Volume 293 — Federal Reporter

Woodrough, Judge. Action at law by Annie Copeland, administratrix of the estate of John Copeland, deceased, and others, against the Chicago, Burlington & Quincy Railroad Company and another. Judgment for defendants, and plaintiffs bring error.

<p>1. Courts <&wkey;347 — Under Conformity Act, allegations of diverse citizenship properly eliaüenged by general denial.</p> <p>'Where a state statute permits allegations of jurisdiction to be challenged by a general denial, under Conformity Act June 1, 1872 (Comp. St. § 1537), allegations of diverse citizenship may bo so challenged.</p> <p>2. Courts &wkey;>405(5) — Allegations as to diversity of citizenship raised for first time on appeal held too late.</p> <p>Where plaintiff was a resident of Illinois, and one of the defendants was a corporation engaged in operating a hotel in Missouri, a contention raised for the first time on appeal that diversity of citizenship was not shown held made too late.</p> <p>3. Courts <&wkey;323 — No presumption that corporation and plaintiff were citizens of same state.</p> <p>Where plaintiff was a resident of Illinois, and one of the defendants was a corporation engaged in operating a hotel in Missouri, there is no presumption that it was an Illinois corporation.</p> <p>4. Courts <&wkey;35l (/a — Case dismissed as against defendant shown not to be of diverse citizenship.</p> <p>Under Judicial Code, § 37 (Comp. St. § 1019), where it appears at the trial that there is no diverse citizenship between plaintiff and one defendant, it is the court’s duty to dismiss the case as against that defendant.</p> <p>5. Innkeepers <&wkey;IO — Evidence of misconduct toward guest held for jury.</p> <p>Evidence that an officer of a corporation operating a hotel came into plaintiff’s room at 1 o’clock at night, while plaintiff and her husband were sleeping, and accused plaintiff of unchastity, and used vulgar language both to plaintiff and to her husband, held to authorize submission of the case to the jury on the theory that the intrusion was malicious, or in wanton disregard of plaintiff’s rights, although no physical injury was inflicted.</p> <p>6. Innkeepers <&wkey;I0 — Duty to guest.</p> <p>An innkeeper, its officers and agents, must extend to a lady guest respectful and decent treatment, and refrain from willful conduct toward her that would interfere with her comfort, or humiliate and distress her.</p> <p>7. Damages <&wkey;54— Recovery may be had for mental distress, accompanied by malice and inhumanity.</p> <p>Recovery may he had for mental distress and anxiety of hotel guest, where the wrongs complained of were accompanied by insults, malice, and inhumanity.</p> <p>8. Innkeepers <&wkey;IO — Hotel corporation liable for actual damages caused by agent insulting lady guest.</p> <p>A corporation engaged in operating a hotel is liable for actual damages caused by the acts of its agent in entering the room of a lady guest in the nighttime and accusing her of being a prostitute, etc., in the presence of her husband.</p> <p>9. Corporations <&wkey;498 — Not liable in punitive' damages for malicious, unauthor- ■ ¡zed, and unratified acts of agents and servants.</p> <p>A hotel corporation is not liable in punitive damages for the malicious or oppressive acts of its agent or servant towards a guest, which have not been authorized or participated in or ratified by it,/ though he owned á large part of the stock.</p>

<p>1. Patents <&wkey;328 — Sehemiasl patent, Mo. 51,004, hold invalid.</p> <p>Schemmel patent, No. 51,801, a design patent relating to upholstery, held invalid.</p> <p>2. Patents <&wkey;328 — Sefssmmel patent, No. 1,226,600, claims 3 and 4, held invalid.</p> <p>Schemmel patent, No. 1,226.600. claims 3 and. 4, relating to a finishing welt for use in trimming automobile tops, etc., heW invalid.</p> <p>3. Patents <&wkey;328 — Schemmel patent, No. 1,226,600, claims 1, 2, 5, and 6, held valid and infringed.</p> <p>Schemmel patent No. 1,226,600, claims 1, 2, 5, and 6, for a finishing welt for use mainly in trimming automobile tops, etc., held valid and infringed.</p> <p>4. Patents &wkey;>72 — Claims for a finishing welt used in upholstering held not anticipated.</p> <p>Claims for a welt having longitudinal parallel beads connected to a body, so as to permit the beads to bo spread apart for the insertion of tacks and then to resume their close together positions, and thus to conceal the tacks, are not anticipated by the disclosed product of a patented machine, wherein two corded welts are sewed into a seam in close together positions, and only one of them is capable of being swung back and of then resuming its former position.</p>

