”</p> <p>The “amount in controversy” in a suit, for the purposes of federal jurisdiction, is the amount claimed in good faith, and not the amount , finally determined to be in actual controversy.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, Blrst and Second Series, Amount in Controversy.]</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Separate suits by the Duffy-Mott Company, Inc., and the Hildick Apple Juice Company, against David H. Blair, as Commissioner of Internal Revenue, Roy A. Haynes, as Federal Prdhibition Commissioner, and Ralph A. Day, as Federal Prohibition Director for the State of New York.</p> <p>Duffy-Mott Company, Inc., and Hildick Apple Juice Company, Inc., applied to the federal prohibition director of New York for permits to manufacture and sell preserved sweet cider consisting of fresh apple juice preserved by the addition thereto at the time of production of not to exceed one-tenth of one per centum of benzoate of soda. Duffy-Mott Company, Inc., stated that when so manufactured the preserved sweet cider contained less than one-half of one per centum of alcohol, but that ifc did not insure that the alcoholic content would remain below that amount, but, due entirely to natural causes, such preserved sweet cider would develop an alcoholic content in excess of one-half of one per cent. Hildick Apple Juice Company, Inc., stated that when so manufactured such preserved sweet cider would contain more or less than one-half of one per centum of alcohol, depending upon the alcoholic content of the pure juice in the apple prior to being expressed and also upon other natural causes. And upon the refusal of the director to grant such permits unless the applicants would guarantee that the alcoholic content of such preserved sweet cider would not at any time exceed one-half of one per centum by volume they filed petitions in equity in the United States District Court for the Southern District of New York pursuant to the provisions of section 5 of title 2, of the Volstead Act (41 Stat. 305). permitting manufacturers by proper proceedings in courts of eguity to review the action of the prohibition commissioner.</p> <p>The petitions similarly set forth the respective products of the complainants and prayed for the reversal of the commissioner’s action and the granting of such permits.</p> <p>Defendants moved to dismiss these petitions, which motions were denied by Judge Augustus N. Hand (269 Fed. 184) with permission to defendants to plead over. Defendants then answered denying that complainants’ products were preserved sweet cider within the true intent of the Volstead Act.</p>

<p>Petition of Constantin Comanel for admission to citizenship. Granted.</p>

<p>Post office ®=»35 — Scheme within ban of statute against use of mails to defraud, though it would not deceive persons of average intelligence.</p> <p>A scheme and artifice to defraud by obtaining money by mailing circulars in substance representing that evil spells or curses can b.e cast on persons, and that evil spirits worry them in sleep, that charms or talismans will defeat the evils aforesaid, and that accused possesses supernatural power to magnetize said articles, which he sells, though absurd and impossible, and not capable of deceiving persons of average intelligence, is within the ban of Comp. St. § 10385.</p> <p>^^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>At Law. Action by Jennie J. Kearns, as administratrix, against David C. Dunbar, Collector, etc. On “demurrer to the complaint.</p>

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

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

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

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

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

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

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

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

<p>Petition to Revise Order of the District Court of the United States for the Western District of Missouri.</p>

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

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

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

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