<p>1. Partnership <&wkey;275 — Dissolved by death of partner.</p> <p>Tho death of a partner dissolves a partnership.</p> <p>2. Partnership &wkey;>247 — Estate of deceased partner liable for firm debts.</p> <p>The estate of a deceased partner is liable for firm debts, as in equity all partnership debts are joint and several.</p> <p>3. Partnership <&wkey;247 — Firm creditor has remedy against partnership assets, estato of deceased partner, and surviving partner personally.</p> <p>Until a firm creditor is paid in full, he has the right to pursue his remedy against partnership assets, estate of deceased partner, and surviving partner personally.</p> <p>4. Executors and administrators &wkey;>I — Decedent’s property regarded as trust estate for benefit of creditors, with remainder to distributees.</p> <p>For the purpose of equity jurisdiction, a decedent’s property is regarded, as a trust estate, held by his administrator for the benefit of decedent’s creditors according to tiieir priorities and preferences in right, and the remainder, if any, tor distributees.</p> <p>5. Partnership <&wkey;258(l) — Firm creditors remedy against deceased partner’s estate by suit ill equity.</p> <p>A partnership creditor’s remedy against the estate of a deceased partner in course of administration is by suit in equity against the administrator, as no judgment at law and execution could be obtained against tho estate.</p> <p>6. Appeal and error <&wkey;1036(6) — -Question of liability and amount not heing in dispute, order refusing to require surviving partner to be made party to suit against administrator of deeeasod partner held not prejuicia! error.</p> <p>Where the question of a surviving partner’s liability for an alleged firm debt and tho amount thereof had been established by an action against him, an order denying a motion to bring in the surviving partner as a defendant to equitable suit against administrator of deceased partner hold not prejudicial error.</p>

<p>1. Shipping &wkey;»i 13 — Charterer's bill of lading held to bind ship to mako right delivery.</p> <p>Where the master ot a vessel on the Great Takes receives on board a cargo of grain loaded by the charterer, he is -presumed to know that the charterer in due course will issue bills oí lading, and the ship is bound to make right delivery in accordant* with such bills of lading.</p> <p>2. Shipping <&wkey;ll7 — Ship required to tiischarga at place designated by bill of lading or consignee.</p> <p>By the prevailing" custom at Buffalo, a ship bringing a cargo of grain is required to unload at the particular place designated in the bill of lading, or, if not so designated, at the place named by the consignee.</p> <p>3. Shipping &wkey;>l32(5)— Ship held not excusad from making right delivery of cargo.</p> <p>Evidence held not to sustain the claim oí a ship that it was excused from making delivery oí a cargo of barley at the elevator designated in the bill of lading, because it was not a safe place to reach and lie in discharging.</p>

Habeas Corpus. Petition of William Henry Britten for writ to secure relief from order for deportation. The petitioner, a native of Ireland, citizen of Canada, 38 years of age, married, literate, came to Canada from England, an enlisted man in the British navy, landing at Vancouver, B. C., in 1910, stationed at Esquimalt. He deserted in 1911.

<p>In Admiralty. Libel by the Southern Export Company against the Bahamas-Cuhan Company.</p>

<p>In Equity. Suit by the Robeson Process Company against Jacob S. Robeson and Jacob S. Robeson, Inc.</p>

<p>At Daw. Actions by Godfrey R. Park and by Susan R. Park against' Andrew C. Gilligan, United States ’Internal Revenue Collector in and for the First District of Ohio.</p>

<p>At Raw. Action by the Russian Government against the Rehigh Valley Railroad Company. On defendant’s motion to dismiss the action, and for such other relief as may be proper.</p>

<p>internal revenue <&wkey;íN-IritGí-así accruing before January I, 1909, not taxable.</p> <p>Where a railroad company begun making advances to another railroad in 190S, and continued to do so until 1911, but the interest accruing was not entered up, cither on its books or on those of the other railroad company, until 1911, when the advances, with interest, were repaid, the interest accruing before January 1, 1909, was not taxable under Act Aug. 5, 1909.</p>

<p>Internal revenue <&wkey;l! — Increase in number of shares of corporate stock not issuance of stock, warranting assessment of tax; “original issuance of stock.”</p> <p>Acts of a corporation, entailing no essential change in the capital with which it does business, or rights of stockholders, except that each stockholder has an increased number of shares, does not constitute an original issuance of stock on organization, or reorganization, so as to warrant assessment of a tax.</p>

<p>In Error to the District Court of the United States for the Western District of Arkansas; Frank A. Youmans, Judge.</p> <p>Action by Delia Holt, by her next friend, Delia Holt, against the Missouri Pacific Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the Southern Division of the Southern District of California.</p> <p>Criminal prosecution by the United States against P. Piacenza. Judgment of conviction, and defendant brings error.</p>

<p>1. Admiralty <&wkey;2l — Death &wkey;>l I— Damages for death not recoverable at common law nor under general maritime law.</p> <p>No right of action was given by the common law, nor exists under the general maritime law, to recover damages arising from the death of a human being caused by the negligence of another.</p> <p>2. Admiralty. <&wkey;>21 — Has jurisdiction of suit for wrongful death under state statute.</p> <p>A right of action for wrongful death, given by the laws of a state, may be enforced in a court of admiralty where it arose on navigable waters within the territorial jurisdiction of the state.</p> <p>3. Admiralty <&wkey;2l — State workmen’s compensation statute does not apply to cases of death within the maritime jurisdiction.</p> <p>New York Workmen’s Compensation Law, as construed by the Court of Appeals of the state, does not apply in cases within the maritime jurisdiction, and in such case a suit may be maintained in a court of admiralty against the employer for the death of an employee to enforce a right of action given by the wrongful death statute of the state.</p> <p>4. Admiralty <&wkey;20 — Has jurisdiction of suit for injury to stevedore employee.</p> <p>Admiralty courts have jurisdiction of a suit in personam by an employee of a stevedore against the employer to recover for injuries sustained through the negligence of the latter, while engaged in work, upon a vessel lying at the dock in navigable waters.</p> <p>5. Master and servant <&wkey;l20 — Duty of employing stevedore to furnish safe place to work.</p> <p>It is the duty of an employing stevedore, as of any other employer, to exercise reasonable care to provide a reasonably safe working place for his employee,' and the latter is entitled to act on the assumption that such duty has been performed, unless be knows that it has not been or the danger is so patent as to be readily discovered by him.</p> <p>6. Master and servant <&wkey;2l7(7) — Employee under no duty to use care to discover dangers from master’s negligence.</p> <p>An employee is under no duty to exercise care to discover dangers not ordinarily incident to the employment, but which result from the employer’s negligence. ,</p> <p>7. Master and servant <&wkey;2l2 — Stevedore’s employee held not to have assumed risk from employer’s negligence in not securing hatch cover.</p> <p>Libelant’s intestate, employed as a qarpenter by respondent stevedore in fitting a ship for cargo, who was killed by the falling of a hatch cover on which he was required to work, through the negligence of respondent in placing the heavy timbers on tbe hatch cover and in failing to see that it was safely secured, held not to have assumed the risk.</p> <p>8. Courts <&wkey;37l (4) — Contributory negligence, where made a defense to an action for wrongful death hy state statute giving the right of action, is defense in court of admiralty.</p> <p>Where the right to recover in an admiralty court for causing death rests on a statute of the state, all limitations on that right imposed by the statute must be given effect, and, where it makes contributory negligence a bar to recovery in a common-law action, it is a bar in that court.</p> <p>9. Master and servant <&wkey;23l (I) — Employee killed by falling of hatch cover held not chargeable with contributory negligence.</p> <p>An employee required by the employer to work on a hatch cover on a ship, and who was killed by the giving way of such cover, held not chargeable with contributory negligence.</p> <p>(0. Death <&wkey;75 — Proof of contributory negligence must be convincing.</p> <p>In an action for wrongful death, where the burden of alleging and proving contributory negligence of deceased rests on the defendant, the proof in support of such defense must be more than usually convincing,</p> <p>ii. Master and servant <&wkey;203(l) — Risks assumed under New York law.</p> <p>Under the law of New York the risks which a servant assumes are either such as are incident to his employment, after the master has discharged his duty of reasonable care to prevent them, or such as are quite as open and obvious to the servant as to the master.</p>

In the matter of the Patterson-MacDonald Shipbuilding Company, bankrupt; John U. McLean, trustee. From an order denying permission to amend claim, Thomas Carstens and wife appeal.

In the Matter of the Patterson-MacDonald Shipbuilding Company, bankrupt. Appeal from and petition to revise an order relating to the claim of the Commonwealth of Australia and Mark Sheldon, Commissioner for the Commonwealth of Australia; J. U. McLean, trustee, appellant and petitioner.

<p>In Error to the District Court of the United States for the Southern Division of the Southern District of California; Oscar A. Trippet, Judge.</p> <p>Criminal prosecution by the 'United States against John English. Judgment of conviction, and defendant brings error.</p>

<p>Aliens <&wkey;62— Naturalization; claim of exemption from draft nullifies prior declaration of intention.</p> <p>A declaration of intention is nullified by a subsequent claim of exemption from military service on the ground of alienage, and cannot thereafter be made the basis of an application for admission to citizenship, in view of Act June 29, 1906, § 4, subds. 1, 2, as amended (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4352), and section 15 of the act (Comp. St. § 4374).</p>

<p>Internal revenue <&wkey;>9 — Investment held more than “nominal capital invested,” within statute.</p> <p>Where a corporation, acting as sole selling agent for asbestos mines, settled .for domestic shipments, less its commissions, as soon as the invoices could be checked up, but did not guarantee any of the accounts, and also bought and sold merchandise on its own account, the proportion of its gross profits from trading on its own account being 23 per cent, in 1915, 9.8 per cent, in 1916, and 45 per cent, in 1917, its capital in 1917 being over $51,000, it had more than a “nominal capital invested” in the business, and was therefore not within Internal Revenue Act 1917, § 209 (Comp. St. 1918, § 6336%j), and Regulations of the Commissioner of Internal Revenue, approved October 3, 1917, arts. 73 and 74, providing for the taxation of businesses having only' a nominal capital, and the fact that during the year 1917 it received more than it paid out did not show that it was not using its capital.</p>

<p>In Equity. Suit by the Van Kannell Revolving Door Company against the Revolving Door & Fixture Company. On exceptions to master's report.</p>

<p>I. Internal revenue <&wkey;7 — Additional compensation to president of corporation held taxable as “income” during year in which credited.</p> <p>Additional compensation to the president of a corporation, allowed as a credit on the corporation’s boohs in December, 1913, against overdrafts by the president, was taxable as income of the year 1913, under Income Tax Act Oct. 3, 1913, where, though the Compensation was for previous years and the overdrafts were made in reliance on a previous promise for additional compensation, the amount of the compensation was undetermined, and it was not certain that it would he paid until it was actually so credited,</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Income.]</p> <p>2. Corporations <&wkey;308 (3) — Taking credit on corporation’s Income tax return held to preclude claim that order awarding president additional compensation was not approved by required number of directors.</p> <p>Where a corporation, in its income tax return, took credit for additional compensation credited on its books to its president, who was also a director and its active manager, the corporation was foreclosed from claiming that the order of the board of directors allowing such compensation was not approved by requisite number of directors.</p>

E. Wolverton, Judge. In the matter of Morris Bros., Inc., bankrupt;- Earl C. Bronaugh, trustee. Brom an order denying preference to his claim, and subordinating it to claims of general creditors, Albert C. Smith appeals.

<p>In Error to the District Court of the United States for the Eastern District of Oklahoma; Robert E. Williams, Judge.</p> <p>Action by W. A. Havemeyer & Co. against the Exchange National Bank of Tulsa, Okl. Judgment for defendant, and plaintiff brings error.</p>

<p>1, Corporations <&wkey;569(7) — Receiver’s right to maintáln action no greater than that of corporation.</p> <p>A receiver’s right to maintain an action to cancel a lease of property of ¡he corporation under receivership was no greater or different than the right of the corporation.</p> <p>2, Corporations <&wkey;560(7) — Receiver not entitled to maintain stockholders’ action.</p> <p>The appointment of a receiver does not invest him with the rights of the stockholders as such, and any cause of action which they might have had independent of the corporation cannot be instituted and carried on by the receiver.</p> <p>3, Corporations <&wkey;560(7) — Stockholders not entitled during receivership to maintain causes of action belonging to corporation, right to sue being vested in receiver.</p> <p>Stockholders have no right during receivership to institute and maintain causes of action which belong to the corporation, the right to maintain such actions being vested in the receiver.</p> <p>4, Corporations <&wkey;560( 12) — Evidence held not to show that lease of property was inequitable or improvident.</p> <p>In suits by a receiver and stockholders of a packing company, having no marketing facilities, to sot aside a lease of corporate property to a corporation having marketing facilities, evidence held not to sustain a finding that the lease was inequitable and improvident.</p> <p>5, Contracts <&wkey;>53 — In absence of fraud, contract not set aside for improvidence.</p> <p>Generally, a contract will not be set aside for improvidence, unless the improvidence or inadequacy of consideration is so great as to furnish of itself convincing evidence of fraud.</p> <p>6, Contracts &wkey;>26l (2)- — Minor breaches of contract no basis for rescission.</p> <p>Breaches of a contract in minor respects afford no basis for rescission, the proper remedy being an action for damages.</p> <p>7, Contracts <&wkey;266(l) — Restitution of benefits condition to right to cancel,</p> <p>As a condition to a rescission and cancellation of a contract, the complaining party must make restitution of the benefits which he has received under the contract.</p> <p>3, Corporations <&wkey;387 (3) — Violation of statute requiring corporation to give stockholders notice that lease would be considered at meeting heid not objection available to corporation or its receiver.</p> <p>Neither a corporation nor its receiver c<m maintain an action to cancel a lease of its property because of a failure of the corporation to give notice to stockholders that the lease would be considered at the meeting at which it was ratified, as required by a Maine statute, as the purpose of the statute was solely for the protection of stockholders, especially where the corporation agreed to have the lease submitted to and ratified by Its board of directors and its voting stockholders.</p> <p>9, Estoppel <&wkey;>90 (6) — Stockholders wasting 14 months,, during which tima lessee had expended largo sums of money, estopped to question validity of lease.</p> <p>Where lessee of corporate assets went into open, notorious possession, began operation of the leased plant, spent largo sums of money, and notices of the lease were published in newspapers and sent through the mails io she stockholders, 7*eld, that stockholders who remained silent for 14 months were estopped from bringing suit to set aside tbe lease because of‘ a failure of tbe corporation to give notice to them that tbe lease would be considered at tbe meeting at which it was ratified.</p> <p>10. Corporations <&wkey;657(5) — Lease to foreign corporation, executed prior to filing of certificate, not.canceled when certificate filed prior to taking possession.</p> <p>A lease to a foreign corporation will not be canceled at tbe instance of lessor’s stockholders, under a Nebraska statute prohibiting a foreign corporation from engaging in business until it has filed a certificate as to. agent and place of business, because the foreign corporation filed its certificate after the execution of the lease, but prior to taking possession of the plant operated under the'lease.</p> <p>11. Corporations <&wkey;560(7) — Receiver must bring suit against third person, when. , not party to receivership suit.</p> <p>Where lessee of corporate property is not a party to receivership suit, the receiver must proceed against him by a suit in the ordinary way for-cancellation of the lease, and cannot proceed by petition in the receivership suit.</p> <p>12. Receivers <&wkey;187 — Writ of assistance will not issue against one not a party..</p> <p>A writ of assistance awarded by a decree ,in a receivership cause will not issue against one who is not a party to that proceeding.</p> <p>13. Action <@=57(2) — Consolidation of stockholders’ suit and receiver’s petition held error. ‘</p> <p>A consolidation of a stockholders’ suit and a receiver’s petition in the receivership, suit to have a lease of corporate property set aside held, reversible error.</p> <p>14. Receivers &wkey;>l6 — Court will not take possession of business affairs of others-for reorganizing purposes.</p> <p>While the court may approve a reorganization of the business affairs of property which it holds in receivership, agreed to by those who were interested’ in it, it will not take into its possession and hold the business-affairs of others, for the primary purpose of- reorganizing that business.</p>

Brewster, Judge. In the matter of Robert R. McNutt, bankrupt. From a decree adjudging the named party a bankrupt on the petition of Fidelity & Deposit Company of 'Maryland and others, and denying his motion to recommit the report to the master (291 Fed. 925), he appeals.

In Brror to the District Court of the United States for the Northern Division of the Western District of Washington; Frank H. Rud-kin, Judge. Criminal prosecution by the United States against Burrell Johnson. Judgment of conviction, and defendant brings error.

<p>In Error to the District Court of the United States for the Eastern District of Pennsylvania.</p> <p>Action between the Reading Steel Casting Company and the United States. From a judgment in favor of the United States, the Casting Company brings error.</p>

<p>Appeal from the District Court of the United States for the Western District of Oklahoma; Robert E. Lewis, Judge.</p> <p>Suit by the United States against P. H. Harris. Decree for defendant, and the United States appeals. On rehearing.</p>

<p>In Equity. Suit by M. B. Burke and the Eclipse Oil Company against Ralph Horth, executor of the will of Robert Taylor, deceased, wherein the Columbine Oil Company and the Ohio Oil Company became intervening defendants. On motion by defendants to exclude testimony.</p>

<p>Criminal prosecution by the United States against Louis Weinberg and Paul Berman. On application by defendants for allowance of writ of error and supersedeas.</p>

<p>1. Time <&wkey;9(l) — In computation of period, first day generally excluded.</p> <p>The general rule for Interpretation of contracts and statutes, where an act is to be performed within a specified period from and after a day named, is to exclude the day thus designated and to include the last c(ay of the period.</p> <p>2. Time <&wkey;IO(2)— Naturalization; time for filing petition not extended because last day is Sunday.</p> <p>The provision of Naturalization Act'June 29, 1906, § 4, subd. 2 (Comp. St. § 4352), that an alien applicant for admission to citizenship must file his petition “not less than two years nor more than seven years after he has made such declaration of intention,” must be given a literal construction, and, when the last day of the seven-year period falls on Sunday, the petition cannot be filed on the next day.</p>

<p>1. Appeal and error <&wkey;!73(I3) — Defense of assumption of risk, not raised at trial, not available on appeal.</p> <p>Where no exceptions were taken to the trial court’s declaration, after the case had been stated by counsel, that the doctrine of assumed risks would not apply, no exception for failure to instruct thereon was taken, no request to charge thereon was made, and defendant’s motions for a directed verdict were not based on such ground, the issue was not oefore the court on appeal.</p> <p>2. Master and servant &wkey;>'286( I) — Negligence question for jury.</p> <p>Even if there is no conflict in the evidence on any material issue, employer’s negligence is a question of fact for the jury, and not of law for the court, unless the evidence admits of no rational inference of negligence.</p> <p>3. Appeal and error &wkey;>843 (2) — Whether minor misrepresented age held immaterial, in view of instruction that he was negligent.</p> <p>Where, in an action for injuries received by a brakeman, the court did not submit the question of negligence in employing a boy 18 years of age, and instructed that he was contributorily negligent as a matter of law, the question whether plaintiff misrepresented his age in his application for work became immaterial.</p> <p>4. Master and servant <&wkey;286( 15) — -Negligence in throwing ties along tracks held for jury.</p> <p>It was a question for the jury whether throwing ties promiscuously along railroad tracks and so near thereto as to endanger the lives of! its employees in tlie performance of their duties was negligence, regardless of how long this practice had continued prior to the time plaintiff was injured while running ahead of his train to throw a switch.</p> <p>5. Master and servant &wkey;>286(41) — Negligence in failing to instruct inexperienced brakeman held for jury.</p> <p>Where a brakeman, who was wholly inexperienced in the duties of his employment, after taking two or three student trips, was injured on his first trip for pay, the question whether the railroad was negligent in failing to instruct him as to the proper and safe meihod of discharging his duties was one for the jury.</p> <p>6. Damages <&wkey;l32(l2)— $6,000 for loss of hand and part of forearm held not excessive.</p> <p>A verdict of $0,000 for loss of hand and part of forearm by a brakeman 18 years old held not excessive.</p>

<p>Appeal from the District Court of the United States for the District of Montana; George M. Bourquin, Judge.</p> <p>Suit in equity by the Mountain States Power Company against the A. L. Jordan Dumber Company and another. Decree for defendants, and complainant appeals.</p> <p>On the 27th day of December, 1916, a receiver was appointed for the Northern Idaho & Montana Power Company at the suit of a general creditor on the ground of insolvency. At that time the indebtedness of the power company was made up of the following items: Outstanding bonds of the par value of $667,000, issued by a former owner of a part of the property; outstanding bonds issued by tbe power company, $4,761,000; and floating indebtedness estimated at from $700,000 to $800,000, $517,300 of which was later presented to the receiver and allowed. At or about the time of the appointment of the receiver a reorganization committee was formed and submitted a plan of reorganization, with the following objects in view:</p> <p>“(1) Tbe preservation of tbe property of the Northern Idaho & Montana Power Company, so as to recognize and safeguard the rights of security holders.</p> <p>“(2) The reduction of the fixed charges to an amount safely within the net earning capacity of the reorganized property.</p> <p>“(3) Adequate capital provision for present and future requirements.”</p> <p>In submitting the plan to the bondholders and stockholders, the committee said:</p> <p>“The holders of a large amount of the bonds and stocks of the company have already expressed their approval of the plan. The interests of the security holders will be greatly benefited by the prompt reorganization of the company, and the undersigned recommend that all security holders pai’tici-pate in the reorganization and deposit their securities promptly. Consideration has been given to the holders of the floating debt and of the preferred and common stock. $2,426,550 par value of common stock will be given to the holders of the floating debt with the arrangement, however, that they shall offer this stock to the preferred and common stockholders at $15 per share. The undersigned regard this as a fair adjustment of the respective rights of these parties.”</p> <p>A general outline of the plan of reorganization, which contemplated the formation of a new company, was as follows:</p> <p>“The holders of $2,872,000 par value of existing bonds of the Northern Idaho & Montana Power Company depositing their bonds hereunder, will receive- in exchange 00 per cent, of their par value in new bonds, 16 per cent, in new preferred and 45 per cent, in new common stock, or, if all of said $2,-S72,000 par value of bonds are deposited, $1,723,200 par value of new bonds, $459,520 par value new preferred, $1,005,200 par value of new common. This basis of exchange shall be known, and is hereinafter referred to, as first basis of exchange. The remaining $1,742,500 par value of existing bonds of the Northern Idaho & Montana Powér Company are owned by the Standard Gas & Electric Company. H. M. Byllesby & Co. and William P. Bonbright & Co., Inc., and said companies are willing to exchange the same for 5 per- cent, of their par value in new bonds, 66 per cent, in new preferred, and 90 per cent, in new common, or, for $87,125 par value of new bonds, $1,150,050 new preferred, and $1,568,250 new common stock. This basis of exchange shall be known, and is hereinafter referred to, as second basis of exchange. The holders of said $2,872,000 par value of existing balance may elect, at the time of depositing same, to exchange on the second basis of exchange up to the amount of securities available for the purpose; elections to be accepted in the order received until the amount of securities available is exhausted. Any elections made shall reduce the amount of bonds exchanged on the second basis by the Standard Gas & Electric Company, H. M. Byllesby & Co. and William P. Bonbright & Co., Inc., and such.amount of bonds shall be exchanged on the first basis of exchange.</p> <p>“The committe may, in its sole discretion, sell all new bonds, and instead of delivering the new bonds may pay to those entitled thereto cash at the rate of $880 and accrued interest for each $1,000 bond. $40 par value of new preferred stock will be issued in exchange for the February 1, 1917, coupon attached to the bonds deposited, aggregating, if all bonds are deposited, $184,-580 par value of new preferred stock. $2,426,550 par value of the new common stock shall be used to pay the floating debt of the company. This stock shall first be offered at $15 per share to the holders of the existing preferred and common stock of the Northern Idaho & Montana Power Company deposited hereunder in the proportion of 70 per cent, and 20 per. cent., respectively, of the amounts deposited. $522,675 par value of the new bonds will be sold to provide cash for the purpose of paying the claims against the receiver, expenses of the reorganization, the expenditures made or liabilities incurred in the carrying out of this plan and the annexed agreement and any balance to be paid over to the new company to be used by it for additions to its property and working capital. These $522,675 par value of the new bonds have been underwritten by a syndicate composed of H. M. Byllesby & Co. and William P. Bonbright & Co., Inc., at 88 and accrued interest net to the company.”</p> <p>So far as the record discloses, this plan was carried out, except the common stock of the par value of $5,000,000 was changed to 50,000 shares without par value. The Power Company defaulted in the payment of interest due on its outstanding bonds on February 1, 1917, and on April 16, 1917, a foreclosure suit was instituted by the trustee under the trust deed. The foreclosure suit was later consolidated with the receivership- suit, and thereafter a decree of foreclosure was entered; the property was sold by the special master and bid in by one Robert J. Graf, representing the reorganization committee. Graf assigned the certificate of. sale to the new corporation, Mountain States Power Company, the plaintiff in the present suit. The sale was later confirmed, and a deed was executed by the master to.the new corporation as assignee of the original purchaser. A few days prior to the appointment of the receiver, the defendant A. L. Jordan Lumber Company suffered a loss by fire which destroyed its manufacturing plant in the vicinity of Columbia Falls, Mont. Thereafter the Lumber Company presented a claim to the receiver in the sum of $34,000, claiming that the fire was caused through the negligence of the Power Company in the operation of its electrical power plant. The claim was rejected by the receiver, and thereafter the Lumber Company brought an action against the Power Company to recover damages for'the loss thus sustained. The action was removed to the United States District Court for the District of Montana and judgment was there entered in favor of the Lumber Company for the sum of $34,500, together with costs of suit. An execution upon this judgment was levied upon the property of the present plaintiff, acquired through the receivership sale. The present suit was thereupon instituted by the plaintiff to restrain the Lumber Company and the United States marshal from selling the property and to quiet title thereto. Upon the final hearing the court belaw entered a decree adjudging the amount of the judgment in favor of the Lumber Company a lien upon all property of the pía intiff acquired from the Northern Idaho & Montana Power Company through the receivership sale, subject only to the liens created by the two bond issues; that is, the old bond issue of $067,000 heretofore mentioned and a bond issue of the present plaintiff in the sum of $2,333,000, or so much of these bond issues as are now outstanding and unpaid, and directed the sale of the property to satisfy the lien. Prom that decree the present appeal is prosecuted.</p>

Evans, Judge. Suit in equity by the Columbia Trust Company, trustee, against the City & Suburban Railway Company and others. On intervening petition of the City of Brunswick against defendant, and S. C. Steinhardt and O. C. Lisman, receivers. From the decree denying its petition, in-tervener appeals.

<p>Ball <&wkey;79(l) — No discretion to remit forfeiture, where defendant has absconded; “party.”</p> <p>Under Rev. St. § 1020 (Comp. St. § 1684), authorizing the court in its discretion to remit all or any part of the penalty in a bail bond, when “there has been no willful default, of the party,” and a trial can, notwithstanding, be had. the “party” meant is the defendant, and not the surety, and where the defendant lias absconded and has not been recaptured the court has no discretion to remit. ,</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Party.]</p>

Sibley, Judge. Action at law by the United States against Leonard F. Maxwell, principal, and E. V. Cash and C. R. Brown, sureties. From a judgment sustaining a demurrer by the sureties, plaintiff brings error.

In Equity. Suit by the Bank of Arizona and the Bank of Arizona, a corporation, trustee, against Charles R. Howe, Frank Ruke, and E. A. Hughes, members of the Tax Commission and. the Board of Equalization of the State of Arizona, C. E. Gentry, County Assessor of the County of Yavapai, State of Arizona, F. E. Smith, Treasurer and ex officio Tax Collector of the County of Yavapai, State of Arizona; and John R. Sullivan, County Attorney of the County of Yavapai, State of Arizona.

<p>Army and navy <S&wkey;5U/2> New, vol. I2A Key.No. Series — War risk insurance; termination of policy.</p> <p>Under Bulletin No. 1 of tbe Bureau of War Bisk Insurance, issued October 15, 1917, providing that premiums should become due on the last day of each calendar month, and if not paid within 31 days thereafter, and if insured had no money due him from the United States, the insurance should terminate, where a soldier was discharged and paid in December, 1918, the premium for that month not being deducted, nor paid during the following January, his insurance terminated at the end of that month.</p>

<p>Appeal from the District Court of the United States for the District of Porto Rico; Arthur F. Odlin, Judge.</p> <p>Suit by the South Porto Rico Sugar Company against the American Railroad Company of Porto Rico. From an interlocutory decree granting a temporary injunction, defendant appeals.</p>

Suit in equity by the Pacific Electric Railway Company against M. E. Montgomery and others, to make permanent a preliminary injunction restraining defendants from interfering with the contractual relations existing between plaintiff and its employees. From a decree for plaintiff, defendants appeal.

<p>t. Courts &wkey;>99(l) — Decision not lav/ of case: in different forum.</p> <p>She doctrine of the law of the case in its customary sense does not run from state to federal jurisdiction, or conversely.</p> <p>2. Judgment &wkey;>570(l5)> — 'Decision of state Supreme Court, reversing and remanding cause, held not res judicata in new action in federal court after dismissal.</p> <p>A decision of the Supreme Court of Georgia, reversing a judgment for plaintiffs and remanding the case, which was thereafter voluntarily dismissed, field not a bar to a second suit by plaintiffs or tlieir privies in a federal court on the same cause of action.</p> <p>3. Courts <&wkey;367 — State decisions, not establishing rule of property, not controlling on federal courts..</p> <p>A decision of the Supreme Court of a state, reversing the judgment in an action involving real property, on the ground that it was not supported by the evidence, established no rule of property controlling on a federal court in a subsequent suit betweecn the same parties or their privies on the same cause of action.</p> <p>4. Trusts <&wkey;203 — Sale by trustee of life, estate held not to convey interest of re-maindermen.</p> <p>Where a deed to land to a grantee in trust for his wife during her life, with remainder to her husband or heirs, contained a power to the wife to empower the trustee to soil the property “and to reinvest the proceeds in such other property, subject to the trust as he shall deem best for tbe interest of the trust estate,” a conveyance of the land by the trustee, duly authorized by the wife, in satisfaction of a personal debt of his own, and not for reinvestment, of which the grantee was .charged with notice, was ineffective to divest the interest of the surviving children of the wife as remaindermen, her husband having died during her lifetime.</p> <p>5. Remainders <&wkey; 17(3) — Prescription runs only from death of life tenant.</p> <p>Adverse possession does not commence to run against remaindermen until the death of the life tenant.</p>

<p>In Error to the District Court of the United States for the Western District of Arkansas; Frank A. Youmans, Judge.</p> <p>Mandamus by the United States, on relation of the Pioneer Construction Company, against Madison County, Ark., and others. Judgment for defendants, and relator brings error.</p>

In Equity. Suit by the Puget Sound International Railway & Power Company against E. V. Kuykendall and others, constituting the Public Service Commission of the State of Washington, and E. h. Thomp - son, as its Attorney General, with the City of Everett and the Everett Trades Council as interveners.

<p>I. Injunction <&wkey;73 — Stockholder cannot complain of action by which his rights are not affected.</p> <p>Concealment of material facts in a circular sent out by a committee of stockholders, inviting other stockholders to deposit their shares, with power to the committee to vote the same, cannot be made the basis of a suit to restrain the committee from exercising such power by a stockholder who did not so deposit his stock.</p> <p>2. Equity &wkey;j50 — Remedy given minority stockholder by state statute held to exclude jurisdiction in equity.</p> <p>6. Jj. Mass. c. 156, § 46, providing a remedy to a minority stockholder who did not consent to a sale or transfer of the property of the corporation, liel'cl adequate, and to exclude jurisdiction of a federal court of equity.</p> <p>3. Receivers &wkey;>3 — Receivership is incidental remedy only.</p> <p>A receivership cannot be the primary object of litigation, but is an 'incident merely to proceedings in equity involving the rights of the parties, and is for the purpose of conserving the property and assets of the defendant pending adjudication of these rights.</p>

Brown, Judge. Edward Murby was convicted of unlawful possession of intoxicating liquor fit for beverage purposes, and brings error.

<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 Albert Pittinger against the Delaware, Eackawanna & Western Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the Western District of Missouri; Arba S. Van Valkenburgh, Judge.</p> <p>Action at law by Clifford C. Bosworth, trustee in bankruptcy of the Kentucky Rural Credits Association, against Otto L. Van Laningham. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Injunction <&wkey;230(4)— Failure to introduce injunctional order in evidence in proceeding for its violation field not to invalidate judgment.</p> <p>In proceeding for contempt for violation of an injunction, the fact that the record does not show that the injunctional order was introduced in evidence held, not to invalidate judgment, where it was tréated by both parties as before the court, and no action was taken by defendant in the trial court, based on the failure to introduce it.</p> <p>2. Criminal law c&wkey;37— Officers held not to have instigated offense for purpose of entrapment.</p> <p>That officers, acting on information received which warranted a reasonable belief that defendant intended to violate an injunction by transporting or selling intoxicating liquors, took measures to, and did, apprehend him in the, act, held not to constitute instigation of an entrapment.</p>

<p>1. Aliens <&wkey;>53 — Deportation must be to country from which he came.</p> <p>Where an alien entered the United States from (’añada, where he had been a resident, his deportation must be to Canada, and the mere fact, that Ms fattier resides in Italy does not authorize his deportation to that country.-</p> <p>2. Aliens <&wkey;>54 — Court may modify order of deportation.</p> <p>The court in which habeas corpus proceedings have been brought by an alien to review an order of deportation may modify such order to direct Ms deportation to the proper country.</p>

In Bankruptcy. In the matter of the Tampa Textile Company, bankrupt. On petition to review order of referee allowing claim of M. J. Hulsey for rent.

<p>Corporations <&wkey;590(3) — Intent to defraud creditors necessary, when corporation receives assets of another corporation.</p> <p>When a corporation receives in good faith a transfer of all the assets of another corporation, and. pays the selling corporation full consideration therefor, the transfer is not fraudulent, either actual or constructive, and in order to avoid such conveyance there must be proof that it was made with the intention to defraud creditors, and that the grantee had knowledge of such intention.</p>

<p>In Error to the District Court of the United States for the Southern District of New York.</p>

<p>Appeal from tbe District Court of the United States for the Western District of New York.</p